STATE OF RAJASTHAN Vs. MUNISH KUMAR

JUDGEMENT

(1.) Heard finally with the consent of learned counsel for the parties. The intra-court appeal is directed as against the order dated 10-3-2010 questioning legality of the order passed by single Bench in CWP-7156/2007, thereby quashing the grant of sanction of prosecution passed by the Director, Mines & Geological Department on 20-8-2007 in order to prosecute respondent No. 1 Munish Kumar Sharma for committing offence under Sections 7 and 13(1)(d)(2) of the Prevention of Corruption Act, 1998 (hereinafter referred to as "the Act") arising out of FIR No. 122/ 2005. Facts in short are that respondent No. 4 Amin Khan made a complaint to the Anti-Corruption Bureau on 1-6-2005 that an appeal was pending before Mr. G.L. Vyas, Additional Director, Mines and Geology, Bharatpur (hereinafter referred to as "ADM") who on meeting him in Circuit House on 30-5-2005 promised to decide the appeal in his favour and asked him to contact Munish Kumar Sharma. It was the case of the complainant that Mr. G.L. Vyas, ADM told him to decide the appeal in his favour and to meet Munish Kumar Sharma who was working in the office at Bharatpur. On the instruction of Mr. G.L. Vyas, ADM, the complainant met Munish Kumar Sharma and after due deliberations with Mr. G.L. Vyas, ADM, Munish Kumar Sharma informed the complainant to make the payment of Rs. 15,000/-. A sum of Rs. 5,000/- was paid by the complainant to Mr. Munish Kumar Sharma with promise to pay the remaining amount of Rs. 10,000/-on 1-6-2005. This fact was brought to the notice of Anti-Corruption Bureau by the complainant. Trap was arranged and Munish Kumar Sharma was caught red-handed while accepting illegal gratification of Rs. 10,000/-on 1-6-2005. The conversation with Munish Kumar Sharma was also tape recorded.

(2.) The question of sanction was dealt with by Mr. G.L. Vyas, the then ADM himself in the capacity as Director though, illegal gratification was demanded by him and was to be paid to Munish Kumar Sharma on his behalf. Mr. Vyas, ADM ought to have recused himself from the case, but surprisingly, he took up the matter and declined to accord sanction to prosecute Munish Kumar Sharma vide order dated 28-8-2006, that too in utter violation of the direction laid down by the State Government in circular to the effect that in case competent authority is inclined to refuse the sanction of prosecution such cases have to be referred to Administrative Department and competent authority will only mention tentative view that the case is not the one where sanction of prosecution should be granted as provided in Circular dated 6-4-2002 issued by the Government of Rajasthan, Department of Personnel (A-3).

(3.) In Circular dated 6-4-2002, it has been mentioned that if the competent authority, after examining all the relevant evidence, is prima facie of the view that sanction of prosecution cannot be accorded, he shall make a reference to the concerned Administrative Department; he should not record a final decision on the file before referring the matter to the concerned Administrative Department and he will only form tentative opinion before hand that the case is not one where sanction of prosecution should be granted. The Secretary of the concerned Administrative Department will examine all the evidence available on the record and also discuss the case with the concerned competent authority. If the Secretary of the concerned Administrative Department is then of the view that there is adequate evidence available on the record to form an opinion that a prima facie case is made out against the concerned government servant, the case will be referred back to the concerned competent authority for re-examination of the matter and taking a decision accordingly. It was also mentioned that it would not be proper for the immediate higher authority to grant the sanction of prosecution where the competent authority is of the view that it is not a case where sanction of prosecution should be accorded.