RAJESH TINKER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 8.10.2014 passed by the Special Judge (Anti Corruption Cases) Court No.1, Jaipur in Criminal Case No.13/2014 whereby application dated 8.8.2014 filed by the petitioner was dismissed. By way of the aforesaid application dated 8.8.2014 it was prayed by the petitioner that the order of cognizance dated 19.5.2014 passed against him may be set aside and quashed as the prosecution sanction as required under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act") dated 28.3.2014 has been granted by the Principal & Controller SMS Medical College & Hospital, Jaipur who was not competent to grant it.

(2.) Brief relevant facts for the disposal of this petition are that FIR No.526/2013 came to be registered at Police Station Headquarter Anti Corruption Bureau, Jaipur against several persons including petitioner for various offences including offences punishable under the provisions of the Act and after investigation charge-sheet was filed on 4.2.2014 before the Court concerned, but without obtaining prosecution sanction as required under Section 19 of the Act, but subsequently it was granted vide order dated 28.3.2014 by the Principal & Controller, SMS Medical College and Hospital, Jaipur and produced before the trial Court and cognizance against the petitioner was taken vide order dated 19.5.2014. The aforesaid application dated 8.8.2014 came to be filed on behalf of the petitioner with the averment that the order of sanction to prosecute the petitioner for offences under the provisions of the Act is illegal and invalid on the ground that the same has been granted by an incompetent authority and without application of mind, but the same was dismissed as not maintainable by the trial Court vide impugned order dated 8.10.2014 mainly on the ground that charges have already been ordered to be framed vide order dated 22.9.2014 and once cognizance has been taken by it, it has no jurisdiction to set aside the same subsequently. In these circumstances, the present petition was filed on 19.11.2014.

(3.) It was submitted by the learned counsel for the petitioner that the impugned order has been passed arbitrarily without going into the merit of the issue raised by the petitioner about invalidity of the order of prosecution sanction merely on the ground that once cognizance has been taken by the Court, it has no jurisdiction to reconsider the same, whereas well settled legal position is that an illegal prosecution sanction effects the very jurisdiction of the Court and the point regarding prosecution sanction can be raised by the accused at any stage of the trial and, therefore, learned Court below was competent to decide the legality of the prosecution sanction but the same was avoided by recording that the petitioner can approach Hon'ble High Court. It was further submitted that the petitioner was appointed as Food Safety Officer by the Commissioner of Food Safety & Director (Public Health Medical & Health Services Rajasthan, Jaipur vide notification dated 26.7.2011 and, therefore, his appointing/removal authority is Commissioner and he continues to be so till date and according to Article 311 of the Constitution, a person holding a civil post under a State cannot be removed from his office by an authority sub-ordinate to that by which he was appointed. It was further submitted that as the sanction under Section 19 of the Act is required to be granted by an authority, who is competent to remove a public servant from his office, it follows that the sanction authority cannot be lower than the competent authority in respect of those public servants to whom Article 311 of the Constitution is applicable. It was also submitted that while deciding about the authority competent to remove a public servant Article 311 (1) of the Constitution has to be taken into consideration and Section 19 of the Act must be interpreted in the light of the requirement of Article 311 of the Constitution. Attention of the Court was also invited to the fact that the petitioner was posted as Food Safety Officer at District Jaipur-II by the Commissioner vide order dated 10.8.2011 which fact also shows that Commissioner continued to be his appointing/removal authority. It was further submitted that in the present case the sanction has been granted mechanically without application of mind and without considering the evidence collected during investigation as in the sanction order itself several such facts have been mentioned which are not even part of the charge-sheet.