HC refuses to quash FIR in Roshni Act Scam

26/02/2017

JAMMU, Feb 25: In petition filed by Subash Singh Naib Tehilsdar & Ors seeking quashment of FIR in Roshni Act Scam, Justice Janak Raj Kotwal after hearing both the sides refused to quash the FIR.
The petition seeking quashment of FIR No. 15/2014 dated 29.5.2014 of Police Station, Vigilance Organization, Jammu under Section 5(1)(d) r/w 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006 (for short, the P.C. Act) and Section 17 of the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 (for short, the Roshni Act) and the proceedings conducted in the said FIR and iii) the Government Order No. 18-GAD(Vig) of 2016 dated 27.06.2016 whereby sanction in terms of Section 6 of the P.C. Act has been accorded for launching prosecution against petitioners who are Public servants.
Justice Janak Raj Kotwal observed that when objection relating to lack of sanction to prosecute in terms of section 6 of the P.C. Act or alleged invalidity of the sanction order can be raised is no more res integra, thus. Absence of sanction to prosecute creates an express bar against taking cognizance against a public servant for an offence under the P.C. Act so normally no court will take cognizance if there is no sanction. If, however, cognizance is taken without sanction, cause of action accrues to the accused public servant to assail the order of taking cognizance immediately after the prosecution against him has been launched. Objection on this score can be raised at the threshold of the proceedings in the court. Likewise, cause of action accrues to a public servant if sanction order allegedly suffers from invalidity on account of any error, omission or irregularity, like one arising from non-application of mind by the sanctioning authority. Objection on the basis of alleged invalidity of sanction order, however, can be raised during trial of the case. In no case the sanction order can be challenged at pre-trial stage and 18. Contextually, question would arise as to at what stage the objection in regard to invalidity of sanction order should be dealt with by the court. There is a distinction between the lack of sanction and invalidity of the sanction order. In this regard, it is to be borne in mind that a sanction order is an administrative act of the Government or the competent authority, which is couched with presumption under Section 114 (e) of the Evidence Act that official acts have been regularly performed.
It being a public document, prosecution is required to prove and will have to be provided opportunity to prove the order of sanction as a fact before the trial court by leading evidence and accused automatically gets opportunity to prove the invalidity alleged by him. It can, therefore, be said that, whereas an objection relating to lack of sanction to prosecute can be decided as soon as it is raised, objection relating to alleged invalidity of sanction should be decided after giving the prosecution opportunity to lead evidence in support of the sanction order. With these observations High Court dismissed petition. JNF

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