HC quashes Trial Court order regarding direction seeking prosecution of Ex-CS

12/10/2018

JAMMU, OCT 11: In a petition filed by BR Sharma Ex-Chief Secretary of J&K State presently posted as Additional Secretary Home Union of India & Ors seeking quashment of the order passed by Additional Special Judge Anticorruption Barmulla whereby Court directed Director Vigilance approach the competent Government (authority) and seek permission for launching prosecution against him, Justice MK Hanjura today after hearing Sr. Adv Sunil Sethi quashed the order passed by the Trial Court.
While quashing order, Justice MK Hanjura observed that the Court has no power to direct the competent authority to accord sanction for the prosecution of a particular person. It also needs to be borne in mind that without a valid sanction the court cannot take the cognizance of offences spelt out in Section 6 supra. The existence of a valid sanction accorded by the competent authority is a condition precedent to the institution of the prosecution against a public servant. The Government/competent authority has an absolute discretion to grant or withhold the sanction. It is for the competent authority to assess and evaluate the material placed and produced before it and to find out whether a prima facie case against the person sought to be prosecuted is made out. It is well within the domain and area of the sanctioning authority to refuse the grant of sanction against a person sought to be prosecuted. The aim and object behind inserting and engrafting this provision appears to be that it works as a salutary safeguard to ensure that no false or malicious prosecution can pierce into the portals of the court of justice. The law as laid down by the Supreme Court in a catena of judicial pronouncements is that no court of special judge can take cognizance of an offence except with the sanction of the competent/appropriate authority. Grant of sanction is not an acrimonious exercise, but a solemn duty which enforces protection to the Government servant against false prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.. The sanctioning authority is obliged under law to apply its independent mind to the facts and circumstances of the case as also the material and evidence collected during the investigation of the case. The sanctioning authority has to derive satisfaction on the basis of the material produced before it and has to take a call whether the sanction for the prosecution of the public servant is or is not warranted to be accorded. For a sanction to be valid it is necessary that the sanctioning authority does not buckle, bend or yield to any influence exerted on it, nor has the sanctioning authority to act upon any decision forced on it. Grant of sanction is the absolute discretion of the sanctioning authority and this discretion cannot be influenced by any extraneous consideration. If the facts and circumstances of a case reveal that the sanctioning authority has succumbed to the dictates of any outside authority in the matter of the accord of sanction, the court can very well come to the conclusion that the sanctioning authority has acted mechanically and has not formed an independent opinion in making such a judgment. Therefore, it was not within the region, power and scope of the learned trial court to direct the investigating agency to seek sanction for the prosecution of the petitioner when the competent authority after scanning the entire material did not come to the conclusion that his involvement surfaces in the matter.
In the absence of such a sanction the court had no power to proceed in the case as against the petitioner. Sanction has not been accorded by the competent authority for the prosecution of the petitioner in the revision petition.
Therefore, one fails to understand as to how the learned Court below has carved out a case to implicate and inculpate the petitioner for the omissions and commissions assembled to him in the impugned order.
Justice MK Hanjura further observed that the matter as it relates to Shri I. S Malhi, who has since retired and for whose prosecution sanction is not required is remitted to the trial Court for accord of fresh consideration. It shall issue notice to him and the State and shall pass an appropriate order as it deems fit and proper in accordance with law. With these observations Justice MK Hanjura said that the impugned order dated 15th of June, 2017, passed by the Court of learned 1st Additional Sessions Judge, Baramulla (Special Judge under the Prevention of Corruption Act, for Districts of Baramulla, Kupwara and Bandipora) in case titled State vs. Gh. Mohammad Khan and ors., arising out of case FIR No. 43/2000 of Police Station, VOK, for the commission of offences punishable under Sections 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, Section 420 and 120-B of the RPC, does not stand the test of reason, logic and the law as a sequel to which the same is quashed alongwith all the proceedings emanating therefrom.
However, as regards Mr I. S. Malhi, who has retired from service and for the persecution of whom accord of sanction is not a condition precedent the learned trial Court shall consider his case in accordance with the mandate of law after giving him due opportunity of being heard. JNF

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