HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Second Bail Application
No. 10190/2021
Manish Aggarwal S/o Shri Dinesh Kumar, Aged About 38 Years,
R/o G-003 Pearl Green Mahesh Nagar Jaipur The Then
Superintendent Of PS Dausa At Present Commandant S.D.R.F.
Jaipur (At Present Confined In Central Jail Jaipur)
----Petitioner
Versus
State Of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. Vivek Raj Singh Bajwa assisted by Mr. Siddarth Bapna and Mr. Vaibhav Nain present in the Court.
For Respondent(s) : Mr. Vibhuti Bhushan Sharma, AAG through VC Mr. Prakhar Gupta present in the Court Mr. Padam Singh Gurjar present in the Court.
Mr. Mangal Singh Saini, PP HON'BLE MR. JUSTICE PANKAJ BHANDARI Order ORDER RESERVED ON :: 30/07/2021 ORDER PRONOUNCED ON :: 13/08/2021
1. Petitioner has filed this second bail application under Section 439 of Cr.P.C.
2. F.I.R. No.16/2021 registered at Police Station, Anti Corruption Bureau, Jaipur District, Jaipur, for offences under Sections 7 and 7A of the Prevention of Corruption (Amendment) Act, 2018 and 120-B of IPC.
3. It is contended by counsel for the petitioner that the petitioner was arrested on 2.2.2021. The charge-sheet was filed (Downloaded on 16/08/2021 at 09:30:48 PM) (2 of 10) [CRLMB-10190/2021] on 8.3.2021. The first bail application was dismissed on 21.5.2021. Even after filing of the charge-sheet on 8.3.2021, cognizance has not been taken as prosecution sanction is not granted till date. It is also contended that a period of about five months has lapsed, still the proposal for grant of prosecution sanction has not been sent to the competent authority. It is further contended that after the second bail application was filed on 24.6.2021, as an eyewash, a proposal was sent from A.C.B. to the State D.O.P. on 8.7.2021 and a notice was also sent to the petitioner on 12.7.2021. It is argued that a public servant does not have a right to be heard when the matter pertains to grant of prosecution sanction.
4. Counsel for the petitioner has placed reliance on Deewa Rajas t han: S.B. Criminal Misc. Bail Application No.16860/2019 decided on 19.12.2019, Bhar Rajas t han: S.B. Criminal Misc. Third Bail Application No.10669/2018, Basa Rajas t han: S.B. Criminal Misc. 3rd Bail Application No.8806/2018 decided on 6.8.2018, Hari Shanka Anr.: S.B. Criminal Misc. Third Bail Application No.6806/2014 decided on 23.7.2014, Dr. Banshidha Rajas t (Downloaded on 16/08/2021 at 09:30:48 PM) (3 of 10) [CRLMB-10190/2021] han: S.B. Criminal Misc. Bail Application No.3294/2020 decided on 6.3.2020, Neeraj Kuma Rajas t han: S.B. Criminal Misc. Second Bail No.1166/2017 decided on 27.1.2017, C.B.I. (A.H.D.), P a tna Ver s us Lalu Prasad & Ors.: Special Case No.65/96 decided on 28.11.1997, Yogesh M Di e: Bail Application No.1165/2017 decided on 16.01.2018 by the Delhi High Court, Vinee : AIR 1998 SC 889 and Subramania n Swam y Ver s us Manmoha n Singh & Anr.: (2012) 3 SCC 64 wherein on the ground of custody period and non-receipt of prosecution sanction, bail has (Downloaded on 16/08/2021 at 09:30:48 PM) (4 of 10) [CRLMB-10190/2021] been granted by difference benches of High Court to the accused person.
5. Learned Additional Advocate General appearing for the State has vehemently opposed the bail application. It is contended that the first bail application filed by the petitioner was dismissed on merits by this Court vide order dated 21.5.2021 and the petitioner was given liberty to move fresh bail application after examination of the material witnesses. There is no material change in the circumstances and there is no inordinate delay in the trial. It is also contended that all the averments made and the grounds urged in the instant second bail application were available to the petitioner, when the first bail application was being heard.
6. Counsel for the respondent has placed reliance on Kalya n Chandra Sarka r Ver s us Rajesh Ranja n & Anr.: (2005) 2 SCC 42. It is contended that the petitioner has neither been illegally remanded nor it is an illegal detention and even if, it is assumed that the detention is illegal, still the petitioner has no right to be enlarged on bail. Counsel for the respondent has also placed reliance on Ma Rajas (Downloaded on 16/08/2021 at 09:30:48 PM) (5 of 10) [CRLMB-10190/2021] t han: AIR 1986 Raj. 58 wherein the Court was dealing with the provisions of Section 167(2) Cr.P.C. and Section 309(2) Cr.P.C. and the reference, which was referred to the Full Bench, was answered. The Court held that if a person is illegally detained in prison, the Court can quash the illegal detention and set him at liberty forthwith. Bail is no remedy for illegal detention. Counsel for the respondent has also placed reliance on the judgment of the Division Bench of the Calcutta High Court in T Shamin: 1991 SCC Online 55. Counsel has further placed reliance on Su Anr.: (2013) 3 SCC 77 wherein the Supreme Court in a case involving Prevention of Corruption Act observed that the accused is not entitled to a statutory bail, if charge-sheet is filed within time. Prosecution sanction is an enabling provision, which is separate from investigation.
7. I have considered the contentions and have perused the record as well as the orders passed by this Court and the Coordinate Benches.
8.
Ma h esh Chand (supra) and Kalya n
Chandra Sarka (supra) on which reliance has been placed by learned Additional Advocate General has no applicability to the facts of the present case, as the petitioner has not argued this (Downloaded on 16/08/2021 at 09:30:48 PM) (6 of 10) [CRLMB-10190/2021] second bail application on the ground of illegal detention, but has argued the bail application on the ground that the proposal for prosecution sanction to the competent authority has not been sent till date.
9. The contention of learned Additional Advocate General that notice was sent to the petitioner and the petitioner has sought time to give reply, has no force as it is held by the Supreme Court in Subramania n Swam y (supra) that a public servant does not have a right to be heard before grant of prosecution sanction. It is also clear that after the second bail application was filed, the A.C.B. sent a proposal to State D.O.P. on 8.7.2021 and notice was also sent to the petitioner on 12.7.2021. With regard to a similar case of the year 2013, which was pending in Jammu & Kashmir, it has been brought to the notice of this Court that no prosecution sanction has been received till date in that case too.
10. It is true that this Court had permitted the petitioner to move fresh bail application after recording the statements of the material witnesses, but taking into account the fact that the charge-sheet was filed on 8.3.2021, till date, that is even after lapse of five months, proposal has not been sent to the competent authority.
11. Learned Additional Advocate General has also placed reliance on Mohd.
Shami
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(7 of 10) [CRLMB-10190/2021]
n
(supra) wherein the Apex Court observed that the accused is not entitled to a statutory bail on the ground that the prosecution has not been able to give sanction to prosecute the accused. The above judgment also has no applicability to the facts of this case, as the petitioner is not praying for a statutory bail, rather he has argued the present bail application on the ground that the proposal to the competent authority has not been sent till date.
12. Section 19 of the Prevention of Corruption Act bars the Court from taking cognizance against a public servant except of the previous sanction of the competent authority. The proviso reads as under:
"Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt".
A further proviso is also provided, which reads as under:
"Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month".
13. Section 19 of the Prevention of Corruption Act does not provide for a time limit for sending the proposal to the competent authority, but since the competent authority itself is required to give the sanction within three months of receipt of proposal, the time for sending the proposal cannot be extended beyond a period (Downloaded on 16/08/2021 at 09:30:48 PM) (8 of 10) [CRLMB-10190/2021] of three months in any case. It is also evident that when the charge-sheet is filed, the facts about the commission of the offence are within the knowledge of the authority, which is required to send the proposal. There is no justification whatsoever for delaying the sending of the proposal to the competent authority. I am of the view that if Investigating Agency has made up its mind to file charge-sheet, it should simultaneously submit its proposal to the competent authority for obtaining prosecution sanction.
14. In Vineet Narain Versus Union of India: AIR 1998 SC 889, the Apex Court has held that the period of three months provided for under the proviso to Section 19 of the Prevention of Corruption Act should be strictly adhered to and the same can be extended for a period of one month, only when legal consultation is required.
15. In view of the fact that even after a lapse of five months of filing of the charge-sheet, no proposal has been sent to the competent authority, which is empowered to give prosecution sanction, also taking note of the judgment of the Apex Court in Vineet Narain (supra) that the time period provided under the proviso should be strictly adhered to, also taking note of various judgments and orders passed by the various benches of this Court wherein bail was granted when the prosecution sanction was not received within a reasonable time, also considering the fact that the Court has not taken cognizance due to non-receipt of prosecution sanction, that recording of statements of material witnesses is subject to receipt of prosecution sanction, that in (Downloaded on 16/08/2021 at 09:30:48 PM) (9 of 10) [CRLMB-10190/2021] absence of prosecution sanction, Court cannot proceed and delay is bound to occur and that the petitioner has already remained in custody for period of six months, maximum sentence being seven years, I deem it proper to allow the second bail application.
16. This second bail application is accordingly allowed and it is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the learned trial court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.
17. It is further directed that the petitioner shall surrender his passport and will not leave the country without previous sanction of the Court and he will not tamper with evidence or win over any witnesses.
18. Before parting with this case, I deem it proper to observe that the State Government should endeavour to abide by the judgment of the Apex Court in Vinee t Narai n (supra) so as to avoid filing of Bail Application on the ground of delay in prosecution sanction.
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