Manish Aggarwal S/O Shri Dinesh ... vs State Of Rajasthan
2021 Latest Caselaw 3680 Raj/2

       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

(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

(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

(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

(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

(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


                                    (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

(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

(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.

(10 of 10) [CRLMB-10190/2021]

(PANKAJ BHANDARI),J

SUNIL SOLANKI /19/13

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