Rajasthan High Court
Indra Singh Rao S/O Shri Sawant ... vs State Of Rajasthan on 13 August, 2021
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Second Bail Application
No. 6527/2021
Indra Singh Rao S/o Shri Sawant Singh, Aged About 58 Years,
R/o House No. 130, Hari Marg, Civil Lines, Jaipur (Presently
Applicant is confined in Central Jail Kota)
----Petitioner
Versus
State Of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. Swadeep Singh Hora present in
the Court
For Respondent(s) : Mr. Rajendra Yadav, AAG, with 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.308/2020 registered at Police Station, Anti
Corruption Bureau, Jaipur (Chowki Kota) for offences under
Sections 7 and 7A of the Prevention of Corruption (Amendment)
Act, 2018 and 120-B of I.P.C.
3. It is contended by counsel for the petitioner that the first bail
application was dismissed on 10.3.2021. Prosecution sanction has
not been received till date. The petitioner was arrested on
23.12.2020. He has remained in custody for a period of seven and
(2 of 6) [CRLMB-6527/2021]
a half months. The petitioner is to retire on 31.5.2022. The
charge-sheet was filed on 03.02.2021. Even after a lapse of six
months, prosecution sanction has not been received, as a result of
which, the Court below has not taken cognizance.
4. It is contended that the allegation of demand of bribe was
against co-accused Mahaveer Nagar and the recovery was also
effected from him. It is also contended that there is no transcript
to connect the petitioner with the alleged crime. Counsel for the
petitioner has placed reliance on Madan Versus State of
Rajasthan: S.B. Criminal Misc. Fourth Bail Application
No.940/2021 decided on 29.01.2021, Prashant Shinde Versus
State of Rajasthan: S.B. Criminal Misc. Second Bail Application
No.3327/2021 decided on 1.3.2021, Satyanarayan Versus
State of Rajasthan: S.B. Criminal Misc. Third Bail Application
No.581/2021 decided on 10.2.2021, Ashok Kumar Meena
Versus State of Rajasthan: S.B. Criminal Misc. Bail Application
No.1380/2021 decided on 5.5.2021, Sanjay Kumar Garg
Versus State of Rajasthan: S.B. Criminal Misc. Second Bail
Application No.3123/2021 decided on 25.2.2021, Neeraj Kumar
Pawan Versus State of Rajasthan: S.B. Criminal Misc. Second
Bail No.1166/2017 decided on 27.1.2017, Yashodanandan
Sharma Versus State of Rajasthan: S.B. Criminal Misc. Second
Bail Application No.1599/2021 decided on 15.2.2021, Pankaj
Mittal Versus State of Rajasthan: S.B. Criminal Misc. Bail
Application No.8304/2020 & one another matter decided on
15.10.2020, Sanjay Kothari Versus State of Rajasthan: S.B.
Criminal Misc. Second Bail Application No.2024/2020 decided on
19.2.2020 and Prakhakar Tewari Versus State of Uttar
(3 of 6) [CRLMB-6527/2021]
Pradesh & Anr.: (2020) 11 SCC 648 wherein on the ground of
custody period and non-receipt of prosecution sanction, bail has
been granted by different benches of the High Court to the
accused persons.
5. Learned Additional Advocate General appearing for the State
has vehemently opposed the bail application. It is contended that
the first bail application was rejected by the Court on 10.03.2021.
There is no change in the circumstances necessitating entertaining
the second bail application. It is also contended that the State
Government has sent the proposal to the competent authority on
18.6.2021 and as per Section 19 of the Prevention of Corruption
Act, 1988, prosecution sanction is to be given within three
months. It is further contended that the petitioner was arrested on
23.12.2020 and within one and a half month, the charge-sheet
was filed. There is no delay on the part of the State Authorities. It
is also contended that there is a chance of the petitioner winning
over the witnesses. It is also contended that prosecution sanction
under Section 197 Cr.P.C. was given by the State Government with
regard to Section 120-B of IPC on 31.5.2021 and the prosecution
sanction under Section 19 of the Prevention of Corruption Act from
the competent authority is still awaited.
6. I have considered the contentions and have perused the
record as well as the orders passed by this Court and the
Coordinate Benches.
7. 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:
(4 of 6) [CRLMB-6527/2021]
"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".
8. In the present case in hand, the charge-sheet was filed on
3.2.2021. The proposal was sent to the competent authority on
18.6.2021. No reason whatsoever has been assigned for not
sending the proposal immediately after the charge-sheet was filed.
There is an inordinate delay of four and a half months in sending
the proposal. Though 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 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. The petitioner herein was arrested on
23.12.2020 and till date, prosecution sanction has not been
received. The petitioner has remained in custody for a period of
about eight months.
(5 of 6) [CRLMB-6527/2021]
9. 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.
10. Admittedly, the petitioner was arrested on 23.12.2020 and
the charge-sheet was filed on 3.2.2021. It is also not in dispute
that the petitioner is to retire within ten months i.e. on 31.5.2022.
The fact that the Court below has not taken cognizance till date,
as the prosecution sanction has not been received, is also not in
dispute. This Court had permitted the petitioner to move fresh bail
application after recording the statements of the material
witnesses. However, since the Court below has not taken
cognizance, in absence of the prosecution sanction, the
statements of the material witnesses have not been recorded.
11. Taking into consideration the overall facts and circumstances
of the case as well as the fact that till date, prosecution sanction
has not been received, proposal was not sent by the competent
authority for a period of four and a half months after the charge-
sheet was filed, the petitioner would be retiring within ten months,
there are now remote chances of the petitioner tampering with the
evidence or winning over the witnesses, 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
absence of prosecution sanction, Court cannot proceed and delay
is bound to occur and that the petitioner has already remained in
(6 of 6) [CRLMB-6527/2021]
custody for period of eight months, maximum sentence being
seven years, I deem it proper to allow the second bail application.
12. 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.
13. 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.
14. 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 Vineet Narain (supra) so as to
avoid filing of Bail Application on the ground of delay in
prosecution sanction.
(PANKAJ BHANDARI),J
SUNIL SOLANKI /19/5
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