C.P.Borana vs State Of Rajasthan And Ors
2023 Latest Caselaw 3874 Raj

[2023/RJJD/012607]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

S.B. Civil Writ Petition No. 3682/2009 C.P. Borana S/o Shri G.S. Borana, aged 42 years, Manager, Jaitaran Kray Vikray Sahkari Samiti (Under suspension), R/o Krishna Kunj, Bhaskar Circle, Ratanada, Jodhpur.

----Petitioner Versus

1. State of Rajasthan through Secretary, Cooperative Department Secretariat, Govt. of Rajasthan, Jaipur.

2. Registrar, Co-operative Societies, Rajasthan, Jaipur.

3. Dy. Superintendent of Police, Anti Corruption Bureau, Pali.

----Respondents

For Petitioner(s) : Mr. C.P. Borana, petitioner in person. For Respondent(s) : Mr. Mrigraj Singh Rathore.

HON'BLE MR. JUSTICE ARUN BHANSALI Order 02/05/2023

1. This petition has been filed by the petitioner seeking to

question the validity of the prosecution sanction dated 18.03.2008

(Annex.10) granted against the petitioner under the provisions of

Section 19 of the Prevention of Corruption Act, 1988 (Act of

1988).

2. The petitioner was working as Manager under Jaitaran Kray

Vikray Sahkari Samiti, Pali. An FIR was lodged against him that he

demanded a sum of Rs.60,000/- from one Babulal Gehlot. It was

further alleged that the illegal gratification sought to be paid to

the petitioner was directed to be kept at the place of one

Chaularam. The amount of alleged illegal gratification of

Rs.60,000/- was recovered from an open bag of motorcycle.

[2023/RJJD/012607] (2 of 12) [CW-3682/2009]

3. The authority sought grant of prosecution sanction alongwith

draft prosecution sanction filed as Annex.6.

4. The competent authority i.e. the Registrar, Cooperative

Societies, Rajasthan, Jaipur by communication dated

18/19.06.2007 (Annex.5) sought clarification from the Deputy

Superintendent of Police, ACB, Pali indicting that from the facts

disclosed, prima facie, it is not proved that the petitioner was

guilty of the offences.

5. Whereafter, on 24.07.2007 (Annex.7) the prosecution

sanction verbatim, as per the draft prosecution sanction sent by

the ACB to the competent authority, was issued.

6. Feeling aggrieved, the petitioner filed a writ petition being

S.B. Civil Writ Petition No.214/2008, which petition came to be

decided by order dated 28.02.2008 (Annex.8), wherein a

Coordinate Bench of this Court, apparently based on the fact that

there was no difference between the draft prosecution sanction

and the prosecution sanction granted, observed that it was

difficult to accept that there exist independent application of mind

of the competent authority and required the petitioner to submit a

representation to the authority who had passed the order dated

24.07.2007 (Annex.7) and the authority was directed to pass a

fresh order.

7. The petitioner made a representation dated 04.03.2008

(Annex.9), inter-alia, referring to the facts and raising several

issues and annexed judgments on the aspect.

8. The competent authority again issued the prosecution

sanction dated 18.03.2008 (Annex.10), which is sought to be

questioned in the present proceedings.

[2023/RJJD/012607] (3 of 12) [CW-3682/2009]

9. Petitioner, present in person, made vehement submissions

that the prosecution sanction granted against the petitioner on

18.03.2008 (Annex.10) suffers from non-application of mind by

the competent authority, inasmuch as it has again inter-alia

reiterated the contents of the draft prosecution sanction (Annex.6)

while granting prosecution sanction, which aspect had already

been quashed and set aside by this Court in earlier round of

litigation and as the order impugned suffers from the same vice,

the same deserves to be quashed and set aside.

10. Vehement submissions were made that the prosecution

sanction was sought with the allegations that the petitioner was

caught red handed, whereas the factual matrix is totally contrary

to the said allegation, wherein the alleged amount of illegal

gratification was recovered from an open bag of a motorcycle, 3

KM away from the Office of the petitioner. The authority

empowered to grant prosecution sanction vide Annex.5 had

specifically indicated that the illegal gratification was neither

received, nor accepted by the petitioner and even the owner of the

motorcycle viz. Chaularam, had also not touched the said amount

of gratification and therefore, the same required clarification,

which aspect was totally ignored. Further, under the directions of

the Court, in the earlier round of litigation, the petitioner made a

detailed representation raising several issues pertaining to grant

of sanction and that in the circumstances the same should not be

granted, however, the authority didn't take into consideration any

of the said aspects and the judgment cited and therefore, the

order impugned deserves to be quashed and set aside. Reliance

was placed on Mansukhlal Vithal Chauhan vs. State of Gujarat :

[2023/RJJD/012607] (4 of 12) [CW-3682/2009]

(1997) 7 SCC 622 and State of Karnataka vs. Ameer Jan : AIR

2008 SC 108.

11. Learned counsel for the respondents vehemently opposed

the submissions. It was submitted that the plea sought to be

raised by the petitioner seeking to question the validity of the

prosecution sanction granted by the competent authority has no

substance. It was submitted that once in the earlier round of

litigation, this Court permitted passing of a fresh order, the

competent authority after taking into consideration all the relevant

aspects, the representation made by the petitioner, statements

recorded during investigation and after discussion with the

investigating officer, came to the conclusion that the sanction

ought to be granted and, therefore, the order impugned does not

call for any interference. Further submissions were made that at

the stage of grant of prosecution sanction, adequacy and

sufficiency of the evidence could not have been examined by the

competent authority and the validity of the order also cannot be

questioned based on the said aspect. Submissions were made that

the amount of illegal gratification was recovered from the

motorcycle bag of Chaularam and not from the hands/clothes of

the petitioner, does not absolve the petitioner of the charge under

the provisions of Act of 1988. Further, merely because the

authority while passing the order impugned dated 18.03.2008

after considering the matter on merits, has by way of abundant

caution re-produced the draft prosecution sanction, cannot by

itself vitiate the prosecution sanction granted and, therefore, the

petition deserves dismissal.

[2023/RJJD/012607] (5 of 12) [CW-3682/2009]

12. Reliance was placed on Govind Narain Goyal vs. State of

Rajasthan : 2015 (3) WLC Raj. 250, Anil Kumar Saraswat vs.

State of Rajasthan & Ors. : S.B. Civil Writ Petition No.4614/2016

decided on 29.06.2017 and Prakash Dharu vs. State of Rajasthan

& Ors. : S.B. Civil Writ Petition No.3055/2013 decided on

14.06.2016.

13. I have considered the submissions made by the petitioner

and counsel for the respondents.

14. The facts pertaining to lodging of FIR by ACB dated

26.06.2006 (Annex.1) based on the allegations, as noticed

hereinbefore, and the fact that the amount of alleged illegal

gratification was recovered from an open bag of motorcycle of one

Chaularam, an accounts clerk of the office of the petitioner, who

was also made an accused with the petitioner, at some distance,

which is claimed to be 3 KM away from the office, are not in

dispute.

15. It is also not in dispute that the draft prosecution sanction

(Annex.6) was sent by ACB to the competent authority, based on

which the competent authority issued the prosecution sanction

dated 24.07.2007 (Annex.7), which was verbatim the same as the

draft prosecution sanction, which came to be challenged by filing

SBCWP No.214/2008, wherein a Coordinate Bench of this Court by

judgment dated 28.02.2008 came to the conclusion and passed

the order as under:

"Heard learned counsel for the parties.

The short controversy raised by the learned counsel for the petitioner is regarding issuance of prosecution sanction order (Annex.6) dated 24.07.2007. The only ground urged by the learned counsel for the petitioner is that said order has been passed literally by copying the

[2023/RJJD/012607] (6 of 12) [CW-3682/2009]

report and thus the order impugned was passed in a mechanical manner and without application of mind thus, deserves to be quashed and set aside.

Learned counsel for the respondents submits that in view of the various judgments of the Hon'ble Apex Court this Court cannot interfere in the order of prosecution sanction because all necessary material pertaining to prosecution sanction is to be considered by the Competent Authority. Details of those judgments have otherwise been given in the reply.

I have considered the rival submissions and perused the record. The only grievance raised by the petitioner is regarding the non-application of mind by the Competent Authority in passing the impugned order, as it is more or less reproduction of the report at Annex.5. The perusal of two documents Annexures 5 and 6 shows that so far as the prosecution sanction order (Annex.6) is concerned, it is more or less contains the same facts as exist in Annex.5. Thus it is difficult to accept that there exist independent application of mind of the Competent Authority. Looking to the above facts, the petitioner is directed to submit a representation to the Authority who has passed the order dated 24.07.2007 bringing out the fact as otherwise narrated in the judgment above and the Competent Authority is directed to pass a fresh order thereupon within a period of two weeks by taking an independent decision for grant or refusal to grant prosecution sanction in the matter of petitioner. The direction aforesaid has been given not only for the reason set out in reference to Annex.5 and 6 but further noticing the fact that till date challan has not been filed pursuant to the prosecution order as stated by the learned counsel for the petitioner. Thus, before filing of the challan, if any, the petitioner's grievances as urged by the counsel for the petitioner is redressed.

With the above direction, the writ petition is disposed of. However, it is directed that for a period of three weeks the respondents may not file challan against the petitioner but then same will remain subject to the fact that necessary representation is submitted by the petitioner within a week."

16. The Court, after perusing the two documents i.e. the draft

prosecution sanction and the prosecution sanction granted, came

to the conclusion that more or less both contain the same facts

and, therefore, it was difficult to accept that there exist

independent application of mind by the competent authority and

consequently required the petitioner to file a representation and

the competent authority was directed to pass a fresh order taking

[2023/RJJD/012607] (7 of 12) [CW-3682/2009]

an independent decision for grant or refusal to grant prosecution

sanction.

17. The petitioner made representation (Annex.9) containing

facts seeking to dispute the allegations made against him as well

as relying on several judgments to question the action of ACB in

seeking prosecution sanction and prayed that the prosecution

sanction be denied. However, by order dated 18.03.2008

(Annex.10), the sanction was granted.

18. The challenge laid, as noticed hereinbefore, pertains to

alleged non-application of mind by the competent authority while

granting the prosecution sanction. The petitioner laid great

emphasis on the fact that the authority while granting prosecution

sanction, has again passed the order by re-producing the draft

prosecution sanction verbatim, based on which aspect, the grant

of prosecution sanction had already been negated by the Court

and the authority was permitted to pass a fresh order and as such

the order impugned deserves to be quashed and set aside.

19. A perusal of the order dated 18.03.2008 (Annex.10)

indicates that the authority, though has independently dealt with

the facts and material of the present case for grant of prosecution

sanction and inter-alia reached to an independent conclusion that

based on the said fats, it would be appropriate to grant

prosecution sanction against the petitioner. However, it appears

that for apparent lack of background in this regard and by way of

abundant caution, he also incorporated/reiterated the contents of

the draft prosecution sanction.

20. It may also be noticed that the same authority had by his

communication dated 18/19.06.2007 (Annex.5) had sought

[2023/RJJD/012607] (8 of 12) [CW-3682/2009]

further clarification from Deputy Superintendent of Police, ACB,

Pali, who on 13.07.2007 produced Annex.R/1 alongwith reply to

stay petition on behalf of respondent No.3 clarified all the issues

raised. The said clarification dated 13.07.2007 (Annex.R/1) was

apparently not taken into consideration while passing the earlier

order dated 24.07.2007 (Annex.7), however, after directions from

this Court while passing the order dated 18.03.2008 (Annex.10),

the said communication dated 13.07.2007 (Annex.R/1) was

specifically taken into consideration and the authority came to the

following conclusion:

"Jh cksjk.kk }kjk yksd lsod dh gSfl;r ls ifjoknh dks mlds cdk;k fcyksa dh jkf"k fjyht djus ,oa mlds fo:) ntZ djok;s x, eqdnes dks lqyVokus ds fy, mlls fj'or dh jkf"k ekaxh ,oa Lohdkj dh rFkk Lohd`r jkf"k dks Jh pkSykjke dh lgk;rk ls Nqikus o O;; u djokus ds fy, ifjoknh Jh pkSykjke ds lkFk Hkstk o Jh pkSykjke dks fgnk;r nh fd og fj"or jkf"k dks u Nq,A jkLrs esa blh miØe esa Jh pkSykjke }kjk ifjoknh ls mDr jkf"k lh/ks vius eksVj lkbZfdy ds lkbZM cSx esa j[kokuk rFkk jkf"k cjkenxh fj"or jkf"k dh ekax ,oa Lohd`fr dh iqf'V djrk gSA

mijksDr rF;ksa ds lkFk Jh cksjk.kk ds izkFkZuk i=ksa ,oa ,-lh-ch- dh fjiksVZ ds voyksdu ij eSa bl fu'd'kZ ij igw¡pk fd Jh cksjk.kk }kjk mDr vijk/k dkfjr fd;k x;k gSa ,oa buds fo:) vfHk;kstu Lohd`fr fn;k tkuk mfpr gSA bl lanHkZ esa esjs }kjk fnukad 24-7-07 dks vfHk;kstu Lohd`fr tkjh dh xbZA Jh cksjk.kk }kjk ekuuh; mPp U;k;ky;] t;iqj esa nk;j flfoy fjV fifV"ku la[;k [email protected] ds laca/k esa U;k;ky; ds vkns"k fnukad 31-8-07 dh ikyuk esa bl dk;kZy; ds i= fnukad 24-09-2007 ds }kjk Jh cksjk.kk dks voxr djk;k x;k fd **foHkkx us vkids }kjk iwoZ esa izLrqr vH;kosnu fnukad 2-6-07 esa vafdr rF;ksa ds vk/kkj ij Hkz'Vkpkj fujks/kd C;wjks ls rF;kRed foospu izkIr dh tkdj izdj.k esa vfHk;kstu Lohd`fr iznku dh xbZ gS** Hkz'Vkpkj fujks/kd C;wjks ls izkIr fjiksVZ] foospukRed fVIi.kh ,oa izdj.k ls lacaf/kr rF;ksa ds voyksdu] leh{kk ,oa foosd iw.kZ foospuksijkUr fu'd'kZ Lo:i izdj.k esa vfHk;kstu Lohd`fr tkjh dh xbZA

Jh cksjk.kk }kjk iqu% ekuuh; mPp U;k;ky;] tks/kiqj esa nk;j nwljh ;kfpdk ,l- ch- flfoy fjV fifV"ku la[;k [email protected] ds fu.kZ; dh ikyuk ds Øe esa Jh cksjk.kk }kjk jftLVMZ i= }kjk viuk vH;kosnu bl dk;kZy; dks izsf'kr fd;k x;k tks fnukad 7-3-08 dks izkIr gqvkA vH;kosnu dk ijh{k.k mijkUr esjs }kjk Jh cksjk.kk ds fo:) Hkz'Vkpkj fujks/kd C;wjks esa ntZ vfHk;ksx la[;k [email protected] esa vuqla/kku vf/kdkjh dks izdj.k ls lacaf/kr leLr fjdkMZ ,oa lk{;ksa ds fnukad 15-3-08 dks ryc dj izdj.k esa miyC/k rF;ksa ds voyksdu} ijh{k.k ,oa leh{kk dh xbZA vuqla/kku vf/kdkjh ls izdj.k ds laca/k esa iw.kZ tkudkjh lh-vkj-ih-lh- dh /kkjk 161 ds rgr ntZ c;kukr vkfn dk voyksdu fd;k x;k rFkk rF;ksa dh izekf.kdj.k ls lacaf/kr vU; nLrkostksa]

[2023/RJJD/012607] (9 of 12) [CW-3682/2009]

xokgksa ds c;kukr vkfn dk Hkh esjs }kjk voyksdu fd;kA vuqla/kku vf/kdkjh ls foLr`r fopkj foe'kZ mijkUr esjs }kjk foosdiw.kZ foospuk dj eSa bl fu'd'kZ ij igw¡pk gw¡ fd Jh cksjk.kk ds fo:) Hkz'Vkpkj fuokj.k vf/kfu;e 7] 13 ¼1½ ¼Mh½] 13 ¼2½ ,oa Hkkjrh; n.M lafgrk dh /kkjk 120 ch ds rgr vfHk;kstu Lohd`fr fn;k tkuk mfpr gSA

vr% mDr leLr rF;ksa ds vk/kkjk ij Jh cksjk.kk ds fo:) vfHk;stu Lohd`fr fn;k tkuk mfpr gksxkA"

[emphasis supplied]

21. A perusal of the above would reveal that the authority before

passing the order, took into consideration the representation made

by the petitioner, entire record pertaining to Case No.175/2006

and after summoning the evidence i.e. the statement(s) recorded

under Section 161 Cr.P.C. and after discussing the matter with the

investigating officer came to the conclusion that grant of sanction

was justified. As noticed hereinbefore, thereafter the contents of

the draft prosecution sanction was quoted verbatim, which action,

as observed earlier apparently was by way of abundant caution,

thinking the same as requirement for grant of prosecution

sanction. Merely because the draft prosecution sanction also forms

part of sanction, wherein the application of mind by the competent

authority is apparent, as required by law, the same by itself

cannot vitiate the grant of prosecution sanction.

22. This Court in Babu Singh vs. State of Rajasthan : S.B. Civil

Writ Petition No.5558/2022 decided on 02.05.2022, with reference

to requirement of independent application of mind after taking

into consideration the judgments in the case of Mansukhlal (supra)

and Ameer Jan (supra), came to the following conclusion:

"The parameters for grant of sanction and the requirement of independent application of mind by the authority have been well established in C.S. Krishnamurthy vs. State of Karnataka : (2005) 4 SCC 81, wherein, the Hon'ble Supreme Court inter alia laid down as under:

[2023/RJJD/012607] (10 of 12) [CW-3682/2009]

"9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."

After referring to several judgments, the Hon'ble Supreme Court in State of Maharashtra through C.B.I. Vs. Mahesh G. Jain : (2013) 8 SCC 119 inter alia culled out the following principles in relation to grant of prosecution sanction:

"13. From the aforesaid authorities the following principles can be culled out: -

(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.

(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

[2023/RJJD/012607] (11 of 12) [CW-3682/2009]

(g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."

The above view in the case of Mahesh G. Jain (supra) was reiterated in CBI VS. Ashok Kumar Aggarwal : (2014) 14 SCC 295.

In view of the law laid down by the Hon'ble Supreme Court, it is more than apparent that as the entire material was placed before the authority and the authority after going through the same i.e. transcript, statements recorded during investigation and the record & after discussion with the investigating officer and affording opportunity of hearing to the petitioner has come to the conclusion to grant sanction for prosecution, no interference is called for in the order impugned."

23. The judgment in the case of Mansukhlal (supra) was

distinguished based on the fact that the sanction was granted

based on the direction given by High Court, on account of which, it

was held that the sanction was vitiated; and in the case of Ameer

Jan (supra), as the sanction was granted solely on the basis of

report made by I.G., Police and the material collected during

investigation, was not made available before the sanctioning

authority, it was held that sanction granted was illegal.

24. The order in the case of Babu Singh (supra) has been upheld

by the Division Bench in Babu Singh vs. State of Rajasthan : D.B.

SAW No.558/2022 decided on 01.07.2022.

25. In view of above discussion, the plea, sought to be raised by

the petitioner regarding non-application of mind only on account

of the fact that besides independent application of mind, the

authority had also quoted the draft prosecution sanction, cannot

be accepted.

26. Besides the above a Coordinate Bench of this Court in the

case of Prakash Dharu (supra), even in a case where prosecution

[2023/RJJD/012607] (12 of 12) [CW-3682/2009]

sanction was granted by issuing the draft prosecution sanction

verbatim, came to the following conclusion:

"8. It is common knowledge that the sanction orders are drawn up after an active discussion is held between the sponsoring and the sanctioning authorities. Thus, the draft sanction if prepared would virtually be an expression of the sanctioning authority. Though the respondents have categorically denied that the draft sanction and the order according sanction are verbatim the same but even if it is accepted for argument's sake, that the draft sanction and the order according sanction are identical then too, it hardly affects the merits of the order granting sanction because the narration of facts mentioned therein could not have been deviated in the slightest"

27. The upshot of the above discussion is that no case for

interference is made out in the present writ petition, the same is

therefore, dismissed.

(ARUN BHANSALI),J 132-DJ/-

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