Rajasthan High Court - Jodhpur

Shiv Kumar Kalla vs State Of Rajasthan (2024:Rj-Jd:9617) on 26 February, 2024

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

    [2024:RJ-JD:9617]                    (1 of 7)                       [CW-18548/2023]


          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
                    S.B. Civil Writ Petition No. 18548/2023

    1.       Shiv Kumar Kalla S/o Shri Changan Lal Kalla, Aged About
             60 Years, R/o Village and Gram Panchayat Khara, At
             Present Residing At Yasoda Niwas, Near Bherav Ji Ki
             Choki, Bisso Ka Chowk, Bikaner.
    2.       Laxman Singh S/o Shri Vishal Singh, Aged About 90
             Years, The Then Gram Panchayat Khara, R/o Village and
             Post Office Khara, Teh. and Dist. Bikaner.
    3.       Smt. Ganga Devi W/o Shri Om Prakash, Aged About 45
             Years, The Then Ward Punch, Gram Panchayat Khara, R/o
             Village and Post Office Khara, Tehsil and District Bikaner.
    4.       Shiv Shankar S/o Shri Lal Chand, Aged About 40 Years,
             The Then Ward Punch Gram Panchayat Khara, R/o Village
             and Post Office Khara, Tehsil and District Bikaner.
                                                                       ----Petitioners
                                        Versus
    1.       State of Rajasthan, through Secretary, Rural Development
             and Panchayati Raj Department, State of Rajasthan,
             Secretariat, Jaipur.
    2.       Additional Commissioner and Deputy Secretary (Second),
             Rural Development and Panchayati Raj Department,
             Government of Rajasthan, Secretariat, Jaipur.
    3.       The Superintendent of Police, Anti-Corruption Bureau,
             Bikaner.
                                                                     ----Respondents


    For Petitioner(s)         :     Mr. C.S. Kotwani with
                                    Mr. Manoj Choudhary


             HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

REPORTABLE

26/02/2024

1. Heard learned counsel for the petitioners.

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2. The present writ petition has been filed against the orders

dated 11.08.2023 & 21.11.2022, whereby the prosecution

sanction has been granted against the petitioners.

3. Briefly, the facts noted in the present writ petition are that

while the petitioners were working on the post of Sarpanch, Ward

Panch and Panch, an FIR bearing No.312/2016 was registered

against them under Sections 409 & 120-B of IPC and under

Sections 13(1)(c)(d) & 13(2) of the Prevention of Corruption Act,

1988. After registration of the FIR, the matter was investigated by

the Investigating Agency and the same was sent to the

Prosecution Sanctioning Authority for grant of prosecution

sanction to proceed against the petitioners. The Prosecution

Sanctioning Authority vide its orders dated 11.08.2023 (Annex.1)

and 21.11.2022 (Annex.2) granted the prosecution sanction

against the petitioners. Hence, the writ petition has been filed.

4. Learned counsel for the petitioners vehemently submits that

the authority concerned vide letter dated 05.07.2023 had called

the petitioners for personal hearing in the case. In pursuance of

the letter dated 05.07.2023, the petitioners appeared before the

competent authority and submitted their representations as well

as made oral submissions. Learned counsel further submits that

despite the petitioners having called for the personal hearing, the

contentions raised by them orally and also in the representation,

have not been taken note of while passing the orders dated

11.08.2023 & 21.11.2022 respectively.

5. Learned counsel for the petitioners further submits that a

bare perusal of the orders dated 11.08.2023 & 21.11.2022 shows

that there is no application of mind on behalf of the Prosecution

[2024:RJ-JD:9617] (3 of 7) [CW-18548/2023]

Sanctioning Authority, more particularly, when none of the

submissions made before it has been discussed and mentioned

while passing the orders. He therefore, prays that the writ petition

may be allowed and the orders dated 11.08.2023 (Annex.1) &

21.11.2022 (Annex.2) may be quashed and set aside.

6. To support his contentions, learned counsel for the

petitioners has relied upon an interim order passed in the similar

circumstances by a Co-ordinate Bench of this Court on 10.05.2021

in S.B. Civil Writ Petition No.7171/2021: Bahadur Singh

Mayda Vs. State of Rajasthan & Ors. and also relied upon a

judgment rendered by a Co-ordinate Bench of this Court on

28.07.2023 in S.B. Civil Writ Petition No.268/2019:

Satyanarayan Verma Vs. State of Rajasthan & Ors.

7. I have considered the submissions made at the Bar and gone

through the relevant record of the case including the impugned

orders dated 11.08.2023 & 21.11.2022.

8. A bare perusal of the orders dated 11.08.2023 & 21.11.2022

clearly shows that the Prosecution Sanctioning Authority has

carefully noted the entire facts of the case and has recorded its

satisfaction by mentioning that it has gone through the entire

records of the case and has considered the submissions made

before it while passing the orders. It is also stated that the

Investigating Officer was also called on 10.07.2023 and the matter

was threadbare discussed with him.

9. In the opinion of this Court, the material placed before the

Sanctioning Authority and the relevant facts have been duly

considered for grant of prosecution sanction in this case.

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10. A perusal of the orders dated 11.08.2023 & 21.11.2022

discloses that in the present case, while granting the prosecution

sanction, the Sanctioning Authority has applied its own

independent mind for generation of genuine satisfaction. This

Court is firmly of the view that while considering the case in hand,

the contents of the FIR and investigation papers have been

thoroughly noted in the present case which shows that

Prosecution Sanctioning Authority has applied its mind. The

Sanctioning Authority has discharged its duties by taking note of

the detailed facts submitted before it as reflected in the

investigation papers and further it is discernible from the recital of

the order that the Sanctioning Authority has also discussed the

matter with the Investigation Officer.

11. The guiding factors for grant of prosecution sanction as held

by the Hon'ble Supreme Court in the case of C.B.I. Vs. Ashok

Kumar Aggarwal, reported in (2014), 14 SCC 295, reads as

under:-

"15.Considering of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an interference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind.

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(Vide: Gokulchand Dwarkadas Morarka v. King MANU/PR/0001/1948 : AIR 1949 PC 82; Jaswant Singh v.

State of Punjab Manu/SC/0050/1957 : A.P. MANU/SC/0181/1979 : AIR 1979 SC 677; State through Anti-Corruption Bureau, Govt of Maharashtra v. Krishanchand Khushalchand Jagtiani MANU/SC/0476/1996 : AIR 1996 SC 1910; State of Punjab v. Mohd. Iqbal Bhatti MANU/SC/1352/2009 : (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State MANU/SC/0546/2011 : AIR 2011 SC 1748; and State of Maharashtra v. Mahesh G. Jain MANU/SC/0561/2013 : (2013) 8 SCC 119.

16. In view of the above, the legal propositions can be summarised as under:

16.1 The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

16.2 The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

16.3 The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4 The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5 In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law of application of independent mind by the sanctioning authority."

12. The judgment relied upon by the learned counsel for the

petitioners in the case of Satyanarayan Verma (supra) reads as

under:-

"This Court also observes that validity of sanction for prosecution would depend upon the material placed before the sanctioning authority and the fact that all the

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relevant facts, material and evidence have been considered by the sanctioning authority. It is important to note that consideration implies the application of mind as the order of sanction must ex-facie disclose that the sanctioning authority has applied its own independent mind for the generation of genuine satisfaction while granting the sanction. Since, the discretion to grant or not to grant sanction rests absolutely to the sanctioning authority, therefore, its discretion to show that the sanctioning authority has applied its own independent mind while granting the prosecution sanction and in the case in hand, the order dated 16.11.2018, lacks application of mind being ad-verbatim the same. However, the competent authority is at liberty to reconsider the entire matter afresh at its own in accordance with law for grant of sanction to prosecute the petitioner under the provisions of the Act of 1988."

13. A bare perusal of the judgment relied upon by learned

counsel for the petitioners shows that there should be due

application of mind by the Prosecution Sanctioning Authority and

an independent opinion is required to be made while granting

prosecution sanction in a particular case. In the present case, the

detailed facts noted in the orders dated 11.08.2023 and

21.11.2022 clearly show that the Prosecution Sanctioning

Authority has taken note of all the facts and after having gone

through the entire investigating material and the discussion with

the Investigating Officer on 10.07.2023, it has recorded its

satisfaction before coming to the conclusion and therefore, in the

opinion of this Court, the grant of prosecution sanction in the