Rajasthan High Court
Vijay Kumar Singhal Son Of Shri ... vs State Of Rajasthan on 7 October, 2024
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2024:RJ-JP:41711]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 5351/2023
Vijay Kumar Singhal Son Of Shri Ramswaroop Singhal, Aged
About 57 Years, Resident Of E-15, Mohan Nagar, Hindaun City,
District Karauli (Raj). At Present Residing At B-4/179, Chitrakoot,
Vaishali Nagar, Jaipur (Raj).
----Petitioner
Versus
1. State Of Rajasthan, Through P.p.
2. The Deputy Secretary (A-3), Department Of Personnel,
Government Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. Rinesh Gupta
Mr. Saurabh Pratap Singh
Mr. Gaurav Sharma
For Respondent(s) : Mr. Jitendra Singh Rathore, Addl. G A
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
Reportable
DATE OF JUDGMENT 07/10/2024
By way of this petition, the petitioner has prayed to quash
and set aside the order of the prosecution sanction No. P.2(2)
(108)Ka/K-3/Shi/2018 dated 23.06.2021 issued against him by
the respondent No. 2.
Brief facts of the case are as under:
As per the case of the prosecution, on 17.12.2018,
complainant Kuldeep Singh submitted a complaint to the ASP, Anti
Corruption Bureau, Sikar mentioning that he owns & operates a
shop namely M/s Aadhar Medicos situated in Indu Hospital
Campus, Jhunjhunu. Due to cancellation of his drug license,
complainant wanted to renew it and for this purpose, he met
petitioner-Vijay Kumar Assistant Drug Controller (ADC) who
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demanded Rs. 50,000/- for preparaing the file online. He prepared
the documents and submitted the firm's file on 11.12.2018 to
petitioner-Vijay Kumar. Petitioner-Vijay Kumar wanted to take Rs.
50,000/- for doing file of his firm online but the complainant did
not want to give him Rs. 50,000/-. Verification of illegal demand
was conducted on 17.12.2018 and trap was destined to be laid on
18.12.2018 but trap failed on 18.12.2018 and on the next date
i.e. 19.12.2018, the trap was laid. So, trap proceedings were
conducted and on 20.12.2018 FIR was got registered against the
petitioner.
Learned counsel for the petitioner submits that on
19.12.2018 trap was laid. Petitioner alleged that at that time
complainant forcefully put the illegal gratification in the pocket of
the petitioner and ACB Officials manhandled the petitioner.
Learned counsel for the petitioner further submits that there is no
single conversation between the petitioner and complainant which
could led to the conclusion that petitioner ever demanded illegal
gratification. Learned counsel for the petitioner also submits that
the prosecution sanction was granted on 23.06.2021 on non
considerate and filmsy grounds without considering the basic
parameters of Section 7 of the Prevention of Corruption Act, 1988
(Amended up to 2018) (for short 'Act of 1988') i.e. work
pendency. Learned counsel for the petitioner also submits that the
appointing authority admitted the position that no work was
pending with the petitioner at the time when trap was laid. The
complainant had applied for the drug license on 24.12.2018.
Learned counsel for the petitioner also submits that while granting
prosecution sanction, authority had to show application of
[2024:RJ-JP:41711] (3 of 12) [CRLMP-5351/2023]
independent mindset different from the prosecution combined with
reasoning but he had not applied his mind.
Learned counsel for the petitioner also submits that the
petitioner filed the detailed representation citing his grounds and
raising all his defense but appropriate authority had not
considered the case of the petitioner. Although they had admitted
the fact that at the time of trap, no work was pending with the
petitioner from 17.12.2018 to 19.12.2018. Complainant first time
applied for the drug license on 24.12.2018.
Learned counsel for the petitioner also submits that even if
the prosecution story is accepted in toto then also no case under
the Act of 1988 is made out because at the time of demanding
illegal gratification, no work was pending with the petitioner.
Learned counsel for the petitioner also submits that the
complainant was very well aware that he had to apply online
because as per the rules for issuing the drug license and
cancellation of drug license, persons were required to apply online
from September 2017. Petitioner had also cancelled the previous
drug license online, so the complainant was well aware regarding
the procedure.
Learned counsel for the petitioner also submits that to prove
the offence under Sections 7, 13(1)(d)/13(2) of Prevention of
Corruption Act, prosecution had to establish the demand and
acceptance of bribe money. Handling of tainted money to the
accused on the day of trap and work of the complainant must be
pending with the accused as on the date of the trap. In the
present case, no work was pending with the petitioner.
Complainant had forcefully put the tainted money in the pocket of
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the petitioner on account of rivalry of the petitioner with Ranjeet
Gurjar (friend of the complainant). Learned counsel for the
petitioner also submits that in the present case, ACB had not
conducted any preliminary enquiry as to whether any work of the
complainant was pending with the petitioner or not. Learned
counsel for the petitioner also submits that mere recovery of the
tainted money does not tantamount to any offence under the Act
of 1988. So present prosecution sanction granted against the
petitioner is not according to law. So, prosecution sanction order
be quashed.
Learned counsel for the petitioner has placed reliance upon
the judgment passed in the case of Ashok Kumar Agarwal Vs.
CBI (2014(14) SCC 295) wherein their Lordships has held as
under:-
8. In view of the above, the legal propositions can be
summarised as under:
(a) 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.
(b) 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.
(c) 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.
[2024:RJ-JP:41711] (5 of 12) [CRLMP-5351/2023]
(d) 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.
(e) 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.
In the case of State of Karnataka Vs. Ameerjan
(2007(11)SCC273), their Lordships of the Hon'ble Apex Court
has held as under:-
For the aforementioned purpose, indisputably, application
of mind on the part of the sanctioning authority is
imperative. The order granting sanction must be
demonstrative of the fact that there had been proper
application of mind on the part of the sanctioning
authority. We have noticed hereinbefore that the
sanctioning authority had purported to pass the order of
sanction solely on the basis of the report made by the
Inspector General of Police, Karnataka Lokayuktha. Even
the said report has not been brought on record. Thus,
whether in the said report, either in the body thereof or
by annexing therewith the relevant documents, IG Police
Karnataka Lokayuktha had placed on record the materials
collected on investigation of the matter which would
prima facie establish existence of evidence in regard to
the commission of the offence by the public servant
concerned is not evident. Ordinarily, before passing an
order of sanction, the entire records containing the
materials collected against the accused should be placed
before the sanctioning authority. In the event, the order
of sanction does not indicate application of mind as the
materials placed before the said authority before the
order of sanction was passed, the same may be produced
before the court to show that such materials had in fact
been produced.
In the case of Mahesh Kumar Soni Vs. State of Rajasthan (SB
Criminal Revision Petition No. 281/2023) Coordinate Bench
of this Court held as under:-
[2024:RJ-JP:41711] (6 of 12) [CRLMP-5351/2023]
Evidently, the record reveals that no work of the
complainant was pending with the department what to
say with the petitioner on the date of making of the
complaint and on the date of managing trap, therefore,
important ingredient of the offence for which charges
have been framed is missing to the extent that any work
was pending with the public servant. Recovery of each
and every money on trap would not satisfy the
requirement of gratification unless the money was being
paid for discharge of official duty pending with the
accused.
In the case of P. Manjunath Vs. State of Karnataka (Writ
Petition No. 10027/2022), it was held that-
If the facts obtaining in the case at hand are considered
on the bedrock of the principles laid down by the Apex
Court, what would unmistakably emerge is that, there is
neither demand nor acceptance in the case at hand. The
demand should be for any work to be performed and
acceptance should be towards the said work. The
documents produced along with the petition are so
unimpeachable that they would clearly demonstrate that
the work that came before the petitioner on 24-02-2022
was performed and the document was released on the
same day itself. If the complainant had complained that
the petitioner had demanded money for release of
document that would have been a circumstance
altogether different. The complaint is made after 14 days
of release of the document when no work was pending
with the petitioner, the final trap is laid after two months
of registration of the document and the petitioner is not
even caught accepting any illegal gratification for him to
have demanded so, two months ago. Section 7 of the Act
would clearly hint at a pre-paid demand for performing a
work and acceptance. There is no post-paid concept
under Section 7 of the Act, that too, on a trap that is laid
after two months after the alleged demand. The first trap
fails and the second trap is a failure.
14. The contention of the learned counsel representing
the 1st respondent-CAB/Lokayukta is neither here nor
there as he is unable to wriggle out of the fact that the
work had already been done and the alleged demand was
[2024:RJ-JP:41711] (7 of 12) [CRLMP-5351/2023]
projected after 14 days of the work and trap was laid
after two months of the work completion. Reliance being
placed on certain audio conversation between the
petitioner and the complainant cannot even be pressed in
his defence in view of unequivocal facts narrated
hereinabove.
In the case of Chandresha Vs. State of Karnataka Lokayukt
Police Kalburgi in Criminal Appeal No. 200105/2015, it was
held that-
The Hon'ble Supreme Court held that when the work of
complainant is not pending before accussed as on the
date of trap the important ingredient to attract and
complete the offence punishable under Section 7, 13(1)
(d)/13(2) of the Prevention of Corruption Act cannot be
sustained.
In the case of B. Jayaraj Vs. State of Andra Pradesh (2014
(13) SCC 55), it was held as under-:
In so far as the offence under Section 7 is concerned, it is
a settled position in law that demand of illegal
gratification is sine qua non to constitute the said offence
and mere recovery of currency notes cannot constitute
the offence under Section 7 unless it is proved beyond all
reasonable doubt that the accused voluntarily accepted
the money knowing it to be a bribe. The above position
has been succinctly laid down in several judgments of this
Court. By way of illustration reference may be made to
the decision in C.M. Sharma Vs. State of A.P. (1) and C.M.
Girish Babu Vs. C.B.I.(2)
9. In so far as the presumption permissible to be drawn
under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence under
Section 7 and not the offences under Section 7, 13(1)
(d)/13(2) of the Act. In any event, it is only on proof of
acceptance of illegal gratification that presumption can be
drawn under Section 20 of the Act that such gratification
was received for doing or forbearing to do any official act.
Proof of acceptance of illegal gratification can follow only
if there is proof of demand. As the same is lacking in the
[2024:RJ-JP:41711] (8 of 12) [CRLMP-5351/2023]
present case the primary facts on the basis of which the
legal presumption under Section 20 can be drawn are
wholly absent.
In the case of N. Sunkanna Vs. State of Andhra Pradesh
(2016(1) SCC 713) it was held as under-:
The prosecution examined the other fair price shop
dealers in Kurnool as PWs 3, 4 and 6 to prove that the
accused was receiving monthly mamools from them. PWs
4 and 6 did not state so and they were declared hostile.
PW-3 though in the examination-in-chief stated so, in the
cross-examination turned round and stated that the
accused never asked any monthly mamool and he did not
pay Rs.50/- at any time. The prosecution has not
examined any other witness present at the time when the
money was demanded by the accused and also when the
money was allegedly handed-over to the accused by the
complainant. The complainant himself had disowned his
complaint and has turned hostile and there is no other
evidence to prove that the accused had made any
demand. In short there is no proof of the demand
allegedly made by the accused. The only other material
available is the recovery of the tainted currency notes
from the possession of the accused. The possession is
also admitted by the accused. It is settled law that mere
possession and recovery of the currency notes from the
accused without proof of demand will not bring home the
offence under Section 7, since demand of illegal
gratification is sine-qua-non to constitute the said
offence. The above also will be conclusive insofar as the
offence under Section 13(1)(d) is concerned as in the
absence of any proof of demand for illegal gratification
the use of corrupt or illegal means or abuse of position as
a public servant to obtain any valuable thing or pecuniary
advantage cannot be held to be established. It is only on
proof of acceptance of illegal gratification that
presumption can be drawn under Section 20 of the Act
that such gratification was received for doing or
forbearing to do any official act. Unless there is proof of
demand of illegal gratification proof of acceptance will not
follow. Reference may be made to the two decisions of
three-Judge Bench of this Court in B. Jayaraj vs. State of
Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna
[2024:RJ-JP:41711] (9 of 12) [CRLMP-5351/2023]
Murthy vs. The District Inspector of Police and another
[(2015 (9) SCALE 724].
In the case of Yashwant Sinha Vs. CBI Reported in 2020 (2)
SCC 338 it was held as under:-
"116. The petitioners have not sought the relief of a
preliminary inquiry being conducted. Even assuming that
a smaller relief than one sought could be granted, there is
yet another seemingly insuperable obstacle.
117. In the year 2018, the Prevention of Corruption
(Amendment) Act, 2018 (hereinafter referred to as '2018
Act' for short) was brought into force on 26.07.2018.
Thereunder, Section 17A, a new Section was inserted,
which reads as follows:
"17A. (1) No police officer shall conduct any enquiry
or inquiry or investigation into any offence alleged to
have been committed by a public servant under this Act,
where the alleged offence is relatable to any
recommendation made or decision taken by such public
servant in discharge of his official functions or duties,
without the previous approval--(a) in the case of a person
who is or was employed, at the time when the offence
was alleged to have been committed, in connection with
the affairs of the Union, of that Government; (b) in the
case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in
connection with the affairs of a State, of that
Government; (c) in the case of any other person, of the
authority competent to remove him from his office, at the
time when the offence was alleged to have been
committed: Provided that no such approval shall be
necessary for cases involving arrest of a person on the
spot on the charge of accepting or attempting to accept
any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey
its decision under this section within a period of three
months, which may, for reasons to be recorded in writing
by such authority, be extended by a further period of one
month.
In terms of Section 17A, no Police Officer is permitted to
conduct any enquiry or inquiry or conduct investigation
into any offence done by a public servant where the
offence alleged is relatable to any recommendation made
or decision taken by the public servant in discharge of his
[2024:RJ-JP:41711] (10 of 12) [CRLMP-5351/2023]
public functions without previous approval, inter alia, of
the authority competent to remove the public servant
from his Office at the time when the offence was alleged
to have been committed. In respect of the public servant,
who is involved in this case, it is clause (c), which is
applicable. Unless, therefore, there is previous approval,
there could be neither inquiry or enquiry or investigation.
It is in this context apposite to notice that the complaint,
which has been filed by the petitioners in Writ Petition
(Criminal) No. 298 of 2018, moved before the first
respondent-CBI, is done after Section 17A was inserted.
The complaint is dated 04.10.2018. Paragraph 5 sets out
the relief which is sought in the complaint which is to
register an FIR under various provisions. Paragraphs 6
and 7 of the complaint are relevant in the context of
Section 17A, which reads as follows:
"6. We are also aware that recently, Section 17A of
the act has been brought in by way of an amendment to
introduce the requirement of prior permission of the
government for investigation or inquiry under the
Prevention of Corruption Act.
7. We are also aware that this will place you in the
peculiar situation, of having to ask the accused himself,
for permission to investigate a case against him.
We realise that your hands are tied in this matter, but we
request you to at least take the first step, of seeking
permission of the government under Section 17A of the
Prevention of Corruption Act for investigating this offence
and under which, "the concerned authority shall convey
its decision under this section within a period of three
months, which may, for reasons to be recorded in writing
by such authority, be extended by a further period of one
month"
Learned Addl. G A has opposed the arguments advanced by
the learned counsel for the petitioner and submitted that the
petitioner has also filed criminal writ petition No. 643/2022 before
this Court and the said petition was dismissed by the Co-ordinate
Bench of this court vide order dated 04.07.2023. The Co-ordinate
Bench of this Court dealt with all the averments raised by the
petitioner in the said petition. So, present petition is not
[2024:RJ-JP:41711] (11 of 12) [CRLMP-5351/2023]
maintainable. Learned Addl. G A has also submitted that petitioner
was caught red-handed and tainted money was recovered from his
pocket. So, competent authority rightly issued prosecution
sanction against the petitioner. So, the present criminal misc.
petition filed by the petitioner being devoid of merit, is liable to be
dismissed.
I have considered the arguments advanced by the learned
counsel for the petitioner as well as learned Additional
Government Advocate.
It is an admitted position that for procuring the drug license
and cancellation of drug license, online procedure was prevailing
at that time because deaprtment had started online process from
September, 2017. Complainant very well knew the online process.
He had applied for cancellation of drug license online. So, there
was no need to prepare the file offline. Investigating Authorities
had not conducted the verification of illegal demand in accordance
with law and had not conducted any enquiry as to whether any
work was pending with the petitioner or not. It is also an admitted
position that at the time of trap proceedings, no work was pending
with the petitioner from 17.12.2018 to 19.12.2018. Complainant
first time applied for the drug license on 24.12.2018. Petitioner
submitted a detailed representation before the concerned
authorities. Concerned authorities also admitted the fact that no
work was pending with the petitioner. Petitioner had clearly stated
that complainant had forcefully put the tainted money in his
pocket on account of rivalry of the petitioner with Ranjeet Gurjar.
Department had also admitted the rivalry of the petitioner with
[2024:RJ-JP:41711] (12 of 12) [CRLMP-5351/2023]
Ranjeet Gurjar. Ranjeet Gurjar is the friend of the complainant
Kuldeep Singh. In the present case, prosecution failed to establish
that there was any demand and acceptance of the bribe. Mere
recovery of tainted money does not attract the offence against the
petitioner under Sections 7, 13(1)(d)/13(2) of the Act of 1988
because prosecution had to establish the fact that work was
pending with the petitioner and petitioner had demanded the
tainted money for doing work. Competent authority before
granting the prosecution sanction had not applied independent
mind. So, I deem it fit to quash and set aside the order of the
prosecution sanction dated 23.06.2021 issued against the
petitioner by the Deputy Secretary (A-3), Department Of
Personnel, Government Secretariat, Jaipur.
Accordingly, the petition filed by the petitioner is allowed and
the prosecution sanction issued against the petitioner is hereby
quashed.
Pending application(s), if any, stand(s) disposed of.
(NARENDRA SINGH DHADDHA),J
Tahir/426
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