Vinod K. Sharma, J.@mdashThe petitioner has moved this petition u/s 482 of the Code of Criminal Procedure (for short the Code) for quashing of sanction to prosecute the petitioner Annexure PA and the report submitted u/s 173 Cr.P.C. by the prosecution in the court.
2. Smt. Manjit Kaur, Sarpanch of Gram Panchayat, Karhali District Patiala was alleged to have embezzled panchayat funds in which the petitioner has no role. In the proceedings conducted against Manjeet Kaur the alleged embezzled amount stood deposited. Senior Superintendent of Police, Vigilance Department, Patiala sought sanction to prosecute the petitioner for an offence u/s 420 IPC and u/s 13(1)(D) read with Section 13(2)(i) of the Act. However, Government of Punjab declined to grant sanction to prosecute vide letter No. 6 (05)05-5 R.D.E.2/Chandigarh dated 24-5-2006. Copy of the order has been placed on record as Annexure P.2.
3. Not satisfied, the prosecution again sought sanction to prosecute the petitioner. The request made by the petitioner was again declined vide letter bearing Endst. No. 6/5/05/5 RDE.2/5582 dated 27.9.2006. Copy of the said order has been placed on record as Annexure P.3.
4. Thereafter, it seems that again sanction was sought. Said sanction has been granted vide Annexure PA on 11.7.2007. In the said order no new material was placed on record nor the orders earlier passed were taken note of.
5. The petitioner seeks quashing of sanction order on the plea that the Order Annexure PA shows non-application of mind as the allegations of embezzlement are against Sarpanch who in fact deposited the said amount. It is also the case of the petitioner that no case is made out against the petitioner as no role has been attributed with regard to the acceptance of illegal gratification. However, the main contention of the learned counsel for the petitioner is that once the sanction was refused it was not open to the competent authority to review the said order in the absence of any fresh material having been placed on record.
6. In support of this contention, Mr. S.S. Brar, learned counsel appearing on behalf of the petitioner contended that once an authority passes an order refusing to grant sanction the said authority cannot review its order. In support of this contention reliance has been placed on the Division Bench judgment of this Court in the case of Mohammed Iqbal Bhatti v. State of Punjab 2006 (2) RCR(Criminal) 430 wherein this Court has been pleased to lay down as under:
"15. We have perused the impugned order dated September 30, 2004. This order does not talk of the deficiency in the order dated December 15, 2003, nor it is indicative that the same has been passed in supersession of the said order. It is correct that the sanction required to be granted u/s 19 of the Act and Section 197 of the Code of Criminal Procedure, is not a quasi judicial order and that opportunity of being heard was not required to be granted to the petitioner. However, passing of the impugned order would not amount to reviewing the order passed by the competent authority. Learned Additional Advocate General has not been able to show any provision under the Act or under any other statute that such an authority had the specific power to review the earlier order. De hors this, there is nothing in the order supporting the argument of learned Additional Advocate General that the material which had been placed before the competent authority while passing the impugned order was never ever placed before the competent authority while passing the order dated December 15, 2003. It is also no where the case of the respondents that the points/clarification raised had been duly complied with and which would entitle the respondents for passing a second order. It is in this regard, we had asked for the production of the record vide our order dated December 13, 2005. The perusal of the record categorically shows that the impugned order was never ever passed in supersession of the previous order. Further, it is nowhere the case of the respondents that absolutely new fact had come to surface,. which had been examined by the competent authority while granting the sanction for prosecuting the petitioner. We have perused the record and we find that the learned Legal Remembrancer and Secretary to Government of Punjab had made a reference to Dr. Jaswinder Kaur''s case (supra) indicating that the Government had. not refused to grant sanction but it had only taken a decision to drop departmental proceedings in that case and that he afore-stated judgment does not apply to the fact of the case but the pivotal fact remains to be kept in mind is that the order dropping the departmental proceeding had been made after the Vigilance Bureau had asked for sanction of the prosecution. Therefore, it may not be advisable now to grant sanction. In case the department is bent upon to grant sanction at this stage, the matter would require to be put up before the Chief Minister for modifying/reviewing the order passed by the then Minister for Rural development and Panchayat, whereby departmental proceedings on these very allegations had been dropped. This opinion was of August 19, 2003, where after the order dated December 15, 2003, had been passed vide which the sanction for prosecuting the petitioner had been declined. The record which has been shown to us does not indicate that any new material had been placed before the competent authority for passing the impugned order except the communication received from Director, Vigilance Bureau, dated June 22, 2004, which makes a reference of the letter dated May 26, 2004 which again does not disclose any new material. We have also perused the noting dated 23.2.2004, vide which the detailed reference to the earlier decision of the government has been made vide which the sanction to prosecute the petitioner had been declined. It had also been suggested that the complaint of Hans Raj deserves to be filed. The order dated July 22, 2004, seems to have been passed by Rural Development and Panchayat Minister which is devoid of any discussion for the purpose of differing with the earlier order. Nothing has been opined as to whether the order would now be passed in supersession of the previous order and/or the authority has the power to review its earlier order. It is obvious that no new material was considered while passing the impugned order.
16. Once the government passes the order u/s 19 of the Act or u/s 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official reviewing such an order on the basis of the same material which already stood considered would not be appropriate permissible. The government is expected to act consciously and cautiously while taking such serious decisions. The perusal of the record shows that pointed queries had been raised to be answered by the Vigilance Bureau but no answer was forthcoming nor any had been submitted subsequently which culminated into passing of the later order dated September 30, 2004. We refrain ourselves from mentioning the queries which had been raised but it would suffice to say that the queries were never answered at the relevant time when the order dated December 15, 2003, had been passed nor the same were ever commented upon as no answers were placed before the competent authority for passing the impugned order dated September 30, 2004.
17. The government cannot act in a manner which may cause harassment to an employee or any person. Though the orders required to be passed while exercising the powers u/s 19 of the Act and Section 197 of the Code of Criminal Procedure cannot be termed as quasi judicial order, yet the orders have to be passed consciously and cautiously by applying the mind accordingly. In the present case, the impugned order has been passed in a very casual manner whereas the previous order had been passed after due deliberations and when the Vigilance Bureau was unable to give answers to the queries raised, the sanction had been declined. We have no reason to accept the contention of learned Additional Advocate General that the subsequent order i.e. order dated September 30, 2004, was passed by due deliberations and upon the basis of the new facts disclosed or by way of applying mind or holding that the present impugned order is in supersession of the previous order."
7. Learned counsel for the petitioner thereafter placed reliance on the judgment of this court in the case of Dr. Jaswinder Kaur v. State of Punjab and Anr., 2001 (2) RCC 170., wherein this Court was pleased to lay down as under:
"11. I am of the considered opinion that the case of the petitioner is covered by the aforesaid ratio. In the absence of some fresh material or some technical infirmity, or some clerical error, the competent authority had no power to review the earlier order on merits.
16. These observations are squarely applicable to the facts and circumstances of the present case. The Officer could not have reviewed its earlier orders. As soon as the earlier orders refusing the sanction was signed on 14.2.2000, the competent authority became functus officio. Merely, because the Vigilance Bureau had asked for the reasons for the refusal of the sanction was not a ground to review the earlier order."
8. Learned counsel for the petitioner also placed reliance on the Division Bench judgment of Himachal Pradesh High court in the case of Omkar Sharma and etc. v. State of H.P. and others. 2003 (2) RCR(Criminal) 512, wherein the Hon''ble Division Bench of Himachal Pradesh High Court has been pleased to lay down that sanction for prosecution of public servant having been refused by competent authority the same cannot be reviewed and revised on the same material and grant sanction for prosecution. It has further been held that power to review is not an inherent power. It must be conferred by law specifically or by necessary implications. In order to record these finding reliance was placed on the M judgment of Hon''ble Supreme Court in the case of Ramanand Chaudhary v. State of Bihar, 1994 (2) RCR 491 (SC)., wherein Hon''ble Supreme Court was pleased to lay down that where Commissioner on independent consideration refused to grant sanction in the absence of any case being made out against the accused-appellant the grant of sanction after reconsideration of the appellant''s case on directions by the Deputy Inspector General of Police (V) was not proper in view of the facts and circumstances of the said case.
9. Learned counsel for the petitioner also placed reliance on the Division Bench judgment of Allahabad High Court in the case of Vaijal Bahadur v. State of U.P. and others, 1989 Cri.L.J. (NOC) 61 where the sanction was refused after consideration of entire material and thereafter order was reviewed on the same material by the same officer the same was held to be improper.
However, Ms. Rajni Gupta, learned Deputy Advocate General, Punjab on the other hand placed reliance on the Division Bench judgment of this court in the case of Dilbag Singh v. State of Punjab, 2002 (4) RCR 532, wherein this Court was pleased to lay down that sanction for prosecution was declined by the authority the same was held to be an administrative act and it was further held that authority can reconsider and granted sanction. However, it may be noticed that in the said case the sanction was challenged by the petitioner and the writ petition filed against the said order was dismissed in limine by holding that there was no equity in favour of the petitioners and thus, there was no ground for interference in exercise of discretion under Article 226 of the Constitution of India and is to be taken as per incuriam in view of settled law.
11. Learned Deputy Advocate General, Punjab thereafter made reference to the judgment of Hon''ble Supreme Court in the case of
12. In the said case sanction for prosecution was granted by the Governing Body of AIIMS by superseding the order of President of AIIMS which revoked the suspension order of employee and declined to grant sanction subject to rectification by the Governing Body. Such order was held to be valid. However, this judgment would have no application as in the said case. The President of AIIMS was not a competent authority and sanction was refused subject to rectification by the Governing Body and thus, there was no question of review or reconsideration of the matter.
13. Learned Deputy Advocate General, Punjab contended that it is for the trial court to consider whether the sanction was validly issued or not. However, the validity of sanction cannot be a ground to quash the proceedings.
14. Finally, learned Deputy Advocate General, Punjab placed reliance on the judgment of Hon''ble Supreme Court in the case of
"It is true that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that o the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the PC Act by refusing to accord sanction for his prosecution or not. For the aforementioned purpose, 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. In the instant case, the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by IG Police. 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 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. The High Court called for the original records. It had gone there into. It was found that except the said report, no other record was made available before the sanctioning authority. The order of sanction also stated so. The sanctioning authority did not have the occasion to consider the records except the purported report. Therefore, the impugned judgment of the High Court does not suffer from any legal infirmity although some observations made by the High Court do not lay down the correct legal position."
15. The judgment of Hon''ble Supreme Court in the case of Parkash Singh Badal v. State of Punjab (supra) was, thus, distinguished.
16. On consideration of the matter, I find that it is now well established that though it is opened to the competent authority to grant sanction after it has been refused once but the same can only be done, if some new material comes to the notice of the competent authority which was not available when earlier decision was taken. In the absence of any new material it is not open to the competent authority to review its decision regarding non-grant of sanction. It may be noticed here that in the present case the order does not show that successor-in-interest came across any new material which was not available to his predecessor-in-interest while refusing to grant sanction.
17 Thus, in view of the settled law, relied upon by the learned counsel for the petitioner, it has to be held that the order of sanction is without jurisdiction and therefore, liable to be quashed, as sanction is prerequisite to initiate criminal proceedings against Government servant, the proceedings in the absence of sanction shall be misuse of process of court, thus, liable to be quashed.
18. Consequently, the petition is allowed. The order Annexure P.4, report u/s 173 CrPC and subsequent proceedings qua petitioner are ordered to be quashed.
