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Behari Lal Gupta Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1984CriLJ1809
AppellantBehari Lal Gupta
RespondentState of Himachal Pradesh
Cases ReferredMohd. Iqbal Ahmed v. State of Andhra Pradesh
Excerpt:
.....to the prosecution, the sanction for prosecution of the appellant had been accorded by the chief engineer (projects) h.p.s.e.b. who was the authority competent to remove the appellant. this sanction accorded by the chief engineer and relied upon by the prosecution is found at ex. p. w.i2/a. this sanction order ex. p.w. 12/a was proved on the record by shri r.l. kalia. an upper division clerk of the office of the chief engineer who appeared as p.w. 12 and who claimed to identify the signatures of shri s.r. shah, the then chief engineer, on this office order. the chief engineer, who accorded this sanction, however, was not examined. nor is there any other independent evidence on the record to show as to in what circumstances and on what considerations the thief engineer accorded..........the prevention of corruption act, 1947 (act-ii of 1947) and whereas, i, section rule shah, chief engineer (projects) h.p.s.e.b.. shimla-171004. being ' the authority competent to remove the said sh. behari lal gupta, accounts clerk now head clerk from office, after fully and carefully examining the material before me in regard to the said allegations and the circumstances of the case consider that the said sh. behari lal gupta accounts clerk (now head clerk) should be prosecuted in a court of law for the said offences.now. therefore, i do hereby accord sanction under section 6(i)(c) of the prevention of corruption act, 1947 (act-ii of 1947) for the prosecution of the said sh. behari lal gupta for the said offence/offences and any other offences punishable under other provisions.....
Judgment:
ORDER

Whereas it is alleged that Sh. Behari Lal Gupta, Accounts Clerk (now Head Clerk) while functioning as Accounts Clerk on or about(1)1969/12/71.

And whereas the said acts constitute an offence/offences punishable under section/sections.

Case F.I.R. No. 215/73 under Sections 409/120B and 5(2) P.C. Act, 1947 against Sh. Behari Lal Gupta, Accounts Clerk (now Head Clerk) of the Indian Penal Code, 1860 (Acts 45 of 1860) Section 5(2) read with Section 5(i).

Case F.I.R. No. 215/73 under. Sections 409/120B and 5(2) P.C. Act 1947 against Sh. Behari Lal Gupta Accounts Clerk (now Head Clerk).

Of the Prevention of Corruption Act, 1947 (Act-II of 1947) and whereas, I, Section Rule Shah, Chief Engineer (Projects) H.P.S.E.B.. Shimla-171004. being ' the authority competent to remove the said Sh. Behari Lal Gupta, Accounts Clerk now Head Clerk from office, after fully and carefully examining the material before me in regard to the said allegations and the circumstances of the case consider that the said Sh. Behari Lal Gupta Accounts Clerk (now Head Clerk) should be prosecuted in a Court of law for the said offences.

Now. therefore, I do hereby accord sanction under Section 6(I)(c) of the Prevention of Corruption Act, 1947 (Act-II of 1947) for the prosecution of the said Sh. Behari Lal Gupta for the said offence/offences and any other offences punishable under other provisions of the Law in respect of the acts aforesaid and for the taking of cognizance of the said offences by a Court of competent jurisdiction.

This is in supersession of this office order endorsement No. CEP-75-38/78-2682-84. dated 3-3-1979.

Sd/-(S. Rule Shah)

Chief Engineer (Projects).

HPSEB, Dogra Lodge, Shimla-4,

H.P....

6. A perusal of this office order and especially the first five paras thereon would show that the language employed in this order is not only meaningless but also absurd and ridiculous. It only shows that this draft was prepared by some raw and un-intelligent hand, The mere fact that the Chief Engineer signed such a draft is sufficient to justify the conclusion that he affixed his signatures on this order without caring to read the language of this office order much less to apply his mind to the facts stated therein. This sanction order in these circumstances cannot be interpreted to be the order made by. the Chief Engineer. Taking the prosecution case at its face value, all that can be said is that the Chief Engineer while passing this order had fully and carefully examined. the material before him in regard to the allegations and the circumstances of the case. There is. however, nothing, either in this office order or independent of it. on the record to show as to what exactly was the material placed before the Chief Engineer and on a consideration of which he accorded sanction for the prosecution of the appellant. On the other hand, the language of this order shows that the reliant facts pertaining to this ease were not available when this order was prepared and sighed. It is obvious that the language of this order Ex. P.W. 12/A was copied from some other sanction order. The relevant facts constituting the offence were required to be stated in the first para and referred to in the second para. There is, however, no mention of such facts in the first para though a reference is made in the second para by using the words 'the said acts'. It clearly reflects that the relevant facts were not before the authority which prepared and signed this order.

7. A sanction for the prosecution of a public servant within the contemplation of Section h of the Act is certainly not an idle formality. It is intended to provide a safeguard to the public servants against frivolous and vexatious prosecutions in respect of their official acts. This safeguard has been provided by enjoining a duty on persons in authority to consider for themselves not only the allegations made against the public servant but also the evidence from which such allegations are sought to be substantiated before taking a decision whether to accord or withhold sanction for prosecution. The very object behind this sanction would certainly be defeated in ease, the sanctions are accorded or withheld in a mechanical manner. The prosecution, therefore, in order to show that the sanction accorded in a particular case is a valid sanction in the eye of law. must prove that the Sanctioning Authority had satisfied, itself that a case for sanction had actually been made out. As observed by the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh : 1979CriLJ633 , this can be done by the prosecution in two ways either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliened to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. In the instant case, as observed earlier, the so called sanction order Ex. P.W. 12A does not show as to on what material the Sanctioning Authority satisfied itself that a case for sanction was made out and independent of the sanction order no other evidence has been adduced to prove (his fact. This sanction order is, therefore, bad in law. The prosecution of the appellant, therefore, being without a valid sanction within the contemplation of the Section 6 of the Act, the entire trial including the conviction and sentence as recorded against the appellant is void ab initio. His conviction, therefore, cannot be sustained. With these remarks 1 accept this appeal and quash the conviction and sentence as recorded against the appellant by the learned y Special Judge. The appellant being on bail; his bail bond and surety bond are cancelled. The amount of fine, if already recovered from the appellant, be refunded to him.


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