GITA GOPI,J. -
(1.) The revisionists, under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.), have come with a prayer to quash and set aside the order dated 21.08.2020, passed by the Sixth Additional Sessions and Special (ACB) Judge, Banaskantha at Palanpur in Criminal Inquiry (ACB) No.1/2020. The complaint was filed under Section 409 of Indian Penal Code (for short "IPC") read with Section 7 of The Prevention of Corruption Act, 1988 (for short "P.C. Act") against the respondent no.3, who was on the post of Sarpanch, Gola Gram Panchayat, Taluka-Palanpur. The complaint before the Special (ACB) Judge came to be rejected on the ground of maintainability in absence of sanction.
(2.) A private complaint filed before the Principal District Judge, Banskantha at Palanpur having been registered as Criminal Inquiry (ACB) No.1/2020 was transferred to Fifth Additional District Judge Banaskantha for disposal in accordance with law and thereafter the matter came before the Sixth Additional Sessions and Special (ACB) Judge, Banaskantha at Palanpur on 10.07.2020, with the allegations that respondent no.3 being Sarpanch of Gola Gram Panchayat has misappropriated the public money and committed fraud with Government by arbitrarily allotting the work of installation of LED lights to one Adarsh Sales without any advertisement in newspaper. The LED lights, as alleged, available at Rs.1200/- to Rs.1500/- in the market were purchased at the rate of Rs.4500/- from Adarsh Sales, who had issued a bill without VAT number. It is alleged that the price were called from three firms and by taking undue advantage of the status respondent no.3 abused his office for corrupt motives, misused the public funds for purchase of LED lights from Adarsh Sales.
2.1 The Special (ACB) Judge noted that the complainant had moved the Additional Assistant Engineer, Taluka Panchayat Palanpur and further the complaint was also given to P.I., A.C.B. Police Station, Banaskantha and an application was also forwarded to T.D.O., Palanpur on 30.08.2017. The same issue was also agitated before the Director of A.C.B. at Shahibag, Ahmedabad vide letter dated 21.05.2018.
2.2 The complainant did not find any progress, hence filed Special Criminal Application No.1419 of 2020 before this Court and on 22.01.2020, complainant was directed by this Court to approach the concerned authority. Thereafter, the application was given to A.C.B. Police Station, Banaskantha at Palanpur on 07.03.2020. It is stated by the revisionist that the respondent State and its agencies have not registered the FIR nor investigated the complaint hence, the applicant had to prefer Writ Petition before this Court being Special Criminal Application No.501 of 2020 for direction to the authorities to file an FIR to the mentioned incident. By an order dated 23.01.2020, this Court had not entertained the petition; however liberty was granted to the petitioner to approach the competent authority/Court, if they so desired.
2.3 Thus, the revisionists approached the Court by filing the written complaint which was registered as Criminal Inquiry (A.C.B) No. 1/2020. The Special (ACB) Judge by order dated 21.08.2020, having observed that the complaint dated 20.03.2018 was already before the P.I., A.C.B. Police Station, Banskantha, stayed the proceedings under Section 210 of the Cr.P.C. calling for the report of the concerned A.C.B. Police Station. The said report was received by the Special (ACB) Judge on 13.07.2020 along with the papers and statements recorded during the investigation.
2.4 The Special (ACB) Judge perusing the report stated it to be cryptic and ambiguous, that the report does not clearly specify whether the criminal offence, as alleged by the complainant, were made out or not against the accused? The Special (ACB) Judge further observed that the crux of the whole report of the I.O. submitted to the Director of A.C.B. was to carry out departmental inquiry against the accused. The complainant before the Special (ACB) Judge produced additional submissions stating that once cognizable offence is made out, the only option is to lodge an FIR and the departmental proceedings are to be taken care of by the concerned department. Hence, the prayer was made to direct the I.O. to lodge the FIR against the accused person.
2.5 The Special (ACB) Judge after considering the provisions of Section 19(1) of the P.C. Act on 21.08.2020 dismissed the complaint of Dhanrajbhai Hirabhai Patel, resident of Village Gola, Taluka-Planpur, District Banskantha, on the ground that it was not maintainable without sanction order.
(3.) Learned advocate Mr. Aftabhusen Ansari appearing for the petitioners submitted that the impugned judgment and order of the Special (ACB) Judge is illegal, perverse and contrary to the settled principles of law. The learned Judge has failed to appreciate the fact that the investigating report of the police discloses prima facie that cognizable offence is made out against respondent no.3. Mr. Ansari stated that the respondent no.3 has been removed from the post of Sarpanch vide order dated 03.02.2018 by Social Justice and Empowerment Department, Gandhinagar, Gujarat and that Special (ACB) Judge has misinterpreted the relevant provisions of law and the ratio laid down by the Supreme Court while considering the issue of sanction. Mr. Ansari contended that the sanction is not required at the time of registration of complaint or lodging the FIR, it would be required only while framing the charge against the accused and thereby the Special (ACB) Judge has erred in law by rejecting the Criminal Inquiry (ACB) No.1/2020, which has resulted into miscarriage of justice.
3.1 Mr. Aftabhusen Ansari, learned advocate for the petitioners relied upon the judgment of Kerala High Court rendered in case of Maneesh E. Vs. State of Kerala And ors., reported in 2016 (1) KLJ 169. ;