MOHMMAD MAQBOOL HAKIM Vs. STATE OF JAMMU AND KASHMIR
LAWS(J&K)-1999-6-3
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 03,1999

MOHMMAD MAQBOOL HAKIM Appellant
VERSUS
STATE OF JAMMU AND KASHMIR Respondents

JUDGEMENT

G.D.Sharma, J. - (1.) Through the medium of this writ petition relief in the nature of writ of certiorari quashing of order No. 11-GR-Home (vigilance)/90 dated: 31-5-1990 and order No. 12- GR-Home (vigilance) /90 dated 31-5-1990 is prayed. Also, writ in the nature of prohibition restraining the respondents from launching the prosecution against the petitioners has been prayed. The above said orders dated 31-5-1990 deal with the grants of sanctions for the prosecution of the petitioners for the commission of the offences punishable under Section 5(2) of the Prevention of Corruption Act (hereinafter to be referred to as the Act) and Sections 465, 466,467,468,471, 477, RPC read with Section 120-B, RPC. These offences were registered under FIR No. 29/1985 in Police Station, Vigilance Organisation Kashmir. At the material time, the petitioner Mohmmad Muzaffar Handani was working as General Manager, DIC Srinagar whereas, the petitioner Ghulam Mohmmad Sofi was Manager DIC, Srinagar and the petitioner Mohmmad Maqbool Hakim was the Industrial Promotion Officer, DIC, Srinagar.
(2.) The petitioners have invoked the extra-ordinary writ jurisdiction by pleading that prosecution has been launched against them by ignoring the fact that they had discharged their official duties in processing the claims preferred by various interprenuers of the District. Srinagar in pursuance of the central sales tax refund policy and while acting within the guidelines laid down there under. The disbursement of the relevant processed claims was made by the concerned District Industries Centre after receiving the sanction from the Competent Authority namely, District Development Commissioner, Srinagar against whom no action has been taken. According to them, the impugned orders were passed without the basis of any incriminating evidence but in a casual and mechanical manner altogether by forgetting the legal position that sanction for prosecution is not an idle formality or an acrimonious exercise but a solemn and sacrosant act which affords protection to the Government servant against frivolous and doubtful prosecution. Heard the arguments.
(3.) The learned Counsel appearing for the petitioners has reiterated the grounds of the petition in the arguments and laid stress that the ingredients of the above stated offences are missing in the facts of the case, so the Court should come to their rescue for vexatious prosecution. The Counsel has further contended that the petitioners cannot be said to have mis-conducted their official business because legal misconduct stands defined as under: "A transgression of some established and definite rules of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character improper or wrong behaviour, its synonyms are misdemeanor misdeed impropriety mis-management offence, but not negligence or carelessness. " Not being contended with this, the learned Counsel has also cited another definition of mis-conduct which is as under: Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act. Concluding his arguments, the Counsel has contended that sanction for prosecution of a public servant in pursuance to Rule 54 of the J & K Govt. Business Rules can be granted only by the Chief Minister/Governor but in the instant case that has been accorded by some other authorities and as such the sanction is void ab-initio.;


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