AMRESHWAR PRASAD Vs. STATE OF JHARKHAND THROUGH S.P

JUDGEMENT

(1.) THIS application has been filed for quashing of the order dated 28.5.2010 passed in Vigilance P.S case no.15 of 2009 (Special Case no.19 of 2009) whereby and whereunder cognizance of the offences punishable under Sections 420, 120(B), 467, 468, 471, 477A and 201 of the Indian Penal Code and also under Sections 7, 8, 9, 10, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been taken against the petitioner. The facts giving rise to this application are that on 30.3.2009 the Ministry of Health, Medical Education and Family Welfare passed a resolution to appoint doctors in various faculties of AYUSH which concerns with medical treatment through different indigenous methods such as, Ayurveda, Yogo, Unani, Siddha and Homeopathy. For that purpose, directorate known as AYUSH was constituted for making appointments of teaching and non-teaching staffs. Subsequently, the Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand constituted a State Level Selection Committee of which petitioner was appointed as Chairman. Thereupon, an advertisement was issued for appointments of the doctors in the Department of Indigenous Medicines such as, Homeopathy, Unani and Ayurvedic and also for appointments of teaching and non-teaching staffs in the Directorate of AYUSH. Pursuant to that, several applications were received whereupon criterias were laid down by the State for selection of the candidates on the basis of academic achievement and marks obtained in interview. On receiving applications, Selection Committee proceeded with the selection of the candidates. After process of selection was finalized, Joint Secretary, Ministry of Health, Medical Education and Family Welfare, vide its memo no.261(3) and 263(3) dated 8.8.2008 published a list of successful candidates for appointment on the post of Homeopathic/Ayurvedic Medical Officer on contractual basis.

(2.) BEFORE the result was published, one Harshdeo Gupta had lodged a complaint before the Vigilance Bureau on 21.7.2008 stating therein that he was also one of the applicants who had applied for appointment on the post of Homeopathy Medical Officer and had given interview on 12.5.2008. Thereupon this petitioner and one Dr.Jyotish Chandra Singh asked his to pay Rs.3,00,000/- if he wanted to be appointed but when he expressed his inability to meet demand of such huge amount, they asked to make payment of Rs.2,50,000/-. On 21.7.2008 Dr.Jyotish Chandra Singh called on his Mobile and asked to make payment, failing which it was told that he would not be selected.

(3.) MR.Sujeet Narayan Prasad, learned counsel appearing for the petitioner assailed the order taking cognizance mainly on two grounds. Firstly, on the ground that the sanctioning authority in exercise of power under Section 197(2) of the Code of Criminal Procedure granted sanction for prosecution not only for an offence under Section 420 and 120(B) of the Indian Penal Code but also under Sections 7, 8, 9, 10, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and therefore, any order under which cognizance of the offence has been taken under Sections 7, 8, 9, 10, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioner is bad as sanctioning authority as per the order dated 28.5.2010 (Annexure 24) never sanctioned prosecution in exercise of power as envisaged under Section 19 of the Prevention of Corruption Act. Further it was submitted that sanctioning authority has granted sanction for prosecution for an offence under Section 420 read with Section 120(B) of the Indian Penal Code but the court has taken cognizance of the offence under Sections 467, 468, 471, 477A, 201 of the Indian Penal Code which would be quite bad in absence of any sanction for prosecution for the said offences being granted as whatever act has been done by the petitioner that has been done in discharge of his official duties.