- (1.) On being lodged a criminal case against him for the offences punishable under Sections 7, 13(1) (d)/13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988") the petitioner, a Sub-Inspector in Rajasthan Police, was placed under suspension by an order dated 1.4.2008.
(2.) The issue with regard to grant of sanction for prosecution of the petitioner for the offences punishable under the Act of 1988 was then considered by the Inspector General of Police, Ajmer Range, Ajmer (competent authority). By a communication dated 1.10.2010 the competent authority communicated to the Principal Secretary to the Government of Rajasthan, Department of Home Affairs, that no adequate evidence was available on record for grant of sanction. The matter then was reconsidered and the authority competent under an order dated 2.7.2012 granted sanction for prosecution of the petitioner for the offence punishable under Section 7 of the Act of 1988 read with 120-B Indian Penal Code. Being aggrieved by the sanction accorded for prosecution and continuation of the petitioner under suspension, this petition for writ is preferred.
(3.) The submission of counsel for the petitioner is that a conscious decision was taken by the competent authority under the communication dated 1.10.2010 for not granting sanction to prosecute the petitioner and that could have not been changed without having any fresh material on record. It is also submitted that as a matter of fact the competent authority changed its earlier decision without having any fresh material but by acting upon certain instructions given by the Chief Vigilance Commissioner and such ipse-dixit exercise of power without application of independent mind is not as per the spirit of the Act of 1988. It is urged that as a matter of fact the authority of the Inspector General of Police was abdicated by the Chief Vigilance Commissioner, and such abdication makes the order granting sanction bad in view of the judgment of this Court in Kishan Lal v. State of Rajasthan & Ors.,2009 3 WLC(Raj) 128. In the case aforesaid this Court held as under:- "2. Section 19(1)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction for any person not covered under Section 19(1)(a) and 19(1)(b) by the authority competent to remove him from his office. In the instant matter admittedly the authority competent to remove the petitioner from office is the Chief Engineer, Department of Irrigation. The Chief Engineer, Department of Irrigation on 19.12.1997 after considering all necessary facts reached at a definite conclusion regarding non-involvement of the petitioner with regard to any deal relating to the complainant Sh. Shankar Lal. Accordingly, a conscious decision was taken after consulting Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State Investigation Bureau, Jaipur for not granting sanction for prosecution of the petitioner. It is only the Deputy Secretary to the Government of Rajasthan who instructed the Chief Engineer to issue sanction required for prosecution of the petitioner under Prevention of Corruption Act, 1988. The Chief Engineer by the order dated 15.10.1999 simply by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan under the letter dated 23.9.1999 granted sanction for prosecution of the petitioner. The order dated 15.10.1999 no where reflects application of mind by the authority competent. The Chief Engineer being the authority competent for grant of sanction to prosecute the petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. By a statute an important power is conferred upon him and such power must be exercised objectively, independently and by due application of mind. 3. In the present case a conscious decision was taken by the competent authority on 19.12.1997 after making necessary consultation with responsible Police Officers for not granting sanction to prosecute the petitioner. Such an important decision stood altered by the Chief Engineer in highly casual manner just on receiving instructions from Deputy Secretary to the Government of Rajasthan. May this alteration be due to fear psychosis or due to a tendency to accept every instruction given by the administrative authorities, even by ignoring statutory obligations but the resultant is abduction of powers of the competent authority by Deputy Secretary of the Government. The Government, if was not satisfied with the decision taken by the competent authority, could have suggested its view with cogent reasons to reconsider the decision, but in no event it was proper to give command to the authority competent having statutory power for granting sanction for prosecution. The irritating feature of the case is that the competent authority has given sanction to prosecute the petitioner without application of mind just by acting upon instruction given by a person who is otherwise stranger, so far as the requirement of statute is concerned. Therefore, such order can very well be termed as an order without jurisdiction. " ;