N.N. Mathur, J. - (1.) By way of instant petition u/s. 482 Cr.P.C., the petitioner Dr. Sahib Ram Giri seeks to quash the order dated 20.9.2000 passed by the learned Special Judge, CBI Cases,Jodhpur accepting the Final Report forwarded by the police in F.R. No. 1/2000 pertaining to R.C. No. 4/99, S.P.E., C.B.I., Jodhpur.
(2.) The necessary facts giving rise to the instant petition are that on 13th April, 1999, petitioner herein lodged a complaint stating inter alia that he had declared his properties under the VDIS (Voluntary Declaration of Income Scheme) and was filing his Income Tax Returns regularly through Shri T.C. Tayal, Income Tax Practitioner. It is averred that the second respondent A.S. Nehra, Income Tax Officer, Sriganganagar at the relevant time, made a demand of Rs. 50,000/- as bribe to avoid action during the survey of income of the petitioner and further levy of income tax penalty. After negotiations, the second respondent A.S. Nehra agreed to take Rs. 25,000/-. The amount was to be paid to third respondent. On information being registered by the C.B.I., a trap was arranged under the supervision of the CBI Inspector Mr. Suryavanshi. As per the plan, the sum of Rs. 25,000/- was paid to third respondent P.C. Tayal and in the presence of the witnesses, the amount was recovered from said Shri Tayal. However, after investigation police forwarded the Final Report. The petitioner complainant filed a protest petition. Learned Special Judge found that there was no evidence worth the name against the Income Tax Officer viz; A.S. Nehra to put him to trial for the offence under the Prevention of Corruption Act. As regards the third respondent Shri Tayal, it was found that he was the counsel for the petitioner complainant and there was nothing wrong in accepting Rs. 25,000/- by him from his client. Learned Special Judge accepted the final Report forwarded by the police for another reason that in view of Section 19 of the Prevention of Corruption Act, he was prevented to take cognizance without previous sanction.
(3.) It is contended by Mr. M.D. Purohit, learned Senior Advocate appearing for the petitioner, that when the investigating authority has made up his mind to close the investigation and has given the Final Report u/s. 173 Cr.P.C., it cannot be expected from him to receive sanction for prosecution. Learned counsel has criticized the concerned authorities for not granting the sanction in such a serious crime. I am unable to accept the contention advanced by the learned counsel. It is well settled position of law that no direction can be given by the High Court either in exercise of powers u/s. 482 Cr.P.C., or and r Article 226 of the Constitution of India, compelling competent authority' to grant sanction for prosecution of the accused in a case of Prevention of Corruption Act. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, reported in (1997) 7 SCC 622 . In identical circumstances, the complainant approached to the High Court seeking direction to the competent authority to grant sanction for prosecution of the accused for the offence under the Prevention of Corruption Act. The Gujarat High Court allowed the petition and directed the Secretary to the department concerned to grant sanction for prosecution of the appellant. In view of the judgment of the High Court, the sanction was accorded and he (appellant) was prosecuted. The appellant in that case was tried and convicted by the trial Court. His conviction and sentence was confirmed by the High Court in appeal. Challenging the conviction and sentence, it was contended before the Apex Court that the entire proceedings before the trial Court as also the High Court were liable to be set aside, as there was no valid sanction within the meaning of Section 6 of the Prevention of Corruption Act, inasmuch as the sanction was granted by the competent authority under the orders of the High Court and, as such, he did not apply his mind independently. The Apex Court accepted the contention and held that by issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Court further observed that the Secretary was not allowed to consider whether it would be feasible to prosecute the appellant, whether the complaint of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious. Unfortunately, the discretion not to sanction the prosecution was taken away by the High Court. The Apex Court observed in para 33 as follows: "33. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed the role of the sanctioning authority considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction u/s. 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but he held to be wholly erroneous having been passed mechanically at the instance of the High Court.";