Prashant Kumar Agarwal, J. - (1.) THE accused -petitioner by way of this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. has challenged the order dated 20.01.2014 passed by the Special Judge (Prevention of Corruption Cases) No. 3, Jaipur Metropolitan, Jaipur in Sessions Case No. 131/2013 whereby the learned trial Court has ordered to frame charge against the petitioner for the offences under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act") on the ground that the prosecution sanction under Section 19 of the Act is invalid as it has been granted by a person, who was not competent to grant it.
(2.) BRIEF relevant facts for the disposal of this revision petition are that FIR No. 68/2009 came to be registered against the petitioner for the aforesaid offences at Principal Police Station, ACD, Jaipur on the premise that the petitioner, who at the relevant time, was posted as a Lower Division Clerk in the office of Commercial Taxes Officer, Jhunjhunu demanded Rs. 500/ - as gratification and he obtained the aforesaid amount on 30.03.2009 from the complainant -Shri Sanjay Khan. On the basis of written complaint made by the complainant the aforesaid FIR was registered and after investigation charge -sheet was filed against the petitioner and cognizance was taken against him on 27.05.2010. The learned trial Court after hearing both the parties by passing the impugned order rejected the plea taken by the petitioner that the competent authority entitled to grant prosecution sanction against the petitioner was his removal authority i.e. Commissioner, Commercial Taxes Department, whereas the sanction order dated 27.1.2010 has been issued by the Deputy Commissioner (Administration), Commercial Taxes, Bikaner, who is a officer sub -ordinate to the competent authority. It was submitted by the learned counsel for the petitioner that the petitioner was appointed as Lower Division Clerk vide order dated 16.10.1990 by the Commissioner, Commercial Taxes Department, Rajasthan and thus, Commissioner is his appointing authority and he continues to be so till date and according to Article 311 of the Constitution of India, a person holding a civil post under a state cannot be removed from his office by an authority sub -ordinate to that by which he was appointed. It was further submitted that as the sanction under Section 19 of the Act is required to be granted by an authority who is competent to remove a public servant from his office, it follows that the sanctioning authority cannot be lower than the appointing authority in respect of those public servants to whom Article 311 of the Constitution is applicable. It was also submitted that while deciding about the authority competent to remove a public servant, Article 311(1) of the Constitution has to be taken into consideration and Section 19 of the Act must be interpreted in the light of the requirement of Article 311 of the Constitution. Attention of the Court was also invited to the fact that the petitioner was suspended from service vide order dated 2.4.2009 by the Commissioner which also shows that Commissioner continued to be his appointing/removal authority.
(3.) ON the other hand, learned Public Prosecutor submitted that vide sanction order dated 27.1.2009, Deputy Commissioner (Admn.), Central Taxes Department, Bikaner has claimed to be competent to remove the petitioner from his office, so it is a question of fact to be decided by the trial Court after considering the evidence produced by the parties about the authority competent to accord sanction required under Section 19 of the Act as it is well settled legal position that Court may presume that an official act has been regularly performed unless it is rebutted. It was further submitted that as per clause (a) of sub -section (3) of Section 19 of the Act, an order passed by a Special Judge cannot be reversed or altered in revision on the ground of any error, omission or irregularity in the order of sanction unless in the opinion of the Court a failure of justice has infact been occasioned thereby. It was thus submitted that mere error in sanctioning order itself does not automatically result into failure of justice and it is for the accused to satisfy the Court, on the basis of the evidence produced during trial, that infact such failure has occasioned and his rights have been adversely affected. Inviting attention of the Court towards clause (a) of the explanation to Section 19 of the Act, it was contended that "error" includes competency of the authority to grant sanction. It was also contended that even if for the sake of arguments it is admitted that in the present case prosecution sanction has not been granted by the competent authority, even then merely by that reason, the impugned order cannot be set aside.;