- (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. Again a complaint was made by Dr.M.A. Rijwan wherein he also alleged that on the date of interview, i.e. 6.5.2008, one Kishori, agent of this petitioner told him that if he wants to be appointed, he needs to pay a sum of Rs.3,00,000/-. On negotiation he came down to Rs.2,00,000/-. On the basis of aforesaid two complaints, a Complaint Case no.352 of 2008 was registered in the Vigilance Bureau. While the matter was being enquired into, one Harshdeo Gupta and Md. Hujefa Rahmani also made complaint about the irregularities committed by the members of the Selection Committee in the matter of appointment. Again a compliant was made by one Dr.Nagendra Prasad Singh stating therein that he does have DVD wherein he has recorded the talk which was there in between Dr.Jyotish Chandra Singh and Dr.Rabindra Rai on the one hand and the candidates which would go to show that they had asked for bribe for getting them successful. He also claimed to have recorded the voice of Dr.Amreshwar Prasad on his Mobile which he played before him. In course of enquiry, it was found that certain amount had been deposited by different persons in the account of Dr.Jyotish Chandra Singh. Having enquiry being made, it was found that Dr.Jyotish Chandra Singh got the amount by different persons deposited in his account and this petitioner had played the role of negotiator in the matter of payment of the amount of bribe. On such allegation, Vigilance P.S case no.15 of 2009 was instituted under Sections 420 and 120(B) of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioner and other accused persons. After completion of investigation, charge sheet was submitted along with the order sanctioning prosecution against the petitioner, upon which cognizance of the offence was taken under Section 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, vide order dated 28.5.2010 which is under challenge.
(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. In this regard, learned counsel has referred to a decision rendered in a case of Rakesh Kumar Mishra vs. State of Bihar and others [(2006) 1 SCC 557] and also in a case of Prakash Singh Badal and another vs. State of Punjab and others [(2007) 1 SCC 1]. Learned counsel further submitted that if the act alleged does have close nexus with the duty which was discharged by the public servant, then certainly sanction is necessary to be obtained for initiating prosecution for the said offences. Under the circumstances, cognizance taken of the offences punishable under Sections 467, 468, 471, 477A and 201 of the Indian Penal Code and also under Sections 7, 8, 9, 10, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act is quite bad and that part of the order is fit to be set aside. As against this Mr.Shailesh, learned counsel appearing for the Vigilance submitted that whatever argument has been advanced on behalf of the petitioner that, in the facts and circumstances, appears to be quite fallacious. ;