- (1.)By way of this writ petition under Article 226 of the Constitution of India the petitioner has challenged the prosecution sanction dated 2.10.2014 granted by the State Government to launch prosecution against him for offence under Section 13(1)(d) and (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act").
(2.)Briefly stated the relevant facts for the disposal of this petition are that In the year 2010 when the petitioner was posted as Executive Engineer (Medical & Health Division) Jaipur and was having charge of some construction works being conducted at Alwar and Dausa Districts, FIR No. 375/2010 came to be registered against him on 29.10.2010 at Principal Police 1 Station, ACB, Jaipur on the premise that on 10.9.2010 when on the basis of some secret information Indica Car bearing registration No. RJ- 14-T-7971 in which the petitioner was travelling from Alwar to Jaipur was Intercepted and checked near Pooja Hotel Bye-pass Road Malakhera by the Additional Superintendent of Police ACB in the presence of two independent witnesses, a total amount of L 85,900/- was recovered from the possession of the petitioner for which satisfactory explanation could not be furnished by him. As required under Section 19(1) of the Act prosecution sanction was sought by the ACB after collecting evidence during investigation conducted on the basis of the aforesaid FIR and the same was granted by the competent authority by way of impugned order dated 2.10.2014. It has not been disputed that in respect of the petitioner Minister-in-charge of the Department of Personnel, Government of Rajasthan was the competent authority to grant the requisite sanction and at the relevant time Chief Minister was holding the charge of the aforesaid department.
(3.)In support of the petition, learned counsel for the petitioner has raised the following grounds
(1) The evidence collected by the investigating officer during investigation was placed before the concerned department and the competent officer of the same after considering the evidence so collected and the representations made by the petitioner found that it would be hard to prove the allegation made against the petitioner and it was recommended by him that it is not a fit case in which prosecution sanction as required under Section 19 of the Act is to granted, but subsequently without collecting fresh evidence and with the change of Government it was recommended that sufficient evidence is available to launch prosecution against the petitioner and by means of the impugned order prosecution sanction was granted whereas it Is settled legal position that once prosecution sanction has been refused by the competent authority, such an order cannot be reviewed and prosecution sanction cannot be granted at least without collecting fresh evidence. In the present case, the Chief Minister ordered for summoning of some more documents which were although summoned accordingly, but when fresh note-sheets for grant of sanction was prepared, the same were not considered and without application of mind sanction was granted mechanically considering the note- sheets prepared by the concerned officer.

(2) It is well settled legal position that the competent authority must independently apply his mind to grant or not to grant prosecution sanction and for that purpose entire material placed before him including the evidence collected by the investigating agency during investigation as well as the representations made by the accused and the material produced by him in support of the representations must be properly considered, but in the present case no such exercise has been made by the competent authority and the sanction has been granted mechanically only on the basis of note-sheet prepared by the concerned offices more particularly without considering the fact that previously the same office recommended that it is not a fit case in which prosecution sanction is to be granted. The impugned order dated 2.10.2014 does not reflect that the representations made and the material produced by the petitioner in support of the same were also considered by the competent authority.

(3) Even if the case of the prosecution is admitted for the sake of arguments even then no offence under clause (d) and (e) of sub-section (1) of Section 13 of the Act can be said to be made out as the essential ingredients of the aforesaid offence are entirely lacking. For an offence to be made out against a public servant under clause (d), it is essential that he by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. It is thus clear that unless the public servant "obtains any" valuable thing or pecuniary advantage offence under this clause cannot be made out whereas in the present case no iota of evidence has been collected during investigation showing that the petitioner at any time "obtained" such advantage or thing. When the basic ingredient of the offence is absent how the competent authority can give prosecution sanction for such an offence and this fact alone is clear indication of the fact that it was granted mechanically without application of mind. Similarly, for an offence to be made out under clause (e), it is essential that the public servant or any person on his behalf is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. In the present case, the check period is only for one day whereas the petitioner is in Government service since 1982 and he was promoted to the post of Executive Engineer in the year 2001. During his service period the petitioner has earned lacs of rupees by way of salary and, therefore, the amount of L 25,000/- found in the possession of the petitioner cannot be said to be an amount which is disproportionate to his known sources of income. It is an admitted fact that the petitioner was out of his home for few days for inspection purpose and it was natural for him to have in his possession some money for his personal use during this period. So far as the amount of L 60,000/- is concerned, it was satisfactorily accounted for by the petitioner, but the competent authority did not properly consider the explanation furnished by the petitioner. It is not a case in which the movable and Immovable property found in the possession of the petitioner was checked and it was found that the value of the same is disproportionate to the known sources of income of the petitioner and he failed to satisfactorily account for the same.

(4) The incident pertains to the year 2010 whereas the prosecution sanction has been granted with a delay of about four years for which no explanation has been furnished. It is well settled legal position that if unnecessary and unexplained delay is made for granting prosecution sanction, it vitiates the entire proceedings and it is a clear indication of the fact that it has been granted with an oblique motive only to harass the accused.