Dani Gamboo C/o The Chief Engineer, Public Works Department vs Chief Secretary Cum Chairman

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 1059

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT ITANAGAR BENCH
ROBIN PHUKAN, J.
Dani Gamboo C/o The Chief Engineer, Public Works Department – Petitioner
Versus
The Chief Secretary Cum Chairman and Others – Respondents
Crl. Pet. Nos. 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 61 of 2021
Decided On : 30-05-2022

Advocates:
Advocate Appeared:
For the Petitioner: T.T. Tara.
For the Respondent: Ojing Pada.

Headnote:
Indian Penal Code, 1860 – Section 409 – Criminal Procedure Code, 1973 – Section 227, 482 – Prevention of Corruption Act, 1988 – Section 13 (1) (c) (d), 13 (2) – Criminal Revision Petition – Criminal breach of trust by public servant – It is submitted Bar that all these 19 (nineteen) petitions have arisen out of same prosecution order, vide Memo, and as such, all these criminal petitions may be disposed of by a common judgment and order – Held, Court find that there is no material to suggest that impugned sanction, so granted by sanctioning authority, by following guidelines laid down by Hon’ble Supreme Court Agarwal (supra), to prosecute petitioners in Yazali P.S. Case, suffers from any infirmity or irregularity, so as to interfere with same, by invoking extra-ordinary jurisdiction, under Section 482 Cr.P.C – Though, Learned counsel for petitioners, submits that there is no provision for submitting draft prosecution sanction by SIC (Vig.) yet, these are technical matter which cannot vitiate sanction here in this case – There is also no force in submission of Mr. Tara, that sanctioning authority had not applied its mind while granting prosecution sanction against petitioners and that legal advice of learned Advocate General, Arunachal Pradesh was not obtained – There is nothing on record to suggest that sanction was granted mechanically by sanctioning authority – Moreover, there is no legal mandate to obtain legal advice of learned Advocate General and as such, failing to obtain legal advice would not vitiate sanction granted – Dismissed.

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. T.T. Tara, learned counsel for the petitioners and also heard Mr. S. Tapin, learned Senior Govt. Advocate for respondent Nos. 1 and 2 as well as Mr. O. Pada, learned Special PP for respondent No. 3.

2. It is submitted at the Bar that all these 19 (nineteen) petitions have arisen out of the same prosecution order, vide Memo No. SPWD-290/2014, dated 16.03.2018, and as such, all these criminal petitions may be disposed of by a common judgment and order. Accordingly, it is proposed to dispose of all these 19 (nineteen) criminal petitions by this common judgment and order.

3. In these applications, under section 482 of the Code of Criminal Procedure, the petitioners have put to challenge the prosecution sanction order, vide Memo No. SPWD-290/2014 dated 16.03.2018, by which sanction is accorded to prosecute them in connection with Yazali P.S. Case No. 05/2011.

4. The factual background, leading to filing of theese applications, is briefly stated as under:

“On 29.04.2011, Shri J.T. Takam of Yazali lodged one complaint with the Yazali Police Station alleging large scale misuse of fund allocated for construction of road: (a) C/o road from Jop to Silsong; (b) C/o road at KVK Yachuli and (c) C/o road from Loth to Chambang for an amount of Rs. 3569.02/- lakhs. Upon the said complaint Yazali P.S. Case No. 05/2011, dated 11.07.2011 has been registered under Section 409 IPC, read with Section 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act, 1988. After registration, the case was transferred to the SIC (Vigilance), Itanagar, pursuant to an order of Dy. Inspector General of Police, Vide No. PHQ/CR/GC/ZIRO-05/2011, dated 11.07.2011 and the investigation was carried out, which culminated in submission of Charge-Sheet, dated 14.10.2015, before the learned Special Court (PCA) Yupia in PCA Case No. 01/2016 (YPA) against the 21 officials of the P.W.D. Yazali and Ziro Sub-Division and the contractors, including the present petitioners, who were working in different capacities in PWD, Ziro Division, at the relevant time, under Section 120(B)/409/420 IPC and Section 13 (1) (c) (d) and 13 (2) of Prevention of Corruption Act, 1988 without, however, obtaining prosecution sanction against the petitioners.”

4.1. Thereafter, the learned Court below had issued summon to the petitioners/accused persons, and on their appearance, and after hearing both sides, the learned Court below has discharged all the accused persons, including the present petitioners, on the ground of absence of prosecution sanction, and in absence of materials against the accused vide order, dated 21.12.2017.

4.2. Thereafter, the SIC (Vigilance) had challenged the order, dated 21.12.2017, by filing a Criminal Revision Petition No. 05 (AP) 2018, before this Court and the same was disposed of on 22.06.2021 and the impugned order, dated 21.12.2017, passed by the learned Special Judge (PCA), Yupia was set aside and direction was issued to the learned court below to proceed with the trial. It is to be noted here that during pendency of the said revision petition before this Court, the SIC (Vigilance) had filed one additional affidavit before this Court with a prayer to bring on record the subsequent filing of supplementary Charge-Sheet in SIC (Vigilance) P.S. Case No. 05/2011, in the Criminal revision petition, on 21.03.2018, with the prosecution sanction granted by the competent authority vide letter, dated 21.02.2018, vide Memo No. SPWD-290/2014.

5. Then, being highly aggrieved by the aforesaid prosecution sanction order, dated 16.03.2018, the present 19 (nineteen) petitioners have preferred these 19 (nineteen) criminal petitions challenging the order, dated 16.03.2018 Vide Memo No. SPWD-290/2014 on the following grounds:

(i) That, the sanction was granted by the State respondent without application of mind and discretion vested it in accordance with law as it has no power to review its earlier rejection order.

(ii) That, the sanctioning authority i