Judgement Key Points

1. This petition under Section 561-A Cr.P.C. has been made to quash the order dated 17-5-1996 passed by the learned Special Judge, Anti Corruption, Jammu whereby the petitioners was charged for the commission of offences under Section 5(1) (d) read with Section 5(2) of the J&K Prevention of Corruption Act 2006 BK (hereinafter referred to as the Act).

2. The factual matrix of the case is that in the year 1978-79, the petitioners was posted as Headmaster, Govt. High School, Vessu (Kashmir) and during this period he had drawn an amount of Rs. 47,750/- from his G .P. Fund account. In routine, the concerned auditing team of the Finance Department checked the accounts when it was found that the said withdrawal had exceeded his actual credit to the tune of Rs.26, 538/-. interest was also calculated on this amount and it came out to be Rs.6157/-. The petitioner has contended that before any inquiry was ordered on this lapse he had already deposited the whole amount in the sum of Rs.32,690/- i.e. Rs.26, 538/- + Rs.6,157/- into the Govt. Treasury. The controversy did not end but under FIR No. 24/82 case was registered in the Vigilance Organisation. The investigation was set afoot but the Commissioner Vigilance vide his letter No. CB/FIR-24/82/382-29 dated 25-1 -1985 (Annexure-B) wrote to the Secretary to Govt. Home Department that the investigation of the case was closed as not proved. This finding of the investigating agency did not find favour with the authorities. Further investigation was conducted and on August 16, 1994 the final report was submitted before the learned 1st Addl. Sessions Judge, Special Judge, Anti Corruption, Srinagar. After the eruption of militancy in the valley the petitioner migrated to Jammu and got the case transferred for trial to the court of learned Special Judge, Anti Corruption, Jammu who took the cognizance and charged the petitioner for the commission of the above stated offences.

3. Through the medium of this petition, the order of charge has been challenged on the following grounds:

i) The case against the petitioner was closed in the year 1985 (Annexure D) and further investigation is without any sanction of law;

ii) There is a delay of about 15 years in filing the final report in the court which is fatal;

iii) The prosecution of the petitioner without obtaining previous sanction from the Govt. is contrary to the requirement of Section 6 of the Prevention of Corruption Act 2006 and this lacuna vitiates the trial.

4. Heard the arguments.

The counsel for the petitioner in his argument reiterated the grounds of the petition and further contended that the petitioner had no criminal intention to acquire any pecuniary advantage for himself. The excess withdrawal was made on bonafide mistake and this fact was ratified by the Commissioner of Vigilance who had recommended the closing of the case. Regarding the inordinate delay in submitting the final report in the trial court, he has contended that proceedings cannot survive in view of the law laid down in the case of Rama Chand Choudhary V/s State of Bihar (AIR 1994 SC 948). On the plea that there is no previous sanction from the Competent authority he has contended that proceedings get vitiated in view of the law laid down in the case of Bala Krishan Pillai Vs. State of Kerela (AIR 1996SC90).

5. The learned Govt. Advocate has controverted these arguments by stating that annexure-B is only interdepartmental communication. The Commissioner of Vigilance had expressed his opinion which was not accepted by the Government and the investigation was not closed either under Section 169 Cr.P.C. or under any other provision of law. The delay in submitting the final report was not caused by the investigating agency and it is not fatal. To buttress his contention he has cited the cases of Tara Singh Vs. State of Punjab (AIR 1991 SC 63) and Zahoor & Ors Vs. State (1991 Cr. L.J. 56). His reply to the absence of previous sanction of prosecution is that the petitioner after

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