IMPORTANT POINT : Grant of sanction for prosecution of a public servant is not an idle formality but same is a mandatory requirement of law.

Judgment :

The petitioners have invoked the jurisdiction of this Court under Section 482 of the Cr. P. C thereby challenging the proceedings initiated by Chief Judicial Magistrate, Srinagar, in a challan arising out of FIR No.RC1232019A0003 for offences under Section 120-B read with 420 of RPC and Sections 4-H, 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act (hereinafter referred to as the J&K PC Act). Challenge has also been thrown to order dated 27.11.2020 and order dated 25.09.2021 passed by Chief Judicial Magistrate, Srinagar, in the challan emanating out of the aforesaid FIR.

2. The facts leading to the filing of the instant petition are that the aforesaid FIR came to be registered by CBI/Anticorruption Bureau (ACB), Srinagar, on the basis of source information alleging therein that the petitioners, who happen to be the officers/officials of Srinagar Central Sub Division, Central Public Works Department, Srinagar, in connivance with accused Ghulam Mohi-ud-din Bhat of M/S Ghulam Mohi-ud-din Bhat & Sons (Govt. Contractor) and other unknown officials/private persons were involved in alleged irregularities i.e. use of sub-standard material resulting in poor workmanship in the construction of helibase and chain link fencing, adjoining Airbase with provision of cabin/helicopter Hangar at BSF Campus, Humhama, Srinagar, during the year 2014-2015. It was further alleged that the aforesaid accused/public servants in connivance with each other and accused contractor managed to submit fake invoices of cement and TMT steel and also used sub-standard material in the execution of aforesaid contract. It was alleged that no technical staff on behalf of the contractor was deployed and no batch mix plant was utilized in the work. It was further alleged that the payments on extra cement to the tune of Rs.28.00 lacs, in addition to the basic quantity of cement has been released by the accused public servants to the contractor thereby providing undue benefit to the said contractor and causing wrongful loss to the Government exchequer.

3. Investigation of the case was set into motion and after investigation, the allegations regarding submission of fake invoices of steel TMT bars and cement were established. It was also established that sub-standard material was used during the execution of the contract work, batch mix plant was not used in execution of the concrete work and that no technical staff was deployed by the contractor at the site. After completion of investigation, offences under Section 4-H, 5(1)(d) r/w 5(2) of J&K PC Act and Section 120-B r/w Section 420 RPC were found established against the petitioner and the co-accused. The respondent approached the competent authority for sanction of prosecution in terms of Section 6 of the J&K PC Act against the petitioner who are public servants but the same was denied by the competent authority of CPWD. After denial of sanction for prosecution, the respondent filed the challan against the petitioners and the co- accused to the extent of commission offences under Section 120-B, 420 RPC only and dropped the offence under J&K PC Act.

4. After the charge sheet was laid before the Court of learned Chief Judicial Magistrate, Srinagar, an order came to be passed by the said Court on 27.11.2020, whereby the learned Magistrate accepted the contention of Assistant Public Prosecutor, appearing on behalf of the respondent herein that the acts alleged to have been committed by the petitioners fall beyond the scope of their official duty and, as such, no previous sanction under Section 197 of Cr. P. C is required in the case. Accordingly, the learned Magistrate took cognizance of the offences and issued process against the accused including the petitioners herein. This order came to be challenged by petitioner No.1 herein by way of a petition under Section 482 of the Cr. P. C (CRM (M) No.135/2021) before this Court. The aforesaid petition came to be disposed of by this Court in terms of