Sanction to prosecute must demonstrate an application of mind on behalf of the authority concerned; failure to do so renders the sanction invalid.

ORAL JUDGMENT

1. Issue Rule returnable forthwith. Learned APP Ms.Mehta waives service of Rule on behalf of the respondent State. With the consent of the learned Advocates for the parties, the matter is taken up for final hearing today.

2. Heard learned Sr. Advocate Mr.I.H. Syed appearing with learned Advocate Mr.Jit Patel on behalf of the applicant and learned APP Ms.Mehta for the respondent State.

3. By way of this application, the applicant has inter alia challenged an order dated 3.4.2019 passed by the respondents, whereby the sanction to prosecute the applicant for the offences under the Prevention of Corruption Act as well as for the offences under IPC had been granted.

4. The present application is preferred in context of a submission made by the applicant that while there is no evidence against the present applicant, which would warrant grant of sanction to prosecute even otherwise, the order according sanction to prosecute is illegal and void ab initio since the file notings would reflect that the Hon’ble Minister had approved of the recommendation of the department which was not to accord sanction to prosecute the present applicant.

5. The brief facts leading to filing of this application are narrated herein below:-

5.1. The applicant at the relevant point of time was posted as Mamlatdar at Himmatnagar, when an FIR came to be registered before the ACB Police Station, Himmatnagar on 23.5.2016 being C. R. No.I-6/2016 by one Mr.Nalinbhai Chandubhai Patel inter alia alleging offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of Prevention of Corruption Act , 1988. It appears that as per the allegation in the FIR, the applicant had allegedly demanded an amount of Rs.2,00,000/- for certifying an entry in the Revenue Records. It further appears that with regard to the said allegation, a trap had been laid by the Trap Laying Officer on 23.5.2016. It appears that the applicant had been arrested on 23.5.2016 and whereas he was released on bail by this Court vide an order dated 13.6.2016 passed in Criminal Misc. Application No.12966 of 2016.

5.2. At the outset, it would be relevant to mention that as per the case of the complainant himself, while the entry concerned had also been certified in the Revenue Records, and it would also be relevant to mention that upon the trap being laid and concluded, according to the applicant, there was neither any material to show that the applicant having demanded an amount of bribe, nor did he accept the amount of bribe, nor was there any recovery of bribe amount from him. It appears that as the applicant had been arrested, the provision of deemed suspension had been invoked upon the applicant having remained in custody for more than 48 hours and, therefore, the suspension of the applicant came into effect from the date of his arrest i.e. 23.5.2016.

5.3. It is further submitted by the applicant that as such while show- cause notice had been issued to the applicant for conducting a departmental inquiry into the allegations, it appears that the District Collector, Sabarkantha upon direction of the respondents had come to a conclusion that the applicant did not appear to have committed any irregularities. It is the case of the applicant that the respondents in spite of all these aspects had vide order dated 3.4.2019 granted sanction to prosecute the present applicant and, therefore, the present application has been preferred.

6. Heard learned Sr. Advocate Mr.Syed appearing with learned Advocate Mr.Jit Patel on behalf of the applicant, who would submit that while the order dated 3.4.2019 reflects as if the competent Authority had accorded sanction to prosecute the present applicant, but according to the learned Sr. Advocate