A non-public servant cannot be prosecuted under the Prevention of Corruption Act, and there must be clear evidence to establish a conspiracy or benami transactions.

1.The petitioner has presented this petition seeking to quash Government Order No. 29 - GAD (Vig.) of 1998 dated 6-5-1998, whereby respondents have granted sanction to prosecute the petitioner for having allegedly committed offences punishable under S. 5(2) of the P.C. Act, 2006 read with S. 120 - B, RPC, and further seeks to quash FIR No. 27 of 1997 and also Challan No. 2 of 1998 pending in the Court of learned Special Judge Anti - Corruption, Jammu to the extent it pertains to the alleged involvement of the petitioner.

2. The f actual matrix of the case briefly is that an FIR No. 27 of 1997 came to be registered against Shri Hem Raj Gupta, a public servant working as Section Officer in the Office of Deputy Commissioner, Kathua upon a complaint alleging therein that he, in the course of employment, during the period from Jan., 1982 to May, 1987, indulged in corrupt practices and by abusing his official position as a public servant has obtained huge benefits by dint of which he has raised assets both movable and immovable disproportionate to his known sources of income.

3. During the investigation, the respondent No. 2 has allegedly found that the said public servant in acquiring the shopping complex at Vikas Nagar, Patoli Road, Jammu projected the petitioner, wife and daughter of the petitioner as owners of the said shopping complex, while actually, it was not raised out of their financial resources. The petitioner rendered illegal assistance to Hem Raj Gupta in illegally acquiring assets in pursuance of criminal conspiracy to save him from any possible involvement in a criminal charge.

4. The property referred to above, according to the petitioner, is his acquired property out of his own known sources of income. The respondents categorised this property as benami transaction and came to the conclusion that Hem Raj Gupta in his capacity as public servant committed offence of criminal misconduct and criminal conspiracy, punishable under S. 5(2) of the P.C. Act, 2006 read with S. 120 - B, R.P.C. along with the petitioner and also committed offence under S.12 and S.14 of Jammu and Kashmir Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983 and granted sanction under Government Order No. 29 - GAD (Vig.) of 1998 dated 6-5-1998 for prosecution of Hem Raj Gupta along with the petitioner in FIR No. 27 of 1997 is uncalled for, unwarranted and illegal.

5. The petitioner has averred in the petition that the petitioner purchased 10 Marlas of land along with incomplete construction of Shops at village Top Sherkhanian, Vikas Nagar, Patoli Road, Jammu from Shri Gandharab Singh s/o Shri Shankar Singh, r/o Jandial vide registered sale deed executed on 13-10-1993, registered before Sub-Registrar, City Jammu on 14-10-1993 in his own name and in the name of his daughter namely Charu Gupta, w/o Ajay Kumar Gupta r/o Subash Nagar, Jammu.

6. The petitioner by profession is a contractor and his father was also renowned Contractor. He has his property in the heart of the city i.e. Purani Mandi, Jammu. The petitioner is an income - tax payee, a certificate issued on 19-11-1997 by the Income - tax Officer, New Assesses Ward, Jammu is annexed with the petition.

7. The daughter of the petitioner - Charu Gupta is married with Ajay Kumar Gupta s/o Hem Raj Gupta. Hem Raj Gupta accused in FIR No. 27 of 1997 or his son Ajay Kumar Gupta has absolutely no concern or connection with the title or ownership rights of the said property purchased by the petitioner in his name and in the name of his wife and daughter. The husband of