REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2353 OF 2010

(Arising out of SLP (Criminal) No. 2239 of 2010)

State of Himachal Pradesh

…. Appellant

Versus

Nishant Sareen

…. Respondent

JUDGMENT

R.M. Lodha, J.

Leave granted.

2.

The question raised in this appeal, by special leave, is as

regards the extent of power vested in the Government in reviewing

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its order granting or refusing sanction to prosecute the public servant

in terms of Section 19 of the Prevention of Corruption Act, 1988 (for

short, ‘the 1988 Act’).

3.

Nishant Sareen—the respondent—was posted as Drug

Inspector, Bilaspur (Himachal Pradesh) in 2005. One, Dr. Ramdhan

Sharma, owner of Leelawati Hospital, Ghumarwin lodged a

complaint against the respondent in the Vigilance Department of the

State Government that the respondent had demanded Rs. 5,000/-

from him as bribe to allow him to run the said hospital without

checking by the Drug Inspector. Based on the said complaint, a first

information report (being No. 1/2005) was registered under Sections

7 and 13 (2) of the 1988 Act at Police Station AC Zone, Bilaspur.

Thereafter, a raiding party under the supervision of Deputy

Superintendent of Police, AC Zone, Bilaspur was constituted and a

trap was laid on May 12, 2005. The respondent is said to have been

caught red-handed on that day accepting the bribe from the

complainant. The respondent was arrested and produced before the

Additional Sessions Judge, Ghumarwin and was remanded to

judicial custody upto May 16, 2005. The respondent was released

on bail later on. Upon completion of investigation, the Vigilance

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Department sought for sanction under Section 19 of the 1988 Act

from the Government to prosecute the respondent. It is not in

dispute that the Principal Secretary (Health), Government of

Himachal Pradesh is the competent authority authorized under the

Rules of Business for according sanction in the matter.

4.

The Principal Secretary (Health), on the basis of the

material placed before her and on examination of the case, found no

justification in granting sanction to prosecute the respondent. In the

order dated November 27, 2007 whereby sanction was refused, it

was observed as under :

“Therefore, after thorough examination of the case

taking all the aspects into consideration and scrutiny of

the service records it has been concluded that Sh.

Sareen in the course of his duties and responsibilities

and impartial discharge of his duties (sic). It appears

that the complainant has registered a case which

appears to be frivolous and has resulted in unnecessary

harassment and hindrance in the working of the Drug

Inspector. In view of this, there appears to be no

justification for launching prosecution against Sh.

Nishant Sareen, Drug Inspector as it appears to be a

case of Personal enmity.”

5.

It appears that the Vigilance Department took up the

matter again with the Principal Secretary (Health) for grant of

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sanction as in their opinion sufficient evidence existed to prosecute

the respondent.

6.

The competent authority, thus, reconsidered the matter

and granted sanction to prosecute the respondent vide its order

dated March 15, 2008. In the sanction order dated March 15, 2008,

it was observed thus:

“I agree with the contention of the Vigilance Department

that in evaluating the evidence of criminal misconduct,

his general conduct and behaviour as perceived by his

superiors cannot secure precedence. I have been

through the case file and facts of the case in detail. I find

that the said Drug Inspector. Sh. Nishant Sareen has

been caught red handed, with a bribe of Rs. 5000/-.

There is nothing on record to show that this incident did

not occur. The facts do not support the contention that

Sh. Nishant Sareen was falsely implicate