CRLMP/5351/2023 of VIJAY KUMAR SINGHAL SON OF SHRI RAMSWAROOP SINGHAL, Vs STATE OF RAJASTHAN on 7 October 2024

1. State Of Rajasthan, Through P.p.

2. The Deputy Secretary (A-3), Department Of Personnel,Government Secretariat, Jaipur.Government Secretariat, Jaipur.

----Respondents

For Petitioner(s) : Mr. Rinesh Gupta

Mr. Saurabh Pratap Singh

Mr. Gaurav Sharma

For Respondent(s)

: Mr. Jitendra Singh Rathore, Addl. G A

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHAJudgment Reportable DATE OF JUDGMENT

07/10/2024

By way of this petition, the petitioner has prayed to quashand set aside the order of the prosecution sanction No. P.2(2)(108)Ka/K-3/Shi/2018 dated 23.06.2021 issued against him bythe respondent No. 2.

Brief facts of the case are as under:

As per the case of the prosecution, on 17.12.2018,complainant Kuldeep Singh submitted a complaint to the ASP, AntiCorruption Bureau, Sikar mentioning that he owns & operates ashop namely M/s Aadhar Medicos situated in Indu HospitalCampus, Jhunjhunu. Due to cancellation of his drug license,complainant wanted to renew it and for this purpose, he metpetitioner-Vijay Kumar Assistant Drug Controller (ADC) who demanded Rs. 50,000/- for preparaing the file online. He preparedthe documents and submitted the firm's file on 11.12.2018 topetitioner-Vijay Kumar. Petitioner-Vijay Kumar wanted to take Rs.50,000/- for doing file of his firm online but the complainant didnot want to give him Rs. 50,000/-. Verification of illegal demandwas conducted on 17.12.2018 and trap was destined to be laid on18.12.2018 but trap failed on 18.12.2018 and on the next datei.e. 19.12.2018, the trap was laid. So, trap proceedings wereconducted and on 20.12.2018 FIR was got registered against thepetitioner.

Learned counsel for the petitioner submits that on19.12.2018 trap was laid. Petitioner alleged that at that timecomplainant forcefully put the illegal gratification in the pocket ofthe petitioner and ACB Officials manhandled the petitioner.Learned counsel for the petitioner further submits that there is nosingle conversation between the petitioner and complainant whichcould led to the conclusion that petitioner ever demanded illegalgratification. Learned counsel for the petitioner also submits thatthe prosecution sanction was granted on 23.06.2021 on nonconsiderate and filmsy grounds without considering the basicparameters of Section 7 of the Prevention of Corruption Act, 1988(Amended up to 2018) (for short 'Act of 1988') i.e. workpendency. Learned counsel for the petitioner also submits that theappointing authority admitted the position that no work waspending with the petitioner at the time when trap was laid. Thecomplainant had applied for the drug license on 24.12.2018.Learned counsel for the petitioner also submits that while grantingprosecution sanction, authority had to show application of independent mindset different from the prosecution combined withreasoning but he had not applied his mind.

Learned counsel for the petitioner also submits that thepetitioner filed the detailed representation citing his grounds andraising all his defense but appropriate authority had notconsidered the case of the petitioner. Although they had admittedthe fact that at the time of trap, no work was pending with thepetitioner from 17.12.2018 to 19.12.2018. Complainant first timeapplied for the drug license on 24.12.2018.

Arguments

Learned counsel for the petitioner also submits that even ifthe prosecution story is accepted in toto then also no case underthe Act of 1988 is made out because at the time of demandingillegal gratification, no work was pending with the petitioner.

Learned counsel for the petitioner also submits that thecomplainant was very well aware that he had to apply onlinebecause as per the rules for issuing the drug license andcancellation of drug license, persons were required to apply onlinefrom September 2017. Petitioner had also cancelled the previousdrug license online, so the complainant was well aware regardingthe procedure.

Learned counsel for the petitioner also submits that to provethe offence underSections 7, 13(1)(d)/13(2) ofPrevention ofCorruption Act, prosecution had to establish the demand andacceptance of bribe money. Handling of tainted money to theaccused on the day of trap and work of the complainant must bepending with the accused as on the date of the trap. In thepresent case, no work was pending with the petitioner.Complainant had forcefully put the tainted money in the pocket of the petitioner on account of rivalry of the petitioner with RanjeetGurjar (friend of the complainant). Learned counsel for thepetitioner also submits that in the present case, ACB had notconducted any preliminary enquiry as to whether any work of thecomplainant was pending with the petitioner or not. Learnedcounsel for the petitioner also submits that mere recovery of thetainted money does not tantamount to any offence under the Actof 1988. So present prosecution sanction granted against thepetitioner is not according to law. So, prosecution sanction orderbe quashed.

Learned counsel for the petitioner has placed reliance upon the judgment passed in the case of Ashok Kumar Agarwal Vs.CBI (2014(14) SCC 295) wherein their Lordships has held asunder:-

8. In view of the above, the legal propositions can besummarised as under:

(a) The prosecution must send the entire relevant recordto the sanctioning authority including the FIR, disclosurestatements, statements of witnesses, recovery memos,draft charge sheet and all other relevant material. Therecordsosentshouldalsocontainthematerial/document, if any, which may tilt the balance infavour of the accused and on the basis of which, thecompetent authority may refuse sanction.

(b) The authority itself has to do complete and consciousscrutiny of the whole record so produced by theprosecution independently applying its mind and takinginto consideration all the relevant facts before grant ofsanction while discharging its duty to give or withhold thesanction.

(c) The power to grant sanction is to be exercised strictlykeeping in mind the public interest and the protectionavailable to the accused against whom the sanction issought.

(d) The order of sanction should make it evident that theauthority had been aware of all relevant facts/materialsand had applied its mind to all the relevant material. (e) In every individual case, the prosecution has toestablish and satisfy the court by leading evidence thatthe entire relevant facts had been placed before thesanctioning authority and the authority had applied itsmind on the same and that the sanction had been grantedin accordance with law.

In the case ofState of Karnataka Vs. Ameerjan (2007(11)SCC273), their Lordships of the Hon'ble Apex Courthas held as under:-

For the aforementioned purpose, indisputably, applicationof mind on the part of the sanctioning authority isimperative. The order granting sanction must bedemonstrative of the fact that there had been properapplication of mind on the part of the sanctioningauthority. We have noticed hereinbefore that thesanctioning authority had purported to pass the order ofsanction solely on the basis of the report made by theInspector General of Police, Karnataka Lokayuktha. Eventhe said report has not been brought on record. Thus,whether in the said report, either in the body thereof orby annexing therewith the relevant documents, IG PoliceKarnataka Lokayuktha had placed on record the materialscollected on investigation of the matter which wouldprima facie establish existence of evidence in regard tothe commission of the offence by the public servantconcerned is not evident. Ordinarily, before passing anorder of sanction, the entire records containing thematerials collected against the accused should be placedbefore the sanctioning authority. In the event, the orderof sanction does not indicate application of mind as thematerials placed before the said authority before theorder of sanction was passed, the same may be producedbefore the court to show that such materials had in factbeen produced.

In the case of Mahesh Kumar Soni Vs. State of Rajasthan (SB

Criminal Revision Petition No. 281/2023) Coordinate Bench of this Court held as under:- Evidently, the record reveals that no work of thecomplainant was pending with the department what tosay with the petitioner on the date of making of thecomplaint and on the date of managing trap, therefore,important ingredient of the offence for which chargeshave been framed is missing to the extent that any workwas pending with the public servant. Recovery of eachand every money on trap would not satisfy therequirement of gratification unless the money was beingpaid for discharge of official duty pending with theaccused.

In the case of P. Manjunath Vs. State of Karnataka (WritPetition No. 10027/2022),it was held that-

If the facts obtaining in the case at hand are consideredon the bedrock of the principles laid down by the ApexCourt, what would unmistakably emerge is that, there isneither demand nor acceptance in the case at hand. Thedemand should be for any work to be performed andacceptance should be towards the said work. Thedocuments produced along with the petition are sounimpeachable that they would clearly demonstrate thatthe work that came before the petitioner on 24-02-2022was performed and the document was released on thesame day itself. If the complainant had complained thatthe petitioner had demanded money for release ofdocument that would have been a circumstancealtogether different. The complaint is made after 14 daysof release of the document when no work was pendingwith the petitioner, the final trap is laid after two monthsof registration of the document and the petitioner is noteven caught acceptingany illegal gratification for him tohave demanded so, two months ago. Section 7 of the Actwould clearly hint at a pre-paid demand for performing awork and acceptance. There is no post-paid conceptunderSection 7of the Act, that too, on a trap that is laidafter two months after the alleged demand. The first trapfails and the second trap is a failure.

14. The contention of the learned counsel representingthe 1st respondent-CAB/Lokayukta is neither here northere as he is unable to wriggle out of the fact that thework had already been done and the alleged demand was projected after 14 days of the work and trap was laidafter two months of the work completion. Reliance beingplaced on certain audio conversation between thepetitioner and the complainant cannot even be pressed inhis defence in view of unequivocal facts narratedhereinabove.

In the case of Chandresha Vs. State of Karnataka LokayuktPolice Kalburgi in Criminal Appeal No. 200105/2015, it washeld that- The Hon'ble Supreme Court held that when the work ofcomplainant is not pending before accussed as on thedate of trap the important ingredient to attract andcomplete the offence punishable under Section 7, 13(1)(d)/13(2) of the Prevention of Corruption Act cannot besustained.

In the case of B. Jayaraj Vs. State of Andra Pradesh (2014(13) SCC 55), it was held as under-:

In so far as the offence underSection 7is concerned, it isa settled position in law that demand of illegalgratification is sine qua non to constitute the said offenceand mere recovery of currency notes cannot constitutethe offence underSection 7unless it is proved beyond allreasonable doubt that the accused voluntarily acceptedthe money knowing it to be a bribe. The above positionhas been succinctly laid down in several judgments of thisCourt.By way of illustration reference may be made tothe decision in C.M. Sharma Vs. State of A.P. (1) and C.M.Girish Babu Vs. C.B.I.(2)

9. In so far as the presumption permissible to be drawnunder Section 20 of the Act is concerned, suchpresumption can only be in respect of the offence underSection 7and not the offences underSection 7, 13(1)(d)/13(2) of the Act. In any event, it is only on proof ofacceptance of illegal gratification that presumption can bedrawn underSection 20 of the Act that such gratificationwas received for doing or forbearing to do any official act.Proof of acceptance of illegal gratification can follow onlyif there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which thelegal presumption under Section 20can be drawn arewholly absent.

In the case of N. Sunkanna Vs. State of Andhra Pradesh (2016(1) SCC 713) it was held as under-:

The prosecution examined the other fair price shopdealers in Kurnool as PWs 3, 4 and 6 to prove that theaccused was receiving monthly mamools from them. PWs4 and 6 did not state so and they were declared hostile.PW-3 though in the examination-in-chief stated so, in thecross-examination turned round and stated that theaccused never asked any monthly mamool and he did notpay Rs.50/- at any time. The prosecution has notexamined any other witness present at the time when themoney was demanded by the accused and also when themoney was allegedly handed-over to the accused by thecomplainant. The complainant himself had disowned hiscomplaint and has turned hostile and there is no otherevidence to prove that the accused had made anydemand. In short there is no proof of the demandallegedly made by the accused. The only other materialavailable is the recovery of the tainted currency notesfrom the possession of the accused. The possession isalso admitted by the accused. It is settled law that merepossession and recovery of the currency notes from theaccused without proof of demand will not bring home theoffence under Section 7, since demand of illegalgratification is sine-qua-non to constitute the saidoffence. The above also will be conclusive insofar as theoffence under Section 13(1)(d)is concerned as in theabsence of any proof of demand for illegal gratificationthe use of corrupt or illegal means or abuse of position asa public servant to obtain any valuable thing or pecuniaryadvantage cannot be held to be established. It is only onproof of acceptance of illegal gratification thatpresumption can be drawn under Section 20 of the Actthat such gratification was received for doing orforbearing to do any official act. Unless there is proof ofdemand of illegal gratification proof of acceptance will notfollow. Reference may be made to the two decisions ofthree-Judge Bench of this Court in B. Jayaraj vs. State ofAndhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The District Inspector of Police and another[(2015 (9) SCALE 724].

In the case of Yashwant Sinha Vs. CBI Reported in 2020 (2)

SCC 338 it was held as under:-

"116. The petitioners have not sought the relief of apreliminary inquiry being conducted. Even assuming thata smaller relief than one sought could be granted, there isyet another seemingly insuperable obstacle.

117. In the year 2018, the Prevention of Corruption(Amendment) Act, 2018 (hereinafter referred to as ‘2018Act’ for short) was brought into force on 26.07.2018.Thereunder, Section 17A, a new Section was inserted,which reads as follows:

“17A. (1) No police officer shall conduct any enquiryor inquiry or investigation into any offence alleged tohave been committed by a public servant under this Act,where the alleged offence is relatable to anyrecommendation made or decision taken by such publicservant in discharge of his official functions or duties,without the previous approval—(a) in the case of a personwho is or was employed, at the time when the offencewas alleged to have been committed, in connection withthe affairs of the Union, of that Government; (b) in thecase of a person who is or was employed, at the timewhen the offence was alleged to have been committed, inconnection with the affairs of a State, of thatGovernment; (c) in the case of any other person, of theauthority competent to remove him from his office, at thetime when the offence was alleged to have beencommitted: Provided that no such approval shall benecessary for cases involving arrest of a person on thespot on the charge of accepting or attempting to acceptany undue advantage for himself or for any other person:Provided further that the concerned authority shall conveyits decision under this section within a period of threemonths, which may, for reasons to be recorded in writingby such authority, be extended by a further period of onemonth.

In terms of Section 17A, no Police Officer is permitted toconduct any enquiry or inquiry or conduct investigationinto any offence done by a public servant where theoffence alleged is relatable to any recommendation madeor decision taken by the public servant in discharge of his public functions without previous approval, inter alia, ofthe authority competent to remove the public servantfrom his Office at the time when the offence was allegedto have been committed. In respect of the public servant,who is involved in this case, it is clause (c), which isapplicable. Unless, therefore, there is previous approval,there could be neither inquiry or enquiry or investigation.It is in this context apposite to notice that the complaint,which has been filed by the petitioners in Writ Petition(Criminal) No. 298 of 2018, moved before the firstrespondent-CBI, is done after Section 17A was inserted.The complaint is dated 04.10.2018. Paragraph 5 sets outthe relief which is sought in the complaint which is toregister an FIR under various provisions. Paragraphs 6and 7 of the complaint are relevant in the context ofSection 17A, which reads as follows:

"6. We are also aware that recently, Section 17A ofthe act has been brought in by way of an amendment tointroduce the requirement of prior permission of thegovernment for investigation or inquiry under thePrevention of Corruption Act.

7. We are also aware that this will place you in thepeculiar situation, of having to ask the accused himself,for permission to investigate a case against him.

We realise that your hands are tied in this matter, but werequest you to at least take the first step, of seekingpermission of the government under Section 17Aof thePrevention of Corruption Act for investigating this offenceand under which, “the concerned authority shall conveyits decision under this section within a period of threemonths, which may, for reasons to be recorded in writingby such authority, be extended by a further period of onemonth”

Learned Addl. G A has opposed the arguments advanced bythe learned counsel for the petitioner and submitted that thepetitioner has also filed criminal writ petition No. 643/2022 beforethis Court and the said petition was dismissed by the Co-ordinateBench of this court vide order dated 04.07.2023. The Co-ordinateBench of this Court dealt with all the averments raised by thepetitioner in the said petition. So, present petition is not maintainable. Learned Addl. G A has also submitted that petitionerwas caught red-handed and tainted money was recovered from hispocket. So, competent authority rightly issued prosecutionsanction against the petitioner. So, the present criminal misc.petition filed by the petitioner being devoid of merit, is liable to bedismissed.

I have considered the arguments advanced by the learnedcounsel for the petitioner as well as learned AdditionalGovernment Advocate.

It is an admitted position that for procuring the drug licenseand cancellation of drug license, online procedure was prevailingat that time because deaprtment had started online process fromSeptember, 2017. Complainant very well knew the online process.He had applied for cancellation of drug license online. So, therewas no need to prepare the file offline. Investigating Authoritieshad not conducted the verification of illegal demand in accordancewith law and had not conducted any enquiry as to whether anywork was pending with the petitioner or not. It is also an admittedposition that at the time of trap proceedings, no work was pendingwith the petitioner from 17.12.2018 to 19.12.2018. Complainantfirst time applied for the drug license on 24.12.2018. Petitionersubmitted a detailed representation before the concernedauthorities. Concerned authorities also admitted the fact that nowork was pending with the petitioner. Petitioner had clearly statedthat complainant had forcefully put the tainted money in hispocket on account of rivalry of the petitioner with Ranjeet Gurjar.Department had also admitted the rivalry of the petitioner with Ranjeet Gurjar. Ranjeet Gurjar is the friend of the complainantKuldeep Singh. In the present case, prosecution failed to establishthat there was any demand and acceptance of the bribe. Mererecovery of tainted money does not attract the offence against thepetitioner underSections 7, 13(1)(d)/13(2)ofthe Act of 1988because prosecution had to establish the fact that work waspending with the petitioner and petitioner had demanded thetainted money for doing work. Competent authority beforegranting the prosecution sanction had not applied independentmind. So, I deem it fit to quash and set aside the order of theprosecution sanction dated 23.06.2021 issued against thepetitioner by the Deputy Secretary (A-3), Department OfPersonnel, Government Secretariat, Jaipur.

Accordingly, the petition filed by the petitioner is allowed andthe prosecution sanction issued against the petitioner is herebyquashed.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J