IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-11381-2016 (O&M)
Reserved on: 23.08.2023.
Pronounced on: 15.09.2023

Tulsi Ram Mishra … Petitioner

Versus

State of Punjab and others ... Respondents

CORAM: HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL

Present: Mr. Vaibhav Sehgal, Advocate for the petitioner.

Mr. Luvinder Sofat, DAG, Punjab.

Dr. Anmol Rattan Sidhu, Senior Advocate with

Mr. Anandeshwar Gautam, Advocate and
Ms. Tejaswini, Advocate for respondent No.2.

Mr. Satyapal Jain, Additional Solicitor General of India with

Mr. Dheeraj Jain, Senior Panel counsel for respondent No.3.

****
ANUPINDER SINGH GREWAL, J.

This petition has been preferred under Section 482 of the

Cr.P.C. impugning the order dated 08.01.2015 whereby the Special Judge,

SAS Nagar, has discharged respondent No.2 in a criminal case arising out of

FIR No.9 dated 09.11.2009, registered under Sections 7 and 13(2) of the

Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’).

I. Submissions on behalf of the petitioner

2. Learned counsel for the petitioner had submitted that the

allegations against respondent No.2 were serious inasmuch as he was caught

red-handed while accepting illegal gratification of Rs.2 lacs in the presence

of two witnesses. The State Government had accorded sanction on

27.04.2010 to prosecute respondent No.2 as he was serving in the State of

Punjab. The challan had been filed on 29.04.2010 along with the sanction to

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prosecute accorded by the State Government. Respondent No.2 was serving

in the State Government as the Director, Department of Industries &

Commerce and, therefore, it could not be said to be an invalid sanction. He

had further submitted that even if it is considered to be an invalid sanction,

respondent No.2 could not have been discharged and only at the conclusion

of trial, the validity of sanction could have been examined and he had to

prove that the order of sanction had caused grave prejudice to him in view of

Section 19 of the PC Act. He had, therefore, submitted that impugned order

be set aside and respondent No.2 be prosecuted under the PC Act. In support

of his submissions, he had relied upon the judgments of the Supreme Court

in the cases of Dharamaraj Vs. Shanmugam, (2022) SCC Online SC

1186, K. Shanthamma Vs. State of Telangana, (2022) 4 SCC 574, State

through Deputy Superintendent of Police Vs. R. Soundirarasu, (2022)

SCC Online SC 1150, Vijay Rajmohan Vs. Central Bureau of

Investigation (Anti Corruption Branch), (2023) 1 SCC 329, State of

Rajasthan Vs. Tejmal Choudhary, (2021) SCC Online SC 3477, Neeraj

Dutta Vs. State (Government of NCT of Delhi), (2023) 4 SCC 731, State

of Chattisgarh Vs. Aman Kumar Singh, (2023) SCC Online SC 198 and

Sheonandan Paswan Vs. State of Bihar, (1987) 1 SCC 288.

II. Submissions on behalf of respondent No. 1

3. Learned State counsel while relying upon the reply had

submitted that legality or validity of the sanction for prosecution has to be

raised in the course of the trial and has to be decided at the conclusion of the

trial. A wrong or improper sanction from some other authority would not

render the case of the prosecution as null and void. He has cited the

judgments in the cases of Vijay Rajmohan Vs. Central Bureau of

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Investigation (Anti Corruption Branch), (2023) 1 SCC 329, CBI Vs.

Ashok Kumar Aggarwal, (2014) 14 SCC 295. In the reply filed by

respondent No.1/State, it is also stated that merely on account of sanction

not being accorded by the competent authority the whole trial would not be

vitiated. The prayer in the reply is that the petition be allowed in view of the

submissions made by counsel for the petitioner as well as answering

respondents and impugned order be set aside.

III. Submissions on behalf of respondent No. 2

4. Learned senior counsel had submitted that respondent No.2 had

been rightly discharged by the impugned order because the sanction

accorded by the State Government was not proper as it was not the

competent authority. The Central Government was the competent authority

to grant sanction. Although the State Government had sent the matter to the

Central Government but later it had re-examined the matter, upon a

representation preferred by respondent No.2 dated 14.07.2014. The State

Government, with due application of mind and considering the relevant

material, had arrived at the conclusion that sanction to prosecute respondent

No.2 was unwarranted. Therefore, the State Government had withdrawn the

request for grant of sanction of prosecution sent to the Central Government

vide communication dated 26.03.2018. Subsequently, the Central

Government, vide letter dated 01.05.2018, had sent back the proposal for

issuance of prosecution sanction against respondent No.2 along with the

relevant documents. Respondent No.2 has an unblemished service record

and had been unnecessarily facing malicious and frivolous proceedings

initiated by the petitioner. The petition is motivated, it deserves to be

dismissed and no further action is called for at this stage.

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5. In the reply filed by respondent No.2, it is also submitted that

respondent No.2 had been falsely implicated in a fake and sham case of

corruption orchestrated by the then Deputy Chief Minister of the State of

Punjab. Respondent No.2 had also filed an application before learned JMIC,

Chandigarh, against those who had falsely implicated him in the case who

include the petitioner herein and certain officers of the Vigilance Bureau,

Ludhiana, under Section 156 (3) Cr.P.C. This application under Section

156(3) Cr.P.C. was treated as a complaint. The learned JMIC, vide order

dated 30.11.2019 (Annexure R-10), had held that prima facie case against

him (respondent No.2) was a result of criminal conspiracy and false charges

were made against him and evidence was fabricated. It is further stated that

the petitioner had filed a Civil Writ Petition bearing No.1406 of 2020

challenging the validity of the withdrawal of the proposal by the State

Government vide letter dated 26.03.2018 which was sent to the Central

Government by State Government on 06.05.2014, but the same was

dismissed as withdrawn on 18.08.2022 (Annexure R-7) before the

Coordinate Bench of this Court. The citations of 32 judgments relied upon

by counsel for respondent No.2 in the course of arguments, part of

compilation furnished to this Court by him and referred to in his reply dated

08.08.2023, are set out hereunder:-

1. State of Karnataka Lokayukta Police v. S. Subbegowda,

Criminal Appeal No.1598 of 2023, Decided on
03.08.2023
2. State of Madhya Pradesh Vs. Pradeep Kumar Gupta,
(2011) 6 SCC 389;
3. Devendra Nath Singh Vs. State of Bihar and others,
(2023) 1 SCC 48;
4. Nanjappa v. State of Karnataka, (2015) 14 SCC 186;

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5. SanjaysinhRamrao Chavan Vs. Dattatray Gulabrao

Phalke and others, (2015) 3 SCC 123;
6. Manzoor Ali Khan v. Union of India, (2015) 2 SCC 3;
7. Subramanian Swamy v. Director, Central Bureau of
Investigation, (2014) 8 SCC 682;
8. Anil Kumar v. M.K. Aiyappa, (SC) 2013 (4)
R.C.R.(Criminal) 586;
9. K. Devassia v. State of Kerala, SC (2006) 10 SCC 447;
10. State Inspector of Police v. Surya Sanhkaram Karri, (SC)
2006 (4) R.C.R. (Criminal) 53;
11. State of Karnataka v. C. Nagarajaswamy, (2005) 8 SCC
370;
12. State of Goa v. Babu Thomas, (2005) 8 SCC 130;
13. Ashok Mehta and another Vs. Ram Ashray Singh and
others, (2006) (2) RCR (Criminal) 330;
14. Mohandas v. State of Kerala, 2003 (9) S.C.C. 504;
15. Manoranjan Prasad Choudhary v. State of Bihar, 2002
(10) SCC 688;
16. Ram Krishan Prajapati v. State of U.P., 2000(10) SCC
43;
17. R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183;
18. Rajpal Singh Vs. State of Punjab (P&H) 2019 (4) RCR
(Criminal) 728;
19. Neelam Kumar v. State of Haryana (P&H) 2019 (2)
R.C.R. (Criminal) 698;
20. Hari Kesh v. State of Punjab, (P&H) 2019(3) Law Herald
2366;
21. Darshan Singh v. State of Punjab (P&H) 2018(5)
R.C.R.(Criminal) 89;
22. Jagat Ram v. Central Bureau of Investigation, (P&H)
2017(3) R.C.R. (Criminal) 244;
23. Ram Singh Dhall v. State of Punjab (P&H) 2015(3)
R.C.R.(Criminal) 667;
24. Rajinder Kumar v. State of Punjab (P&H) 2015(8)
R.C.R.(Criminal) 986;

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25. Gursewak Singh v. State of Punjab (P&H), 2012(25)

RC.R.(Criminal) 230;
26. Kulbir Singh Patwari v. State of Punjab, (P&H)
2006(2)R.C.R.(Criminal)567;
27. Dr. Jaswant Singh v. State of Punjab, (P&H) 2006(4)
R.C.R.(Criminal) 525;
28. Om Raj v. State of Punjab, (P&H) 2002 (1)
R.C.R.(Criminal) 799;
29. Naginder Singh Rana v. State of Punjab, (P&H) 2002 (3)
R.C.R.(Criminal) 32;
30. Harmesh Kumar v. State of Punjab, (P&H) 1999(2) CLJ
(Criminal) 47;
31. AvinashChander Sharma v. State of Haryana, (P&H)
1993(3) RCR(Criminal) 726; and
32. C.V. Balan Vs. State of Kerela, O.P. Criminal 510 of
2022 (Kerela High Court)

IV. Submissions on behalf of respondent No. 3

6. Learned counsel for respondent No.3-Union of India had

submitted that the competent authority to accord sanction is the Central

Government and the State Government had also sent the proposal on

06.05.2014 to the Central Government for according necessary sanction. The

Central Government had, on 03.02.2015, sought comments from the

Investigating officer and Supervisory officer on the issue and

communications were addressed to the State Government for the same.

Meanwhile, the Department of Personnel and Training (DoPT), Government

of India, had issued instructions on 20.05.2016 to send proposals seeking

sanction through a Single Window System to avoid delay in proceedings but

the State Government had not complied with the same. The

letter/communication dated 23.01.2017 (Annexure R-3) was sent later to the

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Central Government along with the comments of Investigating Officer and

supervisory officer which had been sought earlier by the Central

Government on 03.02.2015. Subsequently, on 25.07.2017, a communication

was again sent to the Chief Secretary, Government of Punjab, whereby the

Central Government had requested the State Government to send a complete

proposal along with the information and documents through the Single

Window System but before the Central Government could receive the

complete proposal, consider it and apply its mind, the State Government had

withdrawn its proposal vide letter dated 26.03.2018 (Annexure R-5).

7. Learned counsel for respondent No.3 had also submitted that

the Supreme Court in the case of State of Uttar Pradesh Vs. Vishwanath

Chaturvedi, (2013) 11 SCC 567, had upheld the view of Division Bench of

Allahabad High Court in the case of Vishwanath Chaturvedi Vs. Union of

India, (2010) SCC Online All 2339, to the extent that in case no decision

on the grant of sanction is taken by the competent authority within six

months then it shall be deemed to have been granted. This judgment was in

operation when the proposal for grant of sanction was sent by the State

Government on 06.05.2014 and the impugned order was passed on

08.01.2015 by the Special Judge. The judgement was applicable throughout

the country as it relates to the PC Act which is a Central Act. In support of

his submissions, he had cited the judgements of Supreme Court in the cases

of M/s Kusum Ingots and Alloys Ltd. Vs. Union of Indian and another,

(2004) 6 SCC 254 and All India Jamiatul Quresh Action Committee Vs.

Union of India, 2017 (3) RCR (Civil) 845. Thus, sanction should be

deemed to have been accorded and respondent No. 2 could not have been

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discharged. The trial ought to have proceeded and taken to its logical

conclusion.

V. Factual matrix

8. FIR No.9 dated 09.11.2009 was registered against respondent

No.2 under Sections 7 and 13(2) of the PC Act at Police Station Vigilance

Bureau, Flying Squad-1, Mohali. The allegations against respondent No.2

were that while was working as Director, Department of Industries and

Commerce, he is alleged to have accepted an illegal gratification of Rs.2

lacs. It is alleged that a demand of Rs.6 lacs had been raised by respondent

No.2 for allotment of vacant plot adjoining the existing broiler factory of the

petitioner at Focal Point, Ludhiana. The deal was struck at Rs.5 lacs and the

petitioner on 09.11.2009 had gone to pay a sum of Rs.2 lacs to respondent

No.2, who allegedly accepted the same. The recovery had been effected in

the presence of two witnesses, namely, Sukhmander Singh, Research

Officer, Planning Department, Punjab, Chandigarh and Sh.Subhash Chawla,

Superintendent Grade-I, Office of Director, Education Department, Punjab,

Chandigarh.

9. The Governor of Punjab had accorded sanction under Section

19 of the PC Act to prosecute respondent No.2 on 27.04.2010. This order

was challenged by respondent No.2 by preferring CWP No.10055 of 2010

which was dismissed by the Single Bench of this Court on 24.01.2014 while

granting liberty to respondent No.2 to raise the issues before the trial Court.

10. Respondent No.2 had subsequently challenged the order of the

Single Bench by preferring LPA No.689 of 2014 which was also dismissed

by the Division Bench on 11.08.2014 and the order passed by the learned

Single Bench was upheld. As the charges had not been framed at that time,

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liberty was granted to respondent No.2 to raise the points taken therein

before the trial Court. The operative part of the judgment of the Division

Bench is reproduced hereunder:-

“We have been informed that before the trial Court

the appellant has moved an application for discharge raising the
question of validity of granting the sanction by the Punjab
Government as well as the jurisdiction of Special Court,
Mohali, to try the case, and the said application is still pending.
No charge has been framed as yet against the appellant.
In view of these facts, we are of the view that since
the appellant has already moved applications for discharge
before the trial Court raising the same issue and availed the
effective remedy in this regard, we do not find any illegality in
the order passed by the learned Single Judge. We give liberty to
the appellant to raise all the points raised herein before the trial
Court. We hope that the trial Court will not be influenced by
any observations made by the learned Single Judge in its order.
He further hope that the trial Court will decide the above
applications before framing the charge against the appellant.
With the aforesaid observations this Letters Patent
Appeal is dismissed.”

11. In the meantime, the State Government had addressed a

communication dated 06.05.2014 (Annexure R-1/A) to the Central

Government (competent authority) for obtaining sanction to prosecute

respondent No.2.

12. The Special Judge while considering the application for

discharge had passed the impugned order on 08.01.2015 vide which the

applicant (respondent No.2 herein) was discharged for time being on the

ground that the competent authority for granting sanction to prosecute an

IAS officer is the Central Government while the sanction had been granted

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by the State Government. It was, however, observed that the respondent

No.2 is discharged for the time being for want of proper sanction and the

matter can be revived as and when the valid sanction is accorded by the

competent authority. It was also noticed by the Special Judge that the matter

for according sanction was pending consideration before the Central

Government.

VI. Analysis

(a) The competent authority to accord sanction to prosecute an

officer of the Indian Administrative Service serving in the
State Government.

13. The first issue which falls for determination in the instant case

is as to which is the competent authority to accord sanction to prosecute

respondent No.2. Respondent No.2 was a member of the Indian

Administrative Service and serving in the State Government as Director,

Department of Industries and Commerce, at the time of the alleged incident.

The appointing authority of an officer of the Indian Administrative Service

is the Central Government as provided in Rule 6(1) of the Indian

Administrative Service (Recruitment) Rules, 1954 which is reproduced

hereunder:-

“6. Appointment to the Service:-

(1) All appointments to the Service after the
commencement of these rules shall be made by the
Central Government and no such appointment shall be
made except after recruitment by one of the methods
specified in rule 4.”

An officer of the Indian Administrative Service is allocated a

State cadre by the Central Government to serve the State Government.

Reference may be made to Rule 6 (1) of the Indian Administrative Service

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(Cadre) Rules, 1954, which provides that a cadre officer may, with the

concurrence of the State Governments concerned and the Central

Government, be deputed for service under the Central Government or

another State Government. Rule 6 (1) is reproduced hereunder:-

“6 (1) A cadre officer may, with the concurrence

of the State Governments concerned and the Central
Government, be deputed for service under the Central
Government or another State Government or under a
company, association or body of individuals, whether
incorporated or not, which is wholly or substantially
owned or controlled by the Central Government or by
another State Government.
Provided that in case of any disagreement, the
matter shall be decided by the Central Government and
the State Government or State Governments concerned
shall give effect to the decision of the Central
Government.”
The competent authority which can dismiss or remove from

service an officer of the Indian Administrative Service is the Central

Government as stipulated in Rule 7(2) of the All India Service (Discipline &

Appeal) Rules, 1969, which is reproduced hereunder:-

“The penalty of dismissal, removal or compulsory

retirement shall not be imposed on a member of the
Service except by an order of the Central Government.”

14. Article 311 (1) of the Constitution of India states that no

person, who is a member of a civil service of the Union or an All India

Service or a civil service of a State or holds a civil post under the Union or

State shall be dismissed or removed by an authority subordinate to that by

which he was appointed. Article 311 (1) of the Constitution of India is

reproduced hereunder:-

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“(1) No person who is a member of a civil service

of the Union or an all-India service or a civil service of a
State or holds a civil post under the Union or a State shall
be dismissed or removed by an authority subordinate to
that by which he was appointed.”

Even in terms of Section 19 (1) of the PC Act, the competent

authority to accord sanction for prosecution of a public servant is the

authority which is competent to remove him from his office. The relevant

extract of the provision is reproduced hereunder:-

“19. Previous sanction necessary for prosecution.—

(1) No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous
sanction,—
(a) in the case of a person who is employed in connection
with the affairs of the Union and is not removable from
his office save by or with the sanction of the Central
Government, of that Government;
(b) in the case of a person who is employed in connection
with the affairs of a State and is not removable from his
office save by or with the sanction of the State
Government, of that Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.”

15. It is apt to notice that the State Government, after having

considered the matter, had accorded sanction to prosecute respondent No.2

on 27.04.2010, but the State Government, after granting the sanction,

appears to be conscious of the fact that the competent authority to accord

sanction was the Central Government and therefore, it had addressed the

communication to the Central Government on 06.05.2014 to consider the

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issue of grant of sanction which was later withdrawn on 26.03.2018

(Annexure R-5). The trial Court has also relied upon the instructions issued

by the Central Government on 27.10.1999 wherein it is stated that the

competent authority to accord sanction in respect of the members of the

Indian Administrative Service is the Central Government. The relevant

paragraphs no.1 and 3 of the instructions dated 27.10.1999 issued by the

Department of Personnel and Training, Government of India to the Chief

Secretaries of all State Governments/Union Territory Administrations, is

reproduced hereunder:-

“1. As you are aware, under Section 19 of the P.C. Act, 1988
(corresponding Section 6 of the P.C. Act, 1947), it is
necessary for prosecuting agency to seek previous
sanction of the appropriate administrative authority for
launching prosecution against a public servant for the
alleged P.C. Act offences mentioned in the Investigation
Report. In respect of members of the Indian
Administrative Service, such sanction is required to be
accorded by the Department of Personnel & Training in
the Central Government as in terms of Section 19(1) of
the P.C. Act, 1988, the Central Government (Department
of Personnel & Training) alone is competent to remove
such officers from service.

2. xxxxxxxxxxxxxxxx

3. When such sanction under the P.C. Act is required

against an IAS officer by the State Government and the
concerned officer is serving in connection with the affairs
of the State Government, the Competent Authority under
the State Government is required to examine the case on
the basis of evidence on records and forward the
documents to the Central Government along with their
views/recommendation thereon and also enclosing the

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sanction, if any, issued by the State Government u/s

197(1) of the Cr.P.C.”

It is, thus, manifest that the competent authority to accord

sanction to prosecute an officer of the Indian Administrative Service is the

Central Government.

(b) Deemed sanction

16. It is difficult to accept the contention of counsel for respondent

No.3 that as the matter was pending consideration before the Central

Government for over four years, the sanction was deemed to be accorded

and respondent No.2 be prosecuted under the law. Reference can be made to

the judgment of the Supreme Court in the case of Vijay Rajmohan Vs.

Central Bureau of Investigation (Anti Corruption Branch) (supra)

wherein while examining consequences of sanctioning authority not taking a

decision within four months it was held that deemed sanction in such cases

would cause prejudice to the accused as there would be non-application of

mind. It was also held that non-compliance of the mandatory period cannot

automatically lead to the quashing of criminal proceedings because the

prosecution of a public servant for corruption has an element of public

interest having a direct bearing on the rule of law and it must also be kept in

mind that the complainant or victim has no other remedy available for

judicial redressal if the criminal proceedings stand automatically quashed.

The relevant paragraphs of the judgement are reproduced hereunder:-

“30. The intention of the Parliament is evident from a

combined reading of the first proviso to Section 19,
which uses the expression ‘endeavour’ with the
subsequent provisions. The third proviso mandates that
the extended period can be granted only for one month
after reasons are recorded in writing. There is no further

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extension. The fourth proviso, which empowers the

Central Government to prescribe necessary guidelines for
ensuring the mandate, may also be noted in this regard. It
can thus be concluded that the Parliament intended that
the process of grant of sanction must be completed within
four months, which includes the extended period of one
month.
31. If it is mandatory for the sanctioning authority to
decide in a time-bound manner, the consequence of non-
compliance with the mandatory period must be
examined. This is a critical question having no easy
answer. In Subramanian Swamy, this Court suggested
that Parliament may consider providing deemed sanction
if a decision is not taken within the prescribed period.
The Appellant herein contends the very opposite that the
criminal proceedings must be quashed if the decision is
not taken within the prescribed period.
32. In the first place, non-compliance with a
mandatory period cannot and should not
automatically lead to the quashing of criminal
proceedings because the prosecution of a public
servant for corruption has an element of public
interest having a direct bearing on the rule of law.
This is also a non-sequitur. It must also be kept in
mind that the complainant or victim has no other
remedy available for judicial redressal if the criminal
proceedings stand automatically quashed. At the same
time, a decision to grant deemed sanction may cause
prejudice to the rights of the accused as there would
also be non-application of mind in such cases.”
(Emphasis supplied)

17. In the view of the law laid down by the Supreme Court in the

case of Vijay Rajmohan Vs. Central Bureau of Investigation (Anti

Corruption Branch) (supra), it is difficult to hold that sanction to

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prosecute respondent No.2 be deemed to be accorded by the Central

Government as the matter was pending before it for about four years. The

Central Government had not applied its mind as proposal for sanction was

incomplete.

(c) Consequences of invalid sanction

18. Now, this Court would proceed to determine the consequences

of invalid sanction or sanction accorded by an incompetent authority. I

would not accept the contention of counsel for the petitioner that the

question of improper or invalid sanction could only be determined at the

conclusion of the trial and the accused has to prove that the order had caused

grave prejudice to him for the reason that this question is no longer res

integra. The Supreme Court in the case of Nanjappa v. State of Karnataka

(supra), after examining the provisions of Sections 19(1), 19(3) and 19(4) of

the PC Act, had held that sub-sections (3) and (4) of Section 19 of the PC

Act stipulate challenge to the validity of the order of sanction or validity of

proceedings at the appellate or revisional stage before the higher court and

not before the Special Judge and that it does not forbid a Special Judge from

passing an order of discharge if a valid order sanctioning prosecution is not

produced in terms of Section 19 (1) of the PC Act. The relevant paragraphs

of the judgement are reproduced hereunder:-

“7. We have heard the learned counsel for the

parties at considerable length. This appeal must,
in our opinion, succeed on the short ground that
in the absence of a valid previous sanction
required under Section 19 of the Prevention of
Corruption Act, the trial court was not
competent to take cognizance of the offence
alleged against the appellant.

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10. A plain reading of Section 19(1)(supra)

leaves no manner of doubt that the same is
couched in mandatory terms and forbids courts
from taking cognizance of any offence
punishable under Sections 7, 10, 11, 13 and 15
against public servants except with the previous
sanction of the competent authority enumerated
in clauses (a), (b) and (c) to sub-section (1) of
Section 19. The provision contained in sub-
section (1) would operate in absolute terms but
for the presence of sub-section (3) to Section 19
to which we shall presently turn. But before we
do so, we wish to emphasise that the language
employed in sub-section (1) of Section 19 admits
of no equivocation and operates as a complete
and absolute bar to any court taking cognizance
of any offence punishable under Sections 7, 10,
11, 13 and 15 of the Act against a public servant
except with the previous sanction of the
competent authority.
11. A similar bar to taking of cognizance was
contained in Section 6 of the Prevention of
Corruption Act, 1947 which was as under:
“6.Previous sanction necessary for prosecution.—
(1) No court shall take cognizance of an offence
punishable under Section 161 or Section 165 of the
Penal Code, 1860 or under sub-section (2) of
Section 5 of this Act, alleged to have been
committed by a public servant except with the
previous sanction—
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the
sanction of the Central Government … of the
Central Government;

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(b) in the case of a person who is employed in

connection with the affairs of a State and is not
removable from his office save by or with the
sanction of the State Government … of the State
Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.
(2) where for any reason whatsoever any doubt
arises whether the previous sanction as required
under sub-section (1) should be given by the
Central or State Government or any other
authority, such sanction shall be given by that
Government or authority which would have been
competent to remove the public servant from his
office at the time when the offence was alleged to
have been committed.”
“22. The legal position regarding the importance of

sanction under Section 19 of the Prevention of

Corruption Act is thus much too clear to admit
equivocation. The statute forbids 1 (2015) 14 SCC
186 taking of cognizance by the court against a
public servant except with the previous sanction of
an authority competent to grant such sanction in
terms of clauses (a), (b) and (c) to Section 19(1).
The question regarding validity of such sanction
can be raised at any stage of the proceedings. The
competence of the court trying the accused so
much depends upon the existence of a valid
sanction. In case the sanction is found to be invalid
the court can discharge the accused relegating the
parties to a stage where the competent authority
may grant a fresh sanction for the prosecution in
accordance with law. If the trial court proceeds,
despite the invalidity attached to the sanction
order, the same shall be deemed to be non est in

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the eyes of law and shall not forbid a second trial

for the same offences, upon grant of a valid
sanction for such prosecution.
23. Having said that there are two aspects which
we must immediately advert to. The first relates to
the effect of sub- section (3) to Section 19, which
starts with a non obstante clause. Also relevant to
the same aspect would be Section 465 CrPC which
we have extracted earlier.
23.1. It was argued on behalf of the State with
considerable tenacity worthy of a better cause, that
in terms of Section 19(3), any error, omission or
irregularity in the order sanctioning prosecution of
an accused was of no consequence so long as there
was no failure of justice resulting from such error,
omission or irregularity. It was contended that in
terms of Explanation to Section 4, “error includes
competence of the authority to grant sanction”.
The argument is on the face of it attractive but
does not, in our opinion, stand closer scrutiny.
23.2. A careful reading of sub-section (3) to
Section 19 would show that the same interdicts
reversal or alteration of any finding, sentence or
order passed by a Special Judge, on the ground that
the sanction order suffers from an error, omission
or irregularity, unless of course the court before
whom such finding, sentence or order is
challenged in appeal or revision is of the opinion
that a failure of justice has occurred by reason of
such error, omission or irregularity. Sub-section
(3), in other words, simply forbids interference
with an order passed by the Special Judge in
appeal, confirmation or revisional proceedings on
the ground that the sanction is bad save and except,
in cases where the appellate or revisional court

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finds that failure of justice has occurred by such

invalidity. What is noteworthy is that sub- section
(3) has no application to proceedings before the
Special Judge, who is free to pass an order
discharging the accused, if he is of the opinion that
a valid order sanctioning prosecution of the
accused had not been produced as required under
Section 19(1).
23.3. Sub-section (3), in our opinion, postulates a
prohibition against a higher court reversing an
order passed by the Special Judge on the ground of
any defect, omission or irregularity in the order of
sanction. It does not forbid a Special Judge from
passing an order at whatever stage of the
proceedings holding that the prosecution is not
maintainable for want of a valid order sanctioning
the same.
23.4. The language employed in sub-section (3)
is, in our opinion, clear and unambiguous. This
is, in our opinion, sufficiently evident even from
the language employed in sub- section (4)
according to which the appellate or the
revisional court shall, while examining whether
the error, omission or irregularity in the
sanction had occasioned in any failure of
justice, have regard to the fact whether the
objection could and should have been raised at
an early stage. Suffice it to say, that a conjoint
reading of sub-sections 19(3) and (4) leaves no
manner of doubt that the said provisions
envisage a challenge to the validity of the order
of sanction or the validity of the proceedings
including finding, sentence or order passed by
the Special Judge in appeal or revision before a

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higher court and not before the Special Judge

trying the accused.
23.5. The rationale underlying the provision
obviously is that if the trial has proceeded to
conclusion and resulted in a finding or sentence,
the same should not be lightly interfered with by
the appellate or the revisional court simply because
there was some omission, error or irregularity in
the order sanctioning the prosecution under
Section 19(1). Failure of justice is, what the
appellate or revisional court would in such cases
look for. And while examining whether any such
failure had indeed taken place, the Court
concerned would also keep in mind whether the
objection touching the error, omission or
irregularity in the sanction could or should have
been raised at an earlier stage of the proceedings
meaning thereby whether the same could and
should have been raised at the trial stage instead of
being urged in appeal or revision.”
24. In the case at hand, the Special Court not only
entertained the contention urged on behalf of the
accused about the invalidity of the order of
sanction but found that the authority issuing the
said order was incompetent to grant sanction. The
trial court held that the authority who had issued
the sanction was not competent to do so, a fact
which has not been disputed before the High Court
or before us. The only error which the trial court,
in our opinion, committed was that, having held
the sanction to be invalid, it should have
discharged the accused rather than recording an
order of acquittal on the merit of the case. As
observed by this Court in Baij Nath Prasad
Tripathi case [Baij Nath Prasad Tripathi v. State of

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Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597] , the

absence of a sanction order implied that the court
was not competent to take cognizance or try the
accused. Resultantly, the trial by an incompetent
court was bound to be invalid and non est in law.”
(Emphasis supplied)

19. This judgment had been followed by the Supreme Court in the

case of State of Karnataka Lokayukta Police v. S. Subbegowda, (2023)

SCC OnLine SC 911, wherein it was also observed by the Supreme Court

that interlocutory application seeking discharge in the midst of the trial

would not be maintainable as it would scuttle the proceedings before the trial

Court. In that case, the first application for discharge had been preferred on

the ground that sanction had been granted without application of mind. The

application was dismissed by the trial Court and in revision the High Court

disposed of the matter directing the trial Court to consider the documents

made available by the respondents during the investigation and produced by

prosecution with the charge-sheet. Thereafter, the second application

preferred by the accused seeking discharge was dismissed as not pressed by

him. The third application for discharge was preferred by him, when the trial

had proceeded and 17 witnesses had been examined, on the ground that

sanctioning authority was not the competent authority and investigating

officers had suppressed the material evidence. The application was rejected

by the trial Court but the petition under Section 482 Cr.P.C. preferred

thereagainst was allowed by the High Court. The Supreme Court had held

that application for discharge on the ground of validity of sanction could

have been preferred at an initial stage, but after the commencement of the

trial the question of invalid sanction can only be decided at the conclusion of

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the trial. The judgment of the High Court was set aside but the respondent

was afforded liberty to raise the issue of the validity of the sanction at the

final stage of the arguments in the trial.

20. I have also considered the judgments which have been cited by

learned senior counsel for respondent No.2 including those in the

compilation of judgments as well as those referred in his reply for

consideration of this Court. There is no denying the proposition of law laid

down that sanction to prosecute from competent authority is necessary

before prosecuting a public servant. Prosecution in absence of sanction

would be vitiated. The public servant may take objections with regard to

validity or absence of a valid sanction at cognizance stage but after the

commencement of the trial he may take objections at the time of conclusion

of the trial, but the trial shall not be scuttled in the midst. The necessity to

obtain sanction before prosecuting public servants is to ensure that they are

protected from frivolous, vexatious and concocted complaints otherwise it

will be difficult for the public servants to discharge their function fearlessly.

Therefore, there does not seem to be any legal infirmity in discharging the

respondent No.2 for the time being for want of sanction from the competent

authority.

(d) Further course of action to be adopted after discharge due

to invalid sanction

21. In the communication addressed by the State Government to the

Central Government on 26.03.2018, it was stated that investigating officers

were not able to substantiate the allegations against respondent No.2 beyond

reasonable doubt and hence the matter has been closed. The communication

dated 26.03.2018 (Annexure R-5) is reproduced hereunder:-

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“I am directed to refer to your letter

No.107/7/2014-AVD.I dated 25.07.2017 on the subject
mentioned above. The views/comments of the State
Government in respect of sanction of prosecution under
the PC Act, 1988 along-with opinion of Law Department
of the State Government on the merits of the case have
been sought vide above mentioned letter.
2. The competent authority has re-examined
the matter and has concluded that the investigating
officers have neither clearly rebutted the issues raised by
Sh. Vijay Kumar Janjua, IAS nor have they answered the
points raised by him in his representation dated
14.07.2014, and, therefore, the benefit of inadequate
rebuttal and non-reply by the investigating officers
should go to the concerned officer. As allegations against
the officer have not been substantiated beyond reasonable
doubt by the investigating officers, hence, the matter has
been closed.”
3. In the light of above, it is intimated that the
prosecution sanction sought vide letter dated 06.05.2014
of the State Government is not required and this letter
may be treated as withdrawn. Therefore, keeping in view
the decision taken by the State Government, the
views/comments of the State Government and Law
Department of State Government on sanction of
prosecution are not required.”

22. The Central Government, consequently, vide letter dated

01.05.2018, on the request of the State Government had sent back the

proposal along with the documents. The relevant paragraphs of the letter

dated 01.05.2018 is reproduced hereunder:-

“I am directed to refer to your letter dated

26.03.2018 on the subject mentioned above in reference

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to this Department’s letter of even number dated

25.07.2017. The proposal of the State government of
Punjab has not been construed to receive by this
Department under Single window system being incomplete.
2. Proposal sent to this Department along with the
documents for issuance of prosecution sanction against Sh.
Vijay Kumar Janjua, IAS ( PB: 89) in case no. 09 dated
09.11.2009 registered by State Vigilance is returned
herewith in original subsequent to the decision of the State
Government of Punjab regarding closing of matter.”

23. It is noteworthy that the sanctioning authority has to only see,

whether a prima facie case for commission of offence is made out or not.

The allegations can be proved beyond reasonable doubt only after

appreciation of evidence by the trial Court at the conclusion of the trial. It is

not mentioned in the communication dated 26.03.2018 (Annexure R-5) as to

whether any fresh material except a representation by respondent No.2 dated

14.07.2014 had come to the light due to which the State Government had

withdrawn its proposal from the Central Government. The challan had been

filed on 29.04.2010 and no further investigation appears to have been carried

out thereafter. The order dated 27.04.2010 granting sanction by the State

Government has neither been specifically withdrawn nor reviewed by

the State Government although the State Government is not the competent

authority to accord sanction. Even otherwise, it is well settled that once an

order has been passed by the competent authority under Section 19 of the

PC Act, it is not permissible for the sanctioning authority to review or

reconsider the matter on the same material again. However, the matter can

be reconsidered by the sanctioning authority only in the light of fresh

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material. Reference may be made to the judgment in the case of State of

Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC 527. The relevant

paragraph of the judgment is reproduced hereunder:-

“12. It is true that the Government in the matter of grant

or refusal to grant sanction exercises statutory power and
that would not mean that power once exercised cannot be
exercised again or at a subsequent stage in the absence of
express power of review in no circumstance whatsoever.
The power of review, however, is not unbridled or
unrestricted. It seems to us sound principle to follow that
once the statutory power under Section 19 of the 1988
Act or Section 197 of the Code has been exercised by the
Government or the competent authority, as the case may
be, it is not permissible for the sanctioning authority to
review or reconsider the matter on the same materials
again. It is so because unrestricted power of review may
not bring finality to such exercise and on change of the
Government or change of the person authorised to
exercise power of sanction, the matter concerning
sanction may be reopened by such authority for the
reasons best known to it and a different order may be
passed. The opinion on the same materials, thus, may
keep on changing and there may not be any end to such
statutory exercise. In our opinion, a change of opinion
per se on the same materials cannot be a ground for
reviewing or reconsidering the earlier order refusing to
grant sanction. However, in a case where fresh materials
have been collected by the investigating agency
subsequent to the earlier order and placed before the
sanctioning authority and on that basis, the matter is
reconsidered by the sanctioning authority and in light of
the fresh materials an opinion is formed that sanction to
prosecute the public servant may be granted, there may
not be any impediment to adopt such course.”

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24. The Supreme Court in the case of State of Goa v. Babu

Thomas (supra) held that sanction to prosecute the respondent therein who

was employed as a Joint Manager in the Goa Shipyard Limited had been

granted by an incompetent authority. The Supreme Court, taking into

account the gravity of the allegations against the respondent therein, had

permitted the competent authority to issue fresh sanction order and directed

the trial Court to proceed afresh against the respondent from the stage of

taking cognizance of the offence. The allegations against the respondent

therein were that he had demanded and accepted an illegal gratification of

Rs.3,68,000/- for showing favour to a contractor. The relevant extract of the

operative part of the judgment in the case of State of Goa v. Babu Thomas

(supra) is reproduced hereunder:-

“14. Having regard to the gravity of the allegations

leveled against the respondent, we permit the competent
authority to issue a fresh sanction order by an authority
competent under the Rules and proceed afresh against the
respondent from the stage of taking cognizance of the
offence and in accordance with law.”

25. I may also refer to the judgment of the Supreme Court in the

case of State of Karnataka v. C. Nagarajaswamy (supra) wherein the

allegation against the accused therein, who was Manager in the Bank was

that she had misappropriated a sum of Rs.40,000/-. The sanction to

prosecute the accused therein had been initially granted by an incompetent

authority and the accused was discharged. Subsequently, the sanction had

been granted by the competent authority and fresh charge sheet was filed

which was challenged by the accused. The High Court quashed the

proceedings by holding that de novo proceedings were bad in law. The

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appeal thereagainst was allowed by the Supreme Court and the judgment of

the High Court was set aside. The Supreme Court did not accept the

contention of the respondent therein that she should not be put to trial again.

The Supreme Court requested the trial Court to dispose of the case

expeditiously. The relevant extract of the judgment in the case of State of

Karnataka v. C. Nagarajaswamy (supra) is reproduced hereunder:-

“26. The learned counsel for the respondent next

contended that having regard to the fact that the
respondents herein have faced ordeal of trial for a long
time, it would not be in the interest of justice to put them
on trial once again. In this behalf he relied on the
decision of this Court in State of M.P. v. Bhooraji
[(2001) 7 SCC 679 : (2001) SCC (Cri) 1373 : JT (2001) 7
SC 55] wherein it is observed that fresh trial should be
ordered only in exceptional cases of “failure of justice”.
In Bhooraji [(2001) 7 SCC 679 : (2001) SCC (Cri) 1373 :
JT (2001) 7 SC 55] the specified court being a Sessions
Court took cognizance of the offence under the SC and
ST (Prevention of Atrocities) Act without the case being
committed to it. It convicted and sentenced the accused.
During pendency of appeal by the accused before the
High Court, this Court took the view that committal
proceedings are necessary for a specified court to take
cognizance of offences to be tried under the Act. The
High Court, therefore, quashed the entire proceedings
and directed trial de novo. In that context this Court held
that ordering de novo trial was not justified and as the
trial was conducted by a “competent court”, the same
cannot be erased merely on account of a procedural
lapse. We may notice that in a case where the trial was
conducted by a court of competent jurisdiction ending in
conviction or acquittal, a retrial may not be directed.
Interpreting Section 465 of the Code, this Court in

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Bhooraji [(2001) 7 SCC 679 : (2001) SCC (Cri) 1373 :

JT (2001) 7 SC 55] held : (SCC p. 689, para 22)
“22. The bar against taking cognizance of certain
offences or by certain courts cannot govern the
question whether the court concerned is ‘a court of
competent jurisdiction’, e.g. courts are debarred
from taking cognizance of certain offences without
sanction of certain authorities. If a court took
cognizance of such offences, which were later
found to be without valid sanction, it would not
become the test or standard for deciding whether
that court was ‘a court of competent jurisdiction’.
It is now well settled that if the question of
sanction was not raised at the earliest opportunity
the proceedings would remain unaffected on
account of want of sanction. This is another
example to show that the condition precedent for
taking cognizance is not the standard to determine
whether the court concerned is ‘a court of
competent jurisdiction’.”
27. xxxxxxx
28. xxxxxxx
29. xxxxxxx
30. xxxxxxx
31. Keeping in view the aforementioned principles and
having regard to the facts and circumstances of this case,
however, we are of the opinion that the interest of justice
shall be subserved if while allowing these appeals and
setting aside the judgments of the High Court, the trial
Court is requested to dispose of the matters at an early
date preferably within six months from the date of
communication of this order, subject, of course, to
rendition of all cooperation of the respondents herein. In
the event the trial is not completed within the
aforementioned period it would be open to the

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respondents to approach the High Court again. These

appeals are disposed of with the aforementioned
directions. No costs.”

26. It would be difficult to accept the contention of learned counsel

for respondent No.2 that as the case was lodged against the petitioner in a

mala fide and motivated manner, the matter ought to be closed at this stage

as it has been rendered infructuous. Reliance has been placed upon the

judgment of the Supreme Court in the case of Nanjappa Vs. State of

Karnataka (supra). This judgment is clearly distinguishable on facts and

would not be applicable to the case of respondent No.2 for the reason that

the accused therein who was working as a Bill Collector with the Gram

Panchayat was alleged to have accepted illegal gratification of Rs.500/- for

furnishing a copy of the resolution of the Panchayat. The accused therein

had faced the trial. He had been convicted and sentenced. On the contrary,

respondent No.2 is the member of the Indian Administrative Service and the

allegation pertains to illegal gratification of Rs.2 lacs.

27. Curiously, the criminal proceedings appear to have had no

effect on respondent No.2 who rose to the positions of Financial

Commissioner, Revenue and Chief Secretary of the State, which is the

highest post in the State bureaucracy.

28. It is a settled proposition of law that criminal prosecution if

otherwise justifiable and based on adequate evidence is not vitiated on

account of mala fide of the first informant. Reference can be made to the

judgments of the Supreme Court in the cases of Sheonandan Paswan Vs.

State of Bihar (supra) and Krishna Ballabh Sahay and others vs.

Commission of Enquiry &others, 1969 SCR (1) 387.

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29. This Court would not opine on the merits of the case at this

stage but the allegations against respondent No.2, who was occupying a

senior post in Indian Administrative Service, are rather serious because he

had allegedly demanded Rs.6 lacs for allotting the vacant plot adjacent to the

broiler factory of the petitioner. Although the deal was struck at Rs.5 lacs, an

amount of Rs.2 lacs was to be paid initially to him while the remaining

amount of Rs.3 lacs was to be paid after the completion of work. On the

statement of the complainant, a trap was laid by the Vigilance Bureau on

09.11.2009 and the currency notes, which were handed over by the

petitioner to respondent No.2, were covered with phenolphthalein powder

and later, the demonstration of reaction of phenolphthalein powder with

solution of sodium carbonate was conducted and the alleged recovery to the

tune of Rs.2 lacs was effected in the presence of two witnesses, namely,

Sukhmander Singh, Research Officer, Planning Department, Punjab,

Chandigarh and Sh. Subhash Chawla, Superintendent Grade-I, Office of the

Director Education Department, Punjab, Chandigarh.

30. It deserves to be noticed that although the salaries of the

government employees have increased handsomely over the years but

corruption continues unabated as there is no limit to human greed. The social

stigma attached to corruption is also diminishing. The element of risk for

indulging in corrupt practices needs to be increased to serve as a deterrent.

Corruption appears to be a low risk and high profit venture and it is

imperative that it becomes a low profit and high risk venture if it has to be

ultimately eradicated. It is need of the hour to adopt a zero tolerance

approach to corruption.

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31. The Supreme Court in the case of State of Chhattisgarh and

another Vs. Aman Kumar Singh and others (supra) has expressed grave

concern over the malaise of corruption and observed that the investigations

or inquiries that follow these scams are botched and assume the proportion

of bigger scams than the scams themselves. The relevant paragraph of the

judgment is reproduced hereunder:-

“49. xxxxxxx…..Though it is a preambular promise of

the Constitution to secure social justice to the people of
India by striving to achieve equal distribution of wealth,
it is yet a distant dream. If not the main, one of the more
prominent hurdles for achieving progress in this field is
undoubtedly ‘corruption’. Corruption is a malaise, the
presence of which is all pervading in every walk of life.
It is not now limited to the spheres of activities of
governance; regrettably, responsible citizens say it has
become a way of one’s life. Indeed, it is a matter of
disgrace for the entire community that not only on the
one hand is there a steady decline instead fastly pursuing
the lofty ideals which the founding fathers of our
Constitution had in mind, degradation of moral values in
society is rapidly on the rise on the other. Not much
debate is required to trace the root of corruption. ‘Greed’
regarded in Hinduism as one of the seven sins, has been
overpowering in its impact. In fact, unsatiated greed for
wealth has facilitated corruption to develop like cancer. If
the corrupt succeed in duping the law enforcers, their
success erodes even the fear of getting caught. They tend
to bask under a hubris that rules and regulations are for
humbler mortals and not them. To get caught, for them, is
a sin. Little wonder outbreak of scam is commonly
noticed. What is more distressing is the investigations/
inquiries that follow. More often than not, these are

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botched and assume the proportion of the bigger scams

than the scams themselves. xxxxxx”

32. It is trite law that in the event of discharge of a public servant

for want of sanction or illegality of sanction, the matter ought not be closed

but revived on the grant of sanction by the competent authority as held by

the Supreme Court in the cases of State of Goa v. Babu Thomas (supra)

and State of Karnataka v. C. Nagarajaswamy (supra).

33. The petitioner had preferred the writ petition bearing CWP

No.1406 of 2020 challenging the withdrawal of the proposal sent by the

State Government to the Central Government for granting sanction to

prosecute respondent No.2. That petition had been preferred much after the

instant petition which was preferred in the year 2016. It is noteworthy that

respondent No.2 was the Chief Secretary, Punjab, when CWP bearing

No.1406 of 2020 was withdrawn on 18.08.2022. The petition has been

dismissed as withdrawn and there was no adjudication on merits.

34. This Court cannot shut its eyes to the serious allegations against

the petitioner. If this Court allows the matter to be closed or brushed under

the carpet at this stage it would be failing in its duty to ensure that justice is

not only done but seem to be done in cases involving corruption by high

government functionaries. It is the sacred duty of this Court to uphold the

rule of law and any leniency in corruption cases would erode the faith of the

common man in the rule of law. Respondent No.2 was a member of the

Indian Administrative Service and posted as the Director, Department of

Industries and Commerce, Punjab, when the FIR was registered against him

in the year 2009.

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35. It is true that this Court cannot direct the competent authority to

accord sanction. It is entirely up to the competent authority to independently

decide the issue of grant of sanction.

36. However, this Court while exercising jurisdiction under Section

482 Cr.P.C. would direct the competent authority to apply its mind to the

issue of granting sanction to prosecute respondent No.2 after considering the

relevant material and take a decision in accordance with law.

VII. Concealment of material particulars by respondent No.2

37. It is important to note that respondent No.2, in his reply, has

referred to the order passed by the Magistrate on 30.11.2019 on the

application preferred by respondent No.2 under Section 156(3) Cr.P.C. for

directing the SHO, Police Station Sector 17, UT, Chandigarh, to carry out

the investigation after registration of FIR against the Police/Vigilance

officers and the petitioner herein for fabricating evidence and filing a false

case against him.

38. The trial Court treated the application under Section 156(3)

Cr.P.C. as a complaint and summoned the petitioner herein and the

Police/Vigilance officers by order dated 30.11.2019 while opining that a

prima facie case for commission of various offences is made out.

Respondent No.2 had also placed on record a copy of the order dated

30.11.2019 as Annexure R-10 by preferring application bearing CRM No.

8228 of 2023 on 16.02.2023. There is no mention in the application about

the subsequent orders or the outcome of these proceedings and, therefore,

this Court learnt about the status of those proceedings from the website of

this Court as well as the District Court, Chandigarh, which revealed startling

facts not disclosed by respondent No.2. The order dated 30.11.2019 was

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challenged by the petitioner herein by preferring a petition bearing CRM-M

No.8764 of 2020 before this Court. The petition was dismissed as withdrawn

before the Coordinate Bench of this Court on 13.04.2023 after the Court had

been informed that the main criminal complaint was withdrawn by

respondent No.2 before the trial Court on 16.08.2022. The operative part of

the order passed on 13.04.2023 in CRM-M No.8764 of 2020 is reproduced

hereunder:-

“Report submitted by the trial Court is ordered to be

taken on record.
As per the report submitted by the learned trial Court, the
main criminal complaint already stands dismissed as
withdrawn vide order 16.8.2022.
Faced with the aforesaid situation, the counsel for the
petitioner prays for permission to withdraw the petition.
Dismissed as withdrawn.”

39. A copy of the order dated 16.08.2022 passed by the trial Court

whereby the complaint had been dismissed as withdrawn as downloaded

from the website of the e-courts Chandigarh is reproduced hereunder:-

“File taken up today on the application filed

by counsel for complainant for withdrawing the present
complaint. Sh. Anandeshwar Adv has filed POA on
behalf of the complainant. Statement of complainant has
been recorded, withdrawing the present complaint.
Therefore, in view of the statement of the complainant,
the present complaint stands dismissed as withdrawn.
Accused stands discharged. File be consigned.”

40. It is, thus, patent that respondent No.2 has placed heavy

reliance on the interim order passed by the Judicial Magistrate (trial Court)

on 30.11.2019 without disclosing the factum that the complaint itself had

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been withdrawn by him on 16.08.2022. The reply on behalf of respondent

No.2 in the instant petition was filed on 08.08.2023. The relevant extract of

the reply wherein the order dated 30.11.2019 passed by the Magistrate is

referred to by respondent No.2 is reproduced hereunder:-

“4. That the purpose of prior prosecution sanction u/s 19 of

the PC Act, 1988 is to protect the honest officers and to ensure
that no innocent person is subjected to vexatious, frivolous or
malicious prosecution. To protect the public servants from
harassment the provision of prior sanction has been provided.
Only if a prima facie case is made out the competent authority
grants prosecution sanction. The Learned Judicial Magistrate of
Chandigarh, on an application filed 156(3) Cr.P.C. by the
respondent No.2, vide his order dated 30.11.2019 (Annexure R-
10) has held that prima facie the case against the respondent
was result of criminal conspiracy, false charge was made
against him and evidence was fabricated. This order was passed
after nearly 8 years of trial and the relevant portion has been
extracted below:
“On the basis of above discussions, prima
facie commission of offence punishable under Section
120B (criminal conspiracy), 166 (Public servant
disobeying law), 167 (Public servant framing an incorrect
document), 186 (obstructing a public servant), 195 (for
fabricating false evidence), 211 (False charge with intent
to injure), 218 (Public servant framing incorrect record),
347 (wrongful confinement to extort property), 353
(assault on public servant), 355 (criminal force to
dishonor person), 357 (criminal force to confine a
person), 365 (Kidnapping to confine secretly), 386
(Extortion by putting a person in fear of grievous injury),
452 (Criminal Trespass) and 500 (Defamation) of IPC,
1860 by the accused namely S.S. Mand, SP Vigilance,
Ludhiana Ravcharan Singh Brar, DSP Vigilance

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Ludhiana, SP Singh SP Vigilance (Retd.), Tulsi Ram

Misra and Ram Swarth Misra appears to have been
committed.”
41. It was incumbent upon respondent No.2 to have disclosed the

factum of withdrawal of the complaint. Once the complaint has been

withdrawn by respondent No.2, he ought not to have relied upon the interim

order passed therein. The conduct of respondent No.2 does not redound to

the credit of a person who has held the high office of Chief Secretary of a

State.

42. Even otherwise, the order summoning the accused to face trial

after recording preliminary evidence has been passed by the Magistrate

without considering the defence version and without issuance of notice to

the accused. The Magistrate at that stage was not required to evaluate the

merits of the material or sufficiency of evidence of the complainant

(respondent No.2 herein). Respondent No.2 has relied upon the call details

and the location of the petitioner herein and others including

police/Vigilance officers. These are issues which would require

determination at the trial after appreciation of evidence led by the parties.

VIII. Conclusion

43. In the result, this Court does not find any manifest illegality in

the impugned order discharging respondent No.2 for the time being, but at

the same time this Court deems it fit to direct the State of Punjab to forward

all documents pertaining to the consideration for grant of sanction to

prosecute respondent No.2 to the Central Government. The Chief Secretary,

Punjab shall forward the papers within a month to the Secretary, Department

of Personnel and Training, Government of India. The competent authority in

the Central Government would consider the issue and take a final decision in

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accordance with law within a period of three months extendable by another

month from the receipt of the papers.

44. Needless to say that the observations made hereinbefore are for

the purpose of deciding this petition and would not be construed as an

expression of opinion on the merits of the case against respondent No.2.

45. In case, the sanction is accorded to prosecute respondent No.2,

the trial Court shall proceed in accordance with law and conclude the trial

expeditiously.

46. The petition stands disposed of accordingly. Pending

application(s), if any, also stands disposed of.

(ANUPINDER SINGH GREWAL)

JUDGE

Pronounced on: 15.09.2023

SwarnjitS

Whether speaking/reasoned : Yes / No

Whether reportable : Yes / No

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