Excelsior Correspondent
Srinagar, July 8: The High Court today quashed the FIR as well as challan proceedings against the public servant for misusing his official position and loss of public exchequer as the sanction for prosecution against the officials was declined by the competent authority and challan was still produced before the court of law.
Justice Sanjay Dhar has allowed the plea of Sanjay Kumar Shrivastava and others and quashed the challan proceedings against them. Court said the prosecution against them for the offences under RPC when the sanction for prosecution against them has been declined under Section 6 of the J&K PC Act on the same set of facts, will render the protection available to the petitioners illusory.
Justice Dhar held that the protection granted to a public servant against the prosecution has been provided under the statute in order to safeguard the public servants from frivolous complaints and un-necessary harassment, while they are discharging their official duties. Court said it is to give them freedom to perform their duties without fear or favour.
“The power to grant or refuse sanction for prosecution in the hands of the sanctioning authority is to safeguard the honest public servants from vexatious prosecutions. Grant of sanction for prosecution of a public servant is not an idle formality but the same is a mandatory requirement of law. This protection given to a public servant cannot be circumvented by defeating the provisions relating to grant of sanction as contained in the Prevention of Corruption Act by dropping the offences under the said Act and launching prosecution in respect of the offences under other statutes in a case where same set of facts gives rise to offences under different statutes”, the court recorded.
Court said while the orders passed by the Chief Judicial Magistrate, Srinagar, he has been completely overlooked the aspect of the matter. “What has weighed with the Magistrate while passing the impugned orders is that the offences under Section 120-B read with Section 420 RPC do not require previous sanction for prosecution as the said offences cannot be stated to have been committed by the petitioners in discharge of their official duties”, the court recorded.
The Magistrate, Justice Dhar said, even after noticing the issue as to whether in a case where sanction for prosecution for offences under the PC Act has been declined, the prosecuting agency is justified to drop these offences and launch prosecution against the accused public servants in respect of the offences under RPC on the same set of facts, has not addressed this issue at all in the impugned orders.
“The Magistrate, it seems, has concentrated more on the issue as to whether previous sanction for prosecution under Section 197 of the Cr. P. C is required in the case, without addressing the basic issue relating to effect of denial of sanction for prosecution in terms of Section 6 of the J&K PC Act. Thus, the impugned orders passed by the learned Magistrate have been rendered unsustainable in law”, read the judgment.
Court for the facts emanating from the record added that that it is a case where the respondent has, in order to circumvent and defeat the protection granted to the petitioners as public servants against their prosecution without sanction by the competent authority, in terms of the provisions contained in Section 6 of the J&K PC Act, launched the prosecution against them by conveniently dropping the offences under the J&K PC Act and filing the challan against them for offences under RPC only on the same set of facts.
The petitioners (accused employees) working in Central Sub Division, Central Public Works Department Srinagar challenged the proceedings initiated by Chief Judicial Magistrate, Srinagar, in a challan arising out of FIR No.RC1232019A0003 for offences under Section 120-B read with 420 of RPC and Sections 4-H, 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act (hereinafter referred to as the J&K PC Act). They also challenged the orders of Chief Judicial Magistrate, Srinagar, in the challan emanating out of the aforesaid FIR.
The FIR came to be registered by CBI/Anticorruption Bureau (ACB), Srinagar, on the basis of source information alleging therein that the petitioner-accsued, on the information that in connivance with accused Ghulam Mohi-ud-din Bhat of M/S Ghulam Mohi-ud-Din Bhat & Sons (Govt. Contractor) and other unknown officials/private persons were involved in alleged irregularities in use of sub-standard material resulting in poor workmanship in the construction of helibase and chain link fencing, adjoining Airbase with provision of cabin/helicopter Hangar at BSF Campus, Humhama, Srinagar.
Follow our WhatsApp channel