Omission To Specifically Mention Offence In Sanction Order Does Not Vitiate Proceedings If Allegations Disclose Offence: J&K&L High Court

The Court dismissed a petition seeking quashing of a charge under Section 4-H of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006, holding that the case of the petitioners was squarely covered by a judgment of a Co-ordinate Bench in respect of the same controversy arising out of the same criminal case, which had attained finality.

The Court was hearing a petition filed seeking quashing of the charge framed against the petitioners, who were charged with the commission of offences under Section 120-B read with Section 420 of the Ranbir Penal Code and Section 5(2) read with Section 5(1)(d) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006, besides the offence under Section 4-H of the said Act, arising out of an incident which occurred on 25.07.2017.

The petition was heard by Justice Sanjay Parihar, who observed,

“The Co-ordinate Bench, while considering the merits of the case, had also examined the plea raised with regard to the applicability of Section 4-H of the J&K Prevention of Corruption Act. The said issue was dealt with in paragraphs 22 and 23 of the judgment, wherein it was held that the mere omission to specifically mention a particular offence in the sanction order would not render the sanction invalid if the allegations and material referred to in the sanction order otherwise disclose the ingredients constituting such offence.”

Background

The petitioners stood charged with the commission of offences under Section 120-B read with Section 420 of the Ranbir Penal Code and Section 5(2) read with Section 5(1)(d) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006, besides the offence under Section 4-H of the said Act.

At the relevant time, petitioner No. 1 was serving as Executive Engineer in the Central Public Works Department, Srinagar, whereas petitioner No. 2 was serving as Assistant Executive Engineer. Petitioner Nos. 3 and 4 were also serving as Assistant Executive Engineers in the Central Public Works Department.

The FIR came to be registered on the basis of a preliminary inquiry conducted by the respondent. It was alleged that the petitioners had entered into a criminal conspiracy with the contractor, M/s Sheikh & Sons, with the object of causing wrongful loss to the public exchequer and corresponding wrongful gain to themselves in connection with the contract for construction of a 9.1-km boundary wall for the Central University of Kashmir, Ganderbal, thereby causing a loss of Rs. 3.4 crore to the public exchequer.

The work had been allotted to M/s Sheikh & Sons at a cost of Rs. 9.38 crore. It was revealed that the contractor, in connivance with the public servants of the Central Public Works Department, Srinagar, did not execute the work in accordance with the approved specifications and drawings.

It was further alleged that defective work was found in 34 columns along the left side of the road and in 40 columns in the prefab area on the right side of the road, and that wall panels were found tilted. It was further alleged that even after the expiry of the stipulated period for completion of the work, only 16% of the work had been executed by the contractor, and even that work was defective and of poor quality.

Notwithstanding the same, the petitioners had passed bills corresponding to 36% of the work, amounting to Rs. 3.4 crore out of the total contract value of Rs. 9.38 crore, which was claimed by the Central Public Works Department authorities and paid to the contractor. It was alleged that the accused public servants had released payments in respect of the defective work through various Running Account Bills after maintaining false entries in the Measurement Books and other official records.

Upon completion of the investigation, a charge-sheet was presented before the Court of the learned Special Judge, Anti-Corruption (CBI), Kashmir, against the petitioners and the co-accused. Thereafter, the Trial Court framed charges against the petitioners.

The learned counsel for the petitioners contended that, insofar as the offence under Section 4-H of the Jammu and Kashmir Prevention of Corruption Act was concerned, the charge was unsustainable in the absence of a valid previous sanction for prosecution.

It was submitted that such sanction could neither be presumed nor enlarged by the Trial Court at the stage of framing of charge, and that the statutory discretion vested in the sanctioning authority could not be exercised, supplemented, reconstructed, or deemed to have been exercised by the Trial Court. It was contended that a charge under Section 4-H could not be sustained merely on the ground that the ingredients of the said offence could otherwise be discerned from the allegations contained in the charge-sheet.

The principal contention of the learned counsel for the petitioners was that while granting sanction for prosecution, the competent authority did not accord sanction for their prosecution for the offence under Section 4-H. It was accordingly prayed that the petition be allowed and the charge, insofar as it related to Section 4-H, be quashed.

Per contra, the counsel for the respondent drew the attention of the Court to the judgment rendered by a Co-ordinate Bench in CRM(M) No. 406/2021, whereby a petition filed by the co-accused, Ram Gopal Meena, had already been dismissed. It was argued that while dismissing the said petition, the Co-ordinate Bench had considered the legal position governing the controversy and had held that the Trial Court's order framing a charge under Section 4-H could not be vitiated merely because the sanction order did not specifically mention the said provision.

Court's Observation

The Court observed that the petitioner in the petition was one Ram Gopal Meena, who figured as accused No. 1 in the case. The present case also arose out of the same FIR registered by the CBI, and the order passed by the Trial Court framing charges was also called into question in the said petition. The dismissal of the petition filed by the co-accused by the Court had not been challenged by the said accused.

The Court held,

“The findings recorded therein would, therefore, also govern the case of the present petitioners, as the facts and legal issues involved are substantially identical.”

The Court noted that the petitioners along with Ram Gopal Meena belonged to the same Department and were all accused of having misused their official positions by entering into a criminal conspiracy with the contractor. When confronted with this aspect of the matter, the counsel for the petitioners was unable to satisfactorily distinguish the case of the present petitioners.

The Court observed that framing of charge is an important stage in a criminal trial at which the Court is required to apply its mind to the material on record and the documents placed before it.

The Co-ordinate Bench, while considering the merits of the case, had also examined the plea raised with regard to the applicability of Section 4-H and had held that the mere omission to specifically mention a particular offence in the sanction order would not render the sanction invalid if the allegations and material referred to in the sanction order otherwise disclose the ingredients constituting such offence. The Court noted that in arriving at the said conclusion, the Co-ordinate Bench had relied upon Prakash Singh Badal v. State of Punjab and Others (2007) and State of Bihar and Others v. Raj Mangal Ram (2014).

The Court held: “The case of the present petitioners is squarely covered by the aforesaid judgment, which has attained finality. This Court, in exercise of its inherent jurisdiction, cannot be called upon to return a finding contrary to that already rendered by the Co-ordinate Bench in respect of the same controversy arising out of the same criminal case.”

The Court noted that the facts of both cases were pari materia, and that the present petitioners as well as the petitioner in another petition were jointly facing trial pursuant to the same FIR. Therefore, the findings returned in the said judgment applied with equal force to the present case.

Accordingly, the Court found no merit in the petition and dismissed it, leaving the Trial Court free to proceed with the trial in accordance with law.