Delhi High Court
S.K. Bhatia vs C.B.I. on 6 November, 2003
Equivalent citations: 2004CRILJ4730, 110(2004)DLT393, 2004(72)DRJ324, 2004 CRI. L. J. 4730, 2004 (12) SCC 224, (2004) 1 CURCRIR 224, (2004) 1 SUPREME 1048, (2004) 2 ALLCRIR 1551, (2004) 2 SCALE 343, (2004) 49 ALLCRIC 752, (2004) 72 DRJ 324, (2005) 1 RECCRIR 558, (2004) 1 CHANDCRIC 220, (2004) 2 CRIMES 45, (2004) 110 DLT 393, (2004) 2 JT 295 (SC), 2004 CRILR(SC&MP) 331
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT
J.D. Kapoor, J.
1. Short question pressed by the learned counsel for the petitioner in this petition seeking setting aside of the order dated 7th October, 2002 whereby charges were framed for the offences punishable under Sections 13(1)(e) and 13(2) of the P.C. Act, 1988 for having acquired assets disproportionate to the known source of his income is whether the sanction for prosecution was granted by a competent authority or not.
2. According to the charge-sheet filed by the prosecution on the basis of the investigation the petitioner started his career as Junior Engineer with CPWD on 21st September, 1978 in the pay scale of Rs. 425-700 which was subsequently revised to Rs. 1640-2900 and he served in various divisions of CPWD and in March, 1988 he joined Appropriate Authority Income Tax Department at Janpath New Delhi on deputation. Admittedly the sanction for prosecution has been granted by the Superintending Engineer of Appropriate Authority of the Income Tax Department, a borrowing department. Incidentally said Superintending Engineer was also on deputation. Section 19(1)(c) of P.C. Act provides that no person can be prosecuted under this Act unless sanction, therefore, is granted by an authority who is competent to remove the said person. It reads like this:-
“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,–
(c) in the case of any other person, of the authority competent to remove him from his office.”
3. It is contended by Mr. Manish Vashisht, learned counsel for the petitioner that the only competent authority to remove the petitioner was the Superintending Engineer of CPWD, the parent department of the petitioner arid not the Superintending Engineer of Appropriate Authority of Income Tax, a borrowing department and, therefore, the sanction granted by the Superintending Engineer of Income Tax Department is not a valid sanction in the eyes of law and as such has the effect of quashing the proceedings. It is further contended that had the petitioner been absorbed in the Income Tax Department, Superintending Engineer of Income Tax Department was competent to remove him arid in that case the sanction granted by such an authority could alone be the valid sanction.
4. On the contrary Mr. Ahluwalia, learned counsel for the CBI contends that the petitioner was absorbed permanently in the Income Tax Department and as such the sanction is by a competent authority and in support of this reliance has been placed upon the order of transferring the petitioner from CPWD to Income Tax Department on deputation.
5. Such an order, by no stretch of imagination, can be termed as absorption order. By this order the petitioner was transferred after being relieved from his parent department to take the charge in the Income Tax Department on deputation. No letter of his absorption in the Income Tax Department has been produced by the CBI. On the contrary, the petitioner claims that he has never been absorbed in the Income Tax Department and his lien continues to be with his parent department.
6. Mr. Ahluwalia, further contends that Superintending Engineer of Income Tax Department, whose parent department is also CPWD, is competent to remove the petitioner. It appears hat the Superintending Engineer himself was on deputation in the Income Tax Department. It is stated that he has since gone back to his parent department. What is to be seen in the status of a person and his competence to appoint and remove a person as such a person alone is entitled to grant sanction for prosecution as per provisions of Section 19(1)(c) of the P.C. Act.
7. It is difficult to accept that the person who is on deputation and is working under another person who incidentally happens to hail from his parent deputation but is himself on deputation to the said department assumes the status of appointing and removing authority. Had both of them been in their parent department then the said Superintending Engineer had legal authority to appoint and remove but once the petitioner joined another department on transfer by way of deputation the said Superintending Engineer looses his authority to remove or appoint a Junior Engineer whatever post or status he may be holding in the borrowing department. Only competent authority to remove the petitioner was the Superintending Engineer working in his parent department and not of the borrowing department.
8. The position would have been different had both of them been working in their parent department. But here petitioner was on deputation. If such a power is given to a borrowing department then the whole object of Sub-clause (c) of Section 19 would become redundant and meaningless and also the concept of ‘lien’.
9. In a recent judgment Manoranjan Prasad Choudhary State of Bihar, the Supreme Court has fortified the earlier decisions of the Supreme Court down the lines that if the sanction is not accorded by a competent authority it is no sanction in the eyes of law and no proceedings can be initiated under the P.C. Act, 1988. Since the said Superintending Engineer was not competent to remove the petitioner from his office he was not competent authority to grant sanction. Thus, said sanction is invalid and no sanction in the eyes of law.
10. In view of the foregoing reasons, the petition is allowed. The impugned order framing the charge is set aside. However, it is made clear that if the CBI lays hand upon a document or material that the petitioner was at the relevant time absorbed by Income Tax Department and is now an employee of that Department, then it will be open to it to re-agitate the matter as to the validity of the sanction granted by the Superintending Engineer.