✦ High Court of India · 10 Mar 2025

Raj. Present Posted As Professor Ortho Sms Hospital Jaipur Raj v. State Of Rajasthan, Through PP

Case Details High Court of India · 10 Mar 2025

Court

High Court of India

Decided

10 Mar 2025

Bench

SPECIAL

Length

12,508 words

Acts & Sections

Code of Criminal Procedure §19 Code of Criminal Procedure §197 Code of Criminal Procedure Prevention of Corruption Act 1988 Right to Information Act 2005

Cited in this judgment

Judgment

2. Versus State Of Rajasthan, Through PP State Of Raj., Through The Chief Secretary Govt. Of Raj. Secretariat Jaipur

3. State Of Raj., Through Secretary Department Of Personnel Govt. Of Raj. Secretariat Jaipur

4. Principal Secretary, Medical And Health Dept. Govt. Of Raj. Secretariat Jaipur ----Respondents For Petitioner(s) : Mr. Virendra Lodha, Sr. Adv. With Mr. Ankit Rathore For State : Mr. Vijay Singh Yadav, PP with Dr. Rakesh Karnani, DD (ACAD), Raj. MES, Medical Education & Mr. Manoj Kumar Goyal, OIC, Section Officer DOP (A-3/Lit.) HON'BLE MR. JUSTICE GANESH RAM MEENA 10/03/2025 Order

1. The present criminal writ petition has been filed by the petitioner with the following prayer:- Prosecution and “It is, therefore, prayed that the Hon’ble High Court may kindly call for the entire record pertaining to issuance of Sanction thereupon subsequently leading to filing of Challan No.18/19 on 29.01.2019 by Additional Police Superintendent inCase No.04/19 pending in the courtof Special Judge, ACD, Ajmer and after examining the same be pleased to declare the Impugned action of [2025:RJ-JP:10927] (2 of 42) [CRLW-1475/2021] the Official respondents null and void and quashed and set aside. By an appropriate Writ, Order or direction, the respondents may kindly be restrained from taking any disciplinary action against the petitioner on the basis of the Impugned action for sanction for prosecution (although the said order has not been served upon the petitioner and in case if any order prejudicial/ detrimental to the interest of the petitioner is passed on the basis of the present sanction for prosecution being granted against the petitioner the same may kindly be taken on record and be declared null and void and be quashed and set aside and further the official respondents be restrained from taking any coercive action against the petitioner on the basis of the aforesaid order.”

2. Learned Senior Advocate appearing for the petitioner submits that the grant of prosecution sanction with respect to the present petitioner was denied at one point of time and the said conclusion was drawn based on the material available on the file, including the record and the concerned authority and came to the conclusion that no case of demand or acceptance of bribe of Rs.2000/- for conducting the operation of the patient is made out. The said decision of refusal to grant the prosecution sanction was approved all the way upto the level of the Chief Secretary; however, without there being any additional evidence collected by the investigating agency by making any further investigation and nothing additional was submitted to the authority concerned but the impugned prosecution sanction has been granted, despite the fact that the proposal after review of the earlier decision was also not specific as to whether the prosecution sanction is to be granted or not, still it was concluded by the Administrative [2025:RJ-JP:10927] (3 of 42) [CRLW-1475/2021] Department that the prosecution sanction may be granted or may not be granted. Learned Senior Advocate appearing for the petitioner further submits that the authority which approved the proposal for grant of prosecution sanction against the petitioner has not discussed even in a single line as to what is the material which formed the basis and lead him/her to be convinced to review and grant the prosecution sanction and further led them to the conclusion in a peculiar fact when the proposal was forwarded without there being any specific decision, stating therein that “the prosecution sanction may be granted or may not be granted”. Learned Senior Advocate has also referred the Circular dated

06.05.2016 issued by the Department of Personnel, Government of Rajasthan, Jaipur with regard to grant of prosecution sanction and review of the said decision. Learned Senior Advocate also submits that once the decision was taken not to grant the prosecution sanction then the decision on a review to grant prosecution sanction is illegal, arbitrary and contrary to law.

Learned Senior Advocate has placed reliance upon the judgments delivered by the Hon’ble Apex Court in cases of State of Himachal Pradesh Vs. Nishant Sareen reported as (2010) 14 SCC 527 and Mansukhlal Vithaldas Chauhan Vs. State of Gujrat reported as (1997) 7 SCC 622. Learned Senior Advocate has also placed reliance upon the judgments delivered by the Co-ordinate Benches of this Court in the cases of Vishal Singhal Vs. State of Raj. & Ors. (S.B. Criminal Writ No.164/2017), decided on 10.07.2018 and [2025:RJ-JP:10927] (4 of 42) [CRLW-1475/2021] Pankaj Gupta Vs. Jaipur Vidyut Vitran Nigam Limited & Ors. (S.B. Civil Writ Petition No.3911/2011), decided on

22.07.2015.

3. Learned Public Prosecutor appearing on behalf of the respondents submits that after the complaint against the petitioner, trap proceedings were conducted and Rs.2000/- were recovered from the drawer of the table at the official residence of the accused petitioner, as having been caught red handed. He further submits that the final decision with regard to the grant of prosecution sanction against the petitioner has been taken only once and that decision was based on the material placed before the authority by the Investigating Agency.

5. Heard. Considered the submissions made at bar and also perused the material made available on record.

6. In the memo of the present writ petition, it was specifically averred that the order of prosecution sanction issued against the petitioner was not served upon him. The respondents filed reply to the writ petition but the said prosecution sanction order was also not placed on record by them. In view of the fact that the order of prosecution sanction and the material related to it are not on record, this Court vide order dated 03.03.2025 directed the learned Public Prosecutor to place before this Court the original record of the proceedings with regard to prosecution sanction issued against the petitioner. The learned Public Prosecutor has placed before this Court the original record and the Court has also gone through the complete record. [2025:RJ-JP:10927] (5 of 42) [CRLW-1475/2021]

7. Brief facts of the case are that while the petitioner was posted as Professor and Unit Head, Ortho at Jawahar Lal Nehru Hospital, Ajmer, a complaint was made by the complainant at the Police Station CPS, ACB, Jaipur, District Chouki, ACB Special Unit, Ajmer, with the averments that for the knee operation of his relative, the petitioner has demanded Rs.5000-6000/- from him and in view of that demand, he paid Rs.1000/- on 24.03.2017 and Rs.2000/- on 25.03.2017. During verification of the said demand on 27.03.2017, the petitioner has admitted the fact of accepting Rs.3000/- and he also received Rs.500/-. Thereafter, he received Rs.2000/- on 29.03.2017 after conducting the operation. The said amount of Rs.2000/- was recovered from the drawer of table at the official residence of the petitioner and he was arrested. After making investigation, the proposal was sent to the competent authority with regard to prosecution sanction in view of the provisions of Section 19 of the Prevention of Corruption Act, 1988(hereinafter referred to as ‘the Act of 1988’).

8. The Department of Personnel while proceeding with the issue of prosecution sanction, made notings and as per para No.33 of the notings, no sufficient material was found in order to grant prosecution sanction against the petitioner and vide noting made in para No.34, the said Department proposed not to give prosecution sanction. Para Nos.33 & 34 of the said notings are quoted as under:- “33- i=koyh ij miyC/k izFke lwpuk fjiksVZ] ,lhch fjiksVZ ,oa i=koyh ij miyC/k leLr lk{;ksa] nLrkostksa ds voyksdu ,oa rF;ksa ds lE;d~ foospu ,oa vuqla/kku vf/kdkjh ls fopkj&foe'kZ ds mijkUr fo'ys"k.k fuEu izdkj gS%& izLrqr izdj.k esa ifjoknh Jh lqjs'k dkBkrk 'kEHkwjke lhjoh dk fj'rsnkj ugha gSA ifjokn Jh 'kEHkwjke vFkok muds fj'rsnkj }kjk izLrqr ugha fd;k x;k gSA ifjoknh lqjs'k dkBkr [2025:RJ-JP:10927] (6 of 42) [CRLW-1475/2021] us Hkh 'kEHkwjke dks jk[khMsjk ds ekekth gksuk ckr dj ifjokn izLrqr fd;k gSA okrkZ dh VªkalfdzIV ls fnukad 29-3-17 dh okrkZ esa vkjksih vf/kdkjh }kjk ifjoknh ,oa Mojkjke ls fj'or jkf'k izkIr fd;k tkuk vlafnX/k :i ls fl) ugha gksrk gSA ifjoknh ,oa Mojkjke ds e/; okrkZ dks vkjksih }kjk jkf'k Lohdkj djuk ekuuk U;k;laxr ugha gSA ,lhch }kjk fy[kk x;k gS fd ^^blds ckn MkWDVj lkgc dks 500 :i;s fn;s tks mUgksaus fxudj j[ks** bl rF; dks izekf.kr djus gsrq vi;kZIr gS fd vkjksih MkW0 us fnukad 27-3-17 dks 500 :- ,oa Mojkjke ls izkIr fd,A fnukad 27-03-17 dh okrkZ esa ifjoknh ,oa vkjksih ds e/; LVhy dh IysV~l ds [kpZ dh tkudkjh ,oa mlds tokc esa MkW0 }kjk 5&6 gtkj dk [kpZ IysV~l ij vkuk crkus ls izrhr gksrk gS fd IysVl ij ij [kpZ dh jkf'k dh ppkZ gks jgh FkhA Jh 'kEHkwjke Hkkek'kkg ykHkFkhZ ugha FkkA vr% ,sls esa LokHkkfod :i ls jkf'k ogu Jh 'kEHkwjke }kjk dh tkuh FkhA fnukad 29-3-17 dh okrkZ VªkalfdzIV ls fj'or ysunsu gksuk ifjyf{kr ugha gksrk gSA jkf'k MkW0 nsodkUr ds gkFk vFkok tsc ls cjken uk gksdj Vsfcy dh njkt ls cjken gqbZ gSA Vsfcy dh njkt dk rkyk cUn gksuk ,oa pkch MkWDVj ls cjken uk gksuk ,slh fLFkfr esa rkyk rksMdj jkf'k cjken fd;k tkuk izfdz;k dks vikjn'khZ ,oa lafnX/k cukrk gSA MkW0 nsodkUr eh.kk ds gkFkksa dk kksou dk jax gYdk xqykch gksuk ik;k x;k gS ] ijUrq ifjoknh }kjk Lo;a ;g dFku fd;k x;k gS fd mlds } kjk vkWijs'ku ds vxys fnu ;kuh fnukad 29-3-17 dks MkWDVj dks ,Dljs fjiksVZ ns[kus gsrq nh xbZ Fkh] ,sls esa laHko gS fd ,Dljs fjiksVZ ij fQukWYQFkyhu ikmMj yxk gks ,oa vkjksih MkWDVj nsodkUr us vius vH;kosnu esa dFku fd;k gS fd ifjoknh us muls vkHkkj O;Dr djrs gq, gkFk feyk;k] ,sls esa MkWDVj nsodkUr ds gkFkksa ds kksou dk jax xqykch vkus dks Li"V :i ls fj'or jkf'k izIr fd;k tkuk ekuuk U;k;ksfpr izrhr ugha gksrk gSA bl laca/k esa i`"B 87@lh ij fnukad 31 ekpZ] 2017 ds nSfud uoT;ksfr v[kckj esa izdkf'kr [kcj voyksduh; gSA [kcj esa 'kaHkw lhjoh] fd'ku dBkr ,oa lqjs'k pkSgku dks vke vkneh ikVhZ ds ofj"B dk;ZdrkZ crkrs gq, MkW- nsodkar eh.kk dks Vªsi djokus ij vfHkuUnu fd;s tkus dh [kcj gS rFkk igys Hkh buds }kjk jktdh; ve`rdkSj fpfdRlky; C;koj ds MkW0 lh-,y- HkkVh dks Hkh fj'or ysrs jaxs gkFkksa idM+okus dk mYys[k fd;k x;k gS] ftlls ifjoknh ,oa 'kEHkw fljoh }kjk jktuSfrd izpkj ,oa yksdfiz;rk izkIr djus dh uh;r ifjyf{kr gks jgh gSA pwafd vkWijs'ku fnukad 28-3-17 dks gh dj fn;k x;k Fkk] vr% fnukad 29 dks fj'or izkIr fd;s tkus dk vkSfpR; ugha curk gS ,oa pwafd f'kd;r MkW0 nsodkUr eh.kk }kjk vkWijs'ku djus dh ,ot esa fj'or ekaxs tkus ds vk/kkj ij dh xbZ gS ,oa pwafd fnukad 28-3-17dks gh “kEHkw lhjoh dk vkWijs”ku gks pqdk FkkA vr% fj”or ekaxs tkus ,oa fn, tkus dk vkSfpR; ugha curk gSA fnukad 29-03-17 dh okrkZ VªkalfdzIV ds voyksdu ls dgha ij Hkh MkW0 nsodkar eh.kk }kjk ekax fd;k tkuk ,oa fj'or izkIr fd;k tkuk izdV ugha gksrk gSA ,lhch }kjk okrkZ VªkalfdzIV esa ;g fy[kk tkuk fd vkjksih us ifjoknh dks :i;s nsus ds fy, gkFk ls b'kkjk fd;k] ;g fl) djus ds fy, i;kZIr ugha gS fd [2025:RJ-JP:10927] (7 of 42) [CRLW-1475/2021] MkW0 eh.kk }kjk fnukad 29-3-17 dks fj'or jkf'k dh ekax dh gks vFkok fj'or jkf'k izkIr dh gksA blh izdkj fnukad 27-3-17 dh okrkZ VªkalfdzIV ls vlafnX/k :i ls izekf.kr ugha gksrk gS fd MkW0 nsodkar eh.kk }kjk jktdh; dk;Z dh ,ot esa fj'or jkf'k dh ekax dh tk jgh gSA mijksDr fo'ys"k.k ds vk/kkj ij izFke n`"V;k ekeyk ugha cuuk izrhr gksus ds dkj.k vfHk;kstu dh Lohd`fr fn;k tkuk mfpr izrhr ugha gksrk gSA 34- vr% izFke n`"V;k izdj.k MkW0 nsodkUr eh.kk] rRdk0 vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj ds fo:) /kkjk 13¼1½¼Mh½] 13 ¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e 1988 ds vUrxZr izFke n`"V;k cuuk ugha ik;k tkrk gSA vr% Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 19 ds rgr iznRr 'kfDr;ksa ds vuqlj.k esa vfHk;kstu Lohd`fr ugha fn;s tkus ds vuqeksnukFkZ i=koyh izLrqr gSA”

9. The Joint Secretary, Department of Personnel, Government of Rajasthan on 14.03.2018 has made this proposal after making detailed notings. The Principal Secretary, Department of Personnel, Government of Rajasthan on 16.03.2018 approved the said proposal and the matter was referred to the Chief Secretary, Rajasthan, who also approved the same on 09.05.2018, meaning thereby, at the top level, a decision was made not to grant prosecution sanction against the petitioner.

10. The Joint Secretary (VS) to the Chief Minister vide letter dated 24.05.2018 referred back the matter for reconsideration with the observations that the money accepted by the petitioner as a bribe, has been recovered from the drawer of the table at the official residence of the petitioner and on his hands, phenolphthalein and Sodium Carbonate were also found.

11. Once the decision not to grant the prosecution sanction has been taken by the Competent Authority which has since been approved by the Chief Secretary then there was no occasion for the respondents to opt for reconsideration of the same on the basis of the same material which was already on record and had [2025:RJ-JP:10927] (8 of 42) [CRLW-1475/2021] already been taken into consideration. Reconsideration, if at all required, can only be ordered on the basis of some additional evidence collected by the Investigating Agency and produced before the Competent Authority for taking into consideration the same.

12. In the present case, after the approval of refusal to grant prosecution sanction against the petitioner at the level of Chief Secretary, no additional evidence was collected or submitted to the authority. However, the authority proceeded regardless and reconsidered the issue. During reconsideration, the Department of Personnel, Government of Rajasthan, Jaipur made notings on the file. Para No. 37 of said notings is relevant, which is quoted as under:- “37- MkW0 nsodkUr eh.kk }kjk Jh 'kEHkwjke lhjoh dk vkWijs'ku fnukad 28-3-17 dks fd;k tk pqdk FkkA ifjoknh Jh lqjs'k flag }kjk vius ifjokn esa vkjksi yxk;k x;k Fkk fd MkW0 nsodkUr eh.kk vkWijs'ku dh ,ot esa fj'or dh ekax dj jgk gSA vr% pwafd fnukad 28-3-17 dks vkWijs'ku gks pqdk Fkk] ,sls esa ifjoknh }kjk vkjksih MkWDVj dks fj'or jkf'k fn, tkus dk vkSfpR; izrhr ugha gksrk gS ,oa fnukad 29-3-17 dks MkW0 nsodkUr eh.kk ds Lrj ij ifjoknh dk dk;Z yfEcr ugha ekuk tk ldrkA fnukad 27-3-17 dh VªkalfdzIV~l ls ;|fi dqN jkf'k dh ckr vkjksih ,oa ifjoknh ds e/; gks jgh gS] ysfdu dgha ij Hkh vkjksih MkWDVj }kjk vkWijs'ku dh ,ot esa ekax dh tkuk Li"V :i ls ifjyf{kr ugha gksrk gSA fnukad 27-3-17 dh okrkZ esa gh ifjoknh ,oa vkjksih ds e/; LVhy dh IysVl ds laca/k esa [kpsZ dh ckr gksrh gS] ftlesa vkjksih MkWDVj }kjk 3&4 gtkj dk [kpkZ] 5]6 7 gtkj dk ftdz fd;k tkrk gSA vkjksih MkW0 nsodkUr }kjk vius vH;kosnu esa dFku fd;k x;k gS fd Jh 'kEHkwjke lhjoh Hkkek'kkg ykHkkFkhZ ugha Fks] vr% mudks lkeku vius Lrj ij ysuk FkkA fn0 27-3-17 dh okrkZ ds vk/kkj ij ,lhch }kjk ;g ekuk x;k gS fd vkjksih MkW0 us ifjoknh ls 500 :i;s izkIr fd,] exj okrkZ esa [2025:RJ-JP:10927] (9 of 42) [CRLW-1475/2021] 500 :i;s ds laca/k esa ifjoknh ,oa Jh Mcjkjke ds e/; dh ckr gksrh gSA ,lhch }kjk fy[kk x;k gS fd blds ckn MkDVj lkgc dks 500 :- fn;s tks mUgksaus fxu dj j[k fy,A bl izdkj okrkZ ls ;g Li"V :i ls izdV ugha gksrk fd vkjksih MkDVj us fn0 27-3-17 dks ifjoknh ,oa Mcjkjke ls 500 :i;s izkIr fd, D;ksafd bl ysunsu dh okrkZyki esa MkW0 nsodkUr eh.kk dh dksbZ okrkZ ugha gSA fnukad 27-3-17 dh okrkZ esa vkjksih MkDVj }kjk dfFkr :i ls ;g dgk tkrk gS fd nks rks vkSj dj yksA ;fn bl izdkj MkDVj }kjk 2000 :i;s dh jkf'k dh ekax dh xbZ Fkh ,oa ;fn fnukad 27-3-17 dks gh ifjoknh }kjk vkjksih dks 500 :- ns fn;s x;s Fks rks fnukad 29-3-17 dks oDr ysunsu ek= 1500 :- gh fn;s tkus visf{kr Fks] ftlds laca/k esa ,lhch fjiksVZ esa fLFkfr Li"V ugha dh xbZ gSA fnukad 28-3-17 dks Jh 'kaHkwjk lhjoh dk vkWijs'ku gks tkus ds i'pkr~ ifjoknh }kjk vkjksih MkW0 nsodkUr eh.kk ls muds fuokl ij ,Dljs fjiksVZ ds lkFk eqykdkr dh xbZ gS ,oa ,Dljs fjiksVZ MkDVj dks izLrqr dh xbZ gSA fnukad 29-3-17 dh okrkZ ds voyksdu ls vkjksih MkDVj }kjk fj'or jkf'k ekaxs tkus ,oa izkIr fd, tkus dh iqf"V ds laca/k esa dksbZ okrkZ izdV ugha gksrh gSA vkjksih MkDVj dh Vsfcy dh njkt esa ls fj'or jkf'k cjken dh xbZ gS] exj mldh pkch ugha feyhA Vsfcy dh pkch cjken ugha gksuk Hkh izdj.k dks lafnX/k cukrk gSA ;fn vkjksih MkDVj }kjk fj'or jkf'k Vsfcy dh njkt esa j[kh xbZ gksrh rks fuf'pr :i ls pkch Hkh vkjksih MkDVj ls gh cjken fd;k tkuk visf{kr FkkA ifjoknh Jh lqjs'k flag ,oa Jh 'kaHkwjke lhjoh nksuksa dk jktuhfrd ikVhZ ls tqMk gksuk vkjksih MkWDVj us vius vH;kosnu esas dFku fd;k gS ,oa fnukad 31 ekpZ 2017 dh nSfud uoT;ksfr dh [kcj dh dfVax Hkh izLrqr dh gS] ftlds vuqlkj MkDVj nsodkUr eh.kk dks fj'or ysrs gq, fxj¶rkj djok;s tkus ij Jh 'kaHkw lhjoh ,oa Jh lqjs'k dk vfHkuUnu fd;k tkuk crk;k x;k gSA lkFk gh blesa ;g Hkh vafdr gS fd Jh lhjoh ,o dkBkr }kjk iwoZ esa Hkh jktdh; ve`rdkSj fpfdRlky; C;koj ds MkDVj lh-,y-HkkVh dks fj'or ysrs jaxs gkFkksa idMok;k x;k gSA bl izdkj ifjoknh } kjk dh xbZ dk;Zokgh esa jktuhfrd izpkj ikus dh bPNk Hkh izdV gksrh gSA lEiw.kZ izdj.k ds voyksdu ls tgka vkjksih MkDVj ds }kjk Li"V ekax fd;k tkuk izdV ugha gksrk gS] fnukad 29-3-17 dks vkjksih MkDVj ds Lrj ij ifjoknh dk dk;Z yfEcr ugha gksuk Kkr gksrk [2025:RJ-JP:10927] (10 of 42) [CRLW-1475/2021] gS] vkjksih MkWDVj dks ifjoknh }kjk ,Dljs fjiksVZ fn;k tkuk] vkjksih MkDVj dh njkt dh pkch ugha feyuk Kkr gksrk gSA bu leLr rF;ksa dks ifjoknh dh i`"BHkwfe ,oa mlds iwoZ vkpj.k ds lkFk lesfdr :i ls ns[kus ij izLrqr izdj.k esa rF;ksa ,oa lk{;ksa ds vk/kkj ij vkjksih MkWDVj nsodkUr eh.kk ds fo:) vfHk;kstu Lohd`fr iznku fd, tkus vFkok vfHk;kstu Lohd`fr eukgh fd, tkus ds fu.kZ;kFkZ izLrqr gSA ”

13. After reconsideration, the Joint Secretary opined that on the basis of the evidence collected, the prosecution sanction against the petitioner may or may not be given, meaning thereby, the Department of Personnel, Government of Rajashthan, Jaipur itself is not of the firm view that whether there is ample evidence on record so as to prosecute the accused petitioner or not. When two views are possible, it is the basic principle of the criminal jurisprudence that the view which is favourable to the accused, is to be adopted. When the Department of Personnel itself comes out with two possible views at the stage of reconsideration then, the view which favours the accused petitioner, should have been adopted. After the proposal submitted by the Joint Secretary, Department of Personnel, the Secretary, Department of Personnel at para No. 38 of the notings has noted as under:- “Matter is examined in light of the facts that (a) There was no pendency of work on the day of so called trap. (b) There is no clear demand (c) In view of the background of complainant, foul play during trap cannot be ruled out Submitted accordingly”

14. After the notings of the Secretary, Department of Personnel, the matter was referred to the Chief Secretary, Government of Rajasthan, who made a noting to the effect [2025:RJ-JP:10927] (11 of 42) [CRLW-1475/2021] “pl.discuss”. In view of the said noting of the Chief Secretary, Government of Rajasthan, the discussions were made and after discussion, the Secretary, Department of Personnel made a noting at para 39. In the said noting made by the Secretary, Department of Personnel on 28.09.2018, after discussion with the Chief Secretary, Government of Rajasthan, has again come out with the proposal as to whether the prosecution sanction against the petitioner may be given or may not be given. Thereafter, the matter was again discussed with the Chief Secretary, Government of Rajasthan, who has also stated in para No. 41 of the noting that the State Government may consider the approval of the prosecution sanction. Para No. 41 of the notings is quoted as under:- “Discussed with Secy. DOP. There are both the aspects in the case. N/39 gives those details which make the action suspect. N/40 narrates those points which point the accused as guilty. Taking an overall view, the State Govt. may consider approval of prosecution.”

15. The facts and notings on record clearly speak that at one point of time, the competent authority refused to grant prosecution sanction against the petitioner as there was no sufficient and credible evidence on record against him. However, without there being any provision for reconsideration, the matter was reconsidered and again after having a detailed discussion about the material available on record, the concerned authority opined that the prosecution sanction may be given or may not be given, which was approved all the way up by the level of the Chief Secretary. [2025:RJ-JP:10927] (12 of 42) [CRLW-1475/2021]

16. The then Chief Minister vide order dated 15.11.2018 ordered for issuance of prosecution sanction against the petitioner without there being any discussion about the material, which may lead on to the petitioner being held guilty and at the same time there is no discussion about the proposal made by the competent authorities based on the material, which essentially means that they were not of the firm opinion as to whether the prosecution sanction is to be granted to the petitioner. The order dated

15.11.2018 is quoted as under:- “eSaus MkW0 nsodkUr eh.kk] rRdkyhu vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj ds izdj.k la[;k 68/2017 ls lEcfU/kr vfHkys[k ,oa lk{;ksa dk xgurk ls ijh{k.k ,oa v/;;u fd;kA eSa lUrq"V gwW fd MkW0 nsodkUr eh.kk] rRdkyhu vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj ds fo:) /kkjk 7]13¼1½¼Mh½] 13¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 ds vUrxZr izFke n`"V~;k vijk/k izekf.kr gksrs gSaA rnuqlkj Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 19 ,oa n.M izfØ;k lafgrk dh /kkjk 197 ds vUrxZr iznRr 'kfDr;ksa dk iz;ksx djrs gq, MkW0 nsodkUr eh.kk] rRdkyhu vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj ds fo:) vUrxZr /kkjk 7] 13¼1½¼Mh½] 13¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 rFkk izdj.k ds rF;ksa ds vk/kkj ij vU; tks Hkh vfHk;ksx curs gksa] ds fy, eSa l{ke U;k;ky; esa vfHk;kstu gsrq vfHk;kstu Lohd`fr iznku djrh gwWA ”

17. After the so called approval by the then Chief Minister on 15.11.2018, the Department of Personnel, Government of Rajasthan vide order dated 19.12.2018 granted prosecution sanction against the petitioner. Since the order granting of prosecution sanction has not been placed on record by any of the [2025:RJ-JP:10927] (13 of 42) [CRLW-1475/2021] parties, hence, this Court deems just and proper to quote the same, which is as under:- “jkT; ljdkj dks C;wjks }kjk ntZ vijk/k la- 68/2017 fo:) MkW- nsodkUr eh.kk] rRdk0 vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj vUrxZr /kkjk Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 7]13]¼1½Mh] 13¼2½ vfHk;kstu Lohd`fr iznku fd;s tkus gsrq izLrqr fd;k x;k gSA Hkz"Vkpkj fujks/kd C;wjks] jkt- }kjk jkT; ljdkj ds /;ku esa yk;k x;k gS fd ifjoknh Jh lqjs'k flag dkBkr ls mlds ekek Jh 'kEHkwjke ds ?kqVus dk vkWijs'ku djus dh ,ot esa fnukad 24-03-17 dks 5&6 gtkj :i;s dh fj'or jkf'k dh ekax dj fnukad 24- 03-17 dks 1000 :i;s] fnukad 25-03-17 dks 2000 :i;s ,oa oDr lR;kiu fnukad 27-03-17 dks iwoZ esa fy;s gq, 3000 :i;s Lohdkj djrs gq, 500 :i;s fj'or jkf'k izkIr dh ,oa 2000 :i;s vkWijs'ku gks tkus ds i'pkr~ fn0 29-03-17 dks ekax vuqlkj 2000 : fj'or jkf'k izkIr dj viuh Vscy dh njkt esa j[kh] tgka ls fj'or jkf'k cjken gqbZ ,oa vkjksih ds gkFkksa ,oa Vsfcy dh njkt ds /kkso.k dk jax xqykch ik;s tkus ij MkW- nsodkUr eh.kk dks fxj¶rkj fd;k x;kA Hkz"Vkpkj fujks/kd C;wjks] jkt- }kjk jkT; ljdkj ds /;ku esa yk;k x;k gS fd izdj.k fj'or dh ekax dk ik;s tkus ij ,lhch }kjk ekax lR;kiu gsrq ifjoknh dks fMthVy okWbl fjdkMWj nsdj MkW- nsodkUr eh.kk ds fuokl ij HkstkA ftUgksaus ykSVdj ,lhch dks crk;k fd eSa o 'kEHkwjke ds thtkth Jh Mojkjke MkW- nsodkUr eh.kk ds fuokl ij x,A MkW- lkgc ?kj ij ejht ns[k jgs Fks rFkk ge MkW- lkgc ls tkdj feys rFkk mUgsa dgk fd lkgc geus vki dks 3000 :i, ns fn, gS] vc rks 'kEHkwth dk vkWijs'ku dj nks 7&8 fnu gks x, gS rks MkW- lkgc us dgk fd dy dj nsaXksA vki 2000 :i, vkSj ns nsukA MkW- lkgc us dgk fd vHkh tks yk;s gks og ns nks rks eSusa Mojkjke th ls 500 : ysdj MkW- lkgc dks ns fn,A vc dy vkWijs'ku gks tk;sxk mlds ckn 29-03-17 dks MkW- lkgc us 2000 :i, ysdj cqyk;kA ,lhch }kjk ifjoknh dks 29- 03-17 dks nh tkus okyh jkf'k ysdj mifLFkr gksus dh fgnk;r nh xbZA Hkz"Vkpkj fujks/kd C;wjks] jkt- }kjk jkT; ljdkj ds /;ku esa yk;k x;k gS fd ekax lR;kiu okrkZ dh [2025:RJ-JP:10927] (14 of 42) [CRLW-1475/2021] QnZ VªkalfdzIV rS;kj dh xbZ] Lora= xokgksa dk izcU/k fd;k x;kA ifjoknh lqjs'k flag us MkW0 dks fj'or esa nh tkus okyh jkf'k 100&100 : ds 10 uksV rFkk 500&500 : ds nks uksV dqy 2000 : izLrqr fd,A uksVksa ds lEcU/k esa QnZ n`"Vkar ,oa lqiqnZxh uksV i`Fkd ls rS;kj fd;k x;kA ifjoknh us fnukad 29-03-17 dks crk;k fd esjs ekekth 'kEHkwth dk dy fnukad 28-03- 17 dh 'kke dk vkWijs'ku gks x;k FkkA ,lhch }kjk Lora= xokgksa ls ifjoknh dk ifjp; djk;kA ifjoknh }kjk crk;k x;k fd vkWijs'ku esa yxus okyh IysV jsthMsaV MkWDVj }kjk iphZ ij fy[k dj nsus ,oa muds }kjk crk;h x;h nqdku fodkl lthZdYl vkWFkksZisfMd midj.k tokgj jaxeap ls eSa [kjhn dj yk;k] ftldk fcy jkf'k 8967-50 : dh QksVksdkWih izLrqr dj jgk gwaA eSaus gh 'kEHkwth dks vLirky es HkrhZ djk;k Fkk ftldh xsVikl dh QksVksizfr izLrqr dj jgk gwaA bl xsVikl ij esjs eksckbZy ua0 vafdr gSA MkW- lkgc 'kke dks 3&4 cts ckn ?kj ij gh ejht ns[krs gS rFkk mlh le; ?kj ij gh :i;s ysrs gSA ifjoknh dks fj'or jkf'k ysu&nsu dh okrkZ dks fjdkWMZ djus gsrq fMthVy okWbZl fjdkWMZj lqiqnZ fd;k x;kA ifjoknh us crk;k fd ^^vHkh 'kEHkwjketh us eq>s VsyhQksu ij crk;k fd MkW0 lkgc us vkWijs'ku dh ckr dj ,Dljs ?kj ij fn[kkus dh dgk Fkk blhfy, eSa vHkh vLirky esa tkdj ,Dl&js ysdj MkW0 lkgc dks ?kj ij fn[kkm¡xk mlh le; MkW0 lkgc 2000 : fj'or jkf'k ys ysaxsA ,lhch ny ifjoknh ds lkFk MkW0 fuokl ij igq¡pk] djhc 4-50 ih,e ij ifjoknh lqjs'k flag us MkWDVj }kjk fj'or fy, tkus dk b'kkjk fd;k tkus ij ,lhch ny MkWDVj fuokl igq¡pk] rks MkWDVj fuokl ds lkeus cus d{k ds ckgj ifjoknh lqjs'k flag dkBkr [kM+k feyk ftlls fMthVy okWbl fjdkWMZj izkIr fd;k x;kA fuokl ij igq¡p dj ,lhch vf/kdkjh }kjk Lo;a dk ifjp; nsrs gq, MkW0 nsodkUr eh.kk ls ifjp; fy;k ,oa MkW0 nsodkUr eh.kk ls iwNk fd D;k vkius ifjoknh ls buds ekek Jh 'kEHkwjke dk vkWijs'ku djus dh ,ot esa 2000 :i, dh fj'or izkIr dh gS\ bl ij MkWDVj us crk;k fd eSaus muls dksbZ fj'or ugha ekaxh gS blus gh vHkh LosPNk ls 2000 : fn;s gS tks eSaus ysdj njkt esa j[k fn, tks njkt esa gh iM+s gSaA bl ij ifjoknh lqjs'k flag dkBkr us crk;k fd eSaus MkWDVj lkgc dks 2000 :i, dh fj'or jkf'k LosPNk ls ugha nh gS cfYd MkW0 lkgc }kjk esjs ekek Jh 'kEHkwjke ds ?kqVus dk vkWijs'ku djus dh ,ot esa fnukad 24-03-17 dks 5&6 [2025:RJ-JP:10927] (15 of 42) [CRLW-1475/2021] gtkj :i, fj'or jkf'k dh ekax dh rFkk fnukad 24- 03-17 dks 1000 :] fnukad 25-03-17 dks 2000 : rFkk 27-03-17 dks 500 : izkIr fd, rFkk 2000 : vkWijs'ku gksus ds ckn nsus dks dgk] ftl ij eSaus vkt budh ekax ds Øe esa 2000 : fn, gS tks bUgksaus vius gkFk esa ysdj fxudj Vsfcy dh njkt esa j[k fn, gS rFkk ,Dl&js ns[k dj dgk fd vkWijs'ku lgh gks x;k gSA Hkz"Vkpkj fujks/kd C;wjks] jkt- }kjk jkT; ljdkj ds ;ku esa yk;k x;k gS fd MkW0 nsodkUr eh.kk ds nksuksa gkFkksa ds /kksou dk jax gYdk xqykch gksuk ik;k x;kA Vsfcy dh njkt ykWd gksuh ik;h x;hA MkW0 nsodkur eh.kk ls pkch ds ckjs esa iwNk rks mUgksaus pkch ugha gksuk rFkk pkch ds ckjs esa dksbZ tkudkjh ugha gksuk crk;kA bl ij njkt dk rkyk rksM+k x;k ,oa njkt esa 100]500]2000 ds uksV iM+s gq, ik, x, ftuesa 100&100 : ds dqN uksVksa ds lkFk 500&500 : ds nks uksV xM~Mh :ih gkykr esa njkt ds dksus esa vyx ls j[ks gksuk ik, x,] ftUgsa Lora= xokg ls mBok dj fxuok;k x;k rks 100&100 : ds 10 uksV ,oa 500&500 ds nks uksV dqy 2000 : gksuk ik;k x;k] ftudk feyku iwoZ esa rS;kj QnZ n`"Vkar ls fd;k tkus ij uksVksa ds uEcj gwcgw ik;s x;sA ftl LFkku ls uksV cjken gq, Fks njkt ls ml LFkku dk /kksou xqykch gksuk ik;k x;kA mDr njkt esa fc[kjh gkykr~ esa iM+s uksVksas dks mBok dj fxuok;k tkus ij dqy 17010 : ik;s x;sA ftlds lEcU/k esa MkWDVj us ejhtksa ls izkIr ijke'kZ 'kqYd gksuk crk;kA ijke'kZ 'kqYd dh dksbZ jlhn ugha dkVk tkuk crk;k x;kA mDr jkf'k dks lafnX/k ekurs gq, ,lhch }kjk dCts esa fy;k x;kA blh nkSjku MkWDVj nsodkUr eh.kk dh iRuh Jherh pnzyrk ljdkjh fuokl esa cuh gqbZ lhf<+;ksa ds uhps [kkyh LFkku iM+k gqvk Fkk ftlesa dckM+ iM+k gqvk Fkk] ftlds vUnj ,d cSx dks Nqikrh gqbZ dejs dh f[kM+dh ls utj vkbZA ml cSx dks Jherh pUnzyrk dh ekStwnxh esa [kqyokdj ns[kk x;k rks mDr cSx esa j[ks x, NksVs cSx esa ToSyjh ik;h x;h rFkk cSx esa 100]500]2000 ds uksVksa dh dqy 200660 : dh jkf'k ik;h x;hA mDr jkf'k ,oa ToSyjh ds lEcU/k esa i`Fkd ls fooj.k rS;kj fd;k x;kA Hkz"Vkpkj fujks/kd C;wjks jkt- }kjk jkT; ljdkj ds ;ku esa yk;k x;k gS fd leLr rF;ksa] ifjfLFkfr;ksa] fj'or jkf'k ekax lR;kiu okrkZ] ysu&nsu okrkZ] vkjksih ds nksuksa gkFkksa ,oa Vsfcy dh njkt ds /kksou dk jax [2025:RJ-JP:10927] (16 of 42) [CRLW-1475/2021] xqykch ik;k tkuk] vkjksih MkW- nsodkUr eh.kk }kjk ifjoknh Jh lqjs'k flag dkBkr ls mlds ekek Jh 'kEHkwjke ds ?kqVus dk vkWijs'ku djus dh ,ot esa fnukad 24-03-17 dks 5&6 gtkj : dh fj'or jkf'k dh ekax dj fnukad 24-03-17 dks 1000 gtkj :] fnukad 25-03-17 dks 2000 : rFkk oDr lR;kiu fnukad 27- 03-17 dks iwoZ esa izkIr 3000 :- Lohdkj djrs gq, 500 : fj'or izkIr dh rFkk 2000 : vkWijs'ku ds ckn fj'or jkf'k ysuk r; dj fnukad 28-03-17 dks vkWijs'ku gks tkus ds i'pkr~ fnukad 29-03-17 dks ekax vuqlkj 2000 : fj'or jkf'k izkIr dj viuh Vsfcy dh njkt esa j[kuk ,oa njkt ls fj'or jkf'k cjken gksuk ik;k x;kA jkT; ljdkj ds fu;ekuqlkj vkpk;Z dk ijke'kZ 'kqYd 200 : gksrk gS rFkk jktdh; vLirkyksa esa fu%'kqYd nok ;kstuk dk ykHk ejhtksa dks fn;k tk jgk gS mlds ckotwn MkW0 nsodkUr eh.kk }kjk ifjoknh ls 2000 : fj'or jkf'k izkIr dh xbZ gSaA ftlds dkj.k muds fo:) vijk/k vUrxZr /kkjk 7]13¼1½Mh] 13¼2½ ih-lh-,DV 1988 dkfjr fd;k tkuk ikus ls MkW- nsodkUr eh.kk rRdk0 vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj dks fxj¶rkj fd;k x;kA ifjoknh ds ekek Jh 'kEHkwjke ds bykt o vkWijs'ku ls lEcfU/kr fjdkWMZ izkIr fd;k x;k ,oa voyksdu fd;k x;k rks ik;k x;k fd Jh 'kEHkwjke dks fnukad 21-03-17 dks ts,y,u vLirky esa HkrhZ fd;k x;k ,oa fnukad 28-03-17 dks MkW0 nsodkUr eh.kk }kjk mudk vkWijs'ku fd;k x;k ,oa fnukad 29-03-17 dks 'kEHkwjke dks vfLFk jksx foHkkx esa HkrhZ fd;k x;kA Hkz"Vkpkj fujks/kd C;wjks] jkt- }kjk jkT; ljdkj ds /;ku esa yk;k x;k gS fd vuqla/kku ds nkSjku ifjoknh Jh lqjs'k flag dkBkr] Lora= xokgksa Jh oklqnso e?kukuh ,oa ujsUnz Vkad] jkeewfrZ tks'kh] losZ'oj flag] eukst] jkepUnz] dUgS;kyky] f'ko flag] ';keizdk'k ,oa Mojkjke ds c;ku fy;s x;s rFkk lacaf/kr vfHkys[k izkIr fd;s x,A MkW0 nsodkUr eh.kk ds gkFkksa ds /kksou ,oa njkt ds /kksou ds laca/k esa ,Q,l,y fjiksVZ ldkjkRed izkIr gqbZ gSA fj'or jkf'k ekax lR;kiu ds nkSjku vkjksih MkWDVj dgrs gSa^ ^vkSj ns nsuk** ftl ij ifjoknh dgrk gS fd ^^vkSj fdrus lj] esjs dks crk;k ugha Fkk mUgksaus**A ifjoknh dgrk gS fd fdruk vkSj gks tk,xk rks vkjksih dgrk gS fd ^^nks vkSj dj nks**A ftl ij ifjoknh dgrk gS ^^nks rks lj igys nk Iyl rhu cjkcj ikap T;knk gks tk,axs D;ksafd etnwj vkneh gSa] iapj dh nqdku gS buds**A rks vkjksih [2025:RJ-JP:10927] (17 of 42) [CRLW-1475/2021] MkWDVj dgrs gSa ^^vPNk pyks tks rqEgsa Bhd yxs oks dj nsuk cl** blds ckn ifjoknh FkSaD;w lj dgdj jokuk gksus yxrk gS vkjksih MkWDVj dgrk gS vHkh rks dqN dj tkvks] ftl ij ifjoknh Mojkjke ls 500 : ysdj vkjksih MkWDVj dks ns nsrk gSA fnukad 28-03-17 dks vkWijs'ku gks tkus ds i'pkr~ fnukad 29-03-17 dks vkjksih MkWDVj }kjk ekax ds dze esa 2000 : fj'or ds :i esa izkIr dj njkt esa j[ks x,] tgka ls fj'or jkf'k cjken dh xbZA vkjksih ds gkFkksa o Vsfcy dh njkt ds kksou dk jax xqykch gksuk ik;k x;k ftl dh rkbZn QnZ VªkalfdzIV fj'or jkf'k ekax lR;kiu okrkZ] fj'or jkf'k ysu&nsu okrkZ] ,oa ,Q,l,y fjiksVZ ls gksrh gS vr% vkjksih MkWDVj nsodkUr eh.kk ds fo:) Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 7]13¼1½Mh] 13¼2½ ds varxZr vijk/k izekf.kr ik;k tkrk gSA jkT; ljdkj }kjk vijk/k la- 68@17 dh i=koyh ij miyC/k ,Q-vkbZ-vkj] ,lhch fjiksVZ ,oa vU; nLrkostksa dk ijh{k.k fd;k x;kA i=koyh ij miyC/k izFke lwpuk fjiskVZ] ,lhch fjiksVZ ,oa i=koyh ij miyC/k leLr lk{;ksa] nLrkostksa ds voyksdu ,oa rF;ksa ds lE;d~ foospu ,oa vuqla/kku vf/kdkjh ls fopkj&foe'kZ ds mijkar fo'ys"k.k fuEu izdkj gSa%& i=koyh ij miyC/k QnZ ekax lR;kiu okrkZ vkjksih ,oa ifjoknh fnukad 27-3-2017] ljdkjh vkokl vkjksih ds voyksdu ls tkfgj gS fd ifjoknh ds }kjk u dsoy ;g Lohdkj fd;k fd mlus ifjoknh ls iwoZ esa Hkh viuh ekax ds vuqlkj jkf'k izkIr dh Fkh oju 2 gtkj vkSj ekaxs x,A ifjoknh ds etcwjh tkfgj djus ij dgk vPNk pyks tks rqEgsa Bhd yxs oks dj nsukA ;gh ugha vkjksih us ifjoknh dks ijlks vFkkZr~ 29- 3-2017 dks Hkh feyus dks dgk rFkk ifjoknh ds FkSaD;w cksyus ij dgk ^^vHkh rks dqN dj tkvks** bl ij ifjoknh us lkFk vk, fj'rsnkj Mcjkjke ls 500 : fnyok;sA LVhy IysV~l ds fy, okrkZ ds var esa vkjksih us vyx ls 3 ls 7 gtkj rd eSust djds j[kus gsrq ifjoknh dks fgnk;r nh xbZA vkjksih }kjk ifjoknh dks 29-3-2017 dks iqu% cqyk;k x;kA 29-3-17 dks vkjksih ds ?kj ij ifjoknh o vkjksih ds e/; gqbZ okrkZ ds VªkalfdzIV ds voyksdu ls Li"V gS fd nksuksa ds e/; iwoZ ifjfpr vankt esa rFkk vkWijs'ku ds laca/k esa okrkZ gqbZ gSA vkjksih ls fj'or esa yh xbZ jkf'k mlds ljdkjh vkokl fLFkr est dh njkt ls cjken gqbZ gS] mlds nksuksa gkFkksa ,oa njkt ds lsaiy dh ijh{k.k fjiksVZ esa [2025:RJ-JP:10927] (18 of 42) [CRLW-1475/2021] fQukWYQFkyhu ,oa lksfM;e dkcksZusV ik;k x;k gSA bl izdkj vkjksih }kjk ifjoknh ls vkWijs'ku ds fy, fj'or dh ekax djuk ,oa fj'or dh jkf'k izkIr djuk nksuksas rF; izFke n`"V;k lkfcr gksuk izekf.kr gksrk gSA fnukad 27-03-17 dk ekax lR;kiu ds nkSjku vkjksih MkDVj }kjk ifjoknh dks dgk x;k ^^vkSj ns nsuk** ftl ij ifjoknh dgrk gS fd ^^vkSj fdrus lj] esjs dks crk;k ugha Fkk mUgksaus**A ifjoknh dgrk gS fd fdruk vkSj gks tk,xk rks vkjksih dgrk gS fd ^^ nks vkSj dj nks** ,oa vkxs okrkZ ds nkSjku ;g dgk x;k ^^vPNk---- pyks tks rqEgsa Bhd yxs oks dj nsuk---- cl ,oa ekax lR;kiu okrkZ ds nkSjku gh vkjksih }kjk ifjoknh dks ijlks feyus gsrq dgk tkrk gS ,oa dgk tkrk gS ^^vHkh rks dqN dj tkvks** Vªsi ds le; vkjksih MkWDVj ds fuokl esa vkjksih MkWDVj dh Vsfcy dh njkt ls jkf'k cjken gqbZ rFkk vkjksih MkWDVj ds gkFkksa ds /kksou dk jax xqykch vk;kA vr% jkT; ljdkj }kjk tks fd MkW- nsodkUr eh.kk] rRdk0 vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj dks muds in ls i`Fkd djus esa l{ke gS] iz'uxr izdj.k esa Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 19 ,oa n.M izfdz;k lafgrk dh /kkjk 197 ds rgr iznRr 'kfDr;ksa ds vuqlj.k esa izFke n`"V;k vkjksih izekf.kr ik, tkus ij MkWDVj nsodkUr eh.kk] rRdk0 vkpk;Z ,oa ;wfuV gSM] vfLFk jksx foHkkx] ts,y,u vLirky] vtesj ds fo:) /kkjk 7]13¼1½ ¼Mh½ 13 ¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 ,oa fof/k ds vU; mica/kksa ds v/khu n.Muh; fdlh vijk/k ds fy, l{ke U;k;ky; esa vfHk;kstu pykus dh jkT; ljdkj }kjk ,rn~}kjk Lohd`fr iznku dh tkrh gSA”

18. The Court felt necessary to quote the order of prosecution sanction dated 19.12.2018 in this order because as per the averments made in the writ petition by the petitioner, he was not served with a copy of the said order even after having asked for the copy under the Right to Information Act, 2005 (in short ‘the Act of 2005’). On the other hand, the learned Public Prosecutor stated that in view of the provisions of the Act of 2005 [2025:RJ-JP:10927] (19 of 42) [CRLW-1475/2021] and so as to maintain the secrecy, the proceedings related to the prosecution sanction cannot be given to the delinquent officer.

19. The facts stated in above paras point towards the fact that initially the prosecution sanction with respect to the petitioner was refused and the said proposal was later approved at the level of Chief Secretary and without there being any additional evidence collected by the investigating agency or any being submitted to the administrative department, the order for reconsideration has been made and during such reconsideration also the administrative department did not find sufficient material to issue prosecution sanction against the petitioner and then submitted a proposal to decide upon the issue of grant of prosecution sanction. It was specifically noted that (a) there was no pendency of work on the day of the so called trap;(b) There is no clear demand; and (c) in view of the background of complainant, foul play during trap cannot be ruled out.

20. Even after the proposal brought up during reconsideration and having had a detailed discussion on the material available on record, the approval for grant of prosecution sanction was issued by the then Chief Minister without having discussed any material and without disclosing the basis on which he/she has come to the conclusion that it is a fit case for grant of prosecution sanction. In the proposal after reconsideration sent by the Department of Personnel, it was specifically stated that two views are possible. In such circumstances, the approval authority was under an obligation to cite the reasons for reaching the conclusion for grant of prosecution sanction. [2025:RJ-JP:10927] (20 of 42) [CRLW-1475/2021]

21. In view of the discussions made above, this Court can safely hold that the respondent authorities at one point of time refused to grant prosecution sanction against the petitioner, which was approved at the level of Chief Secretary, Government of Rajasthan, however, the matter was reconsidered, without there being any additional evidence and then the prosecution sanction has been approved and granted; even though, the Department, which has undertaken scrutiny of the material was not of a firm affirmative opinion for grant of prosecution sanction. Since the prosecution sanction was initially refused, later by making a proposal for reconsideration, the same was granted. There was no occasion for the authority to reconsider the issue without there being any additional evidence.

22. Learned Senior Advocate has also referred to the Circular dated 06.05.2016, which is quoted as under:- “Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 19 ds vUrxZr C;wjksa }kjk yksdlsodksa ds fo:) ntZ vkijkf/kd izdj.kksa esa vuqla/kku ckn vfHk;kstu Lohd`fr gsrq jkT; lsok ds vf/kdkfj;ksa ds ekeyksa esa dkfeZd foHkkx jktLFkku ljdkj o vU; yksdlsodksa ds ekeys esa lacaf/kr foHkkxk/;{k@fu;qfDr izkf/kdkjh dks izLrko fHktok;s tkrs gSA l{ke izkf/kdkjh }kjk izdj.k ds rF;ksa dk v/;;u dj] izLrqr nLrkostksa o vU; lk{;ksa dk foospu o fo'ys"k.k djus o vuqla/kku vf/kdkjh ls fopkj&foe'kZ ds mijkUr vfHk;kstu Lohd`fr tkjh djus ;k u djus dk fu.kZ; fy;k tkrk gSA vfHk;kstu Lohd`fr&tkjh ugha djus ds ekeyksa esa l{ke izkf/kdkjh }kjk iz'kklfud foHkkx ds lfpo ds ek/;e ls eq[; lrZdrk vk;qDr dh jk; izkIr djus ds ckn gh vafre fu.kZ; fy;k tkrk gSA l{ke izkf/kdkjh }kjk tkjh fd;k x;k vkns'k ek= vuqla/kku vf/kdkjh ds fu"d"kksZa dh iqujko`fRr u gksdj] izdj.k ds rF;ksa ds foospu o fo'ys"k.k ij vk/kkfjr foLr`r rdZiw.kZ vkns'k(Speaking Order) gksuk pkfg, ftlds voyksdu ls ;g ifjyf{kr gks lds fd izkf/kdkjh }kjk [2025:RJ-JP:10927] (21 of 42) [CRLW-1475/2021] vkns'k tkjh fd;s tkus ls iwoZ vius Lora= efLr"d dk iz;ksx (Independent application of mind) fd;k x;k gSA vr% Hkfo"; esa lHkh l{ke izkf/kdkjh vfHk;kstu Lohd`fr ;k eukgh dk foLr`r o rdZiw.kZ vkns'k tkjh djsaA ekuuh; mPpre U;k;ky; }kjk (State of Himachal Pradesh v/s Nishant Sareen (2010) 14 SCC 527) esa fu/kkZfjr fd;k x;k gS fd ;fn l{ke izkf/kdkjh }kjk fdlh izdj.k esa vfHk;kstu Lohd`fr ;k eukgh dk vkns'k tkjh dj fn;k tkrk gS rks izdj.k esa leku rF;ksa ;k nLrkostksa ds vk/kkj ij vkns'k dk iqujkoyksdu vuqer ugha gSA vr% l{ke izkf/kdkjh }kjk izdj.k ds rF;ksa ds v/;;u o foospu ds ckn tkjh vkns'k vafre gS o mDr vkns'k dk C;wjks ds vuqjks/k ij leku rF;ksa o lk{;ksa ds vk/kkj ij iqujkoyksdu fd;k tkuk vuqer ugha gSA lHkh l{ke izkf/kdkjh bldh ikyuk lqfuf'pr djsaA”

23. In the concerned circular, in view of the judgment passed in case of State of Himachal Pradesh Vs. Nishant Sareen (supra) (2010) 14 SCC 527, by the Hon’ble Apex Court, it has been clarified that once there is approval or refusal of the prosecution sanction, a review of the same cannot be made on the basis of the same facts and documents concerned.

24. The Hon’ble Apex Court in case of Mansukhlal Vithaldas Chauhan (supra), in para 19 has observed as under:- “19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to [2025:RJ-JP:10927] (22 of 42) [CRLW-1475/2021] grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution”

25. In another judgment of State of Himachal Pradesh Vs. Nishant Sareen (supra), the Hon’ble Apex Court in para Nos. 5, 6, 7, 8, 12 & 13 has quoted as under:- “5. It appears that the Vigilance Department took up the matter again with the Principal Secretary (Health) for grant of sanction as in their opinion sufficient evidence existed to prosecute the respondent. The competent authority, thus, reconsidered the matter and granted sanction to prosecute the respondent vide its Order dated 15-3-2008. In the sanction Order dated 15-3-2008, it was observed thus: “I agree with the contention of the Vigilance Department evaluating the evidence of criminal misconduct, his general conduct and behaviour as perceived by his superiors cannot secure precedence. I have been through the case file and facts of the case in detail. I find that the said Drug Inspector Shri Nishant Sareen has been caught red-handed, with a bribe of Rs 5000. There is nothing on record to show that this incident did not occur. The facts do not support the contention that Shri Nishant Sareen was falsely implicated. In the circumstances, I am of the opinion that the prosecution sanction be granted in the instant case and accordingly do so.”

6. Section 19 of the 1988 Act reads as follows: “19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable [2025:RJ-JP:10927] (23 of 42) [CRLW-1475/2021] 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. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the 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. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; [2025:RJ-JP:10927] (24 of 42) [CRLW-1475/2021] (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.—For the purposes of this section,— (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.”

7. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach the conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622 : 1997 SCC (Cri) 1120 : 1997 SCC (L&S) 1784] this Court observed: (SCC p. 631, para 17) “17. … Sanction is a weapon to ensure discouragement frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.”

8. Section 19 or for that matter Section 197 of the Code of Criminal Procedure, 1973 (for [2025:RJ-JP:10927] (25 of 42) [CRLW-1475/2021] short “the Code”) does not make any express provision regarding review or reconsideration of the matter by the sanctioning authority once such power has been exercised. In Gopikant Choudhary v. State of Bihar [(2000) 9 SCC 53 : 2000 SCC (Cri) 1158] , initially the Minister concerned refused to accord sanction to prosecute the public servant therein and an order was passed to that effect. Subsequently, after retirement of the public servant, the matter was taken up by the Chief Minister and he granted sanction for prosecution of the public servant concerned. The question that arose for consideration before this Court was the correctness of the order passed by the Chief Minister. This Court set aside the order of the Chief Minister granting sanction to prosecute the public servant, inter alia, on the ground that the Chief Minister did not have any occasion to reconsider the matter and pass fresh order sanctioning the prosecution.

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 a 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. [2025:RJ-JP:10927] (26 of 42) [CRLW-1475/2021]

13. 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 a course. “

26. The Co-ordinate Bench of this Court in case of Pankaj Gupta (supra) has observed as under:- “The facts which are not in dispute are that prior to passing of the impugned order, the non-petitioners had earlier refused for grant of prosecution sanction. It was by passing a detailed order discussing all the facts of the case. The impugned order thereupon was passed granting sanction for prosecution. It does not disclose new material to justify the order. The aforesaid fact has not been denied by the learned counsel for non- petitioners. The only ground to justify the impugned order is regarding adherence of principles of natural justice. So far as aforesaid fact is concerned, suffice it to say that for passing order for sanction of prosecution, an opportunity of hearing is not essential or a pre-condition. The review of earlier order is otherwise not sustainable not only for the reason that no new material has come to justify it but for want of competence to review the order because no powers in that regard have been shown. The issue raised herein is otherwise covered by the judgment of Apex Court in the case of State of Himachal Pradesh Vs. Nishant Sareen (supra). Therein also, the sanction for prosecution was earlier refused and thereupon it was granted. The Apex Court [2025:RJ-JP:10927] (27 of 42) [CRLW-1475/2021] came to the conclusion that no new material has come so as to justify the impugned order as is the present case. In view of the above, impugned order dated 14th February, 2011 cannot be allowed to sustain and is accordingly set aside”

27. The Co-ordinate Bench of this Court in case of Vishal Singhal (supra) has observed as under :- “In the light of the principles laid down by Hon’ble Supreme Court as also this Court in the cases referred above, the legal position is apparently clear that no fresh prosecution sanction can be issued without there being new facts and circumstances or the documents made available for perusal of the Sanctioning Authority while reviewing earlier order passed in this regard. When the earlier order dated

12.01.2016 (annexure-10) and the prosecution sanction dated 17.11.2016 (annexure-13) are compared, it appears that the Competent Authority has considered same facts and documents while passing both these orders. No additional or new fact and document has been considered by the Competent Authority while issuing the prosecution sanction (annexure-13). On the contrary, it appears that later on prosecution sanction came to be issued in pursuance to the direction issued by the State Government vide its letter dated

16.05.2016, Collector and District Magistrate, being the Appointing Authority in case of Patwari, was competent to issue prosecution sanction. He was required to [2025:RJ-JP:10927] (28 of 42) [CRLW-1475/2021] apply his mind judiciously and independently while passing the order regarding the prosecution sanction. He was not supposed to act upon the direction issued by the State Government in this regard. Circular

16.05.2016(annexure-14) has also been issued by Department of Personnel, Government of Rajasthan in light of the judgment in State of Himachal Pradesh Vs. Nishant Sareen(supra) stating that the Competent Authority shall not review the order passed earlier in regard to the issuance or declining the prosecution sanction. In the instant case, it appears that the District Collector Jaipur has neither followed the instructions issued by Department of Personnel nor acted as per the principle laid down by Hon’ble Apex Court in Nishant Sareen’s case (supra). As the prosecution sanction dated

17.11.2016 (annexure-13) has been issued in complete violation of the judicial pronouncements and circular issued by the State Government, it cannot be sustained and is accordingly liable to be quashed and set aside.”

28. In para 9 of the memo of the present writ petition, it has been averred that the prosecution sanction was initially denied against the petitioner on the basis of whatever material was available on the file, including the record and at that point, no case was made out against the petitioner. Para 9 of the memo of the present writ petition is quoted as under:- [2025:RJ-JP:10927] (29 of 42) [CRLW-1475/2021] “9. That to the best of knowledge of the Petitioner the sanction of prosecution was denied against the Petitioner as whatever the material was available on the file including the record no case was made out against the Petitioner by the Official Respondent regarding his demand and acceptance of bribe to the tune of Rs.2000/- for conducting the operation of an patient, in such circumstances rightfully so the sanction of prosecution was denied at the highest level i.e. upto the level of Hon’ble Chief Secretary. This fact can very well be verified from the record available in the office of Respondent No.1 and Respondent No.2 as to whether the Sanction for Prosecution was refused at that stage after examining the entire material available on record with the which clearly Official demonstrated that there was not a single iota of evidence against the Petitioner which led to filing of an FIR No.68/2017 dated 31.03.2017 at Police Station District Chouki, A.C.B., Special Unit, Ajmer under Section 7, 13(1)D read with 13 (2) of Prevention of Corruption Act, 1988.” Respondent

29. In reply to the writ petition, filed by the respondents, they have not denied the said averments. Para 9 of the reply is quoted as under:- “9- That contents of para No.09 of the criminal writ petition needs no comments being legal based on record.”

30. There being no denial to the averments made in the writ petition, the same shall stand admitted.

31. In para 11 of the writ petition, it is averred by the petitioner that without there being any fresh material available on record or any change in the circumstances, the Official respondents now hold a contrary view and have then granted the [2025:RJ-JP:10927] (30 of 42) [CRLW-1475/2021] prosecution sanction. Para 11 of the writ petition is quoted as under:- “11. That now to the utmost surprise /dismay of the Petitioner without there being any fresh material available on record nor any change in the circumstances the Official Respondent have taken a U turn and not only granted sanction for Prosecution against the Petitioner although the copy of the Order of Sanction for Prosecution has not been made available to the Petitioner inspite of the fact that the Petitioner has applied under the Right Information Officer and thereupon on refusal preferred the Second Appeal which too has been decided against Petitioner by the Second Appellate Authority on the ground that the Petitioner has failed to appear on one date i.e. 24.03.2021 when neither the Petitioner nor the Respondent, State Public Officer or his representatives appeared which led to the passing of Order dated 24.03.2021 by the Second Appellate Authority whereby rejecting the Second Appeal preferred by the Petitioner for making available the copy of the Order of Sanction for Prosecution to the Petitioner.”

32. In the reply filed by the respondents, they have not denied the said averments. Para No.11 of the reply is quoted as under:- “11- That contents of para No.11 of the criminal writ petition needs no comments from answering respondents in view of submissions made by answering respondents.”

33. Here also, from the facts and averments of the relevant paras of the writ petition, it is clear that there is no denial and thus presumed to be admitted. The respondents have not denied that fact stated in the petition that at one point of time [2025:RJ-JP:10927] (31 of 42) [CRLW-1475/2021] prosecution sanction was refused but later without any additional evidence it was granted. In view of the settled principle of law it is not permissible to review the order of refusal.

34. While undertaking scrutiny of the original record related to the prosecution sanction, the Court has also come across one more material fact, that is, the prosecution sanction so finally issued, is copied verbatim from the draft prosecution sanction, meaning thereby, the authority has not made any due application of mind, they have simply reproduced the words so stated in the draft proposal. The practice of issuing prosecution sanction order verbatim to the draft proposal has been deprecated by this Court in case of Naresh Chand Meena Vs. State of Raj. in S.B. Criminal Misc. Petition No.3162/2021, decided on

28.02.2025.

35. In case of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal & one other connected matter, reported in (2014) 14 SCC 295, wherein the Hon’ble Apex Court in paras 13, 14, 15 and 16 has observed as under:- “13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the [2025:RJ-JP:10927] (32 of 42) [CRLW-1475/2021] sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.

15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the [2025:RJ-JP:10927] (33 of 42) [CRLW-1475/2021] recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. (Vide Gokulchand Dwarkadas Morarka v. R. [(1947-48) 75 IA 30: (1948) 61 LW 257: AIR 1948 PC 82]; Jaswant Singh v. State of Punjab [AIR 1958 SC 124: 1958 Cri LJ 265], Mohd. Iqbal Ahmed v. State of A.P. [(1979) 4 SCC 172: 1979 SCC (Cri) 926], State v. Krishanchand Khushalchand Jagtiani [(1996) 4 SCC 472: 1996 SCC (Cri) 755], State of Punjab v. Mohd. Iqbal Bhatti [(2009) 17 SCC 92: (2011) 1 SCC (Cri) 949], Satyavir Singh Rathi, ACP v. State [(2011) 6 SCC 1: (2011) 2 SCC (Cri) 782] and State of Maharashtra v. Mahesh G. Jain [(2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85].)

16. In view of the above, the legal propositions can be summarised as under:

16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. [2025:RJ-JP:10927] (34 of 42) [CRLW-1475/2021]

16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.”

36. In case of State of Karnataka vs. Ameerjan, reported in (2007) 11 SCC 273, wherein the Hon’ble Apex Court in paras 9 and 10 has observed as under:- “9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by [2025:RJ-JP:10927] (35 of 42) [CRLW-1475/2021] refusing to accord sanction for his prosecution or not.

10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.”

37. In case of Harish Chandra Bunkar Balai Vs. Board of Revenue, Ajmer & Ors., (D.B. Spl. Appl. Writ No.707/2023), decided on 18.10.2024, wherein the Division [2025:RJ-JP:10927] (36 of 42) [CRLW-1475/2021] Bench of the Principal Seat at Jodhpur, has observed in para 10, 11, 12 and 13 as under:- “10. A bare perusal of the above draft prosecution (as placed on record of the present appeal along with additional affidavit) and the order dated 28th January 2015 makes it clear that the order granting prosecution sanction is a verbatim repetition of the draft prosecution as furnished by the ACB to the Collector, Banswara.

11. The order dated 28th January 2015 does not reflect any ground on the basis of which it can be concluded that the sanctioning authority applied his independent mind before granting the prosecution sanction. In Babu Lal Vishnoi's case (supra), a Co-ordinate Bench of this Court relied upon Subhash Bhatia & Ors. Vs. State & Ors., S.B. Civil Writ Petition No.590 of 2010, wherein it was observed as under: "The authority competent to remove a public servant from service is clothed with the power to grant sanction for prosecution to such public servant by the Legislature with [2024:RJ- JD:43289-DB] (10 of 12) [SAW-707/2023] a definite intention as that authority being having administrative and disciplinary control on the person concerned is in a position to assess and weigh the accusation on basis of intimate knowledge of the work and conduct and also having day to day knowledge of overall administrative interest of the department. The sanction for prosecution represent a deliberate decision and that requires objective satisfaction of the competent authority about a [2025:RJ-JP:10927] (37 of 42) [CRLW-1475/2021] prima facie case against the person facing accusation. The authority competent while granting sanction is also required to record reasons for launching prosecution and is further required to specify its need in public interest. This important duty can be discharged only on independent application of mind to all the relevant facts on basis of which prosecution is proposed. If any extraneous pressure is mounted on the authority competent then there shall be all chances of frivolous and malicious prosecution. To maintain the spirit of the provisions for the grant of sanction to prosecute a public servant, the authority competent is required to act independently, objectively and with an intention for not saving a culprit from prosecution but at the same time with a view to afford a reasonable protection to a public servant from unnecessary harassment and undue hardship through vexatious prosecution. Keeping in mind, the above mentioned intention of the Legislature, Hon'ble Supreme Court in State of Karnataka Vs. Ameerjan (supra) authoritatively held that the order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. For the same reason, this Court too in the case of Kishan Lal (supra) held that the statutory power given to the authority competent is required to be exercised by the authority concerned and not by any body else." [2025:RJ-JP:10927] (38 of 42) [CRLW-1475/2021]

12. In Manish Mathur Vs. State of Rajasthan & Anr., S.B. Civil Writ Petition No.12684 of 2012, it was held as under : "As already stated, in the instant matter too the sanction granted and the draft to grant sanction are ad verbatim same. The Director, Mines and Geology appears to have [2024:RJ-JD:43289- DB] (11 of 12) [SAW-707/2023] adopted the draft ipse dixit. Section 19 of the Act of 1988 postulates absolute authority to grant sanction for prosecution to the competent authority, as such, the competent authority is required to apply its own mind by considering all relevant facts. The competent authority may avail assistance of other persons, but in no case, any other authority can initiate the process of consideration for grant of sanction and instruct the competent authority for granting sanction. In the case in hand, the consideration for grant of sanction, as a matter of fact, was initiated by the Anti Corruption Bureau by sending a draft for granting sanction for prosecution. The Anti Corruption Bureau could have communicated all relevant facts on the basis of which prosecution sanction could have been granted, but in no case, the Bureau could have instructed for grant of prosecution sanction under a proposed and drafted document. The prosecution sanction granted in the instant matter by the Director, Mines and Geology, Udaipur under the letter dated 18.10.2012 on face depicts non- application of mind and abdication of the powers by the Anti Corruption Bureau. The same, therefore, is illegal." [2025:RJ-JP:10927] (39 of 42) [CRLW-1475/2021]

13. Applying the ratio of the above judgments to the present case, we hold that the proposed draft document for grant of prosecution sanction furnished by the Anti Corruption Bureau to the sanctioning authority cannot be upheld in terms of Manish Mathur and is therefore declared illegal.”

38. In case of Vijay Kumar Singhal Vs. State of Rajasthan & Anr., (S.B. Criminal Misc. (Petition) No.5351/2023) decided on 07.10.2024, wherein the Coordinate Bench of this Court has observed as under:- “It is an admitted position that for procuring the drug license and cancellation of drug license, online procedure was prevailing at that time because department had started online process from September, 2017. Complainant very well knew the online process. He had applied for cancellation of drug license online. So, there was no need to prepare the file offline. Investigating Authorities had not conducted the verification of illegal demand in accordance with law and had not conducted any enquiry as to whether any work was pending with the petitioner or not. It is also an admitted position that at the time of trap proceedings, no work was pending with the petitioner from 17.12.2018 to 19.12.2018. Complainant first time applied for the drug license on 24.12.2018. Petitioner submitted a [2025:RJ-JP:10927] (40 of 42) [CRLW-1475/2021] detailed representation before the concerned authorities. Concerned authorities also admitted the fact that no work was pending with the petitioner. Petitioner had clearly stated that complainant had forcefully put the tainted money in his pocket on account of rivalry of the petitioner with Ranjeet Gurjar. Department had also admitted the rivalry of the petitioner with [2024:RJ-JP:41711] (12 of 12) [CRLMP- 5351/2023] Ranjeet Gurjar. Ranjeet Gurjar is the friend of the complainant Kuldeep Singh. In the present case, prosecution failed to establish that there was any demand and acceptance of the bribe. Mere recovery of tainted money does not attract the offence against the petitioner under Sections 7, 13(1)(d)/13(2) of the Act of 1988 because prosecution had to establish the fact that work was pending with the petitioner and petitioner had demanded the tainted money for doing work. Competent authority before granting the prosecution sanction had not applied independent mind. So, I deem it fit to quash and set aside the order of the prosecution sanction dated 23.06.2021 issued against the petitioner by the Deputy Secretary (A-3), Department Of Personnel, Government Secretariat, Jaipur.” [2025:RJ-JP:10927] (41 of 42) [CRLW-1475/2021]

39. In view of the aforesaid facts, this Court can also hold that the Prosecution Sanction Authority while issuing the prosecution sanction, has not made due application of his mind, which is required as per the law laid down by the Hon’ble Apex Court as referred to above.

40. In view of the detailed discussion made above and the law laid down by the Hon’ble Apex Court as referred to above, this Court holds that: (i) the respondents once refusing to grant prosecution sanction, have reconsidered and reviewed the matter and granted prosecution sanction without there being any additional evidence/material; (ii) The order of granting prosecution sanction is without due application of mind by the Competent Authority; (iii) There was no work pendency on day of Trap; (iv) There is no clear demand; and (v) There are possibilities of foul play by the complainant. Thus, the order of prosecution sanction against the petitioner dated 19.12.2018 is illegal, arbitrary, bad in law and contrary to the various pronouncements of the Courts and so also the basic principle of criminal jurisprudence that such order can not be reviewed and thus, the present criminal writ petition deserves to be allowed.

41. Accordingly, the present criminal writ petition is allowed and the prosecution sanction order dated 19.12.2018 issued by the Department of Personnel, Government of Rajasthan, Jaipur is quashed and set aside and all criminal proceedings arising out of F.I.R. No.68/2017 (dated 31.03.2017) registered with the Police Station CPS, ACB, Jaipur, District Chouki, ACB Special Unit, Ajmer, for offences punishable under Sections 7, 13(1)(D), 13(2) of the [2025:RJ-JP:10927] (42 of 42) [CRLW-1475/2021] Prevention of Corruption Act, 1988 and consequential proceedings qua the present petitioner are also quashed and set aside.

43. Consequences to follow. In view of the order passed in the main petition, the stay application and pending application(s), if any, also stand disposed of. ARTI SHARMA /30 (GANESH RAM MEENA),J

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