Srinagar: In the case related to sanction of loans to fictitious unit holder by Khadi and Village Industries Board (KVIB), the Anti-Corruption Court Srinagar has held that government sanction for prosecution against the accused public servants invalidated by High Court is liable to be discharged from the charges of criminal misconduct under the Prevention of Corruption Act.
Surinder Singh, the special judge Anti-Corruption Kashmir Srinagar while disposing of a case 2001 case by the State against KVIB officials and some private persons said that government sanction order KVIB/386 of 2011 dated 21-2-2011 already held to be invalid and quashed by the Hon’ble High Court of J&K, “there remains no occasion for this court to take cognizance of offence against the accused public servant namely Deedar Singh”.
The court said “no cognizance can be taken against the accused Nisar Ahmad (retired public servant) in absence of valid sanction and as a consequence whereof they are liable to be discharged and they are hereby discharged from the charge of offence u/s 5(2) PC Act”, said the court.
By his order the judge set at rest the controversy arisen at the behest of accused Deedar Singh and Nisar Ahmad Wani, with regard to the validity of sanction granted by KVIB and General administration Department (GAD) in terms of section 6 of Jammu and Kashmir Prevention of Corruption Act, 2006.
A preliminary enquiry No. KG-105/2000-3118 dated 14-12-2000 was initiated upon a complaint alleging that the then Deputy Chief Executive Officer KVIB Kashmir in league with his other officials and some other civil persons processed three loan cases in 1997, for sanction of loan of Rs 89100, Rs 89100 and Rs 1,44,000. The loans were sanctioned in favour of three non-existent and fictitious unit holders of one Shakeel Ahmad Bhat S/O Mohd Maqbool Bhat R/O Umer Colony, Lal Bazar for leather goods manufacturing unit at Wathura Budgam, Showket Ahmad Mir R/O Yaripora, Tehsil Chadur for candle manufacturing unit at Chadur) and Gh Mohi-u-din Dar S/O Mohd Yusuf Dar R/O Saida Kadal Srinagar for Exercise Notebooks, binding unit at Chadur, respectively.
The case finally culminated in the registration of case FIR in P/S VOK (now ACB) for commission of offences u/s 5(2) PC Act, 2006 and 409, 468, 419, 120-B RPC.
During the course of investigation some accused officials namely Muzaffar Abdul Nasir and others challenged the KVIB order that had granted sanction to prosecute them.
While disposing of their petitions the then Justice Mansoor Ahmad Mir of High Court of J&K quashed the prosecution order of sanction saying “they have been granted without application of mind and at the instance and directions of GAD”.
However, the Special Public Prosecutor contended before the Anticorruption Court that there is sufficient material on record, which prima facie establishes the commission of offences by the accused persons. “Orders passed by the writ courts at the behest of accused/petitioners and sanction order impugned in the said writ petitions quashed to their extent, have no bearing vis-i-vis sanction order pertaining to the rest of the accused public servants”, he said.
He further submitted “ after the disposal of the writ petition filed at the instance of accused Deedar Singh and Nissar Ahmad Wani, the question of validity of sanction was to be agitated before the trial court in terms of writ court order dated 24-11-2015”.
The accused public servants who conspired with other accused are liable to be charge sheeted for the commission of offences u/s 5(2) PC Act r/w 409/468/419/120-B/RPC., he said
Per Contra, the counsel appearing for accused including public servants submitted that section 6 of the Prevention of Corruption Act prohibits the prosecution of a government servant for offences under section 5(2) of the said Act without proper sanction.
Judge Surinder Singh agreed with the defence counsel that the High Court’s ruling on the validity of sanction applies to all the accused facing charges on that same sanction, not just the individual who brought the challenge.
“The principle of natural justice dictates that all parties involved in a legal proceeding should be treated equally and fairly. In essence, the invalidity of sanction, once established, acts as a bar to take cognizance and prosecute all those implicated in the case, unless a fresh and valid sanction order from the appropriate authority which is a mandatory requirement before a court can take cognizance of the offence, is obtained”, he said.
“All other accused private/ beneficiary cannot be proceeded against for offence under the Act without there being any accused-public servant”, the court said adding that it loses jurisdiction to take cognizance against rest of the accused for other offences indicated against them.
