JAMMU, Feb 25: High Court has refused to quash FIR in the much publicized Roshni land scam.
The petitioner namely Subash Singh, the then Naib Tehsildar and others had challenged FIR No. 15/2014 dated May 29, 2014 registered by Police Station Vigilance Organization Jammu under Section 5(1)(d) read with Section 5(2) of Jammu and Kashmir Prevention of Corruption Act, 2006 and Section 17 of the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001.
The petitioners had also challenged the proceedings conducted in the FIR, Government Order No.18-GAD(Vig) of 2016 dated 27.06.2016 whereby sanction in terms of Section 6 of the Prevention of Corruption Act was accorded for launching prosecution against petitioners.
After hearing both the sides, Justice Janak Raj Kotwal observed, “when objection relating to lack of sanction to prosecute in terms of Section 6 of the Prevention of Corruption Act or alleged invalidity of the sanction order can be raised is no more res integra”.
“Absence of sanction to prosecute creates an express bar against taking cognizance against a public servant for an offence under the PC Act so normally no court will take cognizance if there is no sanction. If, however, cognizance is taken without sanction, cause of action accrues to the accused public servant to assail the order of taking cognizance immediately after the prosecution against him has been launched”, the High Court said.
“Objection on this score can be raised at the threshold of the proceedings in the court. Likewise, cause of action accrues to a public servant if sanction order allegedly suffers from invalidity on account of any error, omission or irregularity, like one arising from non-application of mind by the sanctioning authority”, Justice Kotwal said, adding “objection on the basis of alleged invalidity of sanction order, however, can be raised during trial of the case”.
“There is a distinction between the lack of sanction and invalidity of the sanction order. In this regard, it is to be borne in mind that a sanction order is an administrative act of the Government or the competent authority, which is couched with presumption under Section 114 (e) of the Evidence Act that official acts have been regularly performed”, High Court said, adding “it being a public document, prosecution is required to prove and will have to be provided opportunity to prove the order of sanction as a fact before the trial court by leading evidence and accused automatically gets opportunity to prove the invalidity alleged by him”.
“It can, therefore, be said that, whereas an objection relating to lack of sanction to prosecute can be decided as soon as it is raised, objection relating to alleged invalidity of sanction should be decided after giving the prosecution opportunity to lead evidence in support of the sanction order”, Justice Kotwal further observed while dismissing the petition.