ORDER
G.L. Raina, J.
1. Vide its order No. 54-GAD (Vigilance) of 1998 dated 27-7-1998, the Government of J. and K. accorded sanction to the prosecution of as many as fifty four of its officials/officers for the offence punishable under Sections 120-B, 167-A and 201, R.P.C. and under Section 5(2), Prevention of Corruption Act. The petitioner Seikh Abdul Hafiz is one of them.
2. The order sanctioning the prosecution attributes various acts of commission and omission to the officials/officers as a result of which a specific loss of Rs. 239.63 lakhs is said to have been caused to the State exchequer.
3. Shorn of the details and the specifics of the allegations levelled against the said officials/officers, the case for the prosecution appears to be that while posted in the Power Development Department Kishan Ganga Hydel Project they in wilful disregard to the codal norms acting under a conspiracy, manipulated the records and withdrew different amounts an account of temporary advances etc. and misappropriated the public money without accounting therefor in the books. They are said to have suppressed the records so as to cover up their acts of omission and commission. Expenditure in the amount of Rs. 14.81 crores is the said to have been incurred by the officers/officials illegally and unauthorisedly.
4. The factual aspect is that the Vigilance Organisation after completion of the investigation in the case registered as FIR No. 1 of 1997 Police Station, Vigilance Organisation, Srinagar filed the report thereabout in the Court of Special Judge Anti-Corruption, Srinagar. This was done after the Government accorded the sanction, which is impugned, in this writ petition, by one of the accused aforesaid. The quashment by issuance of writ of certiorari, is sought inasfar as it pertains to the petitioner whose case projected herein appears to be that having been posted with the corporation in the Power Development Department in January, 1997 he did not resort to the Omission and Commission of any such act up to 31st of March, 1997, which constituted the alleged offences, as the alleged offences are said to have been committed by the end of this period. The case of the petitioner is that while working in Kishan Ganga Hydel Project for just three months he could not as such be clubbed with those Officials/Officers whose alleged acts of Omission and Commission committed up to 31st of March, 1997 are said to have constituted the offences for which the sanction to prosecute has been accorded. The petitioner complains that without application of mind the authorities have accorded the sanction for his prosecution though he had not joined any criminal conspiracy muchless a conspiracy to commit the offences, prosecution wherefor is sought under the impugned sanction. Yet again it is argued that the petitioner being an employee of the Finance Department the sanction for prosecution in his case could have been issued by the administrative head of that department and not by the Government, through its General Administration Department.
5. The Vigilance Organisation after investigation into the matter has filed its report under Section 173, Cr.P. C. and the matter is before the Special Judge who has to determine the prima facie merits of the accusation levelled against the Officials/Officers. On the basis of certain documents, filed with this petition, it is canvassed that the petitioner has been in no way involved in the commission of any of the offences which are attributed, by the impugned order, to him insofar as his having joined the Corporation in January, 1997 he cannot be held responsible for those acts of omission and commission that were committed by other Officials/Officers of the Department/Corporation, prior to his posting in the Corporation.
6. Detailed recapitulation of the facts alleged and the contentions advanced on either side is to be avoided lest the case on either side gets prejudiced but suffice to say that the whole case having come, by filling of the report of investigation, under the gaze of the judicial scrutiny the interference in the writ jurisdiction is unwarranted. This Court cannot be permitted to be converted into the trial Court so as to hold inquiry into the disputed questions of fact. As the facts of the prosecution case hinges on those facts which are controverted and are to be determined at the trial, so this Court has to keep its hands off lest error is committed in appreciating the documents and the rival contention advanced.
7. Attention gets at the very first glance invited to the observations:-
At a stage when the police report under Section 173, Cr.P. C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny,the High Court would do well to discipline itself not to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the High Court fell into the grave error in appreciating the documents and affidavits produced before it by treating them as evidence, delving into disputed questions of fact in its jurisdiction under Articles 226/227 and pronouncing respondents to be innocent and quashing the criminal proceedings by converting itself into a trial Court. This was not at all a case where the High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation of evidence is the function of the Criminal Courts.' (State of Bihar v. P. P. Sharma 1992 Suppl (1) SCC 222 : (1991 Cri LJ1438)).
The observations, supra, are sufficient to repell the contention that this Court must delve into the questions of fact, which presumably are disputed, in exercise of the jurisdiction under Article 226 to quash the sanctioned prosecution of the petitioner along with the other Officials/Officers.
8. Under the facts and the circumstances of the case this Court cannot assume jurisdiction under Article 226 of the Indian Constitution to quash the impugned orders (order for prosecution and order of suspension) and thereby put an end to the process of trial that is to be held under the law.
9. The Government has accorded the sanction vide the impugned order which has been issued through the General Administration Department. The petitioner claims that the sanction is ex facie without jurisdiction as he being the employee of Finance Department, the sanction ought to have been issued through that Department and not through the General Administration Department. It is on this plea that writ jurisdiction is invoked to quash the order. This argument needs only to be noticed as otherwise there is no force in the contention that the Government could not have, through its General Administration Department, issued the sanction order. Rule 55 of the Government Business Rules provides for distribution of subjects amongst the civil secretariat departments. Government order No. 10-GAD of 1997 dated 2-1-1997 accorded sanction to the transfer of Vigilance Organisation from Home Department to General Administration Department. Circular No. 8-GAD of 1997 dated 31-3-1997 directs that the General Administration Department shall be substituted for the words Home Department appearing in Circular No. GAD (Administration) 184/79 (Annexure IV). It is thus beyond controversy that in matters pertaining to Vigilance Organisation and its functioning, qua investigation etc. of cases under the Prevention of Corruption Act, are to be dealt with by the General Administration Department. The sanction in the case has been issued through General Administration Deptts. No fault can be thus found with the mode through which the Government has accorded the sanction for the prosecution of the alleged offenders.
10. Under Section 6 of the Prevention of Corruption Act the authority competent to accord sanction for prosecution is the one which is competent to remove the public servant from office. The argument is that he being removable from office by the Administrative Head of his department the valid sanction for his prosecution could have been issued by that Head. Assuming for arguments sake that the Administrative Head of the Finance Department, where the petitioner held the office at the relevant time, could have removed him from office yet the Government being an authority higher than that Administrative Head of the Finance Department, it, the Govt., has ample power to remove the petitioner from office and consequently the Government also is competent to accord sanction for his prosecution. It is settled by the decision in case P.S. Sushil Behanot v. State (1981) Chand LR (Cri) 676 :(1981 CLR 677) that the competence of the authority to grant sanction in terms of clause (b) of Section 6 of the Act has to be determined with reference to Sub-section (1) to Section 126 of the State Constitution and consequently the authority granting the sanction should either be equal to or higher in rank than the appointing authority, rank having the reference to the date of appointment of 'the Government servant sought to be prosecuted under the Act. The Government being a higher authority the sanction granted by it to prosecute the petitioner cannot be said on that ground to be invalid.
11. The legal proposition cannot be disputed that the writ jurisdiction is available where the sanction for prosecution is ex facie the result of non-application of mind. Documents attached to the writ petition as also the supplementary affidavit raises certain questions which are questions of fact. Objections have been filed to controvert the pleas advanced in the writ petition. It is urged that the bear perusal of the documents, will show the non-existence of even a prima facie case, so this Court has the jurisdiction under Articles 226 and 227 of the Constitution of India to appreciate the documents to reach such a conclusion.
12. Without prejudice to the contentions urged or that may be advanced during the trial, the observation cannot be avoided that criminal conspiracy being a continuing process, overt or covert acts of any person, which augment the object of the conspiracy, make him prima facie liable. It is not open, on the basis of the documents brought on record, to determine in the writ jurisdiction the truth or otherwise of the contentions. The petitioner has ample opportunity and time to canvass his points before the Court seizing of the matter. It cannot be said in an off-hand manner that the instances of Commission and Omissions, set out in the objections, do not constituted that material whereon the sanction to prosecute could be issued. It too is hazardous to subscribe to the view that the impugned sanction is the result of non-application of mind. Acts attributed to the writ petitioner, forcefully controverted at the bar, are to be scrutinized and determined in a full dressed trial.
13. The non-impleadment of the Financial Advisor, under whom the petitioner worked at the relevant time, would not necessarily indicate non-application of mind by the sanctioning authority. The argument on those lines will not carry the day for the petitioner.
14. The allegations on which the accusations are based cannot be labelled as frivolous and that too in this extraordinary jurisdiction. To trace out infirmities here and there, with a view to substantiate the allegations of non-application of mind on the part of the sanctioning authority, is of no assistance to the petitioner at this stage nor can the merits of the case be judged at this pre-trial stage and that too through the writ proceeding. The sanction order cannot be interfered with as its validity has to be determined in reference to the facts constituting the offences.
15. Case law referred to for the writ petitioner has almost in all the cited, precedents emanated from the appellate jurisdiction where cases had gone up for scrutiny after the conclusion of the trials. The remedy to the petitioner is available under the Prevention of Corruption Act, yet the writ jurisdiction will not be ousted, as argued, if it is shown that the sanction to prosecute is without jurisdiction. The sanction to prosecute in the case cannot be said to be without jurisdiction. It is not shown that sanction order is vitiated by non-application of mind. The allegations on which the, sanction is based cannot be said to be frivolous. I am therefore unable to accept the contention that the writ jurisdiction is available for interference at the very threshold of the trial before the competent Criminal Court.
16. It is held, of course without prejudice to the merits of the case, that no fault can prima facie be found with the validity of sanction or the suspension orders impugned in the writ petition. Following the line taken by this Court in cases Gh. Ahmad Ganie v. State 1997 Singur LJ 133 and Mohd. Sultan Dar v. State (SWP No. 2096/98), I do not find any fault with any of the orders impugned in the writ petition which is accordingly hereby dismissed.