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TMI Blog2021 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... the law as it is required to, this Court can interfere and set aside an order wherein the aforesaid principles are not followed. The State Government had already issued a circular on 15.5.2012 to the Head of Department to independently apply their mind before passing prosecution sanction - Admittedly, the Principal Secretary, Transport Department has only filled up the dotted lines. While issuing prosecution sanction dated 5.10.2017, he failed to take notice of the observations in the investigation report of the ACB. Thus, it is a case where this Court is satisfied that there has been a complete non-application of mind while issuing prosecution sanction. This Court deems it appropriate to quash the prosecution sanction dated 5.10.2017 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mandar on 13.10.2012 wherein it was alleged that the petitioner was having an amount of ₹ 34,500/- in his pocket which was duly explained by the petitioner. 2. It was stated by the petitioner that the amount of ₹ 29,340/- was the tax collected from the various vehicles with due receipts provided to them and the same was to be deposited in the Treasury. The remaining amount of ₹ 5160/- was the amount which he had withdrawn from ATM for his personal use and medical treatment. 3. Learned Senior Counsel for the petitioner submits that the ACB Authorities while submitting their investigation report observed the aforesaid facts and noted that no case is prima facie made out against the petitioner. The matter was sent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l prosecution sanction to show the similarity between the two. 6. Learned Senior counsel further submits that the issue related to year 2012 for which prosecution sanction was issued in 2017 in an autocratic manner and without application of mind. He submits that the ACB had itself taken a decision, prima facie, not to initiate the criminal action against the petitioner but to only propose departmental proceedings. 7. Learned Senior Counsel further submits that a circular was issued by the State Government, DOP dated 15.5.2012 wherein it was advised to all the Head of Departments to independently apply mind before granting prosecution sanction. 8. Learned Senior Counsel relied on the judgment passed by the Supreme Court in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the decision making authority has exceeded itself or committed an error of law or committed breach of rule of natural justice or reached to the conclusion which no reasonable tribunal would have reached or abused its powers. 12. Learned counsel for the respondents submits that the petitioner was actively involved in the offence and the prosecution sanction has been rightly granted. 13. I have considered the submissions. 14. In Mansukhlal Vithaldas Chauhan (supra) after considering Tata Cellular (supra), the Supreme has observed as under:- 18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution. 21. The question is whether the High Court could issue a mandamus of their and whether the order of Sanction, in these circumstances, is valid. 22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words shall or must . But this is not conclusive as shall and must have, sometimes, been interpreted as may . What is determinative of the nature of duty, whether it is obligatory, mandatory or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ado, this Court deems it appropriate to quash the prosecution sanction dated 5.10.2017 issued by the Principal Secretary, Transport Department and the same is accordingly quashed 18. The question now arises whether the matter should be remitted back to the Authority for reconsideration of the matter and to pass a fresh order of sanction. 19. In this regard, it is informed by the learned Senior Counsel that the petitioner has already attained superannuation on 31.07.2020 and the allegation of having excess amount with him of ₹ 5160/- is of the year 2012 which has been duly found to be explained of having withdrawn from ATM by the concerned person. 20. In Mansukhlal Vithaldas Chauhan (supra), the Supreme has observed as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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