Kapil Dev Sharma vs State of Madhya Pradesh and Others

G.D. Saxena, J.—By preferring this petition under Article 226 /227 of the Constitution of India, the petitioner with issuance of writ of certiorari or any other suitable writ, seeks quashment of the order dated 24/5/06 (Annexure-P/1) issued by the Deputy Director Secretariat, Urban Administration and Development M.P. Bhopal together with the Resolution No. 184 dated 3/6/06 (Annexure-P/2) passed by President-in-Council of Municipality Ganjbasoda in pursuance of which directed to prosecute the petitioner for commission of offence u/s 19 of the Prevention of Corruption Act. The factual matrix of the case is that on 17th February 2006, upon receiving information from one, namely, Jafar Qureshi with respect to likely acceptance of Rs. 200/- towards illegal gratification by the petitioner, who was holding post of Accountant at the relevant time in Municipal Council, Ganjbasoda (Vidisha), the Police Lokayukt arranged a trap party for verifying the aforesaid fact. In trap, the accused-petitioner caught hold of red-handed. Accordingly, an F.I.R. was lodged and investigation was set in motion. Obviously, in the investigation prior to submission of charge-sheet, the permission to persecute the petitioner-accused was sought from the employer-Council of the Municipality Ganjbasoda. After consideration, the President Municipality Ganjbasoda, at first instance vide resolution passed by the Municipal Council, Ganjbasoda refused to accord sanction for prosecution of the accused under the Prevention of Corruption Act. Subsequently, on making correspondence by Lokayukt Organization and under the direction of the Deputy Director of Urban Administration and Welfare Bhopal, vide order Annexure-P/1 dated 24/5/06, the President-in-Council by impugned Resolution dated 3rd June 2006, on proposal of the Municipal Council accorded the sanction for prosecution against the accused/petitioner.

(2) The contention put forth on behalf of the learned counsel appearing for the petitioner is that after passing the order dated 28th May 2005 (Annexure-P/5), refusing to entertain the matter against the petitioner, the respondent No. 3 had no powers to issue further directions for re-consideration of the previous resolution of the Council for according a sanction to prosecute the petitioner-accused. In turn also, the President-in-Council of the Municipality had no power to consider the proposal of the respondent No. 3 for according fresh sanction for prosecution after it has not been entertained. It is thus prayed that the impugned order as well as the resolution be set aside by allowing the petition.

(3) In short reply, the submission of the respondents No. 1 to 3 is that upon receiving sanction order, the case was registered against the petitioner for receiving the illegal gratification and the currency received by him was also recovered. After investigation, the charge-sheet was filed by the Lokayukt police before the Special court for adjudication. The special case has been registered and now is posted for framing charge. It is submitted that the petitioner has ample opportunity to contest the charge and question the validity of the sanction order to prosecute him by the authority. Under the circumstances, it is prayed that the writ petition since has no substance, is liable to be rejected.

(4) The question crops up for consideration in this petition is whether the resolution of the Municipal Council can be re-considered pursuant to the directions of the respondent No. 3 and sanction so granted for prosecution against the petitioner is permissible in law keeping in view the fact that at previous occasion, same sanction was refused by the same sanctioning authority?.

(5) Heard the learned counsel appearing on behalf of the petitioner as well as the learned Special Prosecutor for Lokayukt Organization. Also examine the law on the point involved.

(6) In order to appreciate the aforesaid submissions, reference to provisions of Section 19 of the Act would be relevant.

Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offence punishable 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;

(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 contention of the petitioner is that the sanctioning authority, i.e., the President-in-Council of Municipality Ganjbasoda without applying mind to the earlier resolution and the direction, issued the order of sanction. So, in such circumstances, according to the learned counsel, the appropriate writ for setting aside said order of sanction can be issued. In support of his petition, he placed reliance on the decision in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, .

(8) In the case of Mansukhlal Vithaldas Chauhan (Supra),: the Hon. Apex court held as follows:-

Once the person against whom prosecution is to be launched is found to be covered by the definition of "public servant" and the requirement to that extent is satisfied, the next question whether he is to be prosecuted or not is considered either by the Central Government or by the State Government and if the person is neither the employee of the Central Government nor of the State Government, the question of sanction is considered by the person who is competent to remove him from the office held by him.

Sub-section (2) of Section 6 is classificatory in nature inasmuch as it provides that if any doubt arises whether the sanction is to be given by the Central Government or the State Government or any other authority, it shall be given by the appropriate Government or the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance, as laid down by this Court in R.S. Nayak v. A.R. Antulay.

From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that "public servant" is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.

Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. (See Mohd. Iqbal Ahmed v. State of A.P. 5) Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.

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 been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

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 genuine 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 a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it 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 bad 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.

It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution.

(9) The Special Prosecutor appearing on behalf of the respondents No. 1 to 3, however, does not dispute the well settled position that in writ jurisdiction, the High Court may consider the validity of sanction for prosecution passed by the competent authority on the question of application of mind and also issue the appropriate writ to the authority. He also submitted that in cases where after obtaining the sanction from the appropriate authority u/s 19 of the Act, the competent court had taken cognizance upon charge sheet, in that situation the accused shall have an opportunity to contest during trial. To support his submission, he cited the decision in the case of Dinesh Kumar Vs. Chairman, Airport Authority of India and Another, .

(10) In Dinesh Kumar (Supra) the Hon. Apex Court propounded the same principal and held as follows:-

Mr. Deepak Bhattacharya, learned counsel for the appellant referred to Section 19(4) of the P.C. Act and submitted that the appellant challenged the legality and validity of the sanction order at the first available opportunity, even before the charge-sheet was filed and, therefore, the Division Bench was not justified in relegating the appellant to agitate the question of validity of sanction order in the course of trial. He relied upon the decisions of this Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, ; Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, ; Abdul Wahab Ansari Vs. State of Bihar Another, and State of Karnataka Vs. Ameer Jan, .

Mr. Deepak Bhattacharya, in view of the law laid down by this Court in the above decisions, submitted that the High Court ought to have gone into the merits of the challenge to sanction order. According to learned counsel, on its face, the sanction order suffers from non-application of mind.

On the other hand, Mr. H.P. Raval, learned Additional Solicitor General for the Central Bureau of Investigation - respondent No. 2-supported the view of the Division Bench. He submitted that in a case where validity of the sanction order is sought to be challenged on the ground of non-application of mind, such challenge can only be made in the course of trial. In this regard, he heavily relied upon a decision of this Court in Parkash Singh Badal and Another Vs. State of Punjab and Others, and others 5. He also relied upon a recent decision of this Court in Ashok Tshering Bhutia Vs. State of Sikkim, .

This Court has in Mansukhlal Vithaldas Chauhan 1 considered the significance and importance of sanction under the P.C. Act. It has been observed therein that the sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.

The provisions contained in Sections 19(1), (2),(3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal and Another Vs. State of Punjab and Others, . In paras 47 and 48 of the judgment, the Court held as follows:

47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.

48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.

While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal, this Court referred to invalidity of sanction on account of non-application of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind- a category carved out by this Court in Parkash Singh Badal, the challenge to which can always be raised in the course of trial.

In a later decision, in the case of Aamir Jaan, this Court had an occasion to consider the earlier decisions of this Court including the decision in the case of Parkash Singh Badal. Ameerjan State of Karnataka Vs. Ameer Jan, was a case where the Trial Judge, on consideration of the entire evidence including the evidence of sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. However, the High Court overturned the judgment of the Trial Court and held that the order of sanction was illegal and the judgment of conviction could not be sustained. Dealing with the situation of the case wherein the High Court reversed the judgment of the conviction of the accused on the ground of invalidity of sanction order, with reference to the case of Parkash Singh Badal 5, this Court stated in Ameerjan 4 in para 17 of the Report as follows:

Parkash Singh Badal, therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case."

In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal and not unjustified.

(11) On coming back to the case at hand, it is admitted that after obtaining the sanction by an appropriate authority, the charge-sheet has been filed before the court of Special Judge where the case is pending at the stage of framing of the charges. In this view of the matter, the question of validity of sanction, absence of sanction, omission or irregularity whatever may be can well be decided by the trial court at appropriate stage of trial. In this respect reference to the case of Prakash Singh Badal (supra) may be made wherein it has been held that the question as to absence can be agitated at the threshold of the trial while regarding vitiation has to be raised during trial. Thus, the petitioner has the ample opportunity to raise all such issues, at appropriate stages before the trial court.

(12) On careful reading the provisions of the Act and considering the legal aspect of the present case, we think it proper to direct the petitioner to avail liberty and raise all his objections as may be available to him in accordance with law at the time of framing of the charges or at subsequent stage of defence in the trial which may be considered by the trial court in proper perspective and decided in accordance with law. Subject to aforesaid observation/direction, present writ petition stands disposed of.