P.Sasidharan Nair vs State Of Kerala

R.Narayana Pisharadi, J

The petitioner was the Programme Officer in the Kerala State Council for Child Welfare (for short 'the Council'). He is the sole accused in the case C.C.No.30/2021 pending in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram.

One Jeevan Thomas filed a complaint in the Special Court, raising allegations against the petitioner that he misappropriated money. As per the direction of the Special Court, the Vigilance and Anti-Corruption Bureau (VACB) conducted a preliminary enquiry into the allegations in that complaint. On the basis of the preliminary enquiry report, the Special Court ordered the VACB to conduct investigation into the offences disclosed. Accordingly, a case was registered against the petitioner as VC2/2017/TVM by the VACB, Thiruvananthapuram Unit.

After completing the investigation, the VACB filed charge-sheet against the petitioner in the Special Court. The investigating officer had sought sanction from the competent authority for prosecution against the petitioner. But sanction was refused by the authority concerned. As per Ext.P36 order dated 17.09.2020, the Special Court found that the sanctioning authority considered extraneous and irrelevant matters for declining sanction for prosecution against the petitioner. Therefore, the Special Court returned the final report (charge-sheet) to the investigating officer with a direction to approach the sanctioning authority again for obtaining sanction for prosecution under Section 19 of the Act and to file final report thereafter.

Subsequently, as per Ext.P34 order, the General Secretary of the Council granted sanction for prosecution against the petitioner. Then the investigating officer filed Ext.P35 charge-sheet against the petitioner along with Ext.P34 sanction order and the Special Court took cognizance of the offences against the petitioner and numbered the case against him as C.C.No.31/2021.

The prosecution case against the petitioner, in short, is as follows: He was the Programme Officer cum Administrative Officer in the Council during the period from February, 2013 to March, 2014. He had obtained a total amount of Rs.2,45,000/-from the Council, on different dates during the period from 04.02.2013 to 01.03.2014, as advance towards the expenses to be met for conducting cases before the High Court of Kerala. He forged eleven professional bills for advocate fee, purported to have been issued by Adv.B.S.Swathikumar and produced those forged bills in the Council as if they are genuine bills and misappropriated the amount of Rs.2,45,000/-. Thus, he committed the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409, 465 and 471 of the Indian Penal Code.

The petitioner has filed this writ petition seeking the following reliefs:

"Hence it is prayed that this Hon'ble Court may be pleased to;

(i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P34 order, Ext.P35 Final Report and all proceedings taken in pursuance of the said Final Report by the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram and quash them.

(ii) Declare that in the light of the decision reported in (2010) 14 SCC 527, Ext.P34 order is illegal and ab initio void.

(iii) Declare that the 1st respondent has no authority or competency to issue Ext.P34 order, unilaterally granting sanction to prosecute the petitioner in V.C 2/2017/TVM, in view of Ext.P30 minutes of the Standing Committee, Ext.P31 minutes of the Executive Committee and Ext.P32 letter refusing to give sanction to prosecute the petitioner and accordingly, Ext.P34 is illegal and ab initio void.

and

(iv) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition."

The  second  and  the  third  respondents  filed  a statement narrating the circumstances under which Ext.P34 order granting sanction for prosecution against the petitioner was issued. The Inspector of Police, VACB, Thiruvananthapuram Unit also filed a statement with regard to the facts of the prosecution case against the petitioner. The petitioner filed reply affidavits.

Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned senior counsel who appeared for respondents 2 to 4.

Learned counsel for the petitioner contended that, once the sanctioning authority has refused sanction for prosecution, it has no power to review that order and to grant sanction for prosecution. Learned counsel for the petitioner relied upon the decision of the Supreme Court in State of Himachal Pradesh v. Nishant Sareen [AIR 2011 SC 404 : (2010) 14 SCC 527] in support of this contention.

Learned senior counsel for respondents 2 to 4 submitted that the sanctioning authority had not earlier taken any final decision to decline sanction for prosecution against the petitioner. The decision taken by the sanctioning authority at first was that, it was not proper to grant sanction for prosecution against the petitioner till the investigation of the case registered by the Crime Branch in the connected matter was over and till the disposal of the writ petition filed by Jeevan Thomas, the complainant. Learned senior counsel also submitted that, if sufficient materials are subsequently brought to notice, the sanctioning authority has got power to review an order declining sanction for prosecution.

Learned Public Prosecutor submitted that, as per Ext.P36 order, the learned Special Judge had directed the investigating officer to approach the sanctioning authority again, seeking sanction for prosecution against the petitioner and accordingly, sanction for prosecution was again sought and it was granted by the authority concerned. Learned Public Prosecutor also submitted that, after obtaining and producing sanction for prosecution against the petitioner, the Special Court has taken cognizance of the offences against him.

Section 19(1) of the Act states that, no Court shall take cognizance of an offence punishable under Sections 7, 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; and (c) in the case of any other person, of the authority competent to remove him from his office.

The object of the provision contained in Section 19(1) of the Act is to save public servants from frivolous prosecution. The provision grants immunity to public servants from irresponsible and vexatious prosecution. The policy underlying Section 19(1) of the Act is that there should not be unnecessary harassment of a public servant.

Sanction lifts the bar for prosecution. Granting sanction for prosecution is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection to the public servants against frivolous and speculative prosecutions (See Mohd. Iqbal Ahmed v. State of A.P : AIR 1979 SC 677).

Existence of a valid sanction for prosecution is a pre-requisite for taking cognizance of offences under Sections 7,11,13 and 15 of the Act alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the Court. Therefore, when the Court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Without sanction for prosecution, the Court would have no jurisdiction to take cognizance of the offence.

A trial without a valid sanction for prosecution would be a trial without jurisdiction by the Court. A trial without a sanction renders the proceedings ab initio void (See R.S.Nayak v. A.R.Antulay : AIR 1984 SC 684).

If no court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void (See Baij Nath Prasad Tripathi v. State of Bhopal : AIR 1957 SC 494).

An order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority. If the complainant or the accused can demonstrate such an order granting or refusing sanction to be suffering from non- application of mind, the same can be called in question before a competent court of law (See Romesh Lal Jain v. Naginder Singh Rana : AIR 2006 SC 336).

The burden of proving that the requisite sanction has been obtained rests on the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. Such facts might appear on the face of the sanction or might be proved by extraneous evidence (See Madan Mohan Singh v. State of U.P : AIR 1954 SC 637).

Ext.P30 is the copy of the minutes of the meeting of the Standing Committee of the Council held on 30.07.2019. It shows that the Standing Committee was of the opinion that the matter involved in the investigation conducted by the VACB was connected with the matters being investigated by the Crime Branch in case No.111/CBCID/2016/TVM. The Standing Committee also considered the fact that a writ petition, W.P.(C) No.2135/2019, filed by the complainant Jeevan Thomas was pending. Therefore, the Standing Committee took a decision that it was not proper to grant sanction for prosecution against the petitioner before the investigation of the case by the Crime Branch was concluded and before final order was passed in the writ petition filed by Jeevan Thomas.

Ext.P31 is the copy of the minutes of the meeting of the Executive Committee of the Council held on 29.08.2019. It shows that the Executive Committee approved/ratified the decision taken by the Standing Committee on 30.07.2019.

Ext.P32 is the copy of the letter dated 26.11.2019 sent by the General Secretary of the Council to the VACB, intimating the decisions taken by the Standing Committee/Executive Committee of the Council. It would show that, instead of communicating the actual decision taken by the Standing Committee/Executive Committee, what the Secretary had done was to inform the VACB that the Standing Committee/Executive Committee had decided not to grant sanction for prosecution against the petitioner. The contents of Ext.P32 letter would not disclose that, the decision taken by the Standing Committee/Executive Committee was that, it was not proper to grant sanction for prosecution against the petitioner till the conclusion of the investigation of the connected case by the Crime Branch and till the passing of the final order in the writ petition filed by Jeevan Thomas. On the other hand, Ext.P32 communication was sent by the General Secretary of the Council to the VACB as if the Standing Committee/Executive Committee of the Council had taken a final decision declining sanction for prosecution against the petitioner.

Ext.P34 is the copy of the order dated 09.06.2021 issued by the General Secretary of the Council granting sanction for prosecution against the petitioner. Ext.R2(a) is the copy of the minutes of the meeting of the Standing Committee of the Council held on 09.06.2021. It shows that the Standing Committee took a decision to grant sanction for prosecution against the petitioner.

Learned counsel for the petitioner has placed heavy reliance upon the decision in Nishant Sareen (supra), in support of his contention that the Standing Committee had no power to review its earlier order declining to grant sanction for prosecution against the petitioner.

In Nishant Sareen (supra), the Supreme Court has held as follows:

"It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course".

The authority exercising the power to grant sanction is an administrative authority. It can review its earlier order for various reasons. The order granting or refusing sanction is only an administrative act. The decision in Nishant Sareen (supra) shows that an order passed under Section 19(1) of the Act is an order which can be reviewed. The principle stated in Nishant Sareen (supra) is only that, on the same set of materials, the sanctioning authority is incompetent to review its earlier decision or order. But, if relevant considerations are ignored while passing an order refusing sanction, the same authority can review that order based on the relevant materials which were ignored earlier. If fresh materials requiring a fresh look at the matter are collected by the investigating agency and supplied to the sanctioning authority, based on such further materials, then also the sanctioning authority can reconsider the matter.

In the matter of grant or refusal to grant sanction, power once exercised can be again exercised. For exercising its jurisdiction at a subsequent stage, express power of review need not be conferred on the sanctioning authority. While passing an order granting or refusing sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/ or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the superior courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. While considering the question of granting sanction, the authority cannot take into consideration irrelevant facts and it cannot pass an order on extraneous considerations (See State of Punjab v. Mohammed Iqbal Bhatti : (2009) 17 SCC 92).

In the present case, it cannot be found that the sanctioning authority has reviewed any earlier order declining sanction for prosecution against the petitioner. Ext.P34 order granting sanction for prosecution against the petitioner, issued by the General Secretary of the Council on the basis of Ext.R2(a) decision taken by the Standing Committee, cannot be considered to be an order reviewing the earlier decision taken by the Standing Committee. As already noticed, the Standing Committee of the Council had not earlier taken any final decision not to grant sanction for prosecution against the petitioner. The decision taken by it was only that it was not proper to grant sanction for prosecution till the conclusion of the investigation conducted by the Crime Branch in the connected case and till the disposal of the writ petition filed by Jeevan Thomas. Therefore, it cannot be found that any review of the earlier decision was really made by the Standing Committee as per Ext.R2(a).

At this juncture, it is to be noted that the writ petition, W.P.(C) No.2531/2019, was dismissed by this Court on 05.08.2019 as per Ext.P38 judgment, as infructuous.

Further, the decision taken by the Standing Committee as per Ext.P30 would show that, the Standing Committee did not take into consideration the final report and the other materials produced by the investigating officer before it. The Standing Committee did not apply its mind to such materials. On the other hand, what the Standing Committee considered was extraneous matters like pendency of investigation by the Crime Branch in a connected matter and pendency of the writ petition filed by the complainant. Nobody has got a case that the writ petition filed by the complainant Jeevan Thomas was for issuing a direction to the Standing Committee not to grant sanction for prosecution against the petitioner. There was total non-application of mind by the Standing Committee to the final report and other materials produced before it by the investigating officer of the VACB when it took a decision not to grant sanction for prosecution against the petitioner.

An earlier order passed by the sanctioning authority declining sanction for prosecution can be reviewed when it was based on irrelevant considerations and ignoring relevant considerations (See Surat Ram Sharma v. State of Punjab : 2011 Cri.L.J 3060).

When a fresh decision is taken by the sanctioning authority, on consideration of materials which were ignored earlier, it does not amount to review or reconsideration on same materials. Such a course is not prohibited by the dictum laid down by the Apex Court in Nishant Sareen (supra).

Learned counsel for the petitioner has challenged the legality of Ext.P36 order passed by the Special Court on the ground that the Special Court has got no power to direct the sanctioning authority to grant sanction for prosecution. But, as per Ext.P36 order, the Special Court has not given a direction to the sanctioning authority to grant sanction for prosecution against the petitioner. Further, Ext.P36 order has been challenged by the petitioner in a petition filed under Section 482 Cr.P.C (Crl.M.C.No.4076/2021). Therefore, the legality or validity of Ext.P36 order does not arise for consideration in this writ petition.

The challenge raised by the petitioner to the validity of Ext.P34 order on other grounds need not be considered in this writ petition since the trial court has already taken cognizance of the offences against the petitioner.

In Dinesh Kumar v. Chairman, Airport Authority of India : AIR 2012 SC 858, the Apex Court has held as follows:

"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 Parkash Singh Badal v. State of Punjab : AIR 2007 SC 1274, it has been held as follows:

"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".

Recently,  in  Major M.C.Ashish Chinappa v. CBI (Order dated 22.09.2021 in SLP (Crl) No.2576/2019), the Supreme Court has observed as follows:

"Since the cognizance has already been taken against the petitioner and the trial is in progress, it is open for the petitioner to raise the question of validity of sanction during the course of trial and the trial court is bound to consider the said question at an appropriate stage."

The validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding under Article 226/227 of the Constitution of India (See Director, C.B.I v. Ashok Kumar Aswal : (2015) 16 SCC 163).

In the instant case, the trial court has already taken cognizance of the offences against the petitioner. It is not a case where there is total absence of sanction but question of validity of sanction is raised. It is a matter which the petitioner has to raise before the trial court at the appropriate stage.

The discussion above leads to the conclusion that the petitioner is not entitled to get any of the reliefs sought by him in the writ petition.

Consequently, the writ petition is dismissed. It is made clear that the petitioner is at liberty to raise the question of validity of Ext.P34 order granting sanction for prosecution against him, at the appropriate stage before the trial court.

All pending applications are closed.