Smt. Indrakumari vs State

K. Natarajan, J.—This Criminal Revision Case has been filed against the order passed by the learned XIII Additional Special Judge, Madras, dated 11-8-1997 in Crl.M.P. No. 29 of 1997 in C.C. No. 3 of 1997 refusing to discharge the petitioner from the criminal case as per S. 239, Cr.P.C.

The main ground on which the revision case has been filed is, the Court below ought to have held that there is no proper and valid sanction to take cognizance of the case. The fact that sanction was accorded under S. 19 of the Prevention of Corruption Act, 1988 in relation to a public servant who ceased to hold office on the date of according sanction clearly indicates that sanction was accorded mechanically without considering the materials facts. The lower Court also erred in accepting the impugned document, viz., G.O.Ms. No. 1199 dated 13-10-1996 signed by the Secretary to the Government on 14-10-1996 as valid sanction for the prosecution of the petitioner. The petitioner was one of the ministers of Tamil Nadu State during 1991 to 1996 and as such she was a public servant. The charges levelled against her by respondent was allegedly committed by her while she was acting or purporting to act in discharge of official duties as a minister. Therefore, the petitioner is entitled to the protection under S. 197(1), Cr.P.C. There is no evidence on record to show that all the relevant materials collected during the course of investigation have been placed before the Sanctioning Authority viz., the Governor of Tamil Nadu for his scrutiny. There is also no evidence to show that the Governor of Tamil Nadu has applied his mind to the facts and circumstances of the case in order to conclude that prima facie case is made out before according sanction to prosecute. It is also contended that Court below seriously erred in stating that sanction order is valid as it is authenticated by the order in the name of the Governor. The Court below failed to note that all the executive orders of the Government are always issued, ''By order and in the name of the Governor under the Tamil Nadu Business Rules. This can never be construed that the Governor has perused the records and after consideration granted the sanction. Taking cognizance of a criminal case is not an idle formality and it has to be decided whether the sanction is valid even at the threshold and the learned Additional Special Judge had failed to consider the same. The reasons given by the learned Judge for dismissing the application for discharge is erroneous. As cognizance itself is questioned, S. 19 of the Prevention of Corruption Act 1988 is not a bar to entertain this application.

The main argument put forward by the senior counsel for the petitioner is according sanction to prosecute a public servant is not an empty formality as believed in certain quarters, but it is a solemn act and the same shall be discharged by the Sanctioning Authority as required under law. Even though as per the Business Rules 11 and 12 of the Tamil Nadu Government all orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor and every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary or an Under Secretary to the Government of the State or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order of instrument, in the present case on hand, there are no words to show that the Sanctioning Authority, viz., the Governor of Tamil Nadu has applied his mind and accorded sanction to prosecute. A valid sanction is sine qua non for enabling the prosecuting agency to approach the Court in order to enable the Court to take cognizance of the offence. If there is no valid sanction, the Court gets no jurisdiction to try a case against any person mentioned in the report as the Court is forbidden from taking cognizance of the offence without such sanction. For the above position, reliance was placed on the Supreme Court ruling in Rambhai Nathabhai Gadhvi v. State of Gujarat (1997 Cri.L.J. 4086 : 1997 1 L.W. (Crl.) 681) wherein it is held.

Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the Court in order to enable the Court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the Court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted hereunder will also be without jurisdiction.

The Apex Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, has held in paragraph 19 as follows:-

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 by 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.

At this juncture, a reference to the order of sanction accorded by His Excellency the Governor of Tamil Nadu may be necessary. Paragraphs 1 and 2 of the Government Order dated 13-10-1996 issued in G.O.Ms. No. 1199, Public (S.C.). Department read thus:-

(1) Whereas Tmt. Indrakumari, who functioned as Minister for Social Welfare and Handlooms and Textiles, during 1991-1996 was a public servant;

And whereas it is stated by the Additional Director-General of Police (Crime) Chennai that a case in Metro Crime Branch, C.I.D. Crime No. 6/96 under Ss. 120B, 167, 409, 477-A, I.P.C. and 13(2) read with 13(1)(c) and (d) of Prevention of Corruption Act, 1988, was registered on 15-7-1996 on the complaint given by Thiru V. Viswanathan, I.A.S. Secretary to Government, Handlooms, Handicrafts, Textiles and Khadi Department against Tmt. Indrakumari former Minister for Social Welfare and Handlooms and Textiles and her then junior P.A. Thiru R. Venkatakrishnan along with other accused and the investigation was taken up by Crime Branch, C.I.D.

In paragraphs 3 to 10, the offence committed by the petitioner herein and five others alongwith another viz., Jagadeesan have been enumerated. Thereafter, paragraphs 11 to 13 read as follows:-

And Whereas the Additional Director-General of Police, Crime, Chennai has sought the sanction of the Governor of Tamil Nadu to prosecute Tmt. Indirakumari, in a court of Law for the said offences;

And Whereas the Governor of Tamil Nadu being the authority competent to remove from office the said Tmt. Indrakumari, after fully and carefully considering the materials such as a copy of the First Information Report in Crime Branch, C.I.D. (Metro) Crime No. 6/96 statements of witnesses, the statement of Approver Thiru Jagadeesan recorded under S. 164 of the Criminal Procedure Code, 1973, connected records and the report of Additional Director-General of Police (Crime) Chennai placed before him in regard to the said allegations and circumstances of the case, is satisfied that the said Tmt. Indrakumari should be prosecuted in a court of law for the said offences;

Now therefore under S. 197(1)(b) of the Code of Criminal Procedure (Central Act 2 of 1974) and S. 19(1)(b) and (c) of the Prevention of Corruption Act, (Central Act 49 of 1988) the Governor of Tamil Nadu hereby accords sanction for the prosecution of Tmt. Indrakumari, former Minister for Social Welfare arid Handlooms and Textiles, Chennai for the said offences and for taking cognizance of the said offences by a Court of competent jurisdiction.

It was represented by the Learned Counsel for the petitioners that except His Excellency the Governor of Tamil Nadu had put his signature in the sanction order, no words such as,

I, the Governor of Tamil Nadu ...(name).., after having gone through the police records produced before me and after applying my mind, I hereby accord sanction to prosecute the petitioner and others.

In the absence of the above, it cannot be construed that His Excellency the Governor of Tamil Nadu had really applied his mind before according sanction subjectively satisfied that there is enough material to prosecute the petitioner. It was also submitted that the learned Special Judge, viz., XIII Additional Judge, City Civil Court, Madras had not called for the original records and perused the same to satisfy himself that sanction had been accorded by His Excellency the Governor of Tamil Nadu as per law. It was also argued that from 13-5-1996, the petitioner/accused ceased to be a minister but still under the sanction order, dated 13-10-1996 sanction to prosecute has been accorded in respect of the offence under S. 19 of the Prevention of Corruption Act, also. No sanction is necessary when the petitioner ceased to be a minister, i.e., when she ceased to be a public servant. The above shows His Excellency the Governor of Tamil Nadu has not applied his mind and came to his own independent conclusion without the interference or pressure from others.

Per contra, the learned Public Prosecutor submitted the mere fact that the sanction order has been issued by the Secretary to the Government will not change the position in any way. It was pointed out in paragraph-12 of the sanction order it is very specifically mentioned that His Excellency the Governor of Tamil Nadu being the authority competent to remove from office the said Tmt. Indira Kumari (petitioner herein) after fully and carefully considering the materials such as the copy of F.I.R. in Crime Branch(Metro) Crime No. 6 of 1996, statement of witnesses, the statement of approver Thiru Jagadeesan under S. 164 of Criminal Procedure Code, connected records and the report of the Additional Director General of Police (Crime) Chennai placed before him in regard to the said allegation and circumstances of the case, is satisfied that the said Tmt. Indira Kumari should be prosecuted in a Court of law for the said offence etc. (emphasis supplied) which shows beyond any ambiguity that the sanctioning authority had personally gone through the records of the case and independently came to the conclusion that on the materials placed, there is sufficient ground to accord sanction to prosecute and the submissions made contrary by the Learned Counsel on the other side is without any basis or supporting material. Attention of this Court was drawn by the learned Public Prosecutor to the ruling reported in State of W.B. v. Mohammed Khalid (1995 S.C.C. (Crl.) 266) wherein it was held,

In the present case the investigation was complete on the date of sanction and police reports had been filed before the Magistrate. The sanctioning authority has specifically mentioned in the sanction order that the papers and the case diary were taken into consideration before granting the sanction. Case diary is a complete record of the police investigation. It contains total material in support or otherwise of the allegations. The sanctioning authority having taken the case diary into consideration before the grant of sanction it cannot be said that there was non-application of mind on the part of the sanctioning authority. It is nobody''s case that the averment in the sanction order to the effect that case diary was taken into consideration by the competent authority, is incorrect. We, therefore, do not agree with the finding of the High Court and set aside the same.

It was represented by the learned Public Prosecutor in the present case on hand, there is sufficient material to show that His Excellency the Governor of Tamil Nadu has personally scrutinised the file relating to the case file and arrived at a subjective satisfaction that sanction to prosecute has to be accorded and therefore the pre-requisite of law has been sufficiently satisfied. In State of Maharashtra v. Ishwar Piraji Kalpatri (1996 S.C.C. (Crl.) 150) , in paragraphs-11 and 12, the Supreme Court of India had held as follows:-

Another reason as given by the High Court for quashing me sanction was that me order of sanction was given by the Additional Chief Secretary to the Government of Maharashtra but ''there is nothing in this order to indicate as to whether the signatory or any other officer on his part was the one who had personally scrutinised the file and arrived at a subjective satisfaction that is a legal pre-requisite''. We do not find any warrant in law which requires a statement being made, while according sanction, that the officer signing the order had personally scrutinised the file and had arrived at the required satisfaction. In the preamble of the said order, it is categorically stated,

''and whereas the Government of Maharashtra having fully examined the material before it and considering all the facts and circumstances disclosed herein, is satisfied that there is a prima facie case made out against the accused person and that it is necessary in the interest of justice that the accused person should be prosecuted in the court of competent jurisdiction for the said offence...''

This prima facie shows that there has been an application of mind and that the material on record has been examined by the officers concerned before according sanction. In view of the aforesaid, there was absolutely no justification for the learned Judge to observe that any such statement, as indicated by him, was required to be made in the order. The learned Single Judge made observations to the effect that the manner in which the sanction order had been passed would show that a ''rather cavalier treatment'' has been meted out in the present case. We do not see any justification for the court making such observations in the present case because the perusal of the order of sanction does not show any legal infirmity and such remarks by the Judge were clearly uncalled for.

The learned Pubic Prosecutor stated that the legal pre-requisite has been carefully followed and order for sanction has been accorded after observing the conditions of law scrupulously. Further as per section 114-A, the Court may presume that judicial and official acts have been regularly performed. It was pointed out that the sequence of events stated on behalf of the prosecution would clearly establish that the official act viz., according sanction had been in fact performed regularly bearing in mind the pre-requisite and the conditions as per law and therefore there is no room for making any complaint regarding the subjective satisfaction arrived at by the competent authority in according sanction. It was also pointed out that the mere fact that sanction was accorded in respect of the offence under S. 19 of the Prevention of Corruption Act and it became superfluous in view of the fact that on the date of the sanction, the petitioner ceased to be a minister would not alter the situation in any way. The learned Public Prosecutor explained, the protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability as the threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer but the same cannot be misinterpreted that a public servant who commits crime using his public office can harp on the question of sanction to escape from the consequences. When the public servant is alleged to have committed the offence of misappropriation of public funds etc., it cannot be said that he acted in discharge of his official duties because it is in the official duty of the public servant to fabricate false records and misappropriate public funds etc., in furtherance of or in the discharge of his official duties. For the above position, reliance was placed on the ruling reported in Shambhoo Nath Misra v. State of U.P. (1997 S.C.C. (Crl.) 676 : 1992 2 L.W. (Crl.) 602 wherein in paragraphs 4 and 5 it has been held,

S. 197(1) postulates that ''when any person who is...a public servant not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have bee committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction'' of the appropriate Government/authority. The essential requirement postulated for the sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant''s act is in furtherance of the performance of his official duties. If the act/omission is integral to the performance of public duty, the public servant is entitled to the protection under S. 197(1) of Crl.P.C. Without the previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded within the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duly are not integrally connected.

The question is when the public servant is alleged to have committed the offence of fabrication of records or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc., in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.

Lastly it was submitted by the learned Public Prosecutor that whether the sanction was accorded as per law or not is a matter to be decided only at the time of the trial and not before. However, there is enough and abundant material to show that the competent authority, viz., His Excellency the Governor of Tamil Nadu has accorded sanction after perusing the materials placed before him and the submissions made by the Learned Counsel for the petitioner is not acceptable. I find there is sufficient merit in the above submissions of the learned Public Prosecutor.

As per the request by the Learned Counsel for the petitioner, the original file was made available for the perusal of this Court and it is found that His Excellency the Governor of Tamil Nadu has put his signature in the file.

For the afforested reasons, I find it extremely difficult to accept the submissions made by the Learned Counsel for the petitioner that the order of sanction accorded does not satisfy the conditions as prescribed by law. Hence, I find no reason to disagree with the conclusion reached by the learned Special Judge.

In the result, the revision case fails. The order of the learned Special Judge dated 11th August 1997 in Crl.M.P. No. 29 of 1997 in C.C. No. 3 of 1997 is confirmed and the Criminal Revision Case is dismissed.