State vs Bishan Dass Sharma and Others

R.P. Sethi, J.—Respondents who were alleged to be guilty of the offences punishable Under Sections 420/467/468/471/120-B, R.P.C. and

Section 5(2) of the Prevention of Corruption Act, 2006 (for short, P.C. Act), were discharged by the court below on the ground of there not being

a valid sanction for their prosecution. It is submitted that the judgment of the trial court is against law, facts and record of the case which is required

to be set aside.

I have heard learned counsel for the parties and perused the record.

The record reveals that vide Govt. order No. 491-Home (Vig) of 1987 dated 28-10-1987, sanction was accorded to the prosecution of the

respondents for offences referred to hereinabove. The aforesaid Govt. order was, however, signed by an Under Secretary to Government, Home

Department (Vigilance). The trial Court, held that the Revenue Department and the administrative department of the accused could only be treated

as government for the purposes of their removal from office and to sanction the prosecution. The Home Department was not their administrative

department for the purposes of granting the sanction. The trial court relied upon a judgment of the Supreme Court reported in R.S. Nayak Vs.

A.R. Antulay, wherein it was held that grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of

protection of government servants against frivolous prosecution and that requirement must be strictly complied with before any prosecution could

be launched against public servants.

Section 6 of the P.C. Act, 2006, provides:

No Court shall take cognizance of an offence punishable u/s 161 or S. 164 or Section 165 or Section 167-A of the State Ranbir Penal Code,

Samvat 1989 or under Sub-section (2) or Sub-section (3) of Section 5 of this Act, 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 State and is not removable from his office save by or with the

sanction of the Government;

(b) in the case of any other person, or the authority competent to remove him from his office: .

Explanation.-- Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be

given by the Government or any other authority, such sanction shall be given by the 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.

The sanction contemplated under the Act for the purposes of the accused respondents is the sanction of the Government of Jammu and Kashmir.

Admittedly, the Government sanction had been accorded which, according to the respondents, was not according to law. The onus, therefore, lay

upon the respondents to prove that the sanction was not valid sanction and they were entitled to be discharged. Such a finding could be given by

the court below only after holding trial of the case.

Otherwise also Section 43 of the Constitution of Jammu and Kashmir provides that the Governor shall make rules for the more convenient

transaction of the business of the Government of the State and for allocation among ministers of the said business. Section 45 of the State

Constitution requires that all executive actions of the Government are required to be expressed in the name of the Governor or of the Government

of Jammu and Kashmir. Such orders made and executed in the name of the Government are required to be authenticated in such manner as may

be specified in the rules to be made by the Governor and the validity of an order of instrument which is so authenticated, shall not be called in

question on the ground that it is not an order or instrument made or executed by the Governor or, as the case may be, by the Government of

Jammu and Kashmir. A presumption of validity is, therefore, attached to the orders made by it or authenticated in the name of the Government of

Jammu and Kashmir. Such a presumption may, however, be rebuttable but in that event the onus lies upon such a person who asserts the same to

be contrary to the provisions of the State Constitution. The court below has not assigned any reason to ignore the presumption of law in favour of

the valid sanction made in the name of the Government of Jammu and Kashmir as was required u/s 6 of the P.C. Act. It has also been brought to

my notice that the Governor of the State has framed the J & K Government business Rules in exercise of the powers conferred upon him u/s 43

and Sub-section (2) of Section 45 of the State Constitution. R. 7 of the aforesaid rules provides that the Cabinet shall be collectively responsible

for all executive orders issued in the name of the Governor or of the Government of Jammu and Kashmir in accordance with the rules, whether

such orders are authorised by an individual minister on a matter pertaining to his portfolio or as a result of the meeting of the Cabinet or otherwise.

Rule 11 provides that all orders or instruments made or executed by or on behalf of the Government shall express to be made or executed in the

name of the Governor or the Government of Jammu and Kashmir and under Rule 12 every such order is required to be signed either by the Chief

Secretary, Addl. Chief Secretary, Secretary, Addl. Secretary, Joint Secretary, Addl. Joint Secretary or an Under Secretary to the Government or

such other officer as may be specially empowered by the Government in that behalf and such signatures shall be deemed to be a proper

authentication of such orders or instrument. Under Rule 54, aforesaid rules can be supplemented by instructions to be issued by the Chief Minister,

Under Schedule-Ill, Rule 30 of the aforesaid Rules, any other matter which the Chief Minister may from time to time, by general or special order

specified be submitted to him through the Chief Secretary. In pursuance of rule 54, instructions were issued by the Chief Minister and conveyed

vide General Department endtt. No. GD(Adm) 184/78 dated 23-11-1978 to the effect that all cases of corruption against government servants

arising under the Prevention of Corruption Act, 2006 or Prevention of Corruption Act, 1975, and the matters connected therewith shall on the

receipt by the Home Department (Vigilance) from the Vigilance Commissioner, the anti-corruption tribunal and special courts, appointed for the

purpose of trial of corruption case, be examined by the Home Secretary (Vigilance) and submitted direct to the Chief Minister for orders. The

Home Department of the Government was, therefore, competent to accord sanction for the prosecution of the accused-respondents and the

Government order issued in that behalf which was properly authenticated under the Constitutional provisions and the business rules, could not be

challenged by the respondents. The Court below has committed a mistake of law by discharging the accused persons at the initial stage particularly

when serious charges of corruption were levelled against them.

The order of the trial court is without jurisdiction and is accordingly set aside. The case is remanded back to the trial court for disposal

according to law. The respondents who are present in the Court have been directed to appear in the court below on February 2, 1991.