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Judgment
Bhawani Singh, J.—Through this writ petition, petitioner has challenged Order No. 583 (Home) (Vig) of 1987 dated December 31, 1987
sanctioning his prosecution in pursuance of Section 6 of P.C. Act, 2006 for offence u/s 5(2) of P. C. Act 2006 and 161, RPC (Annexure 4) while
posted as patwari Halqa Asham Sumbal Sonawari and trap laid for commission of offence u/s 5(2) of P. C. Act, 2006. Petitioner was placed
under suspension
For prosecuting the petitioner, sanction by respondent I was mandatory. After considering all the facts of the case respondent I declined the
sanction. Since case was not found fit for prosecution, it was closed vide No. Home (AC)S-Camp/ 87-S) dated 7-10-87 (Annexure 1).
Through communication No. Rev(NG)285/ 85 dated Oct. 16, 1987 respondent 2 asked the Divisional Commissioner to pass formal order for
the re-instatement of the petitioner since the case against the petitioner had been closed by the Home Department (Vigilance) (Annexure 2).
Consequently, the Divisional Commissioner vide his order dated Oct. 26, 1987 re-instated the petitioner and he was posted as Patwari at
Hakwara (Annexure 3).
Thereafter, respondent 1 passed the impugned order No. 583(Home) (Vig) of 1987 dated Dec. 31, 1987 giving sanction for the prosecution of
the petitioner for offence already described in the preceding para of this judgment (Annexure 4). The legality of this order has been challenged by
the petitioner in this writ petition submitting inter alia that respondent 1 after having refused sanction closed the case, he had no authority to review
it and accord sanction. After thorough examination of the matter in the Department it was not considered fit to allow sanction, therefore, there
could be no justification for taking U-turn and review the earlier order. Further, the impugned order does not contain any reason for reviewing the
initial order refusing sanction. It is an order passed at the behest of the investigating agency without application of mind.
Respondents have defended the impugned order. It has been submitted that his order has been passed after going through the material and also
the letter of Superintendent of Police (PC) dated Nov. 2, 1987 (Annexure-R-1). It has been denied that the sanctioning authority has not applied
its mind to the facts of the case before sanctioning the prosecution. As a matter of fact, all the facts of the case were taken into consideration
including letter annexure R-1. No cause of action has arisen in favour of the petitioner for filing, the present petition.
The fundamental question arising for consideration in this case is whether respondent 1 could review Order No. Home (AC)S-Camp/87-S)
dated Oct. 7, 1987 and pass the impugned order.
Where there is an express legal bar engrafted in any of the provisions of any Act to the institution and continuance of the proceedings, no
prosecution can be intiated or continued, without overcoming the bar. Statutes generally provide for seeking prior sanction for prosecution; unless
the same is obtained, prosecution cannot be carried on as the Court lacks jurisdiction to deal with it (See R.P. Kapur Vs. The State of Punjab, and
State of Haryana and others Vs. Ch. Bhajan Lal and others, .
Therefore, seeking of sanction is mandatory provision in law. Any case instituted without proper sanction must fail because this is a manifest
defect in the prosecution rendering entire proceedings void ab initio. 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 prosecution and must therefore, be strictly complied
with before any prosecution can be launched against the public servant concerned. While examining this question what Court has to see is whether
or not the sanctioning authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any
subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. (See Mohd. Iqbal Ahmed Vs. State of Andhra
Pradesh, and K. Veeraswami Vs. Union of India (UOI) and Others, .
Adverting to this case, it cannot be said that before passing Order No. Home( AC)S-Camp/87-S) dated Oct. 7, 1987 respondent 1 did not act
according to the principles discussed above before declining the sanction. It is reflected in this order that this was passed after the examination of
the case in the Home Department. Having done so, there could be no justification to review the same at a latter stage. Impugned order does not
disclose why order of Oct. 7, 1987 was wrong and what was the necessity of reviewing the same.
Learned counsel for the petitioner placed strong reliance on reported decision of this Court in 1981 SLJ 416 : 1982 Cri LJ 66 State v. Mohd.
Raza Beigh and contended that respondent 1 had no authority to supersede the order dated Oct. 7,1987 (Annexure A-1). In paras 5 and 6 of the
judgment, it has been held by the learned Judge that:
The object and the scheme of the Act would thus appear to be that there should be effective check against bribery and corruption in the public
services in the State, but at the same time, honest elements should be protected against prosecution on the basis of frivolous accusations of this
nature. The Court cannot take cognizance of offences punishable u/s 161 or Section 165 of the Ranbir Penal Code or Section 5(2) of the Act,
unless such prosecution is permitted by the appropriate authority. Thus the initiative ties with the appropriate authority in the matter and is only
where it has accorded sanction to the prosecution of a Government servant that the Court can lawfully take cognizance under any of these
sections. The appropriate authority is required to apply its mind to the available material and make an appropriate order. But the scheme of the
Act, does prima facie seem to be inconsistent with any power in the appropriate authority to consider the matter over and over again and alter,
amend, vary, or set aside an order of sanction once made u/s 6 of the Act. In that view, the power conferred by Section 21 of the General Clauses
Act, cannot be said to be available u/s 6 of the Act. The argument to the contrary of the learned Counsel appearing for the State must necessarily
fail.
Applying this principle to the present case, the appropriate authority had no power to revise the sanction and consequently the learned Special
Judge was right in holding that the revised sanction could not be a basis for amending the charge. That makes it unnecessary for me to go into the
other question, whether the Court was otherwise competent to amend the charge. I leave that question open.
Question whether this power is available u/s 21 of the General Clauses Act of the State which is in pari materia with Section 21 of the General
Clauses Act applicable in rest of the country, learned Judge placing reliance on The State of Bihar Vs. D.N. Ganguly and Others, held that the
same was not applicable.
It was contended by the learned Counsel for the State that the petitioner can raise this question before the trial Court, therefore, this petition
may be dismissed. This plea does not find mention in the objections of the respondents. Even if it is taken into consideration, there is no merit in it.
The question raised by the petitioner goes to the root of the matter, being a matter of jurisdiction. Trial Court acquires jurisdiction on the availability
of valid sanction. In case it is not there, it has no jurisdiction to proceed against the petitioner. There is no legal bar in entertaining this petition and
dealing with the question raised by the petitioner on merits. The contention raised is, therefore, rejected.
Placing reliance on 1987 Lab IC 1453 (CAT), P.V. Pavithran v. State of Andhra Pradesh, learned Counsel for the petitioner contended that
before passing the impugned order, the petitioner ought to have been heard by respondent 1 and since he was not heard, there is violation of
principles of natural justice and impugned order is liable to be quashed. Having quashed the impugned order for reasons recorded above, it is not
necessary to examine this contention.
The result of the aforesaid examination of the matter is that there is merit in this petition and the same is allowed. Government Order No. 583
(Home) (Vig) of 1987 dated Dec. 31, 1987 is set aside.