Mahendra Singh vs Special Establishment Of Polic

The challenge in the present petition is to an order passed by the learned Trial Court on 02nd May, 2018; whereby, an application for permission to

lead additional evidence in terms of Section 311 of Code of Criminal Procedure (for short the “Codeâ€) remained unsuccessful. The petitioner

wishes to dispute the order of grant of sanction to prosecute him on the basis of documents supplied to him under the Right to Information Act.

The stand of the prosecution is that the sanction was granted on 03.11.2014 (page 20 of the present petition). But the petitioner asserts that in fact,

the sanction was granted on 20th August, 2014 by the Member Secretary of M.P. Pollution Control Board. It is thereafter, the Lokayukt has raised

objections on 1st September, 2014, which were replied by the M.P. Pollution Control Board on 12th September, 2014, when a draft order of sanction

was also communicated to the Director General of Police, Lokayukt.

The learned counsel for the petitioner relies upon the Supreme Court judgment reported as {1999 (3) SCR 818, Rajendra Prasad v. Narcotic Cell

Through its Officer Incharge, Delhi} and also a Single Bench judgment of Madras High Court rendered in Criminal O.P. No. 18107/2008 and

18108/2009 (M. Sripriya v. P.V. Kamakshidsan). On the other hand, the learned counsel for the respondent relies upon an order passed by the

Supreme Court reported as {(2002) 7 SCC 334, Mohd. Khalid v. State of West Bengal} and also a Division Bench order of this Court passed on

8.3.2018 in M.Cr.C. No. 26900/2017 (Khoob Singh v. State of M.P.)

We have heard learned counsel for the parties and find no merit in the present petition. The communications referred to by learned counsel for the

petitioner are inter-departmental communications starting from 20th August 2014 and ending with communication dated 15.10.2014. Such

interdepartmental communications are the part of the decision making process. The sanction to prosecute, which was granted and communicated, is

dated 3rd November, 2014.

The inter-departmental communications are part of the decision making process and not the ultimate decision. In Ritesh Tewari and Another v.

State of U.P. & others, (2010) 10 SCC 677,the Court held thatthe contents of a communication between two officers of the departments of the

Government cannot be the subject-matter of the writ petition.

The Hon’ble Supreme Court in the case ofVivek Batra v. Union of India and others, (2017) 1 SCC 69, examined the question of sanction under

the Prevention of Corruption Act, 1988 on the basis of notings on the file. The Court held as:-

“9. There is no dispute that for an IRS officer cadre, controlling authority is the Finance Minister of the Government of India. In Bachhittar Singh

v. State of Punjab (1962 Supp (3) SCR 713: AIR 1963 SC 395), the Constitution Bench of this Court has held that the business of the State is a

complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities.

In Jasbir Singh Chhabra v. State of Punjab (2010) 4 SCC 192, this Court held as under: (SCC p. 209, para 35)

“35. It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at

different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of

whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may

not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is

required to be taken by the Designated Authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for

recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations.â€​

In Sethi Auto Service Station v. DDA (2009) 1 SCC 180, this Court observed as under: (SCC pp. 185-86, para 14)

“14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an

expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the

department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings

in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the

department, gets his approval and the final order is communicated to the person concerned.â€​

(emphasis in original)

In view of the law laid down by this Court, as above, we are of theopinion that the sanction cannot be held invalid only for the reason that in the

administrative notings different authorities have opined differently before the competent authority took the decision in the matter. It is not a case

where the Finance Minister was not the competent authority to grant the sanction. What is required under Section 19 of the Prevention of Corruption

Act, 1988 is that for taking the cognizance of an offence, punishable under Sections 7, 10, 11, 13 and 15 of the Act committed by the public servant,

sanction is necessary by the Central Government or the State Government, as the case may be, and in the case of a public servant, who is neither

employed in connection with affairs of the Union or the State, from the authority competent to remove him.........................

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Having gone through the copy of note-sheets relating to sanction in question placed before us as part of rejoinder-affidavit, it is evident that there

had been proper application of mind on the part of the competent authority before the sanction was accorded. Our perusal of the said record does not

indicate that any decision was taken by the competent authority, at any point of time, not to grant sanction so as to give the decision to grant sanction

the colour of a review of any such earlier order, as has been contended before us. The opinion of CVC, which was reaffirmed and ultimately

prevailed in according the sanction, cannot be said to be irrelevant for the reason that clause (g) of Section 8(1) of the Central Vigilance Commission

Act, 2003 provides that it is one of the functions of the CVC to tender advice to the Central Government on such matters as may be referred to it by

the Government.â€​

Therefore, the sanction cannot be said to be invalid for the reason that in the inter-departmental communications, different authorities have

exchanged their views before the competent authority took the decision in the matter. The inter-departmental communications stand on the same

footing as the notings in file. Thus, the petitioner cannot be granted permission to produce interdepartmental communications by way of additional

evidence in terms of Section 311 of Code.

It is one thing to cross-examine the witness who is called upon to prove the sanction and another to produce the inter-departmental communications

by way of additional evidence. We find that the petitioner cannot be permitted to produce the additional evidence in respect of inter-departmental

communications.

We do not found any merit in the petition. Dismissed.