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Judgment
The petitioner before this Court Special Police Establishment has filed this present petition being aggrieved by the order dated 22.12.2015 passed by
the competent authority declining sanction to prosecute respondent No.2.
The facts of the case reveal that a criminal case has been registered against respondent No.2 for offences under Sections 7, 13(1)(d) & 13 (2) of the
Prevention of Corruption Act, 1988 and as per statutory provisions contained under Section 19 (1) of the Prevention of Corruption Act, 1988, sanction
is necessary for prosecution. Section 19 of Prevention of Corruption Act reads as under:-
“19. Previous sanction necessary for prosecution.
(1)No court shall take cognizance of an offence punishable under sections 7, 10, 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; (c)in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the
Central Government or the State Government or any other authority, such sanction shall be given by that 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.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of
the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority,
unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4)In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a
failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the
proceedings. Explanation.For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or
with the sanction of a specified person or any requirement of a similar nature.â€
The aforesaid statutory provisions makes it very clear that sanction is necessary for proceeding ahead with the prosecution and in the present case the
competent authority has passed an order on 22.12.2015 and the same reads as under:-
“fo""k;% fo'ks""k iqfyl LFkkiuk yksdk;qDr dk;kZy; e- iz- Hkksiky ds i=dzekad@9547@vi0dz0@152@14 fo-iq-LFkk-@ Hkksiky fnukad 10-12-2015
ds laca/k esa fopkj ,oa fu.kZ;A
vi-dzekad 152@2014 fo#) Jh dey ijekj jktLo mifujh{kd uxj ikfydk 'kqtkyiqj ftyk 'kktkiqj dks U;k;ky; esa vfHk;ksftr fd;s tkus gsrq vfHk;kstu Lohd`fr
iznku djus ckcr~A
izdj.k izLrqr gqvk iLFkk-@ Hkksiky fnukad 10-12-15 ds lkFk layXu nLrkostksa dk voyksdu djk;k x;k iwoZ esa Hkh vijk/k dzekad 152@2014/kkjk 07]13¼1½ Mh13
¼2½ Hkz""Vkpkj vf/kfu;e 1988 fo#) dey flag ijekj jktLo mifufj{kd uxj ikfydk 'kqtkyiqj dk Vªsi dh dk;Zokgh ds laca/k esa vfHk;kstu nk;j djus dh
Lohd`fr pkgh x;h FkhA ftls uxj ikfydk ifj""kn } kjk ¼1½ ifj""kn ladYi dzekad 178 fnukad 16-07-2014 ¼2½ ih-vkbZ-lh- ladYi dzekad 490 fnukad
15-10-2014 ¼3½ ifj""kn ladYi dzekad 16 fnukad 12-02-2015 ls iwoZ izdj.k dk voyksdu dj ,oa nLrkostksa dh tkap mijkar loZlEefr ls fu.kZ; ysdj
izLrko ikfjr fd;k x;k gS] fd dey flag ijekj dsk ""kM~;a= iwoZd Qalk;k x;k gS] budks funksZ""k ekurs gq, vfHk;sktu nk;j djus dh Lohd`fr ugha nh x;h gS
rRdkyhu ifj""kn ,oa orZeku ifj""kn }kjk lHkh igyqvksa ij fopkj dj fy;k x;k fu.kZ; mfpr ,oa fof/kd gksus ls lHkh lnL; lgerh O;Dr djrs gSA
mYys[kuh; gS fd yksdk;qDr dk;kZy; mTtSu }kjk yh xbZ tkudkjh ,oa lacaf/kr vf/kdkjh@deZpkfj;ksa ds dFku fy;s x;s gS muls Hkh Li""V gS fd budk
Hkou vuqKk lacaf/kr izdkj.kksa esa lapkyu la/kkj.k fujkdj.k esa dksbZ laca/k ,oa nkf;Ro ugha gS] Jherh larjk ckbZ ifr djrkj flag xqtZj us Hkh vius dFku
esa Lohdkj fd;k gS fd mDr Hkou dk fuekZ.k o""kZ 2013 esa dj fy;k x;k FkkA ,oa yksd fuekZ.k 'kk[kk }kjk tek gksus okyh fu/kkZfjr jkf'k dh tkudkjh
fnukad 17-04-2014 ds iwoZ ns nh x;h Fkh] mDr fu/kkZfjr jkf'k gh ckn esa tek djuk Jherh larjk ckbZ us Lohdkj fd;k gSA tek gksus okyh jkf'k ls vf/kd
jkf'k ugha crkbZ x;h gSaA Jh eukst 'kqDyk tks xqtZj ds edku ekfyd gS mUgksaus Hkh vius dFku esa ,oa le{k esa crk;k gS fd fufeZr Hkou ij fcuk
vuqefr Hkou fuekZ.k ds izdj.k esa tqekZuk] le>kSrk 'kqYd] Hkou vuqefr fuekZ.k 'kqYd] eyck VsDl] ds #i;s 50]000@& ,oa deZdkj dY;k.k 'kqYd ds
#- 20]000@& dqy #i;s 70]000@& tek djus dh tkudkjh esjs }kjk Hkh Jh xqtZj dks fnukad 17-04-2014 ds iwoZ ns nh x;h FkhA blh dze esa Jh xqtZj
}kjk fnukad 17-04-2014 dks tek gksus okyh jkf'k dh jfln cuk;h tk jgh FkhA tek gksus okyh jkf'k dks fj'or fn[kkdj ,d bZekunkj deZpkjh ds fo#) pfj= guu
ds lkFk&lkFk buds fufoZokn lsokdky dks dyafdr dj vkijkf/kd izdj.k esa Qalkdj thou cckZn djus dk iz;kl fd;k x;k gSA buds lfoZldky dks yxHkx 20 o""kZ
ls Hkh vf/kd gks x;k gSA buds } kjk fdlh Hkh vf/kdkjh@deZpkjh ,oa tuizfrfuf/k dks f'kdk;r dk ekSdk ugha fn;k x;kA
izdj.k esa miyC/k ifjfLFkfrtU;] lk{;] deZpkjh dk iqjkuk lsok fjdkMZ fof/kd vfHker Li""V djrs gSa fd Jh ijekj dks ""kM~;a= iwoZd Qalk;k x;k gS tcfd
deZpkjh iw.kZr% funksZ""k gS] Hkou fuekZ.k vuqefr 'kqYd ckcr~ jkf'k dks dfFkr fj'or dguk mfpr ugha gS] D;ksafd fu/kkZfjr 'kqYd 50]000$20]000
dqy #i;sa 70]000@& tek djus dh ekSf[kd lwpuk Jh xqtZj dks 11-04-2014 dks Hkh ns nh x;h FkhA vkSj dqN fnu ckn eukst 'kqDyk }kjk Hk mDr jkf'k
dh tkudkjh Jh xqtZj dks fn;k tkuk crk;k gS] muds }kjk le{k esa crk;s vuqlkj ,oa izLrqr 'kiFk&i=Â ls Li""V gks jgh gSA ,oa uxj ikfydk deZpkjh dey ijekj
,oa d`"".k eksgu usek }kjk Hkh Jh xqtZj dks ,oa eukst 'kqDyk dks jkf'k dh tkudkjh nh tkuk crk;k gSA ,oa uxj ikfydk }kjk lwpuk i= dzekad yksd fuekZ.k
@14@807 fnukad 15-04-2014 dks Jherh larjk ckbZ dks Hksth x;h Fkh ftls ysus ls bUdkj fd;k x;k FkkA blfy, yksdk;qDr iqfyl }kjk ;g vkjksi fd Qfj;knh
gseflag xqtZj dks 'kqYd tek djus dh lwpuk fj'or ds izdj.k esa le; rd ugha nh Fkh] vlR; ,oa fujk/kkj gSA
pwafd gseflag xqtZj ckj&Ckkj uxj ikfydk ds deZpkfj;ksa ls laidZ djrk FkkA ,oa eukst 'kqDyk ls Hkh enn dk fuosnu dj jgk FkkA blfy, ;g laHko ugha fd
fj'or ds lkr fnu iwoZ fu/kkZfjr gks pqds 'kqYd dh tkudkjh mls uk gks] vFkkZr 'kqYd dh tkudkjh gseflag xqtZj dks iwoZ ls gksus ds ckotwn mlds }kjk
nqHkkZoukiw.kZ dk;Zokgh yx jgh gSA
mijksDr dze esa iqu% loZlEefr ls fu.kZ; fy;k tkrk gS fd izdj.k esa U;k;ky; esa vfHk;ksftr fd;s tkus gsrq vfHk;kstu Lohd`r ugha nh tkrh gSaA ekuuh;
funs'kd egksn; fo'ks""k iqfyl LFkkiuk yksdk;qDr dk;kZy; Hkksiky ls izdj.k lekIr djus gsrq iqu% fuosnu fd;k tkosA fo'ks""k iqfyl LFkkiuk yksdk;qDr
dk;kZy; e-iz- Hkksiky ds i= dzekad @9547@vi0dz0@152@14 fo-iq-LFkk-@ Hkksiky fnukad 10-12-2015 }kjk pkgha x;h vfHk;kstu nk;j djus dh Lohd`r
vekU; dh tkrh gSA loZ lEefr ls fy;k x;k fu.kZ; loZ lacaf/krksa dks voxr djk;k tkos] bl vk'k; dk ladYi loZ lEefr ls ikfjr fd;k tkrk gSAâ€
This Court has carefully gone through the order passed by the competent authority. There is due application on mind in passing the order impugned.
Not only this, the Hon’ble Apex Court in the case of Mansukhlal Vithaldas Chauhan v/s State of Gujrat reported in 1997 SCC (Cri) 1120 has dealt
with the issue of sanction. Paragraphs-21, 22, 23, 24, 31, 32, 33, 34 and 39 read as under:-
“21. The question is whether the High Court could issue a mandamus of their and whether the order of Sanction, in these circumstances, is valid.
Mandamus which is a discretionary remedyunder Article 226of the Constitution is requested to be issued, inter alia, to compel performance of
public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if
they are intended to be mandatory in character, are indicated by the use of the words ""shall"" or ""must"". But this is not conclusive as ""shall"" and ""must
have, sometimes, been interpreted as ""may"" . What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the
scheme of the Statute in which the 'duty"" has been set out. Even if the ""Duty"" is not set out clearly and specially in the Statute, it may be implied as
co-relative to a ""Right"".
In the performance of this Study, if theauthority in whom the discretion is vested under the Statute, does not act independently and passes an order
under the instructions and orders of another authority, the Court would intervene in the matter, quash the orders and issue a mandamus to that
authority to exercise its own discretion.
In The Vice-Chancellor, Utkal University and others vs. S.K. Ghosh and others, (1945) SCR 883 = AIR 1954 SC 217, this Court pointed out that
in a proceeding for mandamus, the Court cannot sit as a Court of Appeal or substitute its own discretion for that of the authority in which the Statute
had vested the discretion. It was pointed out:-
(18). We also think the High Court was wrong on the second point. The learned Judges rightly hold that in a `mandamus' petition the High Court
cannot constitute itself into a Court of appeal from authority against which the appeals is sought, but having said that they went on to do just what they
said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be
inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of
measurement should be. That is a proposition to which we are not able to assent.
(19). We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for
ourselves as a Court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and the Syndicate we are compelled to
observe that we do not fell they are justified . The question was one of urgency and the Vice- Chancellor and the members of the Syndicate were
well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for
example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the
persons to whose judgment the matter in question is entrusted by the law.
In the background of the above principles,let us now scrutinise the judgment of the Gujarat High Court which, let us say here and now, could only
direct the Govt. for expeditious disposal of the matter of sanction.
By issuing a direction to the Secretary togrant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed
only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider
whether it would be feasible to prosecute the appellant; whether the complaint of Harshadraj of illegal gratification which was sought to be supported
by ""trip"" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Govt. that the firm had been black-
listed once and there was demand for some amount to be paid to Govt, by the firm in connection with this contract. The discretion not to sanction the
prosecution was thus taken away by the High Court.
The High Court put the Secretary in apiquant situation. While that Act gave him the discretion to sanction or not to sanction the prosecution of the
appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to action in contempt for
not obeying the mandamus issued by the High Court. The High Court assumed that role of the sanctioning authority, considered the whole matter,
formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6of the Act, it
directed the Secretary to sanction the prosecution so that the sanction order may be created to be an order passed by the Secretary and not that of the
High Court. This is a classic case where a Brand name is changed to give a new colour to the package without changing the contents thereof. In
these circumstances the sanctions order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court.
Learned counsel for the State of Gujaratcontended that the judgment passed by the High Court cannot be questioned is these proceedings as it had
become final. The contention is wholly devoid of substance. The appellant has questioned the legality of ""sanction"" on many grounds one of which is
that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the
prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no
choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High
Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the `sanction order' was assailed before us,
we had necessarily to consider the High Court judgment and its impact on the ""Sanction"". The so-called finality cannot shut out the scrutiny of the
judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being
erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of pair trial at every stage, from the initiation till the
conclusion of the proceedings.
Normally when the sanction order is held to be bad, the case is remitted back to the authority for reconsideration of the matter and to pass a fresh
order of sanction in accordance with law. But in the instant case, the incident is of 1983 and therefore, after a lapse of fourteen years, it will not, in our
opinion, be fair just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of
litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21of the Constitution which, as a part of right to life,
philosophizes early and of criminal proceedings through a speedy trial.â€
In light of the aforesaid judgment, as there was proper application of mind on the part of the competent authority and a reasoned order has been
passed assigning reasons declining sanction, this Court is of the opinion that no case even for remand of the matter to the competent authority is made
out in the matter.
Not only this, the Apex Court again in the case of Sanjaysinh Ramarao Chavan v/s Dattatray Gulabrao Phalke & Others reported in 2015 Cr.L.R.
(SC)160 has again dealt with issue of sanction. Paragraph-18 of the same reads as under:-
“Once the prosecution is of the view that no case is made out so as to prosecute an accused, unless the court finds otherwise, there is no point
in making a request for sanction for prosecution. If the prosecution is simply vexatious, sanction for prosecution is not to be granted. That is one of the
main considerations to be borne in mind by the competent authority while considering whether the sanction is to be granted or not.
In Mansukhlal Vithaldas Chauhan v. State of Gujarat[8], this Court has in unmistakable terms made it clear that no court can issue a positive direction
to an authority to give sanction for prosecution. To quote:
By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to
proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to
consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be
supported by ""trap"" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm
had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract. The
discretion not to sanction the prosecution was thus taken away by the High Court.â€
In light of the aforesaid judgment, as the order has been passed by the competent authority with the application of mind and it is a reasoned order, this
Court doesn’t find any reason to interfere with order dated 22.12.2015 passed by the competent authority.
Resultantly, the admission is declined.
Certified copy, as per rules.