Supreme Court of India

SPECIAL APPEAL DEFECTIVE, CRIMINAL APPEAL NO. 456 OF 2014 Judgment Date: Feb 19, 2014

The  competent authority to give previous sanction is the  authority competent to remove one from service. No  doubt the appointing authority is the authority competent  to remove him from service. 

 The Statute is very clear that the authority competent to  remove an officer from service is the authority to give  sanction for prosecution.

REPORTABLE

February 19, 2014.

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  CRIMINAL APPEAL NO. 456 OF 2014

[Arising out of S.L.P.(Criminal) No. 9999/2011]

P. L. Tatwal … Appellant (s)

Versus

State of Madhya Pradesh … Respondent (s)

J U D G M E N T

 KURIAN, J.:

Leave granted.

2. The appellant along with two others were sought to be  prosecuted under Section 13(1)(d) and 13(2) of the  Prevention of Corruption Act, 1988 (hereinafter referred  to as the ‘PC Act’). The allegations pertain to the  irregularities in the award of the contract and  construction of administrative building for the Corporation  of Ujjain during the period 1991-1993. At the relevant  time, the appellant was working as the Assistant Engineer  in the Corporation and the Corporation was ruled by an  Administrator. In the case of the co-accused  Shri D.L. Rangotha, the then Commissioner of the  Municipal Corporation and Shri D. P. Tiwari, the then  Administrator of the Corporation, the State Government  and the Central Government respectively had declined to  grant sanction, while they were in service. Since the  prosecution was sought to be launched after their  retirement, the same was challenged before the trial  court and the High Court unsuccessfully. However, by  order dated 21.08.2013, in Criminal Appeal No. 1213 of  2013 and Criminal Appeal No. 1214 of 2013, this Court  quashed the proceedings for prosecution against Shri D.  L. Rangotha and Shri D. P. Tiwari on the ground that once  sanction for prosecution is refused by the competent  authority while the officer is in service, he cannot be  prosecuted after retirement notwithstanding the fact that  no sanction for prosecution under the PC Act is necessary  after the retirement of a public servant. The order was  passed following the decision in Chittaranjan Das v.  State of Orissa1.

3. However, in the case of the appellant herein, sanction  was granted by the Standing Committee of the  Corporation while he was in service. Though the same  was subsequently withdrawn, that order was set aside by  the High Court holding that the order on withdrawal was  passed without proper application of mind.

4. The appellant has three main contentions:  (i) Since he was appointed in service by the Administrator,  sanction for prosecution can be given only by the  Administrator and in case, the Administrator is not in  position, then the sanction is to be given by the State  Government who appoints the Administrator.  (ii) At any rate, there is no proper and valid sanction by the  competent authority.  (ii) Since the proceedings for prosecution against his superior  officers have been quashed by this Court, proceedings in  his case also be quashed since it is not likely in such a  situation to have a successful prosecution.

5. It is not in dispute that the appellant was appointed by  the Administrator when the Corporation was ruled by the  Administrator. Therefore, it is the contention of the  appellant that the competent authority to give sanction  for prosecution under Section 19 of the PC Act is the  Administrator and in case the Administrator is not  available, the sanction is to be given by the State  Government.

6. We are afraid, the contentions cannot be appreciated as  the same do not found any basis in law or logic. Section  19(1) of the PC Act reads as follows:

“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.”  (Emphasis supplied)

7. The appellant comes under Section 19(1)(c). The  competent authority to give previous sanction is the  authority competent to remove one from service. No  doubt the appointing authority is the authority competent  to remove him from service. Under Section 58 of the  Municipal Corporation Act, 1956, the Standing Committee  is the competent authority for appointment in any post in  the municipality having a salary for more than Rs.400/-  per month. For easy reference, we may extract the  relevant portion from the statement made on behalf of  the State Government on a specific query from the court:

“The Respondent most respectfully submits that  (sic) Section 45 and 48 of the Municipal  Corporation Act 1956 empowers the Municipal  Corporation to establish the committees and  through Gazette Notification 1977 dated  21.03.1977 whereby Section 58 of the Municipal  Corporation Act was amended, power was vested  in the Standing committee to appoint any  persons on the post of any such municipal post,  which has maximum salary of more than  Rs.400/-. …  xxx xxx xxx xxx  The Respondent most respectfully submits that  the above mentioned amendment was made in  1977 and the Petitioner was initially appointed in  the Municipal Corporation on 17.12.79 by the  Standing committee…”

8. The Administrator is only an ad hoc arrangement made  by the Government under Section 424 of the Madhya  Pradesh Municipal Corporation Act, 1956 when an elected  committee is superseded or dissolved. It so happened  that the appointment of the appellant was at a time when  the Municipal Corporation was ruled by the Administrator.  That does not mean that there should be an  Administrator to take any decision with regard to the  sanction for prosecution of the appellant under the PC  Act.

9. The Statute is very clear that the authority competent to  remove an officer from service is the authority to give  sanction for prosecution. In the case of the appellant,  being an employee having a salary of more than Rs.400/-  per month, the authority competent to remove him from  service is the Standing Committee. It is the Standing  Committee which gave the sanction by its order dated  27.08.1996. Therefore, the trial court and the High Court  cannot be faulted in taking the view that there was an  order of sanction for prosecution from the competent  authority.

10. It is vehemently contented by the learned counsel for the  appellant that there is no proper and valid sanction for  prosecuting the appellant. The authority has not applied  its mind and has not taken a conscious decision by  referring to any of the relevant materials. It is pointed out  that the authority has only accepted the  recommendations of the Commissioner. But there is  nothing to show that the recommendation was before the  authority. Still further, it is pointed out that the order of  sanction does not indicate reference to any material;  however, the enclosures give an indication that the  inquiry report of the Special Police Establishment and  government letter were before the competent authority.  In order to appreciate the contention properly, we shall  extract the Resolution of the Standing Committee, which  reads as follows:

RESOLUTION NO.309 DATED 27-08-1996 OF  STANDING COMMITTEE MEETING, UJJAIN  MUNICIPAL CORPORATION

With regard (sic) to sanction of prosecution  in Crime No. 54/93 against Administrator of  Municipal Corporation and others, letter of  Commissioner Municipal Corporation No.310  dated 22.06.1996 stating that “the Government  has sought sanction for prosecution of Shree R.K.  Sharma, the then Superintending Engineer, Shree  R.K. Bhagat the then City Engineer, Shree P.L.  Tatwal, the then Assistant Engineer, who were  posted with Municipal Corporation Ujjain. Under  section 19(1)(c) (sic) of Prevention of Corruption  Act, sanction for prosecution can be accorded by  the authority which is competent to remove such  public servant from the office. The Standing  Committee is the Appointing Authority of the  above three officers. That way Corporation is  competent to accord sanction for prosecution  against them. The factual position about the  three officers is as below. Shree R.K. Sharma the  then Superintending Engineer was not from this  department and was sent on deputation by the  government and is now at presently retired.  Shree R.K. Bhagat the then City Engineer has  since retired and Shree P.L. Tatwal the then  Assistant Engineer is presently posted with  Municipal Corporation Ujjain. So please intimate  Honourable Mayor about the above factual  position and decision about grant of sanction be  intimated so that the government may be  intimated of the decision.  After discussion, unanimously resolved that  as per the recommendation of Municipal  Commissioner, sanction is granted to take action  to prosecute the concerned officers. Action be  taken according to law.  Sd/- (Smt. Anju Bhargav)  Chairman, Standing Committee  Municiipal Corporation Ujjain  Copy:-  Sr. No.:- 1334 Date :- 11-9-  96  Commissioner, Ujjain Municipal Corporation to  take necessary action.  Enclosed :- Government letter and  photocopy  of enquiry report of Special Police  Establishment.  Sd/-  Municipal Secretary  Ujjain Municipal Corporation”  (Emphasis supplied)

11. It may be seen that only the second paragraph of the  Resolution speaks about the sanction and that is following  the recommendation of the Municipal Commissioner.  Whether that formed part of the government letter, it is  not clear. The contents otherwise of the government  letter are also not clear.

12. The grant of sanction is only an administrative function. It  is intended to protect public servants against frivolous  and vexatious litigation. It also ensures that a dishonest  officer is brought before law and is tried in accordance  with law. Thus, it is a serious exercise of power by the  competent authority. It has to be apprised of all the  relevant materials, and on such materials, the authority  has to take a conscious decision as to whether the facts  would reveal the commission of an offence under the  relevant provisions. No doubt, an elaborate discussion in  that regard in the order is not necessary. But decision  making on relevant materials should be reflected in the  order and if not, it should be capable of proof before the  court.

13. In a recent decision in State of Maharashtra through  Central Bureau of Investigation v. Mahesh G.Jain2,  the court has referred to the various decisions on this  aspect from paragraph 8 onwards. It has been held at  paragraph 8 as follows:

“8. In Mohd. Iqbal Ahmed v. State of A.P.5 this  Court lucidly registered the view that (SCC  p. 174, para 3) it is incumbent on the prosecution  to prove that a valid sanction has been granted  by the sanctioning authority after being satisfied  that a case for sanction has been made out  constituting an offence and the same should be  done in two ways; either

 (i) by producing the  original sanction which itself contains the facts  constituting the offence and the grounds of  satisfaction, and (ii) by adducing evidence  aliunde to show the facts placed before the  sanctioning authority and the satisfaction arrived  at by it. It is well settled that any case instituted  without a proper sanction must fail because this  being a manifest defect in the prosecution, the  entire proceedings are rendered void ab initio.”

14. After referring to subsequent decisions, the main  principles governing the issue have been culled out at  paragraph 14 which reads as follows:

“14.1. It is incumbent on the prosecution to  prove that the valid sanction has been granted by  the sanctioning authority after being satisfied that a  case for sanction has been made out.

14.2. The sanction order may expressly show  that the sanctioning authority has perused the  material placed before it and, after consideration of  the circumstances, has granted sanction for  prosecution.

14.3. The prosecution may prove by adducing  the evidence that the material was placed before  the sanctioning authority and its satisfaction was  arrived at upon perusal of the material placed  before it.

14.4. Grant of sanction is only an administrative  function and the sanctioning authority is required to  prima facie reach the satisfaction that relevant facts  would constitute the offence.

14.5. The adequacy of material placed before  the sanctioning authority cannot be gone into by  the court as it does not sit in appeal over the  sanction order.

14.6. If the sanctioning authority has perused all  the materials placed before it and some of them  have not been proved that would not vitiate the  order of sanction.

14.7. The order of sanction is a prerequisite as it  is intended to provide a safeguard to a public  servant against frivolous and vexatious litigants, but  simultaneously an order of sanction should not be  construed in a pedantic manner and there should  not be a hypertechnical approach to test its  validity.”

15. Though the appellants made a specific objection in this  regard before the Special Judge, unfortunately in the  order dated 27.12.2004, it is seen that there is no inquiry  by the court in this regard. There is no reference at all to  the recommendation made by the Municipal  Commissioner. Before the High Court also, though the  submissions were reiterated, the only consideration in  that regard is available at paragraph 21 of the impugned  order which reads as follows:

“21. It is not a case of the applicant that standing  committee of the Municipal Corporation was  not competent to grant sanction under  section 19 of the Prevention of Corruption  Act, 1988. Undisputedly, the competent  authority had passed the orders of sanction  against all the accused persons concerned.  The order of the sanction was passed after  considering the whole record of the case  and proper application of mind. The  applicant failed to demonstrate the order of  sanction is suffering from non application of  mind.”

16. In such circumstances, we are of the view that the trial  court should conduct a proper inquiry as to whether all  the relevant materials were placed before the competent  authority and whether the competent authority has  referred to the same so as to form an opinion as to  whether the same constituted an offence requiring  sanction for prosecution. In that view of the matter, we  set aside the impugned order passed by the High Court  and also order dated 27.12.2004 passed in Special Case  No. 12 of 2004 by the trial court and remit the matter to  the Special Judge (P.C. Act, 1988), Ujjain, Madhya  Pradesh.

17. Incidentally, we may also refer to the third point raised by  the appellant. It is the submission that the proceedings  for prosecution in the case of the Commissioner and  Administrator, who were the controlling officers of the  appellant, having been quashed, there is no point in  continuing the trial in the case of the appellant and it  would only be an attempt in futility. This subsequent  development may also be brought to the notice of the  Special Judge which would be considered at the time of  consideration of charge, in case the court enters a finding  on valid sanction and decide to proceed with the case.  The court may also consider the fact that there is no  sanction for prosecution in the case of the Superintendent  Engineer and the City Engineer, who were the superior  officers of the appellant at the relevant time and in whose  case, the Standing Committee decided not to give  sanction on the ground that they were not in service  when the decision on sanction was taken.

18. The appeal is allowed to that extent. Parties to appear  before the Special Judge (P.C. Act, 1988), Ujjain, Madhya  Pradesh on 05.04.2014.

J.  (SUDHANSU JYOTI  MUKHOPADHAYA)

 J.  (KURIAN JOSEPH)

New Delhi;

 February 19, 2014.