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CHAPTERV
NATURE AND SCOPE OF THE "SANCTION" TO
PROSECUTE THE PUBLIC SERVANTS :
There are many precautions necessary to initiate and proceed
with a prosecution under The Prevention of Corruption Act, 1988. The
first thing is sanction from the proper authority, before launching criminal
prosecution under this Act.
A.
SANCTION
A perusal of the provisions of the 1988, Act reveals that
Section 19*1 of the Act constitutes an absolute bar except with the previous
sanction to take cognizance of the offences under the Act irrespective of
1.
Section 19 provides :
(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 sanction of the State Government, of that
government;
191
(f.n. 1 contd..)
(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 CriminalProcedure, 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.
192
the capacity of the public servant.
This Act is a special enactment
under which Public Servant, can be prosecuted for certain matters even
if not covered under the Indian Penal Code, 186.0.
The legislature
therefore, simultaneously take adequate precautions as safeguards to such
public servant by prescribing a mandatory provision relating to sanction,
under Section 19 of the Act of 1988, which corresponds to Section 6 of
the Act of 1947, except Sub-section (3) and (4) which are new.
1.
Form of Sanction :
There is no specific Form prescribed for according sanction
under the Act.
In Gokul chand Dwarkadas Morarka v. King2.
The Privy Council held that there is no particular form of sanction as
laid down in Section 6 of the Act of 1947 [now section 19 of the Act
of- 1988].
But if the facts constituting the offence charged are not
shown on the face of the sanction, the prosecution, must prove by
extraneous evidence that those facts were placed before the sanctioning
(f.n. 1 contd..)
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.
2.
A.I.R. 1948 EC. 82
193
authority since the sanction is given in respect of the offence charged.
The Supreme Court in Biswa Bushan Naik v. The State of Orissa3, laid
down that under Section 6 of the Act of 1947 [Now Section 19 of the
Act of 1988] it is not necessary for the sanction to be in any particular
form. However when the facts are not set in the sanction, it has to be
proved that sanction was given in respect of the facts constituting the
offence charged.
2.
Object of sanction for the prosecution :
Discussing the object of the provision for sanction in Taswanth
Singh v. State of Punjab4, the Supreme Court held that the authority
giving the sanction should be able to consider for itself the evidence,
before it comes to a conclusion that the prosecution in the circumstances
be sanctioned or forbidden.
The court further held that it should be
clear from the form of the sanction that the sanctioning authority
considered the evidence and all circumstances of the case before it and
then sanction was granted. Therefore, unless the matter can be proved
by other evidence in the sanction itself, the facts should be referred to,
3.
A.I.R. 1954 S.C. 359.
4.
A.I.R. 1958 S.C. 124
194
indicate that the sanctioning authority had applied its mind to the facts
and circumstances of the case5.
In Shiv Rai v. ^ Delhi Administration6, the Supreme Court
once again considered the subject and re-affirmed the. guidelines given
by it in Taswanth Singh’s Case7.
In this case also the sanction order
Ex. p. 13 not only stated the facts of the prosecution case in detailed
which are necessary to the constitute the offence but the sanctioning
authority after carefully examining the C.D. File, statement of witnesses
etc., came to the conclusion that the accused who are public servants,
have to be prosecuted in a court of law and upon a consideration thereof
the authority decided to sanction prosecution. Therefore, it satisfies all
the essential requirement of the sanction.
In Somnath v. Union of India8, the Supreme Court again
considered the matter and observed that for a sanction to be valid it
must be established that sanction was given in respect of the facts
5.
Map. 126.
6.
A.I.R. 1968S.C. 1490. ..
7.
Supra, n. 4.
8.
1971 Cri. L.J. 36.
195
constituting the offence with which the accused is proposed to be charged.
Thought it is desirable, that the facts should be referred to in the sanction
itself, nonetheless if they do riot appear on the face of it, the prosecution
must establish aliunde by evidence that those facts, were placed , before
the sanctioning authority.
In this case, the sanction order, Ex. p.13
contains all the details in regard to the allegations made against the
accused separately and they are in respect of facts constituting the offence
with which the accused are proposed to be charged.
In a subsequent decision in Mohd. Iqbal Ahmed v. State
of A.B9. the Supreme Court restated the said law as under10:
"... what the 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 and
any subsequent fact which may come into
existence after the resolution granting sanction
has been passed, is wholly irrelevant.
of sanction
is
not
acrimonious
exercise
The grant
idle formality
but
a
or
solemn
an
and
sacrosanct act which affords protection to
9.
1979 Cri. L.J. 633
10.
IcL at p. 635.
A.I.R. 1979 S.C. 677.
196
Government
Servants
against frivolous
prosecution and must therefore be strictly
complied with before any. prosecution can be
launched'against the public-servant concerned.”
.
Similarly in Raghu Bir Singh v. State of Harvana11. wherein
the Supreme Court held that the prosecution must fail for an infirmity
iri the sanction order.
In State bv public prosecutor v. K.N. Vadalingam12.
K.M. Natarajan, }. has held that the sanctioning authority has applied
its mind to the facts and circumstances of the case before granting
sanction for prosecution. In Perivasamv v. Inspector. Vigilance and Anticorruption Department13, wherein this case Swamy Durai, J. had held
that the sanction order must contain the details as to on what basis the
sanctioning authority satisfied itself that the case for sanction was made
out.
In State of Tamilnadu v. Damodaran14
the Supreme Court has
observed that when the relevant records namely the statements under
11.
A.I.R. 1974 S.C. 1516. See also Mansukhlal Vithaldas Chanhan v. State of
Guiarat, 1977 Cri. L.J. 4059.
12.
(1994) 1 Mad. L.W. (Cri) p,ll.
13.
1994 Cri. L.J. 753.
14.
1992 Cri. L.J. 522.
-
.
197
'
Section 161 of Code of Criminal Procedure, 1973 were produced before
sanctioning authority and the sanctioning authority had granted sanction
after perusal, the court is not justified in reaching the conclusion that
the sanctioning authority had not applied its mind and mechanically
granted sanction. In subsequent case namely Raia Singh v. The State15,
the Supreme Court held that the sanctioning authority should apply its
mind to the facts alleged arid only after being satisfied that the sanction
was a necessary,. the sanction order should be signed. In this case, the
sanction order gives the details of the records and his statement about
perusal of the records before granting sanction.
In Madan Mohan Singh v. State of Uttar Pradesh16, the
Supreme Court held that the burden of proving that the requisite sanction
has been obtained rests on the prosecution and such burden includes
proof that the sanctioning authority had given the sanction in reference
to the facts on which the proposed prosecution was to be based; and
these facts may appear on the face of the sanction or may be proved by
extraneous evidence.
Where the facts constituting the offence do not
15.
1995 Cri. L.J. 9554992 Cri. L.J. 522 relied on and followed.
16.
A.I.R. 1954 S.C. 637 : 1954 Cri. L.J. 1656.
198
appear on the face of the letter sanctioning prosecution, it is incumbent
upon the prosecution to prove by other evidence that the material facts
constituting the. offence were placed before the sanctioning authority.
Where this is not done, the sanction must be held to be defective and
an invalid sanction cannot confer jurisdiction upon the court to try the
case”.
Likewise in Shri Vinod Lai v. State of H.R17. the issue
involved is whether the court is empowered to take cognizance of offence
under Section 13 of the Prevention of Corruption Act, 1988 without the
grant of previous sanction for prosecution by the competent authority as
required under Section 19 of the Act of 1988 is valid or not?
The
Himachal Pradesh High Court held that a trial without a valid sanction
renders the proceedings ab initio void. D.B Sood, J. observed that1® :
"... the close scrutiny of the provision provides
for previous sanction for prosecution in case of
a person employed in connection with the affairs
of the union or State Government or other
authority, is analogous to Section 6 of the
17.
1995 Cri. LJ. 2603.
18. Id* at pp. 2606 & 2607.
199
Prevention of Corruption Act 1947 (Old Act)
except clause 19(3) Act of 1988 the (New Act)
which provides that on the ground of irregularity
of sanction,. no finding, of the court can. be
reversed.
Simultaneously, it has also been
provided that no court can stay the proceedings
. in these cases because of irregularity in sanction
or an any other ground.
In Catina of case, the
Apex Court has held that the burden of proof
is on the prosecution to show that the sanction
granted for prosecution of an offender is valid.
Such burden includes proof that the sanctioning
authority had given sanction in reference to the
facts on which the proposed prosecution was to
be based.
These facts might appear on the face
of the sanction or it might be proved by
independent evidence that sanction was accorded
for prosecution after those facts had been placed
before the sanctioning authority.
The fact that
the sanctioning authority signed the sanction for
the prosecution on the file and not the formal
sanction produced in the court makes no.
material difference.
I am supported in taking
this View by . the observations made by their
Lordships of the. Supreme Court in State of
Rajasthan v. Tarachand Jain, 1973 SCC (Cri)
774 : 1973 Cri. L.J.1396.
200
The policy underlying.
Section 6 Corresponding to Section 19 (New) of
the Act of 1988 and similar sections like Section
197 of the code is that there should not be
unnecessary harassment of the public, servant.
The object as indicated above is to save the
public Servant from frivobus and unsubstantiated.
allegation.
Existence of valid sanction is pre­
requisite to the taking of cognizance of the
enumerated offences alleged to have been
committed by the public servant.
In the absence
of such sanction, the court would have no
jurisdiction to take cognizance of the offences.
Thus, a trial without a sanction renders the
proceedings ab initio void.
A trial without a
valid sanction where one is necessary under the
above
said provisions,
jurisdiction by the court.
is
a
trial without
The said observations
have been made in para 19 in the case of R.S.
■
Naik v. A.R. Antalav. A.I.R. 1984 S.C. 684 :
1984 Cri. LJ. 613...”
In Raghubir Singh v. State of Haryana19, the Supreme Court
held that “while it is true that provision for. sanction before prosecution
of public servant should not be an umbrella for protection of corrupt
19.
A.I.R. 1974, S.C. 1516 : 1974 Cri. L.J. 1062.
201
officers but a shield against reckless or malevolent harassment of officials
whose upright discharge of duties may provoke unpleasantness. and
hostility, that is an area of law reform covered, we find by the 47th
report of. the Law Commission of India”.
The Supreme Court in Mohd. Iqbab Ahmed v. State of
Andhra Pradesh20, held that the 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 prosecutions and
must therefore be strictly complied with before any prosecution can be
launched against the public servant concerned.
The Supreme Court
further held that in this case, since the prosecution sanction has been
accorded mechanically and thus it can not be considered valid and
legal.
In Bhagirathi Routrav v. State of Orissa21, the Orissia High
court held that it is well settled that where the law prescribes sanction
20.
AXIL 1979 S.C. 677 : 1979 Cri. L.J. 633.
See also M.S. Reddv v. State
Inspector of Police, A.C.B., Nellore, Cri. L.J. 1993 p. 558.
21.
1991 Cri L.J. 209 at 212.
See also Md. Sabir Hussain v. State of Orissa.
(1983) 56 Cut L.T. 288 and Pumachandra Behera v. State (1989) 68 Gut.
L.T. 625.
202
as the condition precedent to a prosecution, the court must not only be
satisfied that the required sanction has been, accorded but that the
sanctioning authority has accorded it after applying its mind to the facts
constituting the offence.
The Supreme Court in Mansukhlal Vithaldas v. State of
Gujarat22, held that the grant of sanction for the prosecution under Section
19 of the Prevention of Corruption Act, 1988 cannot be an empty
formality and an application of mind was imperative.
Punjab and
Haryana High Court in Gian Prakash Sharma v. C.B.I. Chandigarh23,
held that the sanctioning authority should apply its mind independently
to the facts and circumstances of the case and also the materials on
the record before taking an appropriate decision for granting or refusing
the sanction for prosecution.
Likewise the A.R High Court, in T
Bathaiah v. State24, held that when sanctioning authority has applied
his mind by looking into all materials placed before him, then the order
granting sanction, for prosecution is proper.
22.
1997 (7) S.C.C. 622. See also State of Bihar, v. PR Sharma, A.I.R. 1991 S.C,
1260 and State v. R.C. Anand, 2004 Cri L.T. 3121.
23.
2004 Cri. L.J. 3817.
24.
1995 Cri. L.J. 1665.
203
In an earlier case namely, Anand Gonal Gurve v. State of
Maharashtra25, where in the validity of sanction to prosecute was
challenged. The court held that when there is no evidence as to what
material was placed before sanctioning authority and also lack of evidence
as to what material was considered by the sanctioning authority while
granting sanction and under these circumstances grant of sanction is
vitiated.
B.U. Wahane, J. said26:
“There is no evidence to show that material was
placed before Shri Sathe, Conservator of Forest,
and there is also no evidence to show that what
material has been considered by Shri Sathe while
granting sanction for prosecution of the appellant
/ accused.
Therefore, the alleged sanction Exh.
236 is bad in law.
The prosecution of the
appellant / accused, therefore, being without a
valid sanction, without compliance of the Section
6 of the Act, the entire trial including the
conviction and sentence recorded against him,
is void ab initio
Further said :
“It needs mention that though the sanction for
.
prosecution
was
accorded
by
Shri
Sathe,
Conservator of Forest (EW. 14), to prosecute the
appellant
/
accused for the offence punishable
under Section 409, 420, 120 (b) of the Indian
Penal Code arid under Section 5(1) (c) (d) read
with Section 5(2) of the prevention of corruption
Act 1947 the learned trial court has framed the
charges under Section 468 read with S.34, 465
and 471 read with S.34 of the Indian Penal
Code, and also under S. 5(1) (c) read with
S.5(2) of the prevention of Corruption Act 1947.
It is thus crystal clear that no sanction was
accorded by appointing and dismissing authority,
i.e., Shri Sathe, the Conservator of Forest, under
Sections 468, 465 and 471.
Therefore, the trial
under these sections is ab initio illegal
In L.K. Advani v. Central Bureau of Investigation27. Mohd.
Shamin, J. observed that28:
"...
Now
the
question . which
falls
for
determination is as to whether the prosecution
was under an obligation to obtain a sanction
27.
1997 Cri. L.J. 2559.
28.
kL at pp. 2570 & 2571.
205
before launching the prosecution against, Shri
. V.C. Shukla.
Shri Shukla is being prosecuted
in the present case for the offences which he is
alleged to have committed during the period
from February 1990 to January 1991 as per the
charge framed against him on August 19, 1996.
Shri V.C. Shukla was a member of Parliament
from December 31, 1984 to July 26, 1989.
Thereafter he was a member of Lok Sabha from
December 2, 1989 to March 13, 1991.
The
Parliament was. constituted on June 20, 1991.
Shri V.C. Shukla was a member of Parliament
on the date of the presentation of the charge
sheet against him on January 23, 1996.
Thus
the offences alleged against Shri VC. Shukla
were
in
respect
commission
January 1991.
of acts
between
of omission
February
1990
and
and
The above said period fall within
his Tenure as a member of the Lok Sabha during
the period from December 2, 1989 to March 13,
1991 i.e., 9th Lok Sabha.
The said Lok Sabha
was dissolved on March 13, 1991.
Thus the
date on which the charge sheet was filed Shri
Shukla was no more a member of the erstwhile
Lok Sabha i.e., 9th Lok Sabha.
He was a
member of a newly Constituted House.
Hence
it can be safely concluded there from that. the
acts of omission and commission were committed
206
by him in his capacity as a member of the earlier
Lok Sabha i.e.,. the 9th Lok Sabha.
I am
therefore of the view that no sanction was
required on the date of the charge sheet i.e.,
January 23, 1996 for his prosecution in respect'
. of the acts of omission and commission alleged
to have been committed during the period from
February, 1990 to January 1991, as he was, now
a member of newly Constituted Lok Sabha [10th
Lok Sabha].”
Mohd. Shamim, J. further observed that :29
"... I am fortified in my above view by the
observations of their Lordship of the Supreme
Court as reported in K. Veeraswamy’s Cas [1991
(3) SCC 655] wherein it was observed by their
Lordship of the Supreme Court (Para 62) after
relying on the observations in S.A. Venkataraman
v. State, A.l.R. 1958 S.C. 107 : [1958 Cri. L.J.
254] that no sanction for prosecution of the
appellant under Section 6 was necessary since
he had retired from the service on attaining the
age of superannuation and was not a public
servant on the date of filing of the charge sheet.
To reproduce the exact words, their Lordship
opined....:”
29. IdL at p. 2571.
207
...“The scope of Section 6 was first
considered by this court in S.A. Venkataraman
case, where it was observed [at p. 1048] that
Section 6 of the Act must be considered with
reference to the words used in the section
independent of any constitution which may have
been placed by the decisions on the words used
in Section 197 of Cr. PC. 1973.
The court after
analysing the terms of the section further
observed [at. p. 1046] than there is nothing in
words used in Section 6(1) even remotely suggest
that previous sanction was necessary before a
court could take cognizance of the offences
mentioned therein the case of a person who had
ceased to be a public servant at the time.
The
court was asked to take cognizance, although
he had been such a person at the time, the
offence was committed...”
208
In a recent case namely Pravin Kumar v. State30, the Goa
Bench of Bombay High Court, restated that granting of Section under
Section 19, for the prosecution of Public Servant is not an empty formality
and emphasising its importance N.A., Britto, J. said31 :
There is no doubt that granting of sanction
is not an empty formality and it is essential that
the. provisions as regards the grant of sanction
should be observed completely, the object of
granting sanction being that the authority giving
the sanction should be able to consider for itself
the evidence before it comes to a conclusion that
the prosecution in the circumstances of. the case
must be sanctioned or not.
the
30.
It is necessary for
sanctioning authority . to
2005 Cri. L.J. 2714.
consider
the
See also State v. R.C. Anand, 2004 Cri. L.J. 3121;
State of Bihar v. EE Sharma, (1992) Supp. (1) S.C.C. 222; Kalpnath Rai v.
State (through C.B.I.) (1997) (8) S.C.C. 732 ; State (Anti-corruption Branch)
Govt, of N.C.T. of Delhi and another v. Dr. R.C. Ananad and another, (2004)
4A.C.E. 612.
31.
kL at p. 2719.
209
evidence before it and all the circumstances of
the case whether the sanction is required to be
given or not.
As far as this case is concerned,
the sanction has been given by under- secretary
on behalf of the president of India, in the
Ministry of Defence of Government of India.
Whether such an under Secretary was authorised
to convey the sanction under the Rules of
Business is a matter which would be required
to be gone into at the trial and not at the prima
facie stage of framing the charge.
The sanction
dated 24-9-2003 issued by order and in the name
of the president of India and signed by the
XJnder-Secretary to the Government of India in
the Ministry of Defence dated 24-9-2003 has
been produced and the same on the face of it
at the prime facie stage, has got to be considered
as a valid sanction obtained for prosecuting the
accused...”
210
3.
Essential Pre-Requisites of a valid Sanction :
The Supreme Court in Anand Gopal Gurve laid down the
following as the essential Pre-Requisities of a valid Sanction
:32
A sanction must be given by a competent authority after
perusal of record. For the prior sanction no type-design form or prescribed
form or particular set of words has been prescribed. Hence in accordance
with commonsense and the requirement of justice, all that the order of
sanction must show that all relevant material were placed before the
sanctioning authority, which has considered those materials and passed
the order as a consequence of it. The object of this sanction is nothing
more than to ensure the discouragement of frivolous, doubtful and
impolitic prosecution33.
Since appointing authority has inherent power to remove the
employee, therefore he is competent to give sanction34. The decision of
32.
Anand Gopal Gurve v. State of Maharashtra. 1992 Cri. L.J. 3064 at 3070 .
(Bom).
33.
Public Prosecutor v. G. Sadha Gopalan, A.I.R. 1953 Mad. 785.
34.
State of Maharashtra v. Rambhau Fakera Paunase. 1999 Cri. L.J.,475 at
476. (Bom).
211
Supreme Court in laswanth Singh v. State of Punjab35, is an authority
for the proposition that the sanction under the prevention of Corruption
Act is not intended to be nor is an automatic formality and it is essential
that the provisions in regard to sanction should be observed with
complete strictness.
The object of this provision is that the authority
giving the sanction should be able to considered for itself the evidence
before it comes to a conclusion that the prosecution in the circumstances
be sanctioned or forbidden and that it should be clear from the form
the sanction that the sanctioning authority considered the evidence, before
it and after a consideration of all the circumstances of the case,
sanctioned the prosecution.
In Niranian Khatua v. State of Orissa36, the court
authoritatively decided that where the terms of a sanction are as
imperative as those of Section 19 of the 1988 Act. (Old Section 6 of
the 1947 Act), a valid sanction is a condition precedent to a valid
prosecution. In Indu Bhushan Chatteriee v. State37, wherein the court
35.
1958 S.C.J. 355.
36.
1990 (2) Crimes 648 at 656 (Cri).
37.
A.I.R. 1955 Cal. 430
212
held a valid sanction means sanction given after a consideration of
relevant facts. Those facts, it.has been laid down, may appear on the
face , of the sanction itself and where they do so appear the task of
prosecution is easy.
Where they do not appear on the face of the
sanction, the prosecution has liberty of proving such facts by other
evidence but it is not liberty alone. It is also a duty because unless the
prosecution proves by reference to other evidence that sanctioning
authority had in fact applied his. mind to the relevant facts a proper
sanction cannot be made and it cannot be proved that the foundation
of prosecution had been well and truly laid.
In a subsequent case, State of Orissa v. Mrutuniava Panda38,
wherein the Supreme Court held when there is no material showing
that failure of justice occasioned due to error or irregularity in sanction,
then sanction is valid and conviction also valid.
M.K. Mukherjee, J.
said39:
38.
A.I.R. 1998 S.C. 715.
39.
Ibid: See also Panchasari Shidramappa Yeligar v. Shiggaon Taluk Shikshana
Samithi, (20001 5 Kant. L.J.174 ; M. Nagarai v. State of Karnataka. 2002
Cri. L.J. 903.
213
“On perusal of the impugned Judgement we find
that the High Court’s attention was not drawn
to the provisions of Section 465 of the code of
Criminal Procedure 1973 which expressly lays
down, inter alia, that any error or irregularity in
any sanction for the prosecution shall not be a
.
ground for reversing an order of conviction by
the appellate court unless in the opinion of that
court a failure of justice has in fact been
occasioned thereby.
The section further lays
down that in determining whether any error or
irregularity in any sanction for the prosecution
has occasioned a failure of justice, the court shall
.
.
have regard to the fact whether the objection
could and should have been raised at an earlier
stage of the proceedings.
In view of the above
provisions the High Court was required to
decide, after recording a finding that there was
some error or irregularity in the sanction, whether
such error or irregularity occasioned a failure of
justice and further whether such objection
regarding the validity of the sanction was raised
in the trial court.
Admittedly, the above point
was not raised in the trial court nor do we find
anything on record from
which it can be said
that the error or irregularity in the sanction (even
if we assume that the finding of the High Court
in this regard is correct) did occasion any failure
of justice.
In that view of the matter it must
be said that the High Court was not at all
justified in acquitting the respondent on the
214
ground that there was no valid sanction to
prosecute him.
Since on facts, the concurrent
findings of the courts below are based on proper
appreciation of evidence and supported by cogent
reasons. the judgement of the High Court has
got to be reversed...”
In State of Tamil Nadu v. Rajendran40, sanction was accorded
by the City Commissioner of Police, Madras.
commenced.
On that basis the trial
The High Court found that all the relevant materials
including the statements recorded by the Investigating Officer was not
placed for consideration before the City Commissioner of Police, Madras,
because only a report of the vigilance department was placed before
him.
The High Court came to the finding that although the personal
Assistant to the City Commissioner of Police, Madras has deposed that
proper sanction was accorded by the City Commissioner of Police after
going through the detailed report of vigilance, but the statements recorded
during the investigation was not placed before sanctioning authority and
therefore, there was no proper application of mind by sanctioning
authority, as such sanction was invalid.
40.
(1998) 9 S.C.C. 268.
215
In C.S. Krishna Murthy v. State of Karnataka41, the Supreme
Court held that the ratio is, sanction Order should speak for itself and
in case the facts do not so appear, it should be proved by leading evidence
that all the particulars were placed before the sanctioning authority for
due application of mind. In case the sanction speaks for itself then the
satisfaction of the sanctioning authority is apparent by reading the order.
In the present case, the sanction order speaks for itself that the incumbent
has to account for the assets disproportionate, to his known source of
income.
That is contained in the sanction order itself.
More so, as
pointed out, the sanctioning authority has come in the witness box as
witness No. 40 and has deposed about his application of mind and
after going through the report of Superintendent of Police, C.B.I. and
after discussing the matter with his legal department, he accorded
sanction, it is not a case that the sanction is lacking in the present
case. The view taken by the Additional Sessions- Judge is not correct
and the view taken by learned Single Judge of the High Court is justified.
The issue in Sukhdev Singh lamwal v. State of
Maharashtra42 is whether sanction accorded under old Act, 1947 can be
41,
A.I.R. 2005 S.C. 2790.
42.
2004 Cri. L.J. 4338. See also Tagan M. Seshadri v. State of Tamilnadu. A.I.R.
2002 S.C. 2399.
216
treated as sanction under New Act,. 1988.
held that there is not a valid sanction.
The Bombay High Court
Hence framing of charge and
conduct of trial under New Act, 1988 vitiates the trial and therefore .
conviction and sentence imposed upon the accused is liable to be set
aside.
D.G! Deshpande, J. observed that43:
"... where the sanctioning authority clearly and
specifically
admits
that. the
sanction
accorded under the old Act of 1947.
was
If that is
so, reference to the new Act of 1988 to the
sanction is of no help because the sanction is
the outcome of application of mind of the
sanctioning authority and if the sanctioning
authority on applying it’s mind comes to a
conclusion and grants sanction to prosecute the
appellant under the old Act, the prosecution
cannot be permitted to argue that the sanction
should be taken as one under the new Act.
The
act of giving sanction is not an act, mechanical
or stereo type act,-and therefor, sanction under
the Act of 1947 cannot be taken or treated as
sanction under the new Act 1988...”
43.
Id* at p. 4341.
217
4.
Right to hearing and according sanction to
prosecute :
In Hariraman v. State44,
wherein the Madras High Court
held that opportunity , of hearing before the sanction is granted is not
required. Whereas the Bombay High Court in a case namely State of
Maharashtra v. R.K. Porker45, held that where sanction is to be given
for prosecution of the accused for possession of property disproportionate
to his known source of. income, then the accused must be given an.
opportunity to explain sources of his assets, before sanction for the
prosecution is given.
The Supreme Court in State of Maharashtra v. Ishwar Piraii
Kalpatri46 following Deepak Chowdarv47. held that there is no provision
in law otherwise which makes it obligatory of an opportunity of being
heard to be given to person against whom report of a case under Section
44.
1995 Cri. L.J. 3527 at 3533 (Mad).
See also Babu Ahmed v. State.
1985 Cri L.J. N.O.C. 78 (Delhi).
45.
1995 Cri. L.J. 2521 at 2522 (Bom).
46.
A.I.R. 1996 S.C. 722 : 1996 Cri L.J. 1127. •
47.
Supdt., of Police (C.B.I.) v. Deepak Chowdarv. A.I.R. 1996 S.C. 186.
218
5(1) (e) of the Prevention of Corruption Act, 1947 (corresponding to
Section 13(1) (e) of the Act of 1988) is to be lodged.
In fact the
opportunity which is to be afforded, to the delinquent officer under Section
5(1) (e) to satisfactorily explaining about his assets and resources is
before the court, when the trial begins and not at an earlier stage. Thus
the finding that principles of natural Justice had been violated, as no
opportunity was given before the registration of the case, would be clearly
unwarranted.
In State M.R v. Dr. Krishan Chandra Saksena48 the. Supreme
Court held that it is now well settled that at the stage of granting of
sanction the accused need not be heard.
Criminal proceedings should
not be quashed before the stage of trial on a mere ground of invalid
sanction. If in an evidence the sanction is found invalid, the proceedings
would result in favour of the accused.
It is submitted that the veiw of the Supreme Court that a
delinquent official is not legally entitled for an opportunity of hearing at
the stage of grant of sanction for prosecution requires reconsideration
and a second look.
48.
The denial of opportunity of-hearing to the
(1997) 1 Crimes 4 (S.C.)
219
delinquent is not only against the legal maxim “Audi Alterm Partem”,
which envisages, that nobody should be unheard, hut also runs counter
to the principles of natural. Justice which are foundations of Rule of
Law. If the delinquent official succeeds to produce cogent and clinching
evidence before the concerned competent authority, it may not allow
the prosecution and the public servant thus spared the mental agony of
a criminal trial. It may be pointed out that the object underlying the
opportunity of hearing at the stage of prosecution sanction obviously
help the competent authority to decide with an open mind, whether it
is necessary to allow prosecution. If it decides not to allow prosecution
the matter ends there, which saves much time of the court as also
human effort and cost. Once the immediate authority does not accord
sanction, the Superior authority should refrain from interfering in the
discretion of the former unless there are good and valid reasons to do
so.
Such reasons of not agreeing with the immediate sanctioning
authority, in all fairness, should be recorded in the sanction order itself
for the appreciation of the trial court.
This in fact save honest and
innocent government servants from harassment and trauma of false
accusation49.
49.
Som Dutt Vasudeya, “Is a delinquent legally entitled for hearing, at the
stage of grant of sanction by the competent authority for. his prosecution in
a case under the prevention of corruption Act, 1988?”, Cri L.J. 2004 Journal
p.215 at p. 218.
220
5.
Burden of proving the requisite Sanction :
A Sanction order for the Prosecution of a Public Servant, is.
a public document, falling under Section. 74 o'f. the Indian Evidence
Act.
Hence it can be proved either filing the original or its certified
copy, in accordance with the provisions of Section 77 of the Indian
Evidence Act. The burden of proving the requisite sanction lies on the
prosecution. .
The Supreme Court had an occasion to considered this issue
in Madan Mohan v. State of Uttar Pradesh50, wherein the Supreme
Court held that the Burden of proving the requisite sanction lies on the
prosecution and such burden includes proof that the sanctioning authority
had given the sanction in reference to facts on which the proposed
prosecution was to be based and added that these facts may appear on
the face of the sanction or may be proved by extraneous evidence that
the material facts constituting the offence have been placed before the
sanctioning authority. Where it is not done, the sanction will be defective
or invalid and it cannot confer jurisdiction upon the court to try the
case. In Madhab Patnaik v. The State51, the court held that where the
facts of the case have riot been clearly referred to on the face of the
sanction, the prosecution will have to prove by extraneous evidence that
50.
A.I.R., 1954 S.C. 637.
51.
A.I.R. 1955 Pat. 317.
221
all the facts necessary to enable to sanctioning authority to decide
whether sanction should be accorded or not were placed before him.
Then the sanction has fulfilled the requirements of law.
In Konsam
Tharongou Singh v. The Union of Territory of Manipur52, the court held
that when the facts constituting the offence were neither referred to on
the face of the sanction nor is it proved by extraneous evidence that
they were placed before the sanctioning authority and the order of
sanction indicates that the sanctioning authority granted the sanction of
prosecution on the belief that grant of sanction by him was mere formality
and that he could safely relive on the opinion of the police that it is a
fit case for prosecution then such a sanction was invalide.
Likewise,
the Supreme Court in The State of Punjab v. M.L. Puri53, the validity
of a sanction accorded by the Chief Minister has to be decided both on
the basis whether the Chief Minister had seen the case file and also on
the basis whether the Chief Secretary could be said to have signed the
sanction order.
Where the materials placed before the court did not
show that the Chief Minister had seen the case file, it was held by the
Supreme Court that the sanction was not properly proved.
Further the Supreme Court in State of Rajastan v. Tarachand
Jain54, held that : .
52.
1971 Cri. L.J. 802.
53.
1975 Cri. L.J. 1425.
54.
A.I.R. 1973 S.C. 2113.
222
"... The burden of proof that the requisite
sanction had been obtained rests. upon the
prosecution.
Such burden includes proof that
the sanctioning authority. had given the sanction
in reference to the facts on which the proposed
prosecution was to be based. . These facts might
appear on the face of the sanction or it might
be proved by independent evidence that sanction
was accorded for prosecution after these facts had
. been placed before the sanctioning authority...”.
A valid sanction is regarded as a condition precedent to a
valid prosecution of a public servant under the Act of 198855.
The
burden of proving that the requisite sanction for the prosecution has
been obtained from the competent authority rests on the prosecution
and such burden includes proof that the sanctioning authority had given
the sanction in reference to the facts , on which the proposed prosecution
was to be based.
It is plain that the sanction must be correlated to
facts on which the prosecution is to be launched. Where the prosecution
instead of proving what facts were placed before the sanctioning authority
withholds them from the court, then sanction must be hold to be
defective and an invalid sanction cannot confer Jurisdiction upon the
55.
Ali Hasan v. State of U.R. 1991(1) Crimes 406 at 410.
223
court to try the case56. However it is not necessary for the prosecution
to examine the sanctioning authority in the witness Box57. Though it is
not necessary, to examine the sanctioning authority in the, witness box,
on account of Section 74 of Indian Evidence Act58 in every case but in
56.
Gokulchand Dwarkadas Morarka v. King. A.I.R. 1948 EC. 82.
See also
State of Raiastan v. Tarachand Tain. (1973) 2 S.C. W.R. 262.
57.
Vishwanath v. State of Maharashtra. (1995) 2 Mah. L.R. 689 the Bombay
High Court held that the sanction order in the present case does show a
clear-cut application of mind, it will be open for this court to accept the
said sanction order. One look at the sanction order will show that facts
constituting the offence have been properly written out there and the
authority was none else but a District and Sessions Judge himself has
choosen to grant the sanction. That by itself is sufficient to hold that the
sanction was given with an adequate application of mind. Hence failure
to examine sanctioning authority not fatal to the prosecution case.
58.
Section 74 of Indian Evidence Act.: Public Documents : The following
documents are public documents
(1)
Documents forming the acts or records, of the Acts (i)
of the Sovereign authority ;
(ii)
of official bodies and tribunals ; and
(iii)
of public officers, legislative, Judicial and executive, of any part
of India or of the commonwealth, or of a foreign country.
(2)
Public records kept in any state of private documents.
Case :Banamali Das v. Raiendra Chandra. A.I.R. 1975. S.C. 1863.
S.C.
held Section 74 provides that documents forming the Acts or records
of the acts of Public Officers are Public Documents.
224
appropriate cases where sanction does not disclose it that it was given
after perusal of entire evidence on record, prosecution if fails to examine
such authority it may vitiate trial59.
Hence the burden of. proof is on
the. prosecution to show that the sanction accorded in a given case is
valid in law60.
B.
ROLE OF SANCTION AUTHORITY61 :
Effective, speedy and successful prosecution is the need of
the hour. But it must also be borne in mind that there should not be
unnecessary harassment of innocent public servant.
The reason why
sanction has been made essential for prosecution of a public servant is
to protect him from the harassment, which he may have to undergo at
the behest of the disgruntled person..
59.
Shivachallappa v. State of Maharashtra. 1993 Mah. L.J. 573 at 578. Same
view is expressed in Chitarania T. Mirke v. State of Maharashtra. 1993 Mah.
L.J. 602 at 605.
60.
N.M. Raiendran v. States 1996(3) Crimes 32.
See also Suraimal v. State
(Delhi Administration). 1980 M.L.J. (Cri.) 73 S.C.; Iqbal Ahmed v. State of
A.P.. A.I.R. 1979 S.C. 677; State of Tamilnadu v. Damodaran. 1992
Cri. L.J. 522 S.C.
61.
I.A. Ansari, Effective and Successful Prosecution of Corruption Cases”,
Cri L.J. (2000) p. 132 at p. 134.
225
There are instances, where prosecution has been launched
with due sanction, but. the case ends in discharge.
This shows public
money was wasted on a trial, which could have been avoided if the
sanctioning authority had applied its mind judiciously and if he had
the benefit of proper legal advice of a competent prosecution counsel.
There is yet another aspect of the matter which needs some
attention. Many a time cases remain pending not only for months but
for years together for the purpose of granting sanction. The sanctioning
authority shall be vigilant enough to. dispose of the matter either by
granting sanction or refusing to grant the same. If possible appropriate
provisions may be made in law that if the sanctioning authority does
not grant sanction after a prescribed period, then the sanction shall be
deemed to have been rejected.
A close scrutiny of Section 19 of the Prevention of
Corruption Act, 1988 shows that no time'limit is prescribed for granting
of sanction order. The Supreme Court in order to fill the lacunae, for
the first time in Vineet Narain v. Union of India62, popularly known as
“Hawala case”, held that sanction order is to be passed within 3 months.
J.S. Verma, C.J.I. observed that63:
"... Time limit of three months for grant of
sanction for prosecution must be strictly adhered .
:
to.
However, additional time- of one month may ­
be allowed where , consultation is required with
the Attorney General or any other officer in the
A.G.’s Office- ...”
In l.V. Reddy v. State64, the issue before the Andhra PradeshHigh Court for consideration is about the obtaining of sanction beyond
the period stipulated i.e. 3 months by the Supreme' Court in Vineet
Narain’s case65 and also beyond the period stipulated by the Central
Vigilance Commissioner pursuant to the Supreme Court direction the
Vigilance Commissioner fixed time frame of one month for granting
sanction by way of departmental instructions. The High Court of Andhra
Pradesh held that for violation of departmental instructions accused
cannot complain.
Consequently failure to issue sanction within time
frame of one month does not render sanction order void or invalid.
S.R.K. Prasad, J. observed that66:
64.
2003 Cri. L.J. 540.
65.
Supra n. 62.
66.
Id. at p.546.
227
It is only the Supreme Court that fixed the
time limit for granting of sanction order: in the
aforesaid decision.. Pursuant to the same, the
Vigilance Commissioner has fixed his own time
limit for issuing sanction orders.
The statute
does not contemplate of issuing sanction orders
within a particular period of time. At best, the
circulars and directions issued by the Vigilance
Commissioner only amount to departmental
instruction given to them.
For violation of
departmental
accused
instructions,
cannot,
complain if a departmental officer failed to
attend to his duty or does not perform his duty
within the stipulated time, he is liable for the
departmental action.
When statute does not
prescribe a time limit for sanction orders, the
accused
cannot
department rules.
take
advantage
of
the
He can complain against the
officers by their lethargy and neglect of duty,
which may lead to initiation of departmental
enquiry
against
punishment.
them
and
consequential
When Supreme Court wanted three
months time to be fixed for issuing the sanction
orders, the Vigilance Commissioner fixed only
one month time.
The moment the Vigilance
228
Commissioner fixed the time, the directions of
the Supreme Court will not be in operation, as
necessary rules are framed for' fixing the time
limit by the Department.
In that view of the
matter, the Supreme Court directives hold good
only up to the time the lanunae is filled up by
the Department by framing the rules.
The
directions given by the Vigilance Commissioner
have to be viewed and considered in that angle. .
Non fixing of the time in the statute for issuing
sanction orders will only lead to one conclusion.
The failure to issue sanction orders within the
time frame does not render the sanction orders
invalid or void..”
The Supreme Court had an occasion to discuss this issue,
in Mansukhlal Vithaldas Chauhan v. State of Guiarat67, where in this
case the Supreme Court observed normally, when the sanction is held
to be bad, the case is remitted back to the authority for re-consideration
of the matter and to pass a fresh order of the sanction.
67.
(1997) 3 Crimes 301 (S.C.).
229
1.
Whether the Court has the power to take away
the discretion of sanctioning authority :
This issue came before the Supreme Court in Mansukhalal
Vithaldas Chauhari v. State of Guiarat68, the Supreme Court held that
the Section 19 of the Prevention of Corruption Act, 1988 has given the
sanctioning authority, the discretion to grant the sanction or not to
sanction for the prosecution of accused. Such discretion cannot be taken
away by the High Court.
The Supreme Court further held that the
sanctioning authority has to apply its own independent mind for the
generation of genuine satisfaction, whether sanction for prosecution has
to be granted or not ? The Supreme Court further ruled that the High
Courts should not usurp the discretion of the public authority under the
law to take a decision in this regard.
The Supreme- Court made it
clear that the High Courts do not have the power to direct the sanctioning
authority to accord necessary approval for prosecution but they could
certainly quash the arbitrary order and issue a direction to the authority
to exercise its own discretion in accordance with law.
68. Ibid.,
230
2.
Authority to grant sanction - Authority competent
to remove :
Who has to grant sanction ? Authority competent to remove
should grant sanction;
To start with, it is necessary to discuss the
meaning of the words “to remove him from his office” appearing in
Section 6(2) of the 1947 Act, now in Section 19(2) of the 1988 Act.
The words “to remove him from his office’ are significant
and would clearly show that the authority contemplated therein is the
one competent to remove that public servant from his office and not
only public servant holding the office held by the accused. Section 6 of
the 1947 Act cannot override the provisions of the Constitution and
Consequently, sub-section (2) thereof can be made applicable to only
such cases where it can be ascertained with reasonable certainty as to
who had actually appointed the accused person, or where by change in
rules, the authority who had actually appointed him was no longer
competent to remove,him from his office69.
69.
.
Baijnath v. The State. A.I.R. 1956 Bhopal 36 at pp. 38 to 40.
231
A sanction accorded by an authority not competent to do
so is no sanction in the eye o£ law and such a defect is not a mere
technical defect, but goes to the very root of the matter vitiating the
entire proceedings70.
To grant sanction against a Chief Minister is
exclusive function of the Governor and none else71.
Section 6(1) (c) stipulated that the removing authority will
be the sanctioning authority.
In view of Article 311(1)72 of the
Constitution, the removing authority cannot be subordinate in rank to
the appointing authority.
Answering the question whether the removing authority can
be higher in rank to the appointing authority, Misra, J. held in Sampuran
Singh v. State of Punjab73.
70.
Union of India v. A'.D. Bali. 1978 Cri. L.J. NOC 14.
71.
T. Tavalalitha v. Dr. M. Chenna Reddy. 1995 (2) Mad. L.J. p. 187.
. 72.
Article 311 (1). No person who is a member of a civil service of the union
or an all India service of a State or holds a civil post under the union or a
state shall be dismissed or removed by an authority, subordinate to that by
which he was appointed,
73.
A.I.R. 1982 S.C. 1407.
232
“There is no quarrel with the proposition of law
laid down in the case, but the. question for
determination here is who is the sanctioning
authority within the meaning of Section 6(1) (c)
of the 1.947 Act. Section 6(1)(c) of the said Act
stipulates that removing authority will be the
...
sanctioning authority. So by necessary implication
the removing authority may be higher in- rank
to the appointing authority74”.
The vital issues regarding sanction under Section 6 of the
1947 Act are decided in R.S. Navak. v. A.R. Antulav75. The first issue
is whether sanction for prosecution is necessary in a case where the
accused is ceased to be a public servant on the date of taking cognizance.
The court held that when the offence is alleged to have been committed,
the accused was a public servant, when he has ceased to be a public
servant, no sanction would be necessary for. taking cognizance of the
offence against, him.
The . court made it clear that if the accused has
ceased to be a public servant, at the time when the court is called upon
to take cognizance of the offence alleged to have been committed by
him as a public servant, section 6 of the 1947 Act is . not attracted76.
74.. IcL p. 1408. .
75.
.
A.I.R. 1984 S.C. 684. See also S.A. Venkataratnam v. State. A;I.R. 1958
S.C. 107.
76.
IcL P- 694.
233
The Supreme Court had an opportunity to decide another
vital issue, where accused is holding more than one public offices, whether
prosecution for sanction is to be obtained from the authority competent
to remove, accused, from the office which the accused is allegedly misused
or abused or sanction is to be obtained from all the competent authorities.
Deciding this issue Desai, J. said :
upon a true construction of Section 6, it is
implict therein that sanction of that competent
authority alone would be necessary which is
competent to remove the public servant from the
office which he is alleged to have misused or
abused for corrupt motive and for which a
prosecution is intended to be launched against
him77”.
In T. Guruswami v. State78, an offence is alleged to have
been committed by the accused / appellant while employed in N.MD.C.,
a Government of India undertaking. Subsequently accused resigned from
N.M.D.C. and joined a post under Director General of Geological Survey
of India.
Regarding proper authority to sanction for prosecution,
Ramanujula Naidu, J. of Andhra Pradesh High Court held :
77.
IcL P- 698.
78.
1979 Cri. L.J. NOC 204.
234
"... N.M.D.C. which would have been competent
to remove. accused form service at the time when
. the offence was alleged to have been committed
and not Director General of Geological Survey79.”
The same question arose on similar facts in V.K. Sharma v. Delhi
Adminsitration80. The appellant was a quasi permanent lower division
clerk of the Central Secretariat Clerical Service, Grade II and was borne
on the Cadre of Community Development and Co-operation. EW. Iyer
was the Deputy Secretary of the Department.
But the appellant has
been at the time of committing the alleged offence of accepting Rs. 80/
- as bribe when he was working in the post of Rationing Inspector having
been appointed to that post some time back.
The issue involved in
this case was whether the sanction obtained by the prosecution from the
Deputy Secretary of that department was valid or not or whether sanction
was to be obtained from the Chief Controller of the Rationing. Uphelding
the judgement of High Court, the Supreme Court held :
“The appellant was an employee of the Central ■.
Secretariat at the time of commission of offence
but was appointed to the temporary post of
79.
IbkL.
‘
80.
A.I.R. 19.75 S.C. 899.
-
:
235
Inspector Rationing .... Even assuming that the
appellant did not come
to
the
Rationing
Department as a loanee from the Central
Secretariat, there is no difficulty in appreciating
;
. . .
.
that he must have . come temporarily to the
Rationing Department with his: lien on his post
in the Central Secretariat.
While dismissing the
appeal held that P.W. Iyer was the competent
authority to accord sanction for the prosecution
of the case81.”
If any doubt arises whether the sanction is to be given by
the Central Government or State Government or any other authority, it
shall be given by appropriate Government or the authority which was
competent to remove that person from the office.
In RV Narasimha
Rao v. State (C.B.I. /S.RE.)82 in this case the Supreme Court held that
an authority competent to remove a public servant necessarily
contemplates an authority competent to appoint him. The authority to
remove a Member of Parliament is the President of India, under the
provisions of Article 103 of the Constitution of India83. In a subsequent
81.
Id, at p. 901.
82.
(1998) 4 Supreme Today 5.
83.
Article 103 of the Constitution of India : Decision on questions as to
disqualifications of members :
(1)
If any question arises as to whether- a member of either House of
Parliament has become subject to any of the disqualifications
236
case, Superintendent of Police v. Sonam Wangdi84, the issue before the
court is who is the competent authority to grant sanction for prosecution
i.e., either Central Government or State Government.? The court held
tht the respondent, Sonam Wangdi, on the date of taking cognizance
was employed in connection with the affairs of union and was. not
removable from his office except by the Central Government hence the
competent authority to grant sanction to prosecute is Central
Government. R.K. Patra, J. of Sikkim High Court observed that85:.
"... At this stage, let me consider whether
sub-section (2) of Section 19 of the Act which
lays down that for any reason if any doubt arises
as to whether the previous sanction are required
under sub-section (2) should be given by the
Central Government or the State Government
such sanction shall be given by that government
which would have been competent to remove the
(f.n. 83 Contd..)
. mentioned in clause (1) of Article 102, the question, shall be referred .
for the decision of the President and his decision shall be final
(2). . Before giving any decision on any such question, the President shall
obtain the opinion of the Election' Commission and shall act according.
to such opinion.
84. . 2004 Cri. L.J. 4349 (Sikkim).
85.
IcL at p. 4352.
237
public servant from his office at the time when
the offence was alleged to have been committed
would at all be applicable to the case at hand.
From the above, it may be seen that it is hot
the case of the prosecution that during the period
(from 1st September, 1976 to 8th March, 1978)
when the respondent was a State Government
employee,
he
acquired
assets
which were
disproportionate to his known sources of income
for which he could , not satisfactorily account.
The gravamen of the charge is that on 30th
September, 1994 (the end of the check, period)
he
was
found
in
possession
of
assets
disproportionate to his known sources of income
for which he could not satisfactorily account.
In
other words, the respondent on 30th September,
1994 is . alleged to have committed the offence
under Section 13(1) (e) of the Act and he being
still in service is removable from his office only
with the sanction of the Central Government and
therefore,, that government (Central Government)
is the competent authority to give sanction.
The
allegations on which the . prosecution case is
based are clear and unambiguous and in the
facts and circumstances there being no doubt as
238
to the authority which is competent to sanction
. prosecution, there is no need to take resort to
sub ^section (2) of Section 19 of the Act.
It has
. been held by the Supreme Court in Mansukhlal
Vithaldas Chauhan v. State of Guiarat. 1997
Cri. L.j. 4059 (1997 Cri. L.J.4059) that
subjection (2) of Section . 6 of the 1947 Act
(corresponding to Section- 19(2) of the Act) is
clarificatory in nature in as much as it provides
that if - any doubt arises whether the sanction is
to be given by the Central- Government or the
State Government or any other authority, it shall
be given by the appropriate Government or the
authority, which was competent to remove that
person from the office on the date on which the
offence was. committed..”
R.K. Patra, J. further held that86:
"... In view of the fact that when the court was
called upon to take cognizance of the offence,
the respondent was employed in connection with
86. ,]cL at p. 4353. See also S.K. Bhatta v. C.B.I. 2004 Cri. L.J.,4730 (Delhi);
State of Karnataka v. C.S. Krishna Murthv, 2004 Cri. L.J. 3440 (Kant).
239
the affairs of the union and was not removable
from his office except by or by sanction of the
Central Government, in any considered opinion
the competent authority to grant sanction to
prosecute him under Section 13(1) (e) of the Act
is the Central Government and that authority
has rightly accorded sanction...”
In Section 19 of the 1988 Act (New Act) except sub-sections
(3) and (4) which are. new, there is no other change.
Now sanction
under Section 19 of the 1988 Act, cannot be challenged in any court,
unless failure of Justice has, in fact, occasioned and unless the objection,
if possible has been raised at an earlier stage in the proceedings.
Not
only this no proceedings can be stayed even unless in the opinion of the
court any failure of Justice has occasioned.
C.
SANCTION UNDER SECTION 19 OF THE ACT [OLD
SECTION- 6] VIS-A-VIS SECTION 197, Cr.P.C. 1973:
The basic difference between sanction under Section 197 of
Cr.RC. 1973 and .Section 19 of the Act of 1988 [Old Section 6] is as
follows : to attract sanction under Section 197 of Cr.RC. the alleged
240
offence is to be committed while acting or purporting to act in discharge
of his official duty i.e., when the act complained of is integrally connected
with the discharge of his, official, duty.
However the Court in Amrik Singh v. State of Pepsu87 held
that :
.
It is not every offence committed by a public
servant that requires sanction for prosecution
under Section 197(1) of Cr.P.C. nor even every
act done by him while he is actually engaged in
the performance of his official duties.
But if
the act complained of is directly concerned with
his official duties so that... it could be claimed
to have been done by virtue of his office, then
sanction would be necessary and that would be
so, irrespective of whether it was in fact, a proper
discharge of his duties, because that would really
be a matter of defence on the merits, which
87.
A.I.R. 1955 S.C. 309.
241
would have to be investigated at the trial and
could not arise at the stage of the grant of
sanction...,”88
Relying on Amrik Singh’s Case the court in Bhagwan Prasad
Srivastava v. N.R Mishra89 held that there was nothing to show that
this act was a part of the official duty of the civil surgeon and that no
sanction was required under Section 197 Cr.EC. for prosecution of the
civil surgeon90. In subsequent case the court quite categorically reiterated
that existence of valid sanction is a pre-requisite, to the taking of the
cognizance of the offence91.
In the absence of such sanction the court
would have no Jurisdiction to take the cognizance of the offence.
So
trial without valid sanction under Section 6 [Now Section 19] is a trial
without Jurisdiction.
88.
Id* p. 312.
See also A.D. Parthasarathv v. T.K. Khurdukar. 1975 Cri. L.J.
1290 (A.RH.C.); Bakshish Singh v. Gurmi Kaur (1987) 4 S.C.C. 613; Madari
Singh v. PB. Basuk, 1982 Cri. L.J. 1203.
89.
A.I.R. 1970 S.C. 1661. In this case a Civil Assistant Surgeon had filed a
complaint against another civil surgeon that while in operation theatre the
civil surgeon, appellant abused the complainant, respondent, before patients
and hospital staff and ordered, the hospital cook to “turn out this badmash”
and the cook actually pushed out the complainant.:
90.
IcLj, p. 1664. See also Pukhrai v. State of Raiasthan, A.I.R. 1973 S.C. 2591. .
91. ,R.S. Navak v. A.R. Antulav. 1984 2 S.C.C. 183 at p. 201. See also Madhya
Pradesh Special Police Establishment v. State. 2003 Cri.L.J. 4610.
242
1.
Distinction between Section 19 (old Section 6) of
the Act and Section 197 Criminal Procedure
.
Code92 :
:
Two major changes have been introduced by Section 197,
Cr.EC.
The first of these changes is that while under Section 197,
Cr.EC. sanction of the Central Government or the State Government,
as the case may be, was only necessary for the prosecution of public
servants who were not removable from their offices save with the sanction
of Central Government or the State Government respectively, no such
qualification is contained in Section 19 (old Section 6) in which the
words used are “committed by a public servant”.
Thus under the
Criminal Frocedure Code, no sanction was ever required to prosecute a
public servant removable by lesser authority than the State or Central
Government, whereas now under Section 19 (old Section 6) of the Act
the sanction of the appropriate authority is necessary for the prosecution
of any public servant however subordinate, allowed to have committed
an offence under Sections 7 or 11 or 12 (old Sections 161 or Section
165 or Section 165-A Indian Fenal Code or under Section 5 of the
92.
R.B. Sethi and R.L. Anand’s, The Prevention of Corruption Act, 1988 and
Accomplice. (8th Edn. 1997), pp. 492 & 493.7
243
Prevention of Corruption Act, 1947).
The second change is that
introduced by the omission in Section 19 (old Section 6) of the Act,
the words appearing in. Section 197, “while acting or purporting to act
in discharge of his official duty”. This omission appears to be deliberate
and to have been made in consequence of the decisions of various High
Courts and the Fedaral Court to the effect that an officer who had
accepted a bribe or embezzled Government property was neither acting
nor purporting to act in the discharge of his official duty, and that
therefore, no sanction for his prosecution was necessary. The sanction
of appropriate authority under Section 19 [old Section 6] of the Act is
therefore, now necessary for the prosecution of any public servant under
the Act93, irrespective of the question whether the public servant was
acting or purporting to act in the discharge of his official duty94.
In State of Bihar v. RP. Sharma95.. the Supreme Court
observed that96:
93.
State v. Gurucharam Singh. A.I.R. 1952 Pun} 89.
94.
Gruru Swamv v. State TSpecial Police Establishment!, (1979) 1 Andh. Pra.
L.J. 326.
' '
95.
1991 Cri. L.J. 1438.
96.
IcL at p; 1450.
244
“...The sanction under Section 197, Cr.P.C. is
not an. empty formality.
It is essential that the
provisions therein are to be observed with
complete strictness.
The objects of obtaining
sanction is that the authorities concerned should
be able, to consider for itself the material before
the investigating officer comes to the conclusion
that the prosecution in the circumstances be
sanctioned or forbidden.
To comply with the
provisions of Section 197 Cr.P.C. it must be
proved that the sanction was given in respect of
the facts constituting the offence charged.
It is
desirable that the facts should be referred to on
the face of the sanction.
Section 197 does not
require the sanction to be in any particular form.
If the facts constituting the offence charged are
not shown on the face of sanction, it is open to
the prosecution, if challenged to prove before the
court that these facts were placed before the
sanctioning authority.
It should be clear from
the form of sanction that the sanctioning
authority considered the relevant material placed
before it. and after a consideration of all the
circumstances of the case, it sanctioned the
prosecution...”.
...
245
In R- Balakrishna Pillai v. State of Kerala97, learned
Chief Justice Ahmadi has referred to the Law Commission Report which
suggested an amendment to Section 197 of the code. The observation
of the Law Commission in paragraph 15 of 123 of its Report read thus :
“It appears to us that protection under the section is needed
as much after retirement of the public servant as before retirement. The
protection afforded by the section would be rendered illusory if it were
open to a private person harbouring a grievance to wait until the public
servant ceased to hold his official position, and then to lodge a complaint.
The ultimate justification for the protection conferred by Section 197 is
97.
(1996) 1 S.C.C. 478. The Supreme Court while disposing this case observed
that a minister of a state is paid from its public exchequer, he is paid , for
doing the duty entrusted to him as a minister and, therefore, on the analogy
of the observation relating to the Chief Minister, as made, by a constitutional
Bench of the Supreme Court in M. Karunanidhi v. Union of India 1979 (3)
S.C.R. 254, wherein it was held that a Chief Minister was a public servant
with in the meaning of Section 21 of the Indian Penal Code and Section
197 of the code of Criminal Procedure, 1973. Therefore like that of Chief
Minister, the minister must also be held to a public servant and hence he is
entitled for the protection, under Section 197 of the Code. See also Namdeo
Kashinath & Another v. H.G. Vartak & Another. A.I.R. 1970 Bombay 385;
Hariharaprasad v. State of Bihar. 1972 Cri.L.j. 707; B. Saha & Others v.
M.S. Kochar. 1979 (4) S.C.C. 177.
246
the public interest in seeing that, official acts do not lead to needless or
vexatious prosecutions. It should be left to the Government to determine
from that point of view the question of the. expediency of prosecuting
any public servant”. Their Lordship after referring to the above Report
have observed : “It was in pursuance of this observation that the
expression ‘was’ came to be employed after the expression ‘is’ to make
the sanction applicable even in cases where a retired public servant is
sought to be prosecuted.”
In State through Anti-Corruption Bureau. Government of
Maharashtra. Bombay v. Krishan Chand Khushalchand-Iagtiani98. the
Supreme Court held that it must be remembered that the object of
Section 6(1)(c) of the 1947 Act [Now Section 19 of the 1988 Act] or
for that matter Section 197 of. the Criminal Procedure Code 1973 is
that there should be no unnecessary harassment of a public- servant,
the idea is to save the public servant from the harassment which may
be caused to him if each and every aggrieved or disgruntled person is
allowed to institute a criminal complaint against him.
The protection
is no absolute or unqualified, if the authority competent to remove such
98.
(1996) 4 S.C.C. 472 at p. 478.
247
public servant accords previous sanction, such prosecution can be
instituted and proceeded with. The law presumes and the court must
also presume until the contrary is established that such authority will
act fairly and objectively and will accord sanction only where- he is
satisfied that the charges against the public servant requires to be
enquired into by a court. The authority is presumed to, and expected
to, act consistent with public interest and the interest of law both of
which demand that while a public servant be not subjected to
harassment, genuine charges and allegations should be allowed to be
examined by the courts.
Both the considerations aforesaid should be
present in the mind of the authority while deciding the question of
grant of previous sanction required by Section 6(1) (c) of the 1947 [Now
Section 19 of the 1988 Act] of the Act or, for that matter, Section 197
of the Criminal Procedure Code, 1973.
2.
Object of Section 197 of Cr.P.C.99:
Section 197 creates a bar against frivolous proceedings. Even
before, such criminal proceedings are launched, it is considered proper to
obtain , the opinion of superior authority.
99.
Section 197 says, “when a.
Buddhi Kota Subbarao, “Sanction given to prosecute or persecute?”, The
Hindu, July Sth, 1997 (open page) p. 25.
248
public- servant is accused of any offence alleged to have been committed
by him while acting or purporting to act in the discharge of his official
duty, no court shall take cognisance of such offence except with the
previous sanction” of the Central Government or the State Government
as the case may be. The sanction of the Central Government or the
State Government is necessary, when three conditions are satisfied : (a)
The accused must be a judge, magistrate or public servant (b) The
accused must be a public servant removable from his office only with
the sanction of the State Government or Central Government and (c)
He must be accused of an offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official
duties.
It is Only when all the three criteria are satisfied that the
applicability of Section 197 will comes in.
It is only then the ban
imposed on the court from taking cognisance without a valid sanction
from the authority concerned comes into operation. The fact that the
accused is a public servant is not sufficient to attract the provisions of
Section 197. Thus, whether sanction is required in a particular case is
a question of fact.
On. the other hand, whether. a person is a public
Servant is a mixed question of law and fact and it requires evidence for
its determination. The term “office” occurring in Section 197(1) should
not be construed as a private office, but a public office.
249
Against false, frivolous and mala fide prosecutions, there
are two types of safeguards,
One originate in the fundamental rights
guaranteed in the Constitution and the other from the mandatory,
procedures prescribed in the Criminal Procedure Code, and the Special
Acts. For instance, the Official Secrets Act, 1923 and the Atomic Energy
Act, 1962. Courts are not permitted to take cognisance of an. offence,
until the mandatory procedures prescribed by the law . are complied with.
What the police should and should not do at the time of investigation,
arrest, detention and framing of charges, are also prescribed in the
Criminal Procedure Code and the Special Acts.
Unfortunately, these
safeguards do not work with equal effectiveness, for the resourceful and
the resourceless.
Sanction to prosecute a public servant is an additional
safeguard provided to public servants. The Prime Minister,. the ChiefMinister and the Ministers of the Union and State. Cabinet are
considered public servants. The Public Servants, who are in the service
and pay of the Government, or exercising various public functions, have
many exclusive privileges. There are several offences which can only be
committed by the public servants.
However, the larger interest of the
efficiency of state administration demands that, public servants should
250
be free to perform their official duty fearlessly and undeterred by any
apprehension of their possible prosecution at the instance of any person
to whom annoyance, of injury may have been caused by the legitimate
acts done in the discharge of their official duties.
There is, therefore,
need to give protection to public servants against frivolous, vexatious or
false prosecution for offence alleged to have been committed by them,
while discharging their official duties.
Such a protection is provided
through the provisions of. Section 197 of the Criminal Procedure Code.
The object of this legal provision is to enable the more
important categories of Public Servants performing onerous and responsible
functions to act fearlessly by protecting them from false, vexations or
mala fide prosecutions, says the Law Commission Report, also100.
In S.C. Narairi v. Union of India101, the Supreme Court
quashed a prosection which was pending for 14 years without going into
question of requirement of sanction, under Section 197 of the code of
Criminal Procedure, 1973.
100. See 41st Law Commission Report, p. 120, Para 15.123.
101. ' 1992 Cri. L.J. 560 (S.C.).
251
D.
BRIEF SUMMARY OF THE CHAPTER :
There are many precautions necessary to initiate and proceed
with a prosecution under the Prevention of Corruption Act, 1988. The
first thing is sanction from the proper authority, before launching criminal
prosecution under this Act.
There , is rto specific Form prescribed for
according sanction under this Act.
Granting of Sanction is not an
empty formality and it is essential that the provisions as regards the
grant of sanction should be observed completely, the object of granting
sanction being that the authority giving the sanction should be able to
consider for itself the evidence, before it comes to a conclusion that the
prosecution in the circumstances of the case must be sanctioned or not.
The larger interest of the efficiency of State administration
demands that public servants should be free to perform their official
duty fearlessly and undeterred by any apprehension of their possible
prosecution at the instance of any person to whom annoyance of injury
may have been caused by the legitimate acts done in the discharge of
their official duties.
Hence there is need to give protection to public
servants against frivolous, vexatious or false prosecution for offence alleged
to have been committed by them, while discharging their official duties.
This enables them to discharge onerous and responsible functions
fearlessly.
.
'
Even if prosecution is going to be launched against the
accused- public servant, he deserves hearing at the stage of the grant of
prosecution sanction to avoid false and vexatious prosecution. This is
252
in tune with the one of the Principles of Natural Justice, “Audi Alterm
Partem”, (No man shall be condemned unheard).
Effective,, speedy and successful prosecution is the need of
the hour.
The sanctioning authority should play a vital role in this
context. The sanctioning authority, should be vigilant enough to. dispose
of the matter either by granting sanction to prosecute the public servant
or. refusing to grant the same.
A close scrutiny of Section 19 of the Prevention of
Corruption Act, 1988 shows that no time-limit is prescribed for granting
of sanction order. The Supreme Court in order to fill the lacunae, for
the first time in Vineet Narain case, popularly known as Hawala case
held that sanction order is to be passed within 3 months. Sanctioning
authority has to apply its own independent mind for the generation of
genuine satisfaction, whether sanction for prosecution has to be granted
or not. Courts should not usurp the discretion of the sanctioning authority
and direct the sanctioning authority to accord necessary approval for
prosecution but they could certainly quash the arbitrary order and issue
a direction to the sanctioning authority to exercise its own discretion in
accordance with law.
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253
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