The power to appoint Special Judge to try and decide the cases under the provisions of the Act of 1988 is with the Central Government or the State Government, as per section 3 of the Act. Sanction to prosecute the Judge of the subordinate Court, amongst whom appointment of a Special Judge is made, therefore, should be issued by the Governor - irrespective of the language of section 19(1)(c). However, as the opinion of the learned Chief Justice is binding on the Governor, for the same reason, even the negative opinion of the learned Chief Justice - not to prosecute the Judge of the subordinate Court - is equally binding on the Governor. Thus, in case of negative opinion, the question of processing the proposal any further, would not arise. In other words, the proposal 6 of 8
must stand terminated on expression of negative opinion by the learned Chief Justice. That is the process of decision making in case of refusal to accord sanction to prosecute the judicial officers of the subordinate Court.
Bombay High Court
Devendra S. Doctor vs The State Of Maharashtra & Ors on 25 July, 2012
Bench: A.M. Khanwilkar, A. R. Joshi
JUDGEMENT (PER A.M. KHANWILKAR, J.):
1. By this writ petition under Article 226 of the Constitution of India, the petitioner has essentially challenged the action of refusal to accord sanction to prosecute the Special Judge of the Special Court under the Prevention of Corruption Act, 1988, dated 3.2.2012, which decision is founded on the opinion of the learned Chief Justice of the High Court.
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2. The decision is challenged on three grounds. Firstly, the Competent Authority for considering the proposal to grant sanction to prosecute the Special Judge of the Special Court, under the Prevention of Corruption Act, 1988 (hereinafter referred to as the said Act), ought to be the Governor. Thus, the proposal could not have been terminated on the basis of the opinion of the learned Chief Justice of the High Court. Secondly, the learned Chief Justice has formed the impugned opinion without directing any enquiry in respect of the complaint against the Special Judge. Thirdly, the impugned opinion of the learned Chief Justice is bereft of any reason and is one word - rejected.
3. The learned Advocate General appearing for the respondents has opposed this petition. According to him, it is completely devoid of merits. Relying on the decisions of the Apex Court inA.R. Antulay vs. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500 (paragraphs 27 to 29), T. Lakshmi Narasimha Chari vs. High Court of A.P. & anr., (1996) 5 SCC 90 (Paragraphs 8 to 10, 16 & 18), Registrar (Administration), High Court of Orissa, Cuttack vs. Sisir Kanta Satapathy (dead) by LRs & anr., (1999) 7 SCC 725 (para 15) and Yoginath D. Bagde vs. State of Maharashtra & anr., 2 of 8
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(1999) 7 SCC 739, he contends that the opinion of the learned Chief Justice on the proposal for grant or non-grant of sanction against the Judge of the subordinate Court is binding on the Competent Authority. The learned Chief Justice having opined that the proposal for grant of sanction deserves to be rejected, nothing more needs to be and could be done in the matter. As regards the second contention, he submits that the said ground has not been specifically taken in the writ petition. Further, the learned Chief Justice, at this stage, is not supposed to make enquiry. For, the proposal for grant of sanction to prosecute the Judge of the subordinate Court is placed before the learned Chief Justice only after due enquiry is made, as per the governing practice. As regards the third contention, he submits that even this ground is conspicuously absent in the writ petition. He submits that merely because the petitioner appears in person, does not mean that the law of pleadings can completely be ignored. Further, it is well established position that no reason is required to be noted in the sanction order passed by the Competent Authority; and applying the same analogy, even in the opinion recorded by the learned Chief Justice, no reason is required to be stated to justify the rejection of the proposal.
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4. Having considered the rival submissions, as regards the principal point raised in the writ petition, we find merits in the submission made by the learned Advocate General. The same is reinforced from the exposition of the Apex Court in the above said decisions.
5. In A.R. Antulay's case (supra), the Court after analysing the legal position in the context of the provisions of the Code of Criminal Procedure, observed that the net outcome is that a new Court of Original Criminal Jurisdiction has been set up. Section 9 of the Criminal Law (Amendment) Act, 1952 also predicates that the Court of Special Judge is a Court of Original Criminal Jurisdiction. Further, the position and power of the Court of a Special Judge in the hierarchy of Criminal Courts under the High Court is clearly and unambiguously established.
6. In the case of T.Lakshmi Narasimha Chari (supra), the Court was considering the validity of the orders of removal from service issued by the High Court itself against the petitioners. Petitioners therein who were recruited as judicial officers - District 4 of 8
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Munsiffs - and were confirmed on that post. The Apex Court noted that the High Court had rightly opined that the appointing authority, for a directly recruited District Munsiff, is the Governor. Further, major penalty of dismissal or removal or reduction in rank can be imposed on a directly appointed District Munsiff only on the recommendation of the High Court, which is binding on the Governor. The Apex Court has upheld this statement of law and on that basis, examined the controversy. The Apex Court held that the order of removal made by the High Court itself be treated as the recommendation of the High Court to the Governor for removal from their service.
7. In Yoginath D. Bagde's case (supra), the Apex Court has considered the efficacy of Articles 233 and 234. It has noticed that the High Court has complete control over the subordinate Courts and is subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the post of District Judges.
8. Considering the above, the question posed by the petitioner as to whether the Competent Authority to consider the 5 of 8
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proposal for grant or non-grant of sanction to prosecute the judicial officer of the Special Court, is only the Governor; and, therefore, the same could not be terminated merely on the basis of opinion of the learned Chief Justice of the High Court, will have to be rejected. Indeed, the plain language of section 19(1)(c) of the said Act, which is attracted to the case on hand, would suggest that the previous sanction to prosecute the Judges of the subordinate Court - be it the Judge of the Special Court - is of the authority competent to remove the Judge from his office. The power to appoint Special Judge to try and decide the cases under the provisions of the Act of 1988 is with the Central Government or the State Government, as per section 3 of the Act. Sanction to prosecute the Judge of the subordinate Court, amongst whom appointment of a Special Judge is made, therefore, should be issued by the Governor - irrespective of the language of section 19(1)(c). However, as the opinion of the learned Chief Justice is binding on the Governor, for the same reason, even the negative opinion of the learned Chief Justice - not to prosecute the Judge of the subordinate Court - is equally binding on the Governor. Thus, in case of negative opinion, the question of processing the proposal any further, would not arise. In other words, the proposal 6 of 8
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must stand terminated on expression of negative opinion by the learned Chief Justice. That is the process of decision making in case of refusal to accord sanction to prosecute the judicial officers of the subordinate Court.
9. Thus, no infirmity can be found with the termination of the subject proposal - without obtaining a formal noting of the Governor, which, as per the settled legal position, can be no different than the opinion of the learned Chief Justice. Accordingly, there is no merit in the first contention.
10. Reverting to the second point raised by the petitioner, we agree with the learned Advocate General that the petitioner ought not to be permitted to urge the said ground as it has not been specifically taken in the petition. Further, the said contention is completely ill-advised. Inasmuch as, the learned Chief Justice is not expected to make any enquiry before giving his opinion. As a matter of fact, the proposal is placed before the learned Chief Justice only after due enquiry. We, therefore, find no merit even in the second contention, which is essentially founded on misinformation.
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11. The third contention raised by the petitioner also deserves to be stated to be rejected on the ground that it has not been specifically taken in the writ petition. In any case, it is well established position that the sanctioning authority is not expected to give detailed reasons in support of the order according sanction to prosecute. (See State of Bihar v. P.P. Sharma - AIR 1991 SC 1260, para 67.) Applying the underlying principle, there can be no infirmity if the learned Chief Justice rejects the proposal to accord sanction by one word - rejected. In our opinion, non-recording of reason would not vitiate the impugned opinion.
12. Accordingly, we find no merits in this petition and the same is dismissed.
(A.R. JOSHI, J.) (A.M. KHANWILKAR,J.) 8 of 8
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