Thus, apparently a review and re-appraisal of the orders
not sanctioning prosecution is envisaged in the concerned
department working in this regard and it cannot be said that once the
competent authority came to the conclusion in the Office-Note not to
sanction prosecution, that would be end of the road. The very
concept of checks and balances will suffer set back, if one were to
allow and attach such finality to the discharge orders by the
competent authority without permitting any review of the same within
the Department. In the present days of growing corruption in the
bureaucracy, sanction of prosecution of the Government servant,
which is only the beginning of the trial during which the accused
person is bound to have all opportunities to defend himself, cannot
be made subject to judicial scrutiny at a microscopic level and the
Court particularly in exercise of writ jurisdiction under Article 226 of
the Constitution of India cannot weigh the evidence and veracity of
the same at this stage.
Prima facie, on the other hand it would appear that when
a Government servant is caught red handed while taking bribe, it
would appear to be a fit case for at least subjecting the delinquent
Government servant to a regular trial by the competent court. The
requirement of obtaining a prior sanction for prosecution under
Section 19 of the P.C. Act of 1988 only a provides a conditional
hedge for the Government servants to guard them against frivolous
complaints and prosecution. It is not to thwart or to stall the genuine
prosecution in genuine cases of corruption complaints. That is why,
the sub-Section (3) of Section 19 of the Act of 1988, has provided
that any error, omission or irregularity in the sanction for prosecution
would not be fatal for such prosecution unless in the opinion of the
Court concerned, a failure of justice has resulted on account of that.
The review of earlier discharge given by the Commissioner of the
Industries Department in the present case, at the instance of
prosecution agency, namely, the Anti-Corruption Bureau, vide the
letter (Annex.10) dated 08.06.2011 addressed to the Principal
Secretary of the Industries Department, and thereupon on the basis
of material such Principal Secretary passing the order with the
approval of the Hon'ble Minister, that it is a fit case for sanctioning of
prosecution the same authority, namely, the Commissioner of
Industries Department had to pass fresh orders for sanction of
prosecution, which is impugned in the present writ petition on
19.01.2012.
The provisions of the Act of 1988 do not exclude such
re-consideration or re-appraisal of the order or Office-Note of
discharge given by the competent authority at one stage which was
never communicated to the petitioner and, therefore, the impugned
order dated 19.01.2012 cannot be successfully assailed on this
ground. As already observed, the Guidelines given in the Circular
(Annex.13) dated 06.04.2002 are not of statutory character and,
therefore, the impugned order cannot be assailed for the alleged
non-compliance of the said guidelines, which is also not found to be
there and the emphasized portion of the para, quoted above, the
said guidelines that the next higher authority would not issue the
sanction of prosecution, is not applicable because the impugned
prosecution sanction order has been issued by the competent
authority, namely, the Commissioner of Industries Department
himself, only in the present case.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No.1231/2012
Abdul Aziz Gauri Vs. State of Rajasthan & Ors.
Order dated 23/05/2014
PRESENT
HON'BLE Dr. JUSTICE VINEET KOTHARI
REPORTABLE
Citation;2014 CRLJ3841 Raj
Whether any estoppel or resjudicata applies for a
competent authority, if he once decides not to grant such sanction for
prosecution of a public servant under Section 19 of the Prevention of
Corruption Act, 1988, and later on grants it on a reconsideration of
the same material or at the instance of a higher authority, is the
question?
2.
The petitioner while working as Upper Division Clerk in
the Industries Department, was caught red handed while taking the
bribe of Rs.5000/- on 04.01.2009 in connection with work of the
complainant, namely, Bankat Lal Bawari, partner of firm M/s
Mangaram & Sons, in the office of Registrar of the Firms, Jodhpur.
The petitioner was working in the office of District Industries Centre,
Nagaur. By the impugned order (Annex.14) dated 19.01.2012, the
Commissioner of the Industries Department has given sanction for
prosecution of the petitioner in regard to Case No.292/2009. The
said order has been challenged by the petitioner by way of present
writ petition, inter-alia, on the ground that previously the same
authority competent to remove the petitioner from the employment
i.e. the Commissioner had given a clean chit/discharge in connection
with the same case vide the Office-Note as produced by the
petitioner along-with writ petition as Annex.12 but thereafter under
the orders of the Principal Secretary of the Industries Department at
the instance of Additional Director of Police, Anti-Corruption Bureau,
Jaipur, vide DO letter No.4821 dated 08.06.2011, it was found that
prima facie, there was substance in the complaint of the complainant
and there was sufficient evidence available on record to prosecute
the accused Government servant under Section 7, (13) (1) (d) and
13 (2) of the Prevention of Corruption Act, 1988 (Act of 1988).
Accordingly, the impugned order (Annex.14) dated 19.01.2013 was
passed by the competent authority i.e. the Commissioner of
Industries himself.
3.
A coordinate bench of this Court while issuing notices to
the respondents vide the order dated 10th February 2012 stayed the
operation of the prosecution sanction order, which interim order is in
currency uptill now.
4.
Dr. Nupur Bhati, learned counsel for the petitioner urged
that even the next higher authority could not review and revoke the
order of the competent authority in view of Circular dated 06.04.2002
issued by the Department of Personnel (Internal page 3 of the said
Circular) copy whereof has been placed as Annex.13, which inter-
alia, provide in the last para of the same as under: -
“Clarification
has
been
sought
by
some
Departments as to whether the authority next higher to
the competent authority can grant the sanction for
prosecution in a case where the concerned competent
authority is of the view that the case is not fit for
granting sanction for prosecution. In this connection it
is hereby clarified that under the Prevention of
Corruption Act, 1988 the power for according sanction
for prosecution vests in the authority which is
empowered to remove the government servant from
service and should be exercised only by such authority.
It would not be proper for the next higher authority to
issue the sanction for prosecution where the competent
authority is of the view that it is not a case where
sanction for prosecution should be accorded.
Sd/-
(Ashok Sampatram)
Secretary to Government.”
5.
Learned counsel for the petitioner, Dr. Nupur Bhati,
therefore, submitted that once the competent authority had given a
discharge to the petitioner and had found it to be not a fit case of
granting prosecution sanction, the Principal Secretary of the
industries Department could not overrule that decision and even with
the approval of the concerned Hon'ble Minister of Industries, the said
competent authority, the Commissioner, could not be asked to pass
fresh orders sanctioning the prosecution against the petitioner,
Government servant.
6.
Learned Additional Government Counsel, Mr. Anil Bissa,
on the other hand, supported the impugned order. The reply to the
writ petition has been filed contesting the same. Even though, the
exparte order was operating against the respondents granted since
10.02.2012, the respondents appear to have rest contended by only
filing the reply to the writ petition and they not filed any application
seeking vacation of the exparte stay order under Article 226 (3) of
the Constitution of India, which reflects badly on the respondents.
They were expected to be more vigilant in pursuing at least these
type of cases.
7.
Having heard the learned counsel for the parties, this
Court is of the opinion that there is no force in the present writ
petition and the impugned order (Annex.14) dated 19.01.2012 has
been passed by the competent authority, namely, the Commissioner
of the Industries Department only. It may be that earlier the same
authority found prima facie as per the Office-Note, and one wonders
how the internal office-notes could be procured by the present
petitioner and produced before this Court, the same authority found
that the complaint was not sustainable and the prosecution sanction
does not deserve to be granted, it appears that the Principal
Secretary upon perusal of the same material at the instance of D.O.
Letter No.4821 dated 08.06.2011 (Annex.10) of Additional Director of
Police, Anti Corruption Bureau, Jaipur, found it to be sufficient for
prosecution and, therefore, had obtained the approval of the Hon'ble
Minister for allowing the competent authority, i.e. the Commissioner,
Industries Department, to pass fresh orders again. Thereafter it
appears that the impugned order (Annex.14) dated 19.01.2012 was
passed sanctioning the prosecution against the petitioner. It may be
pointed out that the Circular dated 06.04.2002 (Annex.13) heavily
relied upon by the learned counsel for the petitioner for challenging
the impugned order, are merely rules of business for internal
guidance of the departmental working and they do not have any
statutory force. This Court does not find any violation of those
guidelines in the present case and even if it was to be so held in
some appropriate case that there was some violation of these
guidelines, the opinion of the higher authority particularly when same
is approved by the concerned Hon'ble Minister also can over-ride the
earlier favourable opinion of the same competent authority.
8.
A bare perusal of the earlier order passed by the said
authority discharging the petitioner and not sanctioning the
prosecution, merely records in a cursory manner that the complaint
appears to be motivated and, therefore, the sanction for prosecution
of the accused Government servant need not be granted; whereas
the facts stated in the FIR clearly show that the accused Government
servant was caught red handed taking the bribe of Rs.5,000/- for
certain work to be done in the office of the Registrar of Firms. In such
circumstances, if the higher authority, namely, the Principal
Secretary of the Industries Department with the approval of the
Hon'ble Minister asked the competent authority to pass fresh orders,
the same cannot be struck down by this Court in exercise of
extraordinary writ jurisdiction under Article 226 of the Constitution of
India merely on the basis of internal guidelines of the said
departmental workings, while are liable to change from time to time.
The relevant paras 3 and 4 of the Circular dated 06.04.2002, which
contains a reference for requirement of taking matter up to the
Hon'ble Minister also permits such disagreement of the competent
authority and then through the reference to the Chief Vigilance
Commissioner, such fresh orders can be passed however the said
guidelines laid down that the reference to the opinion of the Chief
Vigilance Commissioner or the Administrative Department should not
be made while granting sanction of the prosecution, are quoted
below for ready reference: -
“3. If, however, the Secretary of the concerned
Administrative Department agrees with the views of the
competent authority that sanction for prosecution
should not be accorded in any particular case, the
matter shall be referred to the Minister of the concerned
Department through the Chief Vigilance Commissioner.
The Chief Vigilance Commissioner shall forward the
case to the Minister of the concerned Administrative
Department along with his advice/opinion. The role of
the Chief Vigilance Commissioner will be purely
advisory; the final decision whether or not to grant
sanction for prosecution shall be taken only by the
competent authority i.e. the
authority which is
empowered to remove the government servant from
service.
4. If the Chief Vigilance Commissioner is of the
opinion that sanction for prosecution should be
accorded in any particular case and the competent
authority finely (sic! Finally) agrees with his views, the
competent authorities shall issue the sanction for
prosecution under his signatures. However, it may be
ensured that no reference is made to the opinion of the
Chief Vigilance Commissioner or the Administrative
Department while granting sanction for prosecution. If
any reference is made to the opinion/advice of the Chief
Vigilance
Commissioner
or
the
Administrative
Department, the courts are likely to take a view that the
sanction for prosecution is not a valid one as it has been
issued under the directions of the Chief Vigilance
Commissioner/Administrative Department and not on
the subjective satisfaction of the competent authority.”
9.
Thus, apparently a review and re-appraisal of the orders
not sanctioning prosecution is envisaged in the concerned
department working in this regard and it cannot be said that once the
competent authority came to the conclusion in the Office-Note not to
sanction prosecution, that would be end of the road. The very
concept of checks and balances will suffer set back, if one were to
allow and attach such finality to the discharge orders by the
competent authority without permitting any review of the same within
the Department. In the present days of growing corruption in the
bureaucracy, sanction of prosecution of the Government servant,
which is only the beginning of the trial during which the accused
person is bound to have all opportunities to defend himself, cannot
be made subject to judicial scrutiny at a microscopic level and the
Court particularly in exercise of writ jurisdiction under Article 226 of
the Constitution of India cannot weigh the evidence and veracity of
the same at this stage.
10.
Prima facie, on the other hand it would appear that when
a Government servant is caught red handed while taking bribe, it
would appear to be a fit case for at least subjecting the delinquent
Government servant to a regular trial by the competent court. The
requirement of obtaining a prior sanction for prosecution under
Section 19 of the P.C. Act of 1988 only a provides a conditional
hedge for the Government servants to guard them against frivolous
complaints and prosecution. It is not to thwart or to stall the genuine
prosecution in genuine cases of corruption complaints. That is why,
the sub-Section (3) of Section 19 of the Act of 1988, has provided
that any error, omission or irregularity in the sanction for prosecution
would not be fatal for such prosecution unless in the opinion of the
Court concerned, a failure of justice has resulted on account of that.
The review of earlier discharge given by the Commissioner of the
Industries Department in the present case, at the instance of
prosecution agency, namely, the Anti-Corruption Bureau, vide the
letter (Annex.10) dated 08.06.2011 addressed to the Principal
Secretary of the Industries Department, and thereupon on the basis
of material such Principal Secretary passing the order with the
approval of the Hon'ble Minister, that it is a fit case for sanctioning of
prosecution the same authority, namely, the Commissioner of
Industries Department had to pass fresh orders for sanction of
prosecution, which is impugned in the present writ petition on
19.01.2012.
11.
The provisions of the Act of 1988 do not exclude such
re-consideration or re-appraisal of the order or Office-Note of
discharge given by the competent authority at one stage which was
never communicated to the petitioner and, therefore, the impugned
order dated 19.01.2012 cannot be successfully assailed on this
ground. As already observed, the Guidelines given in the Circular
(Annex.13) dated 06.04.2002 are not of statutory character and,
therefore, the impugned order cannot be assailed for the alleged
non-compliance of the said guidelines, which is also not found to be
there and the emphasized portion of the para, quoted above, the
said guidelines that the next higher authority would not issue the
sanction of prosecution, is not applicable because the impugned
prosecution sanction order has been issued by the competent
authority, namely, the Commissioner of Industries Department
himself, only in the present case.
12.
The Hon'ble Supreme Court in the recent judgment in
the case of Manohar Lal Sharma Vs. Principal Secretary & Ors.,
reported in (2014) 2 SCC 532, dealth with Section 6-A of the Delhi
Special Police Establishment Act, 1946, (DSPE Act), also held as
under: -
“No doubt, the rigour of Section 6-A of DSPE Act
has already been diluted by the issuance of the Office
Memorandum dated 26.9.2011. However, the office
memorandum can hardly be termed as efficacious in
any manner. Firstly, it cannot be used to interpret a
provision of law such as Section 6-A of DSPE Act.
Secondly, the office memorandum can always be
withdrawn, modified or amended on the whim of the
executive Government, on the same rationale as given
for enacting Section 6-A of DSPE Act, namely, for
“protecting” a senior government official. Therefore, it
does not effectively prevent possible misuse of the law.
Further, the delays in the grant of previous approval for
investigation can occur notwithstanding time lines being
laid down as mentioned in the office memorandum. This
is because if the time lines are not adhered to, it is
unlikely that CBI, in the absence of any realistic
functional autonomy, will be able to press the Central
Government beyond a point for expeditious approval for
investigating an offence against a senior government
officials.
Investigations
unwarranted
delays,
can
both
be
paralysed
intentional
by
and
unintentional.
Section 156 Cr.P.C. enables the local police to
investigate a cognizable offence while Section 155
Cr.P.C. enables a police officer to investigate a non-
cognizable offence after obtaining an appropriate order
from the Magistrate having power to try such case or
commit the case for trial regardless of the status of the
officer concerned. Therefore, the local police may
investigate a senior government officer without
previous approval of the Central Government, but CBI
cannot do so. This is rather anomalous. It is difficult to
understand the logic behind such a dichotomy unless it
is assumed that frivolous and vexatious complaints are
made only when CBI is the investigating agency and that
it is only CBI that is capable of harassing or victimising
a senior government official while the local police of the
State Government does not entertain frivolous and
vexatious complaints and is not capable of harassing or
victimising a senior government official. No such
assumption can be made.
Interestingly,
no
previous
approval
for
investigation was required by CBI from the date of
decision in Vineet Narain, (1998) 1 SCC 226 (18-12-
1997) till the insertion of Section 6-A of DSPE Act with
effect from 12.9.2003. Absolutely no material was
placed on record to suggest that during the period when
the Single Directive was not in operation, nor was
Section 6-A of DPSE Act on the statute book, CBI
investigated frivolous and vexatious complaints against
senior government officers or harassed any of them in
any way.”
13.
The
Hon'ble
Supreme
Court
in
the
case
of
Subramanian Swamy Vs. Manmohan Singh & Anr. reported in
(2012) 3 SCC 64, has held as under: -
“Grant or refusal of sanction is not a quasi
judicial function and the person for whose prosecution
the sanction is sought is not required to be heard by the
Competent Authority before it takes a decision in the
matter. What is required to be seen by the Competent
Authority is whether the facts placed before it which, in
a given case, may include the material collected by the
complainant or the investigating agency prima facie
disclose commission of an offence by a public servant. If
the Competent Authority is satisfied that the material
placed before it is sufficient for prosecution of the
public servant, then it is required to grant sanction. If
the satisfaction of the Competent Authority is otherwise,
then it can refuse sanction. In either case, the decision
taken on the complaint made by a citizen is required to
be communicated to him (not the public servant
concerned) and if he feels aggrieved by such decision,
then he can avail appropriate legal remedy.
The CVC sanction for Prosecution Guidelines,
2005 are in conformity with the law laid down by the
Supreme Court that while considering the issuance
regarding grant or refusal of sanction, the only thing
which the competent authority is required to see is
whether the material adduced by the complainant or the
investigating agency prima facie discloses commission
of an offence. The competent authority cannot
undertake a detailed inquiry to decide whether or not
the allegations made against the public servant are
true.”
14.
Yet in another case of State of Maharashtra through
Central Bureau of Investigation Vs. Mahesh G. Jain reported in
(2013) 8 SCC 119, the Hon'ble Apex Court has held as under: -
“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. 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.
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. 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.
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. An
order of sanction should not be construed in a pedantic
manner and there should not be a hyper-technical
approach to test its validity. When there is an order of
sanction
by
the
competent
authority
indicating
application of mind, the same should not be lightly dealt
with. The flimsy technicalities cannot be allowed to
become tools in the hands of an accused.
In these kind of matters there has to be reflection
of promptitude, abhorrence for procrastination, real
understanding of the law and to further remain alive to
differentiate between hyper-technical contentions and
the acceptable legal preponements.
While sanctity
attached to an order of sanction should never be
forgotten but simultaneously the rampant corruption in
society has to be kept in view. It has come to the notice
of Supreme Court how adjournments are sought in a
maladroit manner to linger the trial and how at every
stage ingenious efforts are made to assail every interim
order. It is the duty of the court that the matters are
appropriately dealt with on proper understanding of law
of the land. Minor irregularities or technicalities are
not to be given Everestine status. It should be borne in
mind that historically corruption is a disquiet disease
for healthy governance. It has the potentiality to stifle
the progress of a civilized society. It ushers in an
atmosphere of distrust. Corruption fundamentally is
perversion and infectious and an individual perversity
can become a social evil.
In this case, the reasonings of the trial Judge are
absolutely hypertechnical and, in fact, can always be
used by an accused as magic trick to pave the escape
route. The reasons ascribed by the trial Judge appear as
if he is sitting in appeal over the order of sanction. The
approach of the trial Judge as well as that of the Single
Judge is wholly incorrect and does not deserve
acceptance.”
15.
In view of above legal position, this Court is of the
opinion that no interference is called for in the impugned order
(Annex.14) dated 19.01.2012 sanctioning prosecution of the
petitioner in the present writ petition and the same is found to be
devoid of any merit and the same is liable to be dismissed. The writ
petition is, accordingly, dismissed. No costs. A copy of this order be
sent to the concerned parties forthwith.
(Dr. VINEET KOTHARI), J.
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