State of
Punjab & ANR Vs. Mohammed Iqbal Bhatti [2009] INSC 1356 (31 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4969 OF
2009 (Arising out of SLP (C) No.14030 of 2006) State of Punjab & Anr. ...
Appellants Versus Mohammed Iqbal Bhatti ... Respondent
S.B.
Sinha, J.
1.
Leave granted.
2.
The short question which arises for consideration in this appeal
is as to whether the State has any power of review in the matter of grant of
sanction in terms of Section 197 of the Code of Criminal Procedure, 197.
3.
The basic fact of the matter is not in dispute.
Respondent
was working as Block Development and Panchayat Officer. A First Information
Report was lodged against him on or about 2 6.9.2001 under Sections 7 and 13(2)
of the Prevention of Corruption Act, 1988. Upon completion of investigation,
the Vigilance Department sought for sanction from the competent authority so as
to enable it to prosecute the respondent. By an order dated 15.12.2002, grant
of such sanction was refused. The matter, however, was placed before the
competent authority once again and on or about 14.9.2004 sanction to prosecute
the respondent was granted. Questioning the legality and/or validity of the
said order, the respondent filed a writ petition before the High Court of
Punjab and Haryana.
By reason
of the impugned judgment, the said writ petition was allowed opining that the
State has no power of review and in any event, the impugned order could not
have been passed as the State while passing its earlier order dated 15.12.2003
has exhausted its jurisdiction.
4.
Mr. Vivek K. Goyal, learned Additional Advocate General appearing
on behalf of the appellants, would urge that the jurisdiction for grant of
sanction being an administrative one, the State has the requisite power to
review its earlier order. It was urged that it is incorrect to contend that
power once exercised stands exhausted.
5.
Mr. Jasdeep Singh Gill, learned counsel appearing on behalf of the
respondent, on the other hand, urged that the order impugned in the writ
petition having been passed by the State on the same material, the said order
was wholly illegal.
6.
The respondent is a public servant. The Governor of the State of
Punjab is his appointing authority. He is, therefore, not removable from his
office save by and with the sanction of the Government and in that view of the
matter if he is accused in any offence alleged to have been committed by him
while acting or purporting to act in discharging of his official duty, grant of
prior sanction is imperative in character in terms of Section 197 of the Code
of Criminal Procedure, 1973. The power of the State, as is well known, is
performed by an executive authority authorized in this behalf in terms of the
Rules of Executive Business framed under Article 166 of the Constitution of
India insofar as such a power has to be exercised in terms of Article 162
thereof. Once a sanction is refused to be granted, no appeal lies thereagainst.
7.
Although the State in the matter of grant or refusal to grant
sanction exercises statutory jurisdiction, the same, however, would not mean
that power once exercised cannot be exercised once again. For exercising its 4
jurisdiction at a subsequent stage, express power of review in the State may
not be necessary as even such a power is administrative in character. It is,
however, beyond any cavil that while passing an order for grant of sanction,
serious application of mind on the part of the concerned authority is imperative.
The legality and/or validity of the order granting sanction would be subject to
review by the criminal courts. An order refusing to grant sanction may attract
judicial review by the Superior Courts. Validity of an order of sanction would
depend upon application of mind on the part of the authority concerned and the
material placed before it. All such material facts and material evidences must
be considered by it. The sanctioning authority must apply its mind on such
material facts and evidences collected during the investigation. Even such
application of mind does not appear from the order of sanction, extrinsic
evidences may be placed before the court in that behalf. While granting
sanction, the authority cannot take into consideration an irrelevant fact nor
can it pass an order on extraneous consideration not germane for passing a
statutory order. It is also well settled that the Superior Courts cannot direct
the sanctioning authority either to grant sanction or not to do so. The source
of power of an authority passing an order of sanction must also be considered.
[See Mansukhlal vithaldas Chauhan v. State of Gujarat [(1997) 3 SCC 622] 5
8.
The concerned authority cannot also pass an order of sanction
subject to ratification of a higher authority. [See State (Anti Corruption
Branch) Govt. of N.C.T. of Delhi and Anr. v. Dr. R.C. Anand and Anr. [(2004) 4
SCC 615].
9.
The High Court called for the entire records. It perused the same.
It noticed that several queries were raised but remained unanswered. The Departmental
proceeding initiated against the respondent was dropped. The recommendations
therefore were made not to grant sanction on the basis whereof the
aforementioned order dated 15.12.2003 was passed. A finding of fact has been
arrived at by the High Court that no material was placed before the competent
authority. Only a communication had been received from the Director, Vigilance
Bureau dated 22.6.2004 wherein reference of the letter dated 26.5.2004 was
made. It, according to the High Court, was not a new material. In the
aforementioned situation, the High Court, opined:
"Once
the Government passes the order under Section 19 of the Act or under Section
197 of the Code of Criminal Procedure, declining the sanction to prosecute the
concerned official, reviewing such an order on the basis of the same material,
which already stood considered, would not be appropriate or permissible. The
Government is expected to act consciously and cautiously while taking such
serious decisions.
The
perusal of the record shows that pointed 6 queries had been raised to be
answered by the Vigilance Bureau but no answer was forthcoming nor any had been
submitted subsequently which culminated into passing of the later order dated
September 30, 2004. We refrain ourselves from mentioning the queries which had
been raised but it would suffice to say that the queries were never answered at
the relevant time when the order dated December 15, 2003 had been passed nor
the same was ever commented upon as no answers were placed before the competent
authority for passing the impugned order dated September 30, 2004."
10.
The State of Punjab in exercise of its jurisdiction under Article
162 of the Constitution of India framed Rules of Executive Business. Pursuant
to Rules 18 and 19 thereof, the Department of Rural Development and Panchayat
made Standing Orders.
11.
Rules 8 and 9 of the said Rules read, thus:
"8.
All orders or instruments made or executed by or on behalf of the Government of
the State of Punjab shall be expressed to be made or executed in the name of
the Governor.
9.(1)
Every order or instrument of the Government of the State of Punjab shall be
signed either by a Secretary, an Additional Secretary, a Joint Secretary, a
Deputy Secretary or an Under Secretary or such other officer as may be
specifically empowered by the Governor in that behalf and the signature so made
shall be deemed 7 to be the proper authentication of such order or
instrument..."
12.
In terms of the said Rules as also the Standing Order, the
Minister of Rural Development and Panchayats is the competent authority to
grant or refuse to grant sanction, so far as the respondent is concerned.
13.
Before embarking on the rival contentions, we may also place on
record that the Government of Punjab, Department of Vigilance had issued
guidelines in terms whereof the grant of sanction by the Administrative
Department may be refused; some of the provisions whereof read as under:
"3.
The cases should not be delayed at the level of administrative department when
sent for prosecution sanction. Generally, the cases should be decided with in
two months time from the date, the reference is made by the vigilance
department.
4.
Although the grant or refusal of prosecution sanction is a matter within the
sole discretion of the competent authority. However, the authority can refuse
to grant prosecution sanction for reason such as..."
14.
The First Information Report was lodged in 2001. The proceeding
for grant of sanction was initiated in that year. Several queries were made to
the Vigilance Department. Such queries had to be made as the respondent 8
herein made a representation that he had been falsely implicated at the instance
of some of the officers of the Vigilance Department who had set up a tout
therefor.
15.
The Hon'ble Minister noticed the said representation and by an
order dated 15.12.2003 refused to grant sanction, stating:
"3.
After minutely going through the averments made in the representation submitted
by the said officer the Hon'ble Minister issued order for submitted the file.
After scrutinizing the file by Hon'ble Minister it was found that the Vigilance
Department has been unable to provide the clarification with regard to certain
points as asked by the Panchayat Department from the Vigilance Department from
which it is cleared that they did not want to submit the clarification and want
the true facts remain hidden and not come to the fore.
Therefore,
in this situation, the sanction to prosecution Sh. Bhatti by the Vigilance
Department is refused."
The said
order was signed by the Special Secretary, Government of Punjab.
16.
Before us, however, it was contended that requisite clarification
was made by the Deputy Superintendent of Police, Vigilance Bureau on 17.12.2002
stating:
9
"Besides this Sh. Hans Raj Golden has no link with Vigilance Department.
It is false that he is a tout of Vigilance Department."
17.
However, it is stated that with the change in the Government and
after more than nine months of the said refusal to grant sanction, the
Vigilance Department again approached the concerned Secretary for grant of
sanction by a letter dated 16.05.2004. The Deputy Secretary, Government of
Punjab, Village Development and Panchayat Department by a letter dated
30.09.2004 addressed to the Deputy Secretary, Vigilance Bureau, stated as
under:
"On
the above mentioned subject this department vide letter memo no. 6/37/2001-3
RDE-3/ 9925 dated 15.12.2003 had refused to grant sanction for prosecution of
Sh. Mohammed Iqbal Bhatti.
2. Vide
your letter under reference you had again requested to grant sanction for
prosecution of the concerned official in the case and after reconsidering the
case, sanction for prosecution Sh. Mohammed Iqbal Bhatti, District Development
and Panchayat Officer is granted..."
18.
The Governor of Punjab in his order of sanction dated 14.09.2004
recorded the prosecution case presumably as contained in the First Information
Report and opined:
10
"Therefore, after perusing the above case police file, documents, challan
and attached all the documents minutely the Rajya Pal Ji has become fully
satisfied that the above Mohd. Iqbal D.D.P.O.
Ferozepur
during the tenure of his service/ posting, have committed an offence u/s 7,
13(2) 88 P.C. Act."
The said
order was also signed by the Secretary, Government of Punjab, Rural Development
and Panchayat Department.
19.
The contention of the learned Additional Advocate General for the
appellants is that Rule 8 of the Rules of Business shall apply whereas
according to the learned counsel for the respondent, Rule 9 thereof shall
apply. In terms of Clause (3) of Article 166 of the Constitution of India all
orders of the government must be issued in the name of the Governor. Such
orders, however, may be signed by any authorities specified in Rule 9 of the
Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of
Business, no substantive power is conferred. The Rules of Executive Business
inter alia provided for three authorities before whom the records are to be
placed, viz., Minister of the Department, Chief Minister and Cabinet. It has
not been contended that in terms of the Rules of Executive Business read with
the Standing Order, the Minister of the Department concerned could not have
refused to grant sanction. What is contended 11 before us is that Rule 8 of the
Rules of Business should have been complied with.
20.
It is now well-known that in the event it appears from the order
and the records produced before the court, if any occasion arises therefor that
even if a valid order is not authenticated in terms of Clause (3) of Article
166 of the Constitution of India, the same would not be vitiated in law.
Failure
to authenticate an executive order is not fatal. The said provision is
directory in nature and not mandatory. [See I.T.C. Bhadrachalam Paperboards and
Another v. Mandal Revenue Officer, A.P. and Others (1996) 6 SCC 634]. From a
perusal of the order dated 15.12.3003, it is evident that before the Hon'ble
Minister all the relevant records were produced.
21.
The Vigilance Department did not contend that the Hon'ble Minister
did not have any jurisdiction. It accepted the said order. It was not
challenged. Only when a new government came in, a request was made for
reconsideration of the earlier order, as would be evident from the memo of the
Secretary of the Department.
22.
It was, therefore, not a case where fresh materials were placed
before the sanctioning authority. No case, therefore, was made out that the
sanctioning authority had failed to take into consideration a relevant fact or
took into consideration an irrelevant fact. If the clarification sought for by
the Hon'ble Minister had been supplied, as has been contended before us, the
same should have formed a ground for reconsideration of the order. It is stated
before us that the Government sent nine letters for obtaining the
clarifications which were not replied to.
23.
The High Court in its judgment has clearly held, upon perusing the
entire records, that no fresh material was produced. There is also nothing to
show as to why reconsideration became necessary. On what premise such a
procedure was adopted is not known. Application of mind is also absent to show
the necessity for reconsideration or review of the earlier order on the basis
of the materials placed before the sanctioning authority or otherwise.
24.
For the reasons aforementioned, there is no merit in this appeal
which is dismissed accordingly. However, in the facts and circumstances of the
case, there shall be no order as to costs.
.....................................J. [S.B. Sinha]
.....................................J. [Deepak Verma]
New Delhi;
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