State of Himachal
Pradesh Vs Nishant Sareen
JUDGMENT
R.M. Lodha, J.
1.
Leave
granted.
2.
The
question raised in this appeal, by special leave, is as regards the extent of
power vested in the Government in reviewing its order granting or refusing
sanction to prosecute the public servant in terms of Section 19 of the
Prevention of Corruption Act, 1988 (for short, `the 1988 Act').
3.
Nishant
Sareen--the respondent--was posted as Drug Inspector, Bilaspur (Himachal
Pradesh) in 2005. One, Dr. Ramdhan Sharma, owner of Leelawati Hospital, Ghumar win
lodged a complaint against the respondent in the Vigilance Department of the State
Government that the respondent had demanded Rs. 5,000/-from him as bribe to
allow him to run the said hospital without checking by the Drug Inspector.
Based on the said complaint, a first information report (being No. 1/2005) was
registered under Sections7 and 13 (2) of the 1988 Act at Police Station AC
Zone, Bilaspur. Thereafter, a raiding party under the supervision of Deputy Superintendent
of Police, AC Zone, Bilaspur was constituted and a trap was laid on May 12,
2005. The respondent is said to have been caught red-handed on that day
accepting the bribe from the complainant. The respondent was arrested and
produced before the Additional Sessions Judge, Ghumar win and was remanded to judicial
custody up to May 16, 2005. The respondent was released on bail later on. Upon
completion of investigation, the Vigilance Department sought for sanction under
Section 19 of the 1988 Act from the Government to prosecute the respondent. It
is not in dispute that the Principal Secretary (Health), Government of Himachal
Pradesh is the competent authority authorized under the Rules of Business for
according sanction in the matter.
4.
The
Principal Secretary (Health), on the basis of the material placed before her
and on examination of the case, found no justification in granting sanction to
prosecute the respondent. In the order dated November 27, 2007 whereby sanction
was refused, it was observed as under : "Therefore, after thorough
examination of the case taking all the aspects into consideration and scrutiny
of the service records it has been concluded that Sh. Sareen in the course of
his duties and responsibilities and impartial discharge of his duties (sic). It
appears that the complainant has registered a case which appears to be
frivolous and has resulted in unnecessary harassment and hindrance in the
working of the Drug Inspector. In view of this, there appears to be no justification
for launching prosecution against Sh. Nishant Sareen, Drug Inspector as it
appears to be a case of Personal enmity."
5.
It
appears that the Vigilance Department took up the matter again with the
Principal Secretary (Health) for grant of sanction as in their opinion
sufficient evidence existed to prosecute the respondent.
6.
The
competent authority, thus, reconsidered the matter and granted sanction to
prosecute the respondent vide its order dated March 15, 2008. In the sanction
order dated March 15, 2008,it was observed thus: "I agree with the
contention of the Vigilance Department that in evaluating the evidence of
criminal misconduct, his general conduct and behaviour as perceived by his superiors
cannot secure precedence. I have been through the case file and facts of the
case in detail. I find that the said Drug Inspector. Sh. Nishant Sareen has been
caught red handed, with a bribe of Rs. 5000/-. There is nothing on record to
show that this incident did not occur. The facts do not support the contention
that Sh. Nishant Sareen was falsely implicated. In the circumstances, I am of
the opinion that the prosecution sanction be granted in the instant case and
accordingly do so."
7.
Section
19 of the 1988 Act reads as follows : "S. 19. Previous sanction necessary
for prosecution.- (1) No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public
servant, except with the previous sanction,-- (a) in the case of a person who
is employed in connection with the affairs of the Union and is not removable
from his office save by or with the 4 sanction of the Central Government, of
that Government; (b) in the case of a person who is employed in connection with
the affairs of a State and is not removable from his office save by or with the
sanction of the State Government, of that Government; (c) in the case of any
other person, of the authority competent to remove him from his office.(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 Criminal
Procedure, 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 5 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. 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."
8.
The
object underlying Section 19 is to ensure that a public servant does not suffer
harassment on false, frivolous, concocted or unsubstantiated allegations. The
exercise of power under Section 19is not an empty formality since the
Government or for that matter the sanctioning authority is supposed to apply
its mind to the entire material and evidence placed before it and on
examination there of reach conclusion fairly, objectively and consistent with
public interest as to whether or not in the facts and circumstances sanction be
accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan vs.
State of Gujarat1, this Court observed, `Sanction is a weapon to ensure
discouragement of frivolous and vexatious prosecution and is a safeguard for
the innocent but not a shield for the guilty'. Section 19 or for that matter
Section 197 of Code of Criminal Procedure, 1973 (for short, `the Code') does
not make any express provision regarding review or reconsideration of the
matter by the sanctioning authority once such power has been exercised.
9.
In
Gopikant Choudhary v. State of Bihar and Ors.2, initially the concerned
Minister refused to accord sanction to prosecute the public servant therein and
an order was passed to that effect. Subsequently, after retirement of the
public servant, the matter was taken up by the Chief Minister and he granted
sanction for prosecution of the concerned public servant. The question that
arose for consideration before this Court was the correctness of the order passed
by the Chief Minister. This Court set aside the order of the Chief Minister
granting sanction to prosecute the public servant, interalia, on the ground
that the Chief Minister did not have any occasion to reconsider the matter and
pass fresh order sanctioning the prosecution.
10.
In
Romesh Lal Jain v. Naginder Singh Rana & Ors.3 , itwas held by this Court
that an order granting or refusing sanction must be preceded by application of
mind on the part of the appropriate authority. If the complainant or accused
can demonstrate such an order granting or refusing sanction to be suffering
from non-application of mind, the same may be called in question before the competent
court of law.
11.
Recently,
in the case of State of Punjab and Anr. v. Mohammed Iqbal Bhatti4, this Court
had an occasion to consider the question whether the State has any power of
review in the matter of grant of sanction in terms of Section 197 of the Code.
This Court observed as under: " 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 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 3 (2006)
1 SCC 294 4 JT 2009 (13) SC 180 8 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." This Court then
noticed the opinion of the High Court which was recorded as follows : "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."While
affirming the above opinion of the High Court, this Court held in paragraphs 22
and 23 of the Report as under : "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 9 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."
12.
It
is true that the Government in the matter of grant or refusal to grant sanction
exercises statutory power and that would not mean that power once exercised cannot
be exercised again or at a subsequent stage in the absence of express power of
review in no circumstance whatsoever. The power of review, however, is not unbridled
or unrestricted. It seems to us sound principle to follow that once the statutory
power under Section 19 of the 1988 Act or Section 197 of the Code has been
exercised by the Government or the competent authority, as the case may be, it
is not permissible for the sanctioning authority to review or reconsider the
matter on the same materials again. It is so because unrestricted power of
review may not bring finality to such exercise and on change of the Government
or change of the person authorised to exercise power of sanction, the matter
concerning sanction may be reopened by such authority for the reasons best
known to it and a different order maybe passed. The opinion on the same
materials, thus, may keep on changing and there may not be any end to such
statutory exercise. In our opinion, a change of opinion per se on the same
materials cannot be a ground for reviewing or reconsidering the earlier order
refusing to grant sanction. However, in a case where fresh materials have been
collected by the investigating agency subsequent to the earlier order and
placed before the sanctioning authority and on that basis, the matter is
reconsidered by the sanctioning authority and in light of the fresh materials
an opinion is formed that sanction to prosecute the public servant may be
granted, there may not be any impediment to adopt such course.
13.
Insofar
as the present case is concerned, it is not even the case of the appellant that
fresh materials were collected by the investigating agency and placed before
the sanctioning authority for reconsideration and/or for review of the earlier
order refusing to grant sanction. As a matter of fact, from the perusal of the
subsequent order dated March 15, 2008 it is clear that on the same materials, the
sanctioning authority has changed its opinion and ordered sanction to prosecute
the respondent which, in our opinion, is clearly impermissible.
14.
By
way of foot-note, we may observe that the investigating agency might have had
legitimate grievance about the order dated November 27, 2007 refusing to grant
sanction, and if that were so and no fresh materials were necessary, it ought
to have challenged the order of the sanctioning authority but that was not done.
The power of the sanctioning authority being not of continuing character could
have been exercised only once on the same materials.
15.
There
is no merit in this appeal and it is dismissed.
.........................J.
(Aftab Alam)
.......................
J. (R.M. Lodha)
NEW
DELHI,
DECEMBER
9, 2010
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