Col. Sujan Singh v. State — 1972 DIGILAW 166 (ALL)

ORDER C.D. Parekh, J. - These are seven revisions arising out of the order dated 27-9-1968 passed by Shri H.C. Agarwal, Special Judge. (Anti-Corruption) (West), Luck-now, wherein common questions of law and fact have been agitated and are involved and can conveniently be disposed of by one single judgment. 2. In all these revisions the sanction orders (a sample of which has been reproduced in the body of the lower court's order) for the prosecution of the Applicants, for offences u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act of 1947 (Act No. II of 1947) have been challenged. In some of the cases the sanction relates to offences punishable u/s 120(b) and Section 420 IPC as well. Sanction orders have been signed by the Deputy Secretary of the Government of India, Ministry of Home Affairs. The sanctions have been accorded under the provisions of Section 197 of the Code of Criminal Procedure, 1898 (Act V of 1898) and Section 6(1)(a) of the Prevention of Corruption Act, 1.947, for the prosecution of Col. Sujan Singh, Major Inder Singh and Captain Harvans Singh who were Commissioned officers in the employment of the Union of India and M.N. Mukerjee who was a civilian gazetted officer connected with Defence Department of the Government of India. The offences aforesaid were said to have been committed by these persons. 3. The charge-sheet in the cases filed against the aforesaid persons is dated 31st July, 1960 and the sanction to prosecute these persons bears the date 9th of June, 1960. On 21st of January, 1961, Col. Sujan Singh applied to the Ministry of Home Affairs New Delhi, copy of which is Ex. Kha 8 and had stated certain facts and requested the Ministry necessary orders about the withdrawal of the cases against him be passed. On this application of Col. Sujan Singh, Ramanujaohari the signatory of the sanction (examined as PW in the case) made a certain notings. Hs recommended by note dated 8-8-1961 Ex. Kha 2 in Revision No. 2216 that the case against Col. Sujan Singh should be withdrawn and stated in his note that the Ministry of Law should see and advise in the matter. These notings as it appears somehow or the other came to the knowledge of the Applicants. Hs recommended by note dated 8-8-1961 Ex. Kha 2 in Revision No. 2216 that the case against Col. Sujan Singh should be withdrawn and stated in his note that the Ministry of Law should see and advise in the matter. These notings as it appears somehow or the other came to the knowledge of the Applicants. From the notings it appeals that Ramanujachari had admitted in those notes that some of the facts were not in the report of the Delhi Special Police Enforcement (which was the investigating agency in the case). From the notings it also appears that at the time of signing the sanction order sufficient evidence did not exist to enable the Government to proceed with the prosecution and he was of the opinion after re-examining the case that the main grounds in support of the prosecution were demonstrably unsustainable in fact and thus it was possible to take a different view. Thereafter as it appears various applications were filed before the Court in which the Applicants have stated that there was no sufficient material to show that the sanctioning authority did apply its mind before granting the sanction for the prosecution of the Applicants. It has also been pointed out in these applications that the President of India did not order, sanctioning the prosecution nor the papers relating to the case were sent to him for sanction and the sanction order filed along with the charge-sheet has been signed by the Deputy Secretary of Home Ministry who had not signed them on behalf of the Central Government. On the said grounds it was stated that the sanction being invalid the cases cannot proceed and therefore, the cases be consigned. 4. The prosecution as it appears examined, one Shri K.L. Mehra ah Upper Division Clerk in the Ministry of Home Affairs, Government of India and Sri M.L. Bhalla an assistant in the Home Ministry and also examined Shri Ramanujachari, Member Board of Revenue M.P., Gwalior, who is the signatory of all the sanctions, that have been filed in the case. His notings and various other materials have been brought on record and have been proved as documentary evidence. 5. The learned judge after discussion of the evidence on the record came to the conclusion that Col. His notings and various other materials have been brought on record and have been proved as documentary evidence. 5. The learned judge after discussion of the evidence on the record came to the conclusion that Col. Sujan Singh and other Army Officers were granted commission by warrant of appointment in the regular army by the President of India in exercise of the powers vested in him u/s 10 of the Army Act, 1950 (Act No. 56 of 1950). It has further been held by the learned judge that they could hold office during the pleasure of the President of India and they could be dismissed or removed from the service subject to the Army Act by the Central Government. It was also not disputed before the lower court by the Applicants before this Court that they were subject to the provisions of the Army Act so long as they remained in service. The learned judge, therefore, held that the Central Government was competent to dismiss or remove them from service under the provisions of Section 19 of the Army Act. He has also held that it was not necessary for the prosecution of the officers Applicants that the orders be passed by the President himself. The Central Government could pass order sanctioning their prosecution. He has also considered the effect of the rules framed under the Army Act and after discussing the effect of the Act and the rules he held the Central Government could accord sanction Under Sub-clause (a) of Sub-section (1) of Section 6 of the Prevention of Corruption Act, 1947, for prosecution of the officer Applicants. 6. The learned judge has further held on the basis of the admissions made by PW Ramanujachari that on information of the Ministry of Defence, which had decided that the officers Applicants should be prosecuted, he issued the sanction order. He has held that in the instant case the Ministry of Defence had taken the decision to prosecute the officers Applicants after examining the report of the Delhi Special Police Establishment in consultation with the Army Head Quarter and the judge Advocate General. On evidence he has also found that the orders of the Ministry of Defence were also there and the sanction for the prosecution of the officers Applicants was accorded after examining the material by the Ministry of Defence. On evidence he has also found that the orders of the Ministry of Defence were also there and the sanction for the prosecution of the officers Applicants was accorded after examining the material by the Ministry of Defence. The so called admissions in the note of Ramanujachari were also taken into consideration by the court and the learned judge has held that while examining the application of Col. Sujan Singh for withdrawal of the cases the possibility that a different view might be taken of the facts was also considered but that aspect of the matter was not relevant for the purposes whether the sanctioning authority had applied its mind or not while according the sanction. He has held that the sanctioning authority on the basis of the material placed before it could come to the conclusion that the officers Applicants may be prosecuted. He has further held that some more materials could have been placed before the sanctioning authority and which have not been placed may have lead to a different inference but for that reason, the sanction would not become invalid as according to the learned judge the materials that were placed before the sanctioning authority if they were examined and if the sanctioning authority found the materials sufficient for the prosecution they could accord sanction under the provisions of the Act. He has held that the sanction to prosecute was accorded after examination of the material which was before the Ministry of Defence and that it was not necessary for that Ministry to send for any other material which Shri Ramanujachari may have found out subsequently while examining the case of Col. Sujan Singh for the withdrawal of the charge-sheet. 7. The learned judge has also repelled the contention of the Applicants that it was the Home Ministry which was vested with the powers to accord sanction. He has held that under the rules of business, the Ministry of Defence was vested with the power to consider the material before it for sanction and the Deputy Secretary, Home Department, Government of India, was required to authenticate the same. He has also held that the commission if any in the sanction order about the name of the President of India cannot effect its validity. He has also held that the commission if any in the sanction order about the name of the President of India cannot effect its validity. The sanction in the opinion of the learned Judge as was given in the name of the Central Government and that was sufficient for the purposes to hold that it was a sanction according to law. 8. The learned Counsel appearing on behalf of the Applicants raised three points before me (1) that the officer putting his signature on the sanction itself did not apply his mind to the facts of the case or to the materials that led him to sign the order; (2) that the sanction should have been given in the name of the President of India or the papers should have been sent to him for examination and application of his mind and as these formalities have not been observed there is no sanction in the eye of law; and (3) that the Deputy Secretary in the Home Department, Government of India had no authority to sign or accord the sanction. 9. In support of point No. 1 learned Counsel for the Applicant has relied upon the statement of Ramanujachari who has been examined in the case as a witness. The learned Counsel has also relied on two cases reported in Gokul Chand Dwarkadas Morarka v. The King AIR 1948 PC 80 and Jaswant Singh Vs. The State of Punjab, AIR 1958 SC 124 . On the basis of these authorities and the statement of Ramanujachari this learned Counsel submitted that Ramanujachari being the Deputy Secretary in the Home Department of the Government of India should be treated as sanctioning authority and his admission that he did not apply his mind to the facts of the case while putting his signature on the document evidencing sanction is sufficient enough to hold that the sanction is bad and is invalid and the court could not take cognizance of the case on such a sanction. It has been held by the Privy Council the earlier case that it is desirable that the facts should be referred to on the face of the sanction but this is not essential the relevant rule in that case did not require the sanction to be in any particular form, nor even to be in writing. It has been held by the Privy Council the earlier case that it is desirable that the facts should be referred to on the face of the sanction but this is not essential the relevant rule in that case did not require the sanction to be in any particular form, nor even to be in writing. It was also held that 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 authority. It has further been held that the sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. Where facts are not referred to on the face of the sanction nor they are proved by extraneous evidence, that they were placed before the sanctioning authority, the sanction is invalid thus the trial court would not be a court of competent jurisdiction. This being so the defect was not curable u/s 537 Code of Criminal Procedure as a defect in the jurisdiction of the court can never be cured u/s 537 as it will be a defect of jurisdiction. Following this rule of law the Supreme Court has also held in the latter case that the object of the provision for sanctions is 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. It should be clear from the form of 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 and therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. 10. In the instant case from the sanction itself it appears that all the facts constituting the offence have been stated therein and exfacie there does not appear to be any defect of this type in the sanction. 10. In the instant case from the sanction itself it appears that all the facts constituting the offence have been stated therein and exfacie there does not appear to be any defect of this type in the sanction. The defect pointed out by the learned Counsel for the Applicant is that Ramanujachari who is the signatory and who has signed this sanction as a Deputy Secretary to the Government of India did not apply his mind, as admitted by him, to the facts constituting the offence and therefore, according to the submission made by the learned Counsel, the sanction is invalid. 11. The case of the prosecution is that the sanction was to be accorded in the case by the Ministry of Defence and Ramanujachari had simply authenticated the document as under the Rules of Business he was to sign the document on behalf of the Central Government. The officers of the Ministry of Defence after due consideration of the facts and circumstances of the case and applying their mind to the facts constituting the offence prepared the document of sanction and sent the same for the purposes of signature to Ramanujachari as they were required to do under the Rules of Business and Ramanujachari signed the document. According to the evidence there is no defect in the sanction and the persons who are required to apply their mind in the case of the revisionists had applied their mind to the facts constituting the offence and it was the Defence Ministry and the Home Ministry had nothing to do with the affairs except signing the document of sanction. Reference in this connection has been made to the statement of K.L. Mehra and M.L. Bhalla and also to the various documents that have been brought on the record showing that the Ministry of Defence had examined the relevant papers and prepared the sanction order and sent the same to the Ministry of Home Affairs. Reference in this connection has been made to the statement of K.L. Mehra and M.L. Bhalla and also to the various documents that have been brought on the record showing that the Ministry of Defence had examined the relevant papers and prepared the sanction order and sent the same to the Ministry of Home Affairs. It is, therefore, admitted on behalf of the prosecution that Ramanujachari being the Deputy Secretary, in the Home Department was not to apply his mind to the facts constituting the offence and they have by oral and documentary evidence brought on the record of the case proved in the case that on behalf of the Central Government the Officers of the Defence Ministry applied their mind to the facts of the case and came to the conclusion that the sanction be accorded for the purposes of prosecution. 12. It has been conceded on behalf of the prosecution that sanction was required under the provisions of Section 6 of the Prevention of Corruption Act for the offences said to have been committed by the revisionist u/s 5(2) read with Section 5(1)(a) of the Act. It is also not disputed that in the Code of Criminal Procedure as well, sanction for the prosecution was required. The only question, therefore, canvassed on behalf of the Applicants is within a very narrow campus that when the Deputy Secretary in the Home Department did not apply his mind although he was the signatory of the sanction should the sanction be considered a valid sanction in the eye of law or not. On behalf of the State reliance has been placed on Exs. Ka 12, Ka 13, Ka 14, Ka 15 and Ka 16 forming part of the Cr. Rev. No. 2214 of 1968. From these documents the learned Counsel has pointed out the procedure, for issue of sanction by the Government to prosecute the government officers for corruption, in cases investigated by the Delhi Special Police Establishment. It is also proved and established in the case that the Delhi Special Police Establishment investigated the case against the Applicants and the prescribed procedure for the issue of sanction by the Government as given in Ex. It is also proved and established in the case that the Delhi Special Police Establishment investigated the case against the Applicants and the prescribed procedure for the issue of sanction by the Government as given in Ex. Ka 16 the Inspector General of Police, Delhi Special Police Establishment, is to forward the papers to the Ministry concerned with his recommendation for obtaining the sanction of the Government for the prosecution of the Applicants and the Ministry concerned was to scrutinise the papers and if they agreed to the prosecution, the Ministry will forward the papers with their concurrence to the Ministry of Home Affairs. If the Ministry concerned feels after scrutiny of papers that further examination on any particular legal issue should be made it would ask the Ministry of Home Affairs to get the examination carried out. Likewise if the ministry concerned considered that further investigation on particular points should be conducted a reference will be made to that effect to the Home Ministry and no investigation would be started independently. Ordinarily the examination of a case by the ministry concerned should be completed and the papers passed on with that Ministry's comments to the Home Ministry within a period of ten days from the date of their receipt in the ministry and after the necessary consultation has been completed, sanction to prosecute should issue from the Ministry of Home Affairs. In the event of disagreement between the Home Ministry and the Ministry concerned the Home Ministry will arrange a meeting of the Inspector General of Police, a representative of the Home Ministry and a representative of the Ministry concerned who will discuss all relevant aspects of the case and the decision reached at the meeting would ordinarily be treated as final unless the Ministry concerned desires to take up the matter at a higher level in accordance with the usual procedure. From Ex. Ka 14 it would appear that the Rules of Business of Government of India provide that the Armed Forces of Union would be under the Defence Ministry and from the oral evidence in the case it is sufficiently established that at the level of the Defence Ministry the case of the Applicant was considered by the officers of the Defence Ministry and thereafter the papers were sent to the Ministry of Home Affairs. It has not been challenged before me that the Ministry of Defence did not deal with the matter. From the evidence on record, therefore, it is established that Ramanujachari was only an authenticating officer and was required to put his signature only and was not required to apply his mind to the facts of the case and the papers were sent to him for signature by the Defenoe Ministry. In the circumstances the authorities relied upon by the Applicants do not help them. The prosecution in the case has sufficiently established that the Defence Ministry was the concerned Ministry which had applied its mind. 13. It has been argued that the sanction should have been given in the name of the President of India or at least papers should have been sent to him for examination and application of his mind and as these formalities have not been observed there is no sanction in the eye of law The learned Counsel for the Applicants referred to me to Article 77 of the Constitution of India. Article 77 runs thus: 77. (1) All executive action of the Government of India shall be expressed to be taken in the name of the President. (2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (3) The President shall make rules for the more convenient transaction of the business of the Government of India and for the allocation among Ministry of the said business. All executive action of the Government of India, therefore, shall be expressed to be taken in the name of the President and the orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Learned Counsel for the Applicant relied on a case reported in Major E.G. Barsay Vs. Learned Counsel for the Applicant relied on a case reported in Major E.G. Barsay Vs. The State of Bombay, AIR 1961 SC 1762 and particularly relied on paragraph 25 of the case. The Supreme Court has observed that Article 77(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 77(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the President and is duly authenticated in the manner prescribed in Article 77(2) there is an irrebuttable presumption that the order is made by the President. Where the impugned order does not comply with the provisions of Article 77(2) it is open to the party to question on the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. Where however the evidence establishes that the order was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him under the rules delegating such power to him the order cannot be questioned. In the instant case on the evidence on record it is established that the decision for sanctioning the prosecution was to be taken by the Defence Ministry in the case of the Applicants but under the rules such a sanction was required to be authenticated by the Deputy Secretary of the Home Ministry on behalf of the Central Government in exercise of the powers conferred on him under the rules as framed Under Sub-clause (2) of Article 77 of the Constitution of India. The prosecution in this case has proved that such an authority was possessed by the Deputy Secretary of Home Ministry and he was only required to authenticate and after authentication which appears to have been done under the rules on behalf of the Central Government it is not open that order be questioned. From the sanction order itself it would appear that the heading of the order speaks that the sanction is on behalf of the Central Government and in the end of the Sanction, the signatory is designated as the Deputy Secretary, Home Department. From the sanction order itself it would appear that the heading of the order speaks that the sanction is on behalf of the Central Government and in the end of the Sanction, the signatory is designated as the Deputy Secretary, Home Department. I am satisfied from the evidence on record that although the order is not issued in the name of the President but it is duly authenticated in the manner prescribed under Article 77(2) of the Constitution and the rules framed thereunder. It is another matter that the Deputy Secretary did not authenticate the order by the order of the President but he did authenticate on behalf of the Central Government under the rules; It is correct to say that the order has not been expressed in the name of the President of India. In my opinion what has to be seen in relation to such conditions as to whether there is substantial compliance in the order itself or not. Article 77 of the Constitution of India does not prescribe any particular form of expression of order. It is now a settled law that the provisions of Article 77 ire not mandatory and they are directory and authentication, therefore, is f or the purposes of rendering the order to give due authenticity or to give authority to by the proved attestation or observations of formalities required by law. In my view I am supported by two cases of the Supreme Court reported in Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, AIR 1952 SC 181 and The State of Bombay Vs. Purushottam Jog Naik, AIR 1952 SC 317 . Although both the cases arose under the Preventive Detention Act but the law laid down is a safe guide for the purposes of this case. The Supreme Court has held in the earlier case that it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. Although both the cases arose under the Preventive Detention Act but the law laid down is a safe guide for the purposes of this case. The Supreme Court has held in the earlier case that it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. In the latter case Article 166 of the Constitution has been considered and it has been held that one of the meanings of "expressed" is to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that it is being done under the order of the Governor, he is, in substance saying that he is acting in the name of the Governor and on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor. The Constitution does not require a magic incantation which can only be expressed in a set formula of words. What the court has to see is whether the substance of the requirements of Article 166(1) is there. It has further been held that as a matter of abstract law. the state of man's mind can be proved by evidence other than that of the man himself and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts and the Home Secretary's affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof of the satisfaction of the Home Minister. But whether that would be enough in any given case, or whether the "best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts. In the instant case the prosecution has examined to prove the fact that it was the Defence Ministry which applied its mind and this aspect of the matter has not been seriously challenged at the bar on behalf of the Applicants. The only challenge is that Ramanujachari did not apply his mind. It is another matter that he may not have applied his mind or was not required to apply his mind to the facts of the case but that by itself will not take away the sanctity of the sanction that has been signed by Ramanujachari as Deputy Secretary of the Home Department, Government of India. The non-expression of the sanction in the name of the President, therefore, does not hit the sanction itself. A Full Bench of the Delhi High Court in a case Zalam Singh and Others Vs. Union of India and Others, AIR 1969 Delhi 285 has also expressed the same view that Article 77 of the Constitution relates to the form in which a particular executive action is to be expressed and it being a matter of form and not of substance, its provisions are merely directory and not mandatory. In my opinion, therefore, it is futile attempt on the part of the Applicants to challenge the sanction order which is well within the ambit of the provisions of Article 77 of the Constitution of India and it is not liable to be questioned on the ground that the order was not made in the name of the President or was not made by the Central Government. Sub-clause (2) of Article 77 provides that the order or the instrument made or executed in the name of the President shall be authenticated in such manner as prescribed by the rules to be made by the President. In exercise of the powers conferred by this clause the President has framed rules called the Authentication (Orders and Instruments) Rules, 1958. Rule 2 of the Rules has been pointed out on behalf of the prosecution to me. In exercise of the powers conferred by this clause the President has framed rules called the Authentication (Orders and Instruments) Rules, 1958. Rule 2 of the Rules has been pointed out on behalf of the prosecution to me. The Rule provides that the orders and other instruments made and executed in the name of the President shall be authenticated by the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or the Assistant Secretary to the Government of India. It is not disputed that Ramanujachari was the Deputy Secretary to the Government of India and if under the Rules of Business the Defence Ministry was to apply its mind and send the papers to the Ministry of Home Affairs where Ramanujachari was the Deputy Secretary and he was required to sign the sanction order, the two ministries jointly dealt with the matter and the order expressed by and executed in the case on behalf of the Central Government signed by the Deputy Secretary is not liable to be challenged. In my opinion that was a sufficient authentication within the meaning of Article 77(2) of the Constitution. 14. In view of my findings on the points above it is not necessary to deal with point No. 3 separately. The point No. 3 may be deemed to have been covered up and answered in points Nos. 1 and 2. 15. In the result the orders passed by the Special Judge, Anti-Corruption U.P. (West), Lucknow, dated 29-7-1968 upholding the sanction to be valid are upheld. All the revision applications are dismissed. Stay orders are vacated.