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2001 DIGILAW 146 (ALL)

OM PRAKASH v. STATE OF UTTAR PRADESH

2001-02-15

G.P.MATHUR, LAKSHMI BIHARI

body2001
G. P. MATHUR, J. ( 1 ) THE petitioner Om Prakash was working as senior assistant in the District Hospital, Pilibhit. A FIR was lodged against him under Section 409, IPC on 24-3-1999 alleging that he committed misappropriation of Rs. 1,78,504. 00 while discharging his duties. The case was investigated and, thereafter, papers were sent to the Directorate of Medical and Health, Lucknow, for granting sanction for his prosecution. The Director (Administration), Medical and Health by his order dated 16-10-2000 granted sanction for the prosecution of the petitioner under Section 409, IPC in Case Crime No. 100 of 2000. The present writ petition under Article 226 of the Constitution has been filed for quashing of the said order. ( 2 ) SHRI S. P. Singh learned counsel for the petitioner has submitted that the petitioner Om Prakash did not himself misappropriate any public funds and on the contrary money was taken from him by the Chief Medical Officer on the pretext of official expenditure who did not give any receipt or voucher for the same and himself misappropriated the amount. In support of this submission reference has been made to certain letters which were allegedly written by the petitioner to the Chief Medical Officer copies of which have been filed along with the petition. The main submission of Shri Singh is that the offence of criminal misappropriation is not at all established against the petitioner and he is wholly innocent and therefore the order granting sanction deserves to be quashed. ( 3 ) IN the present writ petition the petitioner has challenged the order by which sanction has been granted for his prosecution under Section 409, IPC as contemplated by Section 197, Cr. P. C. The proceedings have yet to commence before the Court and no order passed by a Court is subject-matter of challenge. The question which requires consideration is on what grounds an order granting sanction can be challenged at the very initial stage before the parties had any opportunity to lead evidence in support of their case. ( 4 ) SECTION 197, Cr. The question which requires consideration is on what grounds an order granting sanction can be challenged at the very initial stage before the parties had any opportunity to lead evidence in support of their case. ( 4 ) SECTION 197, Cr. P. C. provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Central Government or State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government. ( 5 ) SUB-SECTION (1) of Section 197, Cr. P. C. shows that sanction for prosecution is required where any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Article 311 of Constitution lays down that no person who is a member of a civil service of the Union or State or holds a civil post under the Union or State shall be removed by an authority subordinate to that by which he was appointed. It therefore, follows that protection of sub-section (1) of Section 197 of Cr. P. C. is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant. ( 6 ) THE word sanction has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word sanction is as under :websters Third New Internal Dictionary-Explicit permission or recognition by one in authority that gives validity to the act of another person or body; something that authorizes, confirms, or countenances. The New Lexicon Websters Dictionary-Explicit permission given by some one in authority. The Concise Oxford Dictionary-Encouragement given to an action etc. , by custom or tradition; express permission, confirmation or ratification of a law etc; authorize, countenance, or agree to (an action etc.) Strouds Judicial Dictionary-Sanction not only means prior approval; generally it also means ratification. The New Lexicon Websters Dictionary-Explicit permission given by some one in authority. The Concise Oxford Dictionary-Encouragement given to an action etc. , by custom or tradition; express permission, confirmation or ratification of a law etc; authorize, countenance, or agree to (an action etc.) Strouds Judicial Dictionary-Sanction not only means prior approval; generally it also means ratification. Words and Phrases-The verb sanction has a distinct shade of meaning from authorize and means to assent, concur, confirm or ratify. The word conveys the idea of sacredness or of authority. The Law Lexicon by Ramanath Iyer-Prior approval or ratification. ( 7 ) IN 78 Corpus Juris Secundum Page 579 different meanings have been given to the word as a noun and as a verb. As a noun it means penalty or punishment provided as a means of enforcing obedience to a law and in a wider sense an authorisation of any thing and it may convey the idea of authority. As a verb sanction is defined as meaning to assent, concur, confirm or ratify. In U. S. v. Tillinghast D. G. , 55 F2d 279 it was held that where legal rights are involved it is doubtful whether it should be construed as requiring less than an unmistakable expression of approval. In Section 197, Cr. P. C. the word sanction has been used as a verb and therefore it will mean to assent, to concur or approval. ( 8 ) THE legislature has given great importance to sanction will be evident from the Scheme of Code of Criminal Procedure. Section 216 of the Code gives power to the Court to alter or add to any charge at any time before judgment is pronounced but sub-section (5) thereof provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. This was also emphasised by the Privy Council in the leading case of Gokulchand Dwarka Das Morarka v. The King, AIR 1948 PC 82, where in para 9 it was observed as follows at Page 85 :". . . . . . . . This was also emphasised by the Privy Council in the leading case of Gokulchand Dwarka Das Morarka v. The King, AIR 1948 PC 82, where in para 9 it was observed as follows at Page 85 :". . . . . . . . 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. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. . . . . . . . . . . " ( 9 ) IN Para 10 of the aforesaid judgment it was observed that the giving of sanction confers jurisdiction on the Court to try the case. This case has been quoted with approval by the Supreme Court in Madan Mohan v. State of U. P. , AIR 1954 SC 637 : (1954 Cri LJ 1656) and Som Nath v. Union of India, AIR 1971 SC 1910 : 1971 Cri LJ 1422. ( 10 ) CLAUSES (a) and (b) of sub-section (1) of Section 197, Cr. P. C. show that the sanction in the case of a person who is or was employed at the time of commission of the alleged offence in connection with the affairs of the Union of India has to be granted by the Central Government, and, in the case of a person who is or was employed at the time of commission of the alleged offence in connection with the affairs of a State, by the State Government. This provision shows that the sanction can be granted only by the Central Government or the State Government, as the case may be. If the sanction is not accorded by the competent authority of the State Government or the Central Government as the case may be, the order of sanction would be invalid. It, therefore, follows that an order of sanction can be assailed on the ground that the same had been granted by a person who did not have the authority to grant sanction as contemplated by Section 197, Cr. It, therefore, follows that an order of sanction can be assailed on the ground that the same had been granted by a person who did not have the authority to grant sanction as contemplated by Section 197, Cr. P. C. ( 11 ) WHAT would constitute a valid sanction, was examined by the Privy Council in Gokul Chand Dwarka Das Morarka (supra) with reference to clause 23 of Cotton Cloth and Yarn Control Order, 1943, which required that no prosecution for the contravention of any of the provisions of the control order shall be instituted without the previous sanction of the Provincial Government, and it was held as follows :"a sanction which simply names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with Cl. 23. In order to comply with the provisions of Cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the fact should be referred to on the face of the sanction, but this is not essential since Cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown onthe face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. . . . . " ( 12 ) SECTION 6 (1) of the Prevention of Corruption Act, 1947, provided that no Court shall take cognizance of an offence alleged to have been committed by the public servant, except with the previous sanction of the authority specified in the sub-section. . . . . " ( 12 ) SECTION 6 (1) of the Prevention of Corruption Act, 1947, provided that no Court shall take cognizance of an offence alleged to have been committed by the public servant, except with the previous sanction of the authority specified in the sub-section. What would constitute a valid sanction with reference to the aforesaid provision, was examined in Madan Mohan v. State of Uttar Pradesh, AIR 1954 SC 637 : (1954 Cri LJ 1656) and the Apex Court after relying upon the dictum of the Privy Council in Gokulchand Dwarka Das Morarka (supra) held as follows :"the burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the Sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts may appear on the face of the sanction or may be proved by extraneous evidence. Where the facts constituting the offence do not appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Where this is not done, the sanction must be held to be defective and an invalid sanction cannot confer jurisdiction upon the Court to try the case. " ( 13 ) SIMILAR view was taken in Maj. Som Nath v. Union of India, AIR 1971 SC 1910 : (1971 Cri LJ 1422 ). ( 14 ) SECTION 198-B (3) of Code of Criminal Procedure, 1898, required filing of a complaint with the previous sanction granted by the authorities specified in that sub-section. In P. C. Joshi v. State of U. P. , AIR 1961 SC 387 : (1961 Cri LJ 566) the Apex Court while examining the same question as to what would constitute a valid sanction held as follows in paragraph 4 of the reports :"mere production of a document which sets out the names of the persons to be prosecuted and the provisions of the statute alleged to be contravened, and purporting to bear the signature of an officer competent to grant the sanction where such sanction is a condition precedent to the exercise of jurisdiction does not invest the Court with jurisdiction to try the offence. If the facts which constitute the charge do not appear on the face of the sanction, it must be established by extraneous evidence that those facts were placed before the authority competent to grant the sanction and that the authority applied his mind to those facts before giving sanction. " ( 15 ) IT is, therefore, well settled that in order to constitute a valid sanction it must be established that the same was given in respect of the facts constituting the offence with which the accused is proposed to be charged. The facts may be stated in the order granting sanction or may be proved by extraneous evidence. If the facts do not appear on the face of the sanction, the prosecution must prove it by other evidence that the material facts constituting the offence were placed before the sanctioning authority and he had granted the same after consideration of the said facts. It follows as a corollary that where the facts constituting the offence do not appear on the face of the sanction, it will be open for the prosecution to lead evidence that the material facts were placed before the sanctioning authority before grant of sanction, and the occasion for leading the evidence can arise only during the course of trial. ( 16 ) THE discussion shows that an order of sanction can be assailed only on two grounds viz. (1) it has been granted by an authority who was not competent to do so and (2) it has not been given in respect of the facts constituting the offence charged. However, if the challenge to sanction is based upon the ground that the facts constituting the offence do not appear on the face of the sanction, (then) such a plea cannot be entertained at the initial stage before the trial has commenced, as the prosecution can have no opportunity to lead evidence in order to show that the sanction had been granted after consideration of relevant material. Therefore, such a plea cannot be entertained and examined in any proceedings including a writ petition under Article 226 of the Constitution before commencement of the trial. It is only after the trial has concluded and the prosecution has been given the opportunity to lead evidence that the validity of the sanction can be examined on this ground. Therefore, such a plea cannot be entertained and examined in any proceedings including a writ petition under Article 226 of the Constitution before commencement of the trial. It is only after the trial has concluded and the prosecution has been given the opportunity to lead evidence that the validity of the sanction can be examined on this ground. ( 17 ) IN the writ petition the entire effort of the petitioner has been to show that he has not misappropriated the funds and that thesame had been utilised for official purpose. These are all questions which go to the merits of the case, namely, whether the charge against the petitioner that he misappropriated the public funds is established or not. These are matters to be seen in the trial after the prosecution and the accused had the opportunity to lead evidence in support of their case. An order of sanction cannot be assailed or tested on the ground that the evidence does not establish the charge. This is the function of the Court trying the case and not of the sanctioning authority. The sanctioning authority has merely to see whether the facts alleged against the accused constitute an offence and whether he should be tried by a competent Court for the said offence. There is neither any pleading nor any ground in the writ petition that the sanctioning authority did not apply his mind to the facts constituting the offence. In the order of sanction it is recited that the authority had carefully examined all the papers and had, thereafter, come to the conclusion that the petitioner Om Prakash, senior assistant, should be prosecuted for the offence committed by him before a competent Court. It is further recited that on being satisfied the authority was granting the sanction for prosecution of the petitioner a competent Court in case Crime No. 100 of 2000, under Section 409, IPC. the impugned order of sanction clearly shows that it has been granted with reference to the facts on which the proposed prosecution was to be based and, therefore, the same is perfectly valid. Simiarly, there is neither any pleading nor any ground in the writ petition that Sri M. A. Farooqui. Director (Administration ). the impugned order of sanction clearly shows that it has been granted with reference to the facts on which the proposed prosecution was to be based and, therefore, the same is perfectly valid. Simiarly, there is neither any pleading nor any ground in the writ petition that Sri M. A. Farooqui. Director (Administration ). Medical and Health Services, U. P. Government, Lucknow, was not legally competent to grant sanction and, therefore, the order of sanction cannot be assailed on the ground of competency of the sanctioning authority. ( 18 ) FOR the reasons mentioned above, there is no merit in the writ petition which is hereby dismissed. Petition dismissed .