ORDER 1. The petitioners are the accused in C.C. No. 34 of 2010, on the file of the XIII Additional Special Court for CBI Cases, Chennai. The first petitioner is the public servant and the second petitioner is the wife of the first petitioner and the final report was filed against them for their holding disproportionate assets to the known sources of income. They filed this petition seeking to quash the proceedings on the ground that sanction accorded to prosecute the first petitioner who is a public servant is illegal and invalid. 2. Mr. K. Suresh Babu, learned counsel for the petitioners submitted that the first petitioner was working as Inspector of Income Tax. The Commissioner of Income tax, who is a competent authority by name Avinash K. Sahay declined to grant sanction under Section 19(1) (c) of Prevention of Corruption Act, 1988, to prosecute the first petitioner who is a public servant for the alleged offence under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act. Subsequently, the Chief Commissioner of Income Tax accorded sanction order dated 6.9.2010, for the prosecution of the first petitioner. The second order passed by the Chief Commissioner of Income Tax according sanction is illegal, against law and the guidelines laid down with regard to sanction in the Vigilance Manual has not been followed. 3. The learned counsel for the petitioners drew the attention of this Court to the Vigilance Manual Chapter-VII-Prosecution which is as follows: “11. Procedure for obtaining sanction of other competent authority: 11.1. In cases in which the order of sanction for prosecution is to be issued by an authority other than the Central Government, the Central Bureau of Investigation will forward the final report of its investigation to such authority who will decide whether or not prosecution should be sanctioned. Delays in issuing the sanction hold up the launching of prosecution leading to delay in conclusion of the proceedings. Such delays also adversely affect the morale of public servants. The competent authorities may therefore take expeditious action in cases in which CBI recommend prosecution against public servants, and issue the sanction within a period of two months from the receipt of report of the Central Bureau of Investigation. 11.2. Such delays also adversely affect the morale of public servants. The competent authorities may therefore take expeditious action in cases in which CBI recommend prosecution against public servants, and issue the sanction within a period of two months from the receipt of report of the Central Bureau of Investigation. 11.2. If in any case, the competent authority does not propose to accord the sanction sought for by the SPE, action may be taken as under: i) In the case of government servants, the competent authority may refer the case to its Administrative Ministry/Department which may after considering the matter, either direct the prosecution should be sanctioned by the competent authority or by an authority next higher to the competent authority; or in support of the view of the competent authority, forward the case to the Central Vigilance Commission along with its own comments and all relevant material for resolving the difference of opinion between the competent authority and the CBI. If the commission also advises grant of sanction for prosecution but the Ministry/Department concerned proposes not to accept such advice, the case should be referred to the Department of Personnel and Training for a final decision. ii) In the case of public servants other than government servants (i.e., employees of local bodies, autonomous bodies, public sector organisations, nationalised banks, insurance companies etc.) the competent authority may communicate its view to the Chief Executive of the Organisation who may either direct that sanction for prosecution should be given, or in support of the views of the competent authority have the case forwarded to the Central Vigilance Commission for resolving the differences of opinion between the competent authority and the CBI.” 4. The learned counsel submitted that as per paragraph-11.2 of the Vigilance Manual, when there is difference of opinion between the competent authority and the CBI, the matter has to be referred to the Central Vigilance Commission. The file relating to the sanction order is now available before the trial Court as it was summoned by the petitioner under Section 91 of Cr.P.C. On a perusal of the said file, there is nothing to indicate that the sanction order has gone to the Central Vigilance Commission at all. The file relating to the sanction order is now available before the trial Court as it was summoned by the petitioner under Section 91 of Cr.P.C. On a perusal of the said file, there is nothing to indicate that the sanction order has gone to the Central Vigilance Commission at all. Though the present sanction order reads that “the Chairman, CBDT, New Delhi, in accordance with paragraph-11.2 of Chapter-VII of the Vigilance Manual, Director of Income Tax, Chennai, to consider the issue of sanction for prosecution”, no single paper is available in the sanction file to show that the file had gone to the office of the Chairman. This deviation from the CBI Manual makes the present sanction order illegal. The sanction to prosecute the public servant from a competent authority is mandatory as per law and it is the safeguard provision and when the public servant is protected by the competent authority by declining to grant sanction, subsequent sanction order being granted deviating the procedure laid down due to pressure given by CBI affects the personal liberty of a person. 5. The learned counsel appearing for the petitioners further contended that there is error in the sanction order given by the Chief Commissioner of Income Tax (CCA) and there was a non-application of mind while according sanction. The Chief Commissioner of Income Tax did not consider the reasons given by the competent authority for declining the sanction. Relying on the same material which was placed before the competent authority, the Chief Commissioner of Income Tax reviewed the order of the competent authority without any basis and thereby the sanctum of the sanction order has been lost. 6. The learned counsel for the petitioner also relied on the decision of the Honourable Supreme Court in State of Himachal Pradesh v. Nishant Sareen, AIR 2011 SC 404 : (2011) 3 SCC (Cr) 836 : (2011) 1 MLJ (Crl) 806 wherein it has been held as follows: “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 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 may be 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 15.3.2008 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. As a matter of fact, from the perusal of the subsequent order dated 15.3.2008 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 27.11.2007 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.” 7. The learned counsel for the petitioners also drew the attention of this Court to the order passed by the Division Bench of this Honourable High Court in W.A. No. 69 of 2010 dated 12.3.2012, wherein it has been observed as follows: “34. It is seen that it is because of the joint sitting of the CBI, CVC along with the Indian Overseas Bank (Sanctioning Authority), the Sanctioning Authority has changed its view. It is not the case of the bank that these materials which are insisted by either the CBI or CVC were not available on earlier two occasions when the order declining sanction of prosecution was passed. Therefore, it is manifestly clear that the change in mind on the part of the Sanctioning Authority has occurred only at the instance and instigation of the CBI and CVC. In the light of the well settled legal principle that the Sanctioning Authority has to independently decide before granting sanction on the materials available, we have no hesitation to hold on the facts and circumstances of the present case that the change of mind on the part of the Sanctioning Authority is certainly not independent. Moreover, it is astonishing to note that in the impugned sanction orders passed by the competent authority there is not even a reference about the earlier order declining to grant sanction and there is absolutely nothing to show that the impugned order has been passed based on any new materials, which were brought to the notice of the authority competent. 35. 35. It is unfortunate that in spite of the alleged grave nature of the offences stated to have been committed by the appellant as well as the petitioner, the employer, being the Sanctioning Authority, having taken a lenient view earlier of declining to grant sanction has changed its opinion due to the pressure from the extraneous sources, which is certainly not expected of the Sanctioning Authority in the light of the well settled principles of law. Unfortunately, the learned Judge has not taken note of the said relevant fact, which in our view vitiates the impugned sanction order. It cannot be said that the impugned sanction order has been passed based on the new materials. Even though the learned Judge has referred to the judgment in Ramanad Chaudhary v. State of Bihar and Others (2002) 1 SCC 153 wherein the Hon’ble Supreme Court has reiterated that the Sanctioning Authority has no jurisdiction to review the order and grant sanction on the same materials, she has chosen to come to a conclusion that there are new materials available. On fact, we do not see any new materials which were either placed by the CBI or CVC before the Sanctioning Authority for the purpose of enabling the Sanctioning Authority to come to a different conclusion.” 8. Per contra, Mr. N. Chandrasekaran, learned Special Public Prosecutor for CBI Cases, submitted that even if the competent authority declines to grant sanction, it is not the end of matter and as provided in the Central Vigilance Manual, there is every possibility to review the order. In the sanction order granted by the Chief Commissioner of Income Tax (CCA), Chennai, it is explicitly mentioned that even in the sanction order in paragraphs 4 and 5, it has been observed as follows: “4. AND WHEREAS, Shri Avinash Kumar Sahay, Commissioner of Income Tax (Computer Operations), Chennai, being the authority competent to remove the said Shri Chapa Ravikumar from the office, who was required to grant approval for prosecuting Shri Chapa Ravikumar, after verification of records, has decided not to grant sanction for prosecution of the said Shri Chapa Ravikumar and that the matter be referred to the Central Vigilance Commission for suitability of the case for prosecution. 5.AND WHEREAS, the Chairman, Central Board of Direct Taxes, New Delhi in accordance with the terms of para 11.2 of Chapter VII of the Vigilance Manual (Vol.1) has directed the Chief Commissioner of Income Tax (CCA), Chennai to consider the issue of sanction for prosecution of Shri Chapa Ravikumar, Inspector of Income Tax in the CBI case No. R.C.4(A) of 2008.” 9. The learned Special Public Prosecutor vehemently submitted that the petitioners’ counsel on presumption was stating that the file did not go to the Chairman, Central Board of Direct Taxes (CBDT), New Delhi, and it is a mischievous attempt by the accused to discredit the system and the procedure. Once the matter is considered and decided by the Head of the department and when the decision is communicated to the subordinate officer by another subordinate officer, it should be taken that the concerned officer acted only on a proper communication. 10. The learned Special Public Prosecutor further submitted that the present sanction order was accorded by the Chief Commissioner of Income Tax (CCA), Chennai, who is superior officer to the competent authority viz., Commissioner of Income Tax and when the competent authority has exceeded his power and over acted, it is open to the superior authority to take into consideration and to set right the wrong committed by the concerned authority. 11. When the Special Public Prosecutor was questioned by this Court as to whether any new materials were placed before the Chief Commissioner of Income Tax, the learned Special Public Prosecutor admitted that no fresh materials were placed, but submitted that only if the same officer who declines to grant sanction passes an order subsequently granting sanction, fresh materials and additional materials are required, but if the sanction order is granted by the superior authority, no fresh materials are required. The learned Special Public Prosecutor also submitted that the decision cited by the learned counsel for the petitioners are not applicable to the facts and circumstances of this case. 12. This Court considered the submissions and perused the materials available on record. This petition under Section 482 Cr.P.C, is filed to quash the proceedings against both the accused on the ground of invalidity of the sanction to prosecute the first accused who is a public servant. 13. 12. This Court considered the submissions and perused the materials available on record. This petition under Section 482 Cr.P.C, is filed to quash the proceedings against both the accused on the ground of invalidity of the sanction to prosecute the first accused who is a public servant. 13. The charges also have been framed by the trial Court against the accused, but so far examination of the prosecution witnesses has not commenced. 14. In the counter filed by the respondent in paragraph-12, it is stated as follows: “12. It is further submitted that the Honourable Supreme Court of India held in Satya Naryan Sharma v. State of Rajasthan ( 2001 Cr.LJ 4640 (SC) ; 2002 SCC(Cr.) 39 ), “Thus in cases under the Prevention of Corruption Act, there can be no stay of trials. We clarify that we are not saying that proceedings under Section 482 of the Code of Criminal Procedure cannot be adopted. In appropriate cases, proceedings under Section 482 can be adopted. However, even if the petition under Section 482 Code of Criminal Procedure is entertained, there can be no stay of trials under the said Act.” Hence this Court has no hesitation to decide the matter under Section 482 Cr.P.C. 15. A copy of the letter from the Chief Commissioner of Income Tax - Avinash K. Sahay, dated 30.7.2009 sent to the Superintendent of Police, CBI, in which the Commissioner of Income Tax has declined to grant sanction, is placed before this Court by way of typed set filed by the respondent. The present sanction order according sanction to prosecute the government servant is given by the Chief Commissioner of Income Tax, Chennai, dated 06.09.2000. In the said sanction order itself, it is mentioned in paragraph-5 that the Chairman, Central Board of Direct Taxes as per the terms of paragraph 11.2 of chapter VII of the Vigilance Manual (Vol. 1) directed the Chief Commissioner, Chennai, to consider the sanction. While so, it is not proper to hold that the file had not gone to the Central Vigilance Commission just because the relevant papers are not available in the sanction file. Even otherwise, the guidelines available in the Vigilance Manual having no statutory force are only directory and they cannot be considered as mandatory. While so, it is not proper to hold that the file had not gone to the Central Vigilance Commission just because the relevant papers are not available in the sanction file. Even otherwise, the guidelines available in the Vigilance Manual having no statutory force are only directory and they cannot be considered as mandatory. Therefore, the contention of the learned counsel for the petitioners that sanction order loses its value for the reason that there is no material to show that the file has gone to Central Vigilance Commission. 16. With regard to the next contention, it is to be decided that whether any fresh material is required or not when a competent authority had already declined to grant sanction and subsequently it is reviewed and sanction is accorded by a superior authority to the competent officer. Of course, it was admitted by the learned Special Public Prosecutor for CBI that if subsequently the sanction was accorded by the same officer, fresh materials are required. In this case, it is an admitted fact that no fresh materials were placed before the Chief Commissioner of Income Tax, who is a superior authority to the Commissioner of Income Tax (competent authority). Of course, the commissioner of Income Tax while declining to grant sanction, he had gone deep into the facts of the case. The charge against the public servant was that he was in possession of disproportionate assets to the known sources of income. In such case, the explanation given by public servant in an important and relevant material for consideration. Even the investigating officer must first try to satisfy himself with the explanation given by the accused and only when he is not satisfied with the investigation, he has to file a final report against the accused. While so, it cannot be said that it is improper for the sanctioning authority to go into those explanation given by the accused. It is observed by the competent authority that the second accused is the wife of the first accused who is also a Doctor has disclosed her income from private practice under the head professional income in her R.O.I, year after year and the same cannot be ignored while determining the disproportionate assets. The competent authority had observed in his ultimate paragraph as follows: “60. The competent authority had observed in his ultimate paragraph as follows: “60. Thus, in the light of all the facts and catena of judicial pronouncements as mentioned above, it can safely be concluded that the prosecution has failed to make out a convincing case of disproportionate assets against the accused and could not adduce sufficient evidence to prove the charge alleged against the accused. Ipso facto prosecution did not even discharge the initial burden of raising the presumption of disproportionate assets against the accused and hence, in the considered opinion of the undersigned, no disproportionate assets case is prima facie made out against the official. Even for the sake of argument, if it is presumed that such presumption has been raised, even then, the details and submissions made by the accused clearly show that accused has satisfactorily accounted for the alleged disproportionate assets belonging to his wife. In the circumstances, I am unable to grant sanction to the prosecution under Section 19(1) (c) of Prevention of Corruption Act to prosecute the government servant concerned under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act and 109 IPC.” Wherein in the present sanction order given by the Chief Commissioner of Income tax who is superior authority to the competent authority, he had merely observed that ‘duty of the competent authority is only to see whether there is any prima facie case for the prosecution has been made out by the CBI, but the competent authority painstakingly analysed the materials on record as he had stepped into the shoes of the judicial authority for examining the witnesses.’ This Court is unable to understand that on what basis the Chief Commissioner of Income Tax had observed that the competent authority should not go deep into the materials available and analyse those matters. Normally the sanctioning authority is expected to apply his mind and analyse the materials available on record for and against. Mechanically accepting the materials and thereby granting sanction may not be proper. The Chief Commissioner of Income Tax also has not observed anything in what manner the reasons given by the competent authority for declining the sanction are erroneous. Admittedly, no fresh material has been placed before the superior officer who accorded sanction. Therefore, the superior officer sat as an appellate authority over the order passed by the competent authority. The Chief Commissioner of Income Tax also has not observed anything in what manner the reasons given by the competent authority for declining the sanction are erroneous. Admittedly, no fresh material has been placed before the superior officer who accorded sanction. Therefore, the superior officer sat as an appellate authority over the order passed by the competent authority. This sort of practice has not been approved by the Honourable Supreme Court. 17. In the decision cited supra, the Honourable Supreme Court has held that the order either refusing or granting sanction is an order passed under statutory power. But at the same time, it is held that even the power once exercised can be excised once again, but while reconsidering the matter, fresh materials must have been collected by the investigating agency subsequent to the earlier order and it should have been placed before the sanctioning authority. In the decision cited supra, the earlier decision of the Honourable Supreme Court in Gopikant Choudhary v. State of Bihar and Others (2000) 9 SCC 53 is referred. As per the facts of the said case, initially the concerned Minister refused to accord sanction to prosecute the public servant, but subsequently the Chief Minister granted the sanction for prosecution, but the said order was set aside by the Honourable Supreme Court on the ground that the investigating agency has not collected any fresh materials requiring a fresh look at the earlier order. One another decision of the Honourable Supreme Court in State of Punjab and Another v. Mohammed Iqbal Bhatti (2011) SCC (Cr) 949 : (2010) 4 MLJ (Crl) 652 also is referred in the decision cited supra. As per the facts available in the said case, originally the Honourable Minister refused to grant sanction by order dated 15.12.2003, but subsequently after change of government after more than nine months, the Vigilance Department again approached the government. The Governor of Punjab had passed an order of sanction dated 14.9.2004. The Honourable High Court of Punjab and Haryana set aside the order of sanction observing that State had no power of review. While the State challenged the order of the Honourable High Court, the Honourable Supreme Court observed that in paragraphs-22 and 23 as follows: “22. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. While the State challenged the order of the Honourable High Court, the Honourable Supreme Court observed that in paragraphs-22 and 23 as follows: “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.” 18. In view of the ratio laid down by the Honourable Supreme Court, it is held that once an order is passed refusing to grant sanction by a competent authority, the said order cannot be reviewed or reconsidered even by the superior authority to the competent officer on the same materials which are placed before the competent authority. Otherwise, as held by the Honourable Supreme Court that unrestricted power of review may not bring finality and different order may be passed by reopening the matter for various reasons. 19. It is also made clear by this Court that any order granting sanction cannot be subjected to judicial review by the High Court under Article 226 of the Constitution of India, since such an order of sanction can be tested at the time of trial, but at the same time, an order of the competent authority declining to grant sanction for prosecution, since it puts an end to the proceedings, can be subjected to judicial review by the High Court under Article 226 of the Constitution of India. But in this case, unfortunately, the Central Bureau of Investigation instead of challenging the order of the competent authority declining to grant sanction has travelled in a wrong direction to approach different authority to get the sanction order based on the same materials. This Court is of the view that there was non application of mind on the part of the Chief Commissioner of Income Tax (CCA), Chennai, who accorded sanction by order dated 6.9.2010, and the said sanction order is also illegal and invalid for the reasons stated above. 20. This criminal original petition filed by the petitioners is allowed and the proceeding against both the petitioners in C.C. No. 34 of 2010, on the file of the XIII Additional Special Judge for CBI Cases, Chennai, is quashed. Petition allowed.