Research › Search › Judgment

Chhattisgarh High Court · body

2017 DIGILAW 168 (CHH)

Kailash Nath Phuljhele v. State of Chhattisgarh

2017-04-19

SANJAY K.AGRAWAL

body2017
ORDER : Sanjay K. Agrawal, J. The petitioner is facing trial for commission of offence under Section 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter called as "PC Act") and Section 120B of the IPC. After having been charge-sheeted sanction for prosecution has been granted vide order dated 19th June, 1998 (Annexure P/5) by the then State of Madhya Pradesh and it has been signed by the Additional Secretary to the Government of Madhya Pradesh. The petitioner has filed this writ petition particularly on the ground that he being the public servant sanction granted by order dated 19th June, 1998 as Additional Secretary was not competent to grant sanction as only Hon'ble the Governor would have granted sanction, therefore, order granting sanction and consequent prosecution deserves to be quashed. 2. Mr. V.G. Tamaskar, learned counsel appearing for the petitioner, would submit that respondent No.2/Additional Secretary to the Government has no power to grant sanction and only Hon'ble the Governor of the State would have granted sanction for prosecution, therefore, the impugned sanction deserves to be quashed and prosecution launched against the petitioner also be quashed. 3. The State has filed its return that under the provisions of business rules the Additional Secretary is competent to grant sanction and as such, sanction has rightly been granted by and in the name of Hon'ble the Governor and and it has rightly been signed by the Additional Secretary on behalf of the State Government. 4. It is the stand of the State Government that the erstwhile State of Madhya Pradesh has taken a policy decision by memo dated 28.02.1998 that in the matter relating to PC Act against the Government Officer/employee, permission for prosecution has to be given by the Department of Law & Legislative Affairs and the procedure applicable for sanction for prosecution would be the same as applicable to the Government Officer/employee to be prosecuted by the Lokayukt Organization. Relevant paragraph of the circular dated 28.02.1998 states as under:- e/;izns'k 'kklu] lkekU; iz'kklu foHkkx Kkiu dzekad ,Q011 32@97@1&10] fnukad 28&2&1998- fo"k; & vkfFkZd vijk/k vUos"k.k C;wjksa ds izdj.kksa esa 'kkldh; vf/kdkfj;ksa@dzepkfj;ksa ds fo:) vfHk;kstu Lohd`frA izns'k esa Hkz"Vkpkj ,oa vkfFkZd vijk/kksa dh jksdFkke ds fy, yksdk;qDr laxBu rFkk jkT; vkfFkZd vijk/k vUos".k C;wjksa dk;Zjr gSaA bu laLFkkvksa }kjk fd, x, vUos".k ds vk/kkj ij vkldh; vf/kdkfj;ksa@dzepkfj;kssa ds vfHk;kstu ds iwoZ jkT; vklu dh Lohd`fr dh vko';drk gksrh gSA orZeku esa bu nksuksa laLFkkuksa ds izdj.k esa vfHk;kstu Lohd`fr nsus dh izfdz;k fHkUu&fHkUu gSA yksdk;qDr laxBu ds lHkh izdj.kksa esa vfHk;kstu Lohd`fr fof/k foHkkx }kjk tkjh dh tkrh gS] tcfd vkfFkZd vijk/k vUos"k.k C;wjks ds izdj.kksa esa vfHk;kstu Lohd`fr fu;qfDrdrkZ vf/kdjh }kjk tkjh dh tkrh gSA blds QyLo:i C;wjks ds vusd izdj.kksa esa vfHk;kstu Lohd`fr tkjh gksus esa foyac gksrk gS vkSj ,d gh izk:i esa Lohd`fr tkjh ugha gksus dh laHkkouk cuh jgrh gS] D;ksafd fofHkUu fu;qfDrdrkZ vf/kdkfj;ksa dks bldh dkuwuh ckjhfd;ksa dh tkudkjh ugha jgrhA 2- mijksDr dkj.kksa ls 'kklu us fu.kZ; fy;k gS fd vkfFkZd vijk/k vUos"k.k C;wjks ds izdj.kksa esa vfHk;kstu Lohd`fr ds fy, ogh izfdz;k viuk;h tk,xh] tks yksdk;qDr laxBu ds izdj.kksa esa lkekU; iz'kklu foHkkx ds Kkiu dzekad ,Q015@6@96@1&10] fnukad 21&4&97 }kjk fu/kkZfjr dh xbZ gS vkSj lela[;d Kkiu fnukad 10&7&97 }kjk la'kksf/kr dh xbZ gS vFkkZr vkfFkZd vijk/k vUos".k C;wjksa }kjk ,sls izdj.k fof/k foHkkx dks Hksts tk,axsA fof/k foHkkx leLr vfHkys[k ds lkFk ;s izdj.k iz'kkldh; foHkkx leLr vfHkys[k ds lkFk ;s izdj.k iz'kkldh; foHkkx dks vfHker ds fy, HkstsaxsA iz'kkldh; foHkkx ,d ekg dh le;kof/k esa viuk vfHkor fof/k foHkkx dks miyC/k djk;sxk vkSj lkFk gh leLr vfHkys[k fof/k foHkkx dks okil djsxkA ;fn iz'kkldh; foHkkx }kjk vfHker ij fopkj dj] viuk vfHker fof/k foHkkx dks miyC/k ugha djk;k tkrk rks fof/k foHkkx fcuk muds vfHker ds vfHk;kstu Lohd`fr tkjh dj ldsxkA 5. A careful perusal of the aforesaid circular would show that the State Government has taken a policy decision that the file relating to the Government Officers/employees to be prosecuted under the provisions of PC Act, 1988, their file will be sent by the Anti Corruption Bureau to the Department of Law & Legislative Affairs and in turn, the Department of Law & Legislative Affairs will send the same to the opinion of the Administrative Department of the concerned officer and, thereafter, the Law Department would consider and apply its mind on behalf of the State Government, and final decision will be taken by Department of Law with regard to grant of sanction against particular employee/Government officer. 6. In the case in hand, the procedure laid down in the Circular dated 28.02.1998 has been followed and the applicant's Administrative Department i.e. Department of Revenue has given its consent for sanction for prosecution of the applicant by its order memo dated 6.3.2014 duly recorded in sanction order dated 16.06.2014 and, thereafter, the Department of Law & Legislative Affair, Govt. of Chhattisgarh has considered and found prima facie case for grant of sanction against the applicant and granted sanction for prosecution by order dated 16.06.2014 and the said order has been expressed in the name of the Governor of the State of Chhattisgarh. 7. In exercise of power conferred by Clauses (2) & (3) of Article 166 of the Constitution of India, the Governor of Chhattisgarh has framed rules known as the Chhattisgarh Rules of Business of Executive Government of Chhattisgarh. Part V states about the supplementary instructions under Rule 13 of the Business Rules. Rule 13(2) provides that subject to the Rules of Business and the practice of the Department and any general or special order of the Chief Minister or the Minister-in-charge a Secretary may dispose of cases of routine nature and those in which either no question of policy is involved or the question of policy has been settled. For the purpose of instructions "Secretary" includes Additional Secretary. 8. By order dated 21.12.2014, Rule 2(A) has been amended and it has been held that any particular item of business allocated to the Department may be disposed of by Additional Secretary, Law & Legislative Affairs and disposal by such Secretary shall be deemed to be disposal by the Department. 9. For the purpose of instructions "Secretary" includes Additional Secretary. 8. By order dated 21.12.2014, Rule 2(A) has been amended and it has been held that any particular item of business allocated to the Department may be disposed of by Additional Secretary, Law & Legislative Affairs and disposal by such Secretary shall be deemed to be disposal by the Department. 9. Going by the aforesaid Rules, particularly Rule 13(2)(a) of the Rules of Business of Executive Government of Chhattisgarh, it is quite vivid that the Additional Secretary, Department of Law & Legislative Affairs is competent to grant sanction on behalf of the State of Chhattisgarh and, as such, the sanction granted by the Additional Secretary, Law & Legislative Affairs on behalf of State of Chhattisgarh is in accordance with law and I do not find any illegality in the order granting sanction by the Additional Secretary, Department of Law & Legislative Affairs expressed in the name of the Governor of the State of Chhattisgarh. 10. Even otherwise, the question raised in this petition is no longer res integra and stands authoritatively concluded by following decisions of the Supreme Court rendered in this regard, which are as under:- 10.1 In the matter of State of Madhya Pradesh v. Virendra Kumar Tripathi (2009) 15 SCC 533 the question raised before the Supreme Court was the Effect of non consultation by the Department of Law & Legislative Affair with that of parent department before granting sanction, while answering the said question, Their Lordships have clearly held that the State Government had granted approval for sanction and the said sanction was granted by and in the name of the Governor of State and signed by the Additional Secretary, Department of Law & Legislative Affairs and, therefore, the order granting sanction is in accordance with law. Paragraph 8 of the report states as under:- "8........A bare perusal of the paragraph shows that before giving approval for prosecution, advice of the department concerned was necessary. The question arises whether the absence of advice renders the sanction inoperative. Undisputedly the sanction has been given by the Department of Law and Legislative Affairs. The State Government had granted approval of the prosecution. As noted above, the sanction was granted in the name of the Governor of the State by the Additional Secretary, Department of Law and Legislative Affairs. Undisputedly the sanction has been given by the Department of Law and Legislative Affairs. The State Government had granted approval of the prosecution. As noted above, the sanction was granted in the name of the Governor of the State by the Additional Secretary, Department of Law and Legislative Affairs. The advice at the most is an interdepartmental matter." 10.2 Thereafter, in the matter of State of Bihar & others v. Rajmangal Ram (2014) 11 SCC 388 , the question for consideration before the Supreme Court was whether sanction for prosecution granted by the Department of Law & Legislative Affairs of the State is valid in law as it was not granted by the parent department. Their Lordships of the Supreme Court relying upon the decisions rendered in case of Virendra Kumar Tripathi (supra) have held that in view of Section 19(3) of the PC Act, 1988, interdicting a criminal proceeding mid-course on the ground of invalidity of sanction, order will not be appropriate unless the failure of justice had been occasioned by any such error, omission or irregularity in the sanction and such failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led. Paragraph seven of the report states as under:- "7. The above view also found reiteration in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193 wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Parkash Singh Badal (supra) it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan v. CBI (2009) 11 SCC 737 : (2010) 1 SCC(Cri) 164. In Parkash Singh Badal (supra) it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan v. CBI (2009) 11 SCC 737 : (2010) 1 SCC(Cri) 164. In fact, a three-Judge Bench in State of M.P. V. Virendra Kumar Tripathi (supra) while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the PC Act, interdicting a criminal proceeding midcourse unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led." 10.3 Recently, the Supreme Court in the matter of State of Madhya Pradesh and others v. Anand Mohan and another (2015) 9 SCC 35 has considered the similar issue and held that Department of Law and Legislative Affairs is competent to grant sanction on behalf of the State Government. 11. Thus, learned Special Judge is justified in rejecting the objection/application filed by the petitioner and order granting sanction is in accordance with law. 12. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. No order as to costs.