Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 512 (GAU)

Ramendra Nath Das v. State of Assam

2019-04-26

MIR ALFAZ ALI

body2019
JUDGMENT : 1. This criminal petition has been filed praying for quashing the charge-sheet No. 5/2018 submitted against the petitioners in S.V.C. Police Station Case No. 3/2017 under Sections 120(B)/406/468/471/409/420 IPC read with Sections 13 (2) of the P.C. Act, as well as the prosecution sanction granted under Section 19 of the Prevention of Corruption Act. 2. An FIR was lodged alleging misappropriation and release of public fund without completion of the work in respect of Na-bil Pathar Gully Control Project 2012-2013 and Telia Pathar Gully Control Project 2013-2014. Estimated cost of the above mentioned projects were Rs. 20 lakhs and Rs. 26 lakhs respectively. Upon completion of investigation, charge-sheet was laid against the present petitioners u/s 120(B)/406/468/471/409/420 IPC read with Sections 13 (2) of the P.C. Act for misappropriation of public fund in respect of Na-bil Pathar Gully Control Project 2012-2013 and Telia Pathar Gully Control Project 2013-2014. Prosecution sanction was also accorded by the Secretary to the Government of Assam in the Soil Conservation Department. 3. Aggrieved by the charge-sheet and the sanction accorded for prosecution, the petitioners have approached this court by filing the instant petition u/s 482 Cr.P.C. praying for quashing the proceeding and also the prosecution sanction granted u/s 19 of the P.C. Act. Subsequently by filing an additional affidavit, it was also brought to the notice of this court that in the meantime, learned trial court has framed charges against the petitioners u/s 120(B)/406/468/471/409/420 IPC read with Sections 13 (2) of the P.C. Act. 4. Learned senior counsel, Mr. G. Uzir for the petitioners and learned counsel, Mr. P. Nayak for the respondent No. 2 were heard. 5. Learned Sr. Counsel, Mr. Gautam Uzir submitted that the sanction accorded by the Secretary to the Government of Assam, Soil Conservation Department, was not valid, inasmuch as, the Principal Secretary was the sanctioning authority, who delegated the power to the Secretary/Deputy Secretary, which is not permissible under the law, and that the sanctioning authority accorded the sanction on extraneous consideration without applying its mind. Further contention of Mr. Uzir was that no separate sanction was accorded for the offence u/s 120(B) IPC and other offences under the Indian Penal Code, and as such, the learned Special Judge ought not to have taken cognizance and framed charges, without separate sanction u/s 197 CrPC for the offence u/s 120(B) or Section 409/406 IPC etc. Mr. Further contention of Mr. Uzir was that no separate sanction was accorded for the offence u/s 120(B) IPC and other offences under the Indian Penal Code, and as such, the learned Special Judge ought not to have taken cognizance and framed charges, without separate sanction u/s 197 CrPC for the offence u/s 120(B) or Section 409/406 IPC etc. Mr. Uzir in support of his submission placed reliance on the following decisions :- (i) Mansukh Vithal Das Chauhan -Vs - State of Gujarat, (1997) 7 SCC 622 . (ii) Romesh Lal Jain -Vs- Narinder Singh Rana & Ors reported in (2006) 1 SCC 294 . 6. Learned counsel, Mr. Nayak for the respondent No. 2 submitted that the sanction did not suffer from any infirmity, inasmuch as, the sanction order itself demonstrated, that the sanctioning authority has applied its mind after considering all the materials placed before it. Mr. Nayak further contended that no sanction was required to prosecute a public servant for offence of criminal conspiracy or criminal mis-appropriation of public fund. In support of his submission, leaned Solicitor General of India, Mr. Nayak placed reliance on the following decisions :- (i) Mohd. Iqbal Ahmed -Vs.- State of Andhra Pradesh, (1979) 4 SCC 172 . (ii) Rameshlal Jain -Vs- Naginder Singh Rana And Others (2006) 1 SCC 294 . 7. From the rival submission of the learned counsels following points emerged for consideration in this petition :- (i) Whether the prosecution sanction accorded u/s 19 of the P.C. Act was bad and invalid ? (ii) Whether a separate sanction u/s 197 of the CrPC was required for prosecution of the petitioner under Section 120(B) or Section 409/420 IPC ? 8. The basic ground of attack against the prosecution sanction appears to be non-application of mind by the sanctioning authority and that sanction was also not accorded by the competent authority being the Principal Secretary, rather he delegated the power to Secretary or Deputy Secretary. 9. There is no gain saying that prosecution sanction is not an empty formality. Therefore, while giving sanction to prosecute a public servant, the sanctioning authority is required to exercise the discretion independently keeping in mind the public interest as well as the protection of the public servant against whom sanction is sought. Because the basic purpose of sanction is to provide safeguard to the honest public servant from vexatious and frivolous prosecution. Therefore, while giving sanction to prosecute a public servant, the sanctioning authority is required to exercise the discretion independently keeping in mind the public interest as well as the protection of the public servant against whom sanction is sought. Because the basic purpose of sanction is to provide safeguard to the honest public servant from vexatious and frivolous prosecution. It is therefore, the onerous responsibility of the sanctioning authority to consider all the pros and cons of the matter and the investigating agency seeking prosecution sanction is also under obligation to place before the sanctioning authority all the materials for enabling it to take an independent decision by applying mind, as to whether sanction is to be granted or not. Needless to say, that in order to exercise the discretion freely and fairly and to take an independent decision the sanctioning authority must have full freedom, and should not be under the influence of any extraneous factor. 10. In Mansukhlal Vithal Das Chauhan-Vs-State of Gujarat (supra), Mansukhlal, a public servant was convicted u/s 5 (2) of the P.C. Act, 1947 and Section 161 IPC. There was delay in granting sanction and when the matter of sanction was pending with the Govt., the complainant filed a writ petition under Article 226 of the Constitution of India seeking direction and the Honble Gujrat High Court issued a mandamus, directing the secretary of the department (respondent No. 7) to accord sanction within one month. In view of the direction of the High Court, the sanctioning authority did not have any other option, but to accord sanction, meaning thereby the sanctioning authority was denuded of its power to exercise discretion by applying its independent mind. On the aforementioned facts, the Apex Court held the sanction to be invalid and observed as under :- "19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution." 11. In Romesh Lal Jain -Vs- Naginder Singh Rana (supra) relied by Mr. Uzir, the Apex Court held in paragraph 14 as under :- "It is also beyond any cavil of doubt 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 a competent court of law." 12. The Apex Court in Md. Iqbal Ahmed -Vs- State of Andhra Pradesh dealing with the issue as to how the prosecution has to prove, that a valid sanction was granted by the sanctioning authority, observed as under :- "It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio." 13. In Mansukhlal Vithal Das Chauhan -Vs- State of Gujarat(supra), the Apex Court held as under :- "18. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio." 13. In Mansukhlal Vithal Das Chauhan -Vs- State of Gujarat(supra), the Apex Court held as under :- "18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also: Jaswant Singh vs. The State of Punjab, 1958 SCR 762 = AIR 1958 SC 12 ; State of Bihar & Anr. vs. P.P. Sharma, 1991 Cr.L.J. 1438 (SC))." 14. What therefore, follows from the above authorities is that the Apex Court has provided for two tests in order to ascertain whether there was application of mind by the sanctioning authority. Firstly, the contents of the sanction order itself may demonstrate that all the relevant materials were placed before the sanctioning authority and the sanctioning authority had considered all such materials, by applying its independent mind. Secondly, whether the sanctioning authority has applied its mind or not can also be proved by way of adducing evidence by the prosecution during trial. 15. The letter, by which, the investigating agency sought prosecution sanction has been annexed as Annexure-A to the affidavit-in-opposition filed by the respondent, which shows, that the said letter was written by the Superintendent of Police, CMs State Vigilance Cell, Assam and addressed to the Principal Secretary, Soil Conservation Department, Government of Assam, Dispur. The said letter was accompanied by the copy of the FIR, final progress report of the investigating officer, copies of the seizure list, statement of the witnesses recorded during investigation and the copy of the related documents. The order granting prosecution sanction, annexed with the petition shows, that it was an elaborate sanction order issued on 14-02-2018 under the signature of the Secretary to the Government of Assam in the Soil Conservation Department. The order granting prosecution sanction, annexed with the petition shows, that it was an elaborate sanction order issued on 14-02-2018 under the signature of the Secretary to the Government of Assam in the Soil Conservation Department. Since the prosecution sanction is an administrative action, it is not necessary for the sanctioning authority to write an elaborate judgment in support of granting sanction. Having regard to all the documents and materials referred to in the letter dated 01-04-2017, whereby the prosecution sanction was sought and the elaborate sanction order, it may be difficult to say that the sanctioning authority did not apply its mind. 16. Mr. Uzir referring to the office note annexed to the affidavit-in-opposition, contended that the Secretary, Soil Conservation Department put-up a note before the Joint Secretary, Judicial Department seeking views in the matter of granting sanction and upon such office note, the Legal Remembrancer, Assam, responded by saying that prosecution sanction may be granted. The LR in his office note mentioned as under :- "Prosecution sanction as prayed for may be granted." 17. Referring to the above note of the Legal Remembrancer, Mr. Uzir would contend, that the sanctioning authority did not apply its mind and acted on the dictate and instruction of the Legal Remembrancer, which indicates the non-application of mind by the sanctioning authority. 18. Clause F under the heading "prosecution sanction" to the office memorandum dated 16th July, 2014 reads as under :- "F. Prosecution sanction after establishment of the evidence of criminal charges against the suspected officer/employee, Political (Vigilance Cell) Department shall send the proposal to the concerned appointing authority for issue of prosecution sanction against the suspected officer/employee. The concerned appointing authority after consultation with the Legal Remembrancer shall take necessary action to obtain necessary approval for prosecution sanction from the competent authority." 19. What the above office memorandum provides is that the Political (Vigilance Cell) needs to send the proposal seeking prosecution sanction to the appointing authority and the concerned appointing authority is required to take necessary approval from the Legal Remembrancer. In the above provision of the office memorandum, though the word "approval" has been mentioned, from the opinion given by the Legal Remembrancer in the instant case, it is apparent that it was only a consultative exercise for obtaining the views or opinion of the Legal Remembrancer in respect of granting sanction. In the above provision of the office memorandum, though the word "approval" has been mentioned, from the opinion given by the Legal Remembrancer in the instant case, it is apparent that it was only a consultative exercise for obtaining the views or opinion of the Legal Remembrancer in respect of granting sanction. Such consultation with the Legal Remembrancer and obtaining its legal opinion as per the procedure prescribed by the office memorandum, cannot be considered as extraneous factor, or external pressure more particularly when such consultative exercise is made a part of the process of granting sanction. What the law requires is that the sanctioning authority should apply its independent mind for taking a decision, whether to accord or not to accord sanction. The sanctioning authority should not be under any pressure or influence affecting independent application of mind. Therefore, in my considered view, any consultation or obtaining a legal opinion in respect of giving sanction as provided by the office memorandum cannot be held to have affected the independent functioning and application of mind by the sanctioning authority. Even if the sanctioning authority takes the opinion of the Legal Remembrancer for arriving at a finding, whether to accord or not to accord sanction, that does not amount denuding the sanctioning authority of its power to apply its independent mind. What the law requires is that the sanctioning authority must apply its mind to the facts and the materials brought before it without being influenced by extraneous factors. Therefore, when the sanctioning authority considers all the materials brought before it and grant sanction by applying its independent mind, mere seeking advice or consulting the Legal Remembrancer, per-se, cannot be construed to have influenced the application of mind by the sanctioning authority. Such consultative exercise or obtaining any legal opinion on the issue, rather, may help the sanctioning authority to take a correct decision, whether to grant or refuse sanction on the basis of the materials placed before it. Therefore, in my considered view, mere consultation or obtaining opinion of the Legal Remembrancer in the present case cannot vitiate the sanction, and as such, on factual matrix of the present case the decision of the Munsuklal Vithal Das Chauhan case is distinguishable. Therefore, in my considered view, mere consultation or obtaining opinion of the Legal Remembrancer in the present case cannot vitiate the sanction, and as such, on factual matrix of the present case the decision of the Munsuklal Vithal Das Chauhan case is distinguishable. It is also apparent from the office memorandum, that it is the appointing authority to whom the political department should send the request for seeking sanction and the appointing authority also required to consider and apply its mind for enabling the Government to issue sanction. 20. Mr. Uzir referring to aforementioned office noting, further contended that the Principal Secretary by forwarding the letter seeking prosecution sanction to the Secretary/Deputy Secretary has delegated the power to such officer, which is not permissible. It is suffice to say, that the sanctioning authority cannot delegate its power to accord sanction to any other authority. The Apex Court in C.B.I.-Vs- Ashok Kr. Agarwal (2014) 14 SCC 295 observed that "we do find no force in the submission advanced by Sri Viswanathan, learned ASG that the competent authority can delegate its power to some other authority." 21. The question therefore, needs to be answered is whether such office noting, by which, the Principal Secretary simply forwarded the letter to the Secretary, who had ultimately accorded the sanction amounted to delegation of power. Mr. Nayak, learned counsel contended, that there was no Principal Secretary in the Department of Soil Conservation. Rather, there was an Additional Chief Secretary, who was in the helm of the administration of the Soil Conservation Department. The office note on the application dated 01-11-2007 also shows, that the application was forwarded to the Secretary, Soil Conservation Department from the office of the Additional Chief Secretary to the Government of Assam WPTNBC, Soil Conservation, Science and Technology Department. The application also shows that it was never placed before the Principal Secretary. It is also contended by Mr. Nayak that the Secretary in the Soil Conservation Department being the appointing authority was the competent person to accord the prosecution sanction for the Government. Mr. Uzir countered the submission of Mr. Nayak by contending that if, there was no Principal Secretary, why such letter was addressed to the Principal Secretary to the Government of Assam in the Soil Conservation Department or why the Chief Ministers Vigilance Cell was not aware of such facts. 22. Mr. Uzir countered the submission of Mr. Nayak by contending that if, there was no Principal Secretary, why such letter was addressed to the Principal Secretary to the Government of Assam in the Soil Conservation Department or why the Chief Ministers Vigilance Cell was not aware of such facts. 22. Section 19 of the Prevention of Corruption Act reads as under :- "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 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 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." 23. Section 19 of the P.C. Act requires that sanction is to be accorded by the concerned Government or the authority competent to remove the public servant from his office as the case may be. When sanction is to be accorded by the concerned Government, obviously some govt. officers competent in this regard has to sign the sanction letter on behalf of the Government. Needless to say, that such officer has to apply his mind to see whether a case for granting sanction has been made out or not. When sanction is to be accorded by the concerned Government, obviously some govt. officers competent in this regard has to sign the sanction letter on behalf of the Government. Needless to say, that such officer has to apply his mind to see whether a case for granting sanction has been made out or not. In the present case, though, the letter requesting for prosecution sanction was addressed to the Principal Secretary, as would appear from the note on the body of the petition, the Principal Secretary forwarded the application to the Secretary, Soil Conservation Department and also directed the Joint Secretary, Soil Conservation Department for put up the same. Eventually the sanction order was issued under the signature of the Secretary, Soil Conservation Department. 24. The sanction order shows that the prosecution sanction was issued, by order and in the name of the Governor, under the signature of the Secretary, Soil Conservation Department, meaning thereby, the sanction was accorded by the concerned Government. Whether the Secretary in the present case was competent to sign the sanction letter on behalf of the Govt. may be a matter of evidence. Whether the sanction was to be accorded under clause (a) or (b) or (c) of Section 19 of the P.C. Act is also a matter of evidence. Since the question of validity of the sanction is raised at the pre-trial stage, obviously no evidence was adduced, and as such, no material could be placed before this Court, for enabling this Court to come to a finding, as to who was the competent officer or whether the sanction was required to be issued under clause (b) or clause (c) of section 19 (1) of the P.C. Act. 25. Though a plea has been raised by the petitioners, that appropriate competent authority in the instant case was the Principal Secretary in the Soil Conservation Department, the respondent No. 2 contends that there was no Principal Secretary in the said department. According to respondent No. 2, as submitted by Mr. Nayak, Secretary, Soil Conservation Department being the appointing authority was competent to sign the sanction letter on behalf of the Government. 26. The rival contention as to the above facts cannot be answered in this petition in absence of evidence as to who was really the appointing authority or the appropriate authority to accord sanction. Nayak, Secretary, Soil Conservation Department being the appointing authority was competent to sign the sanction letter on behalf of the Government. 26. The rival contention as to the above facts cannot be answered in this petition in absence of evidence as to who was really the appointing authority or the appropriate authority to accord sanction. Apparently sanction under the provision of Section 19 of the P.C. Act has to be accorded by the concerned Government or the officer competent to remove the accused public servant from office. When sanction is to be accorded by the concerned Government, obviously such sanction has to be signed for and on behalf of the Government by any competent officer, who has to go through all the materials and apply his mind. Having regard to the contents of the sanction order in the present case and the relevant documents and materials placed before the sanctioning authority, prima facie it may not be possible to say, as indicated above, that the sanction was invalid for non-application of mind by the sanctioning authority. However, having considered the other relevant questions, emerged in this petition, more particularly, whether it was the Principal Secretary or the Secretary, who was the competent officer to act for and on behalf of the Government for issuing sanction, or whether sanction was to be accorded under clause (b) or (c) of section 19 (1) of the P.C. Act, it may be necessary for the parties to adduce evidence in this regard. The answer to the question pertaining to delegation of power would also depend on the answer to the question as to who is/was the competent authority to accord sanction. Thus, the validity of the prosecution sanction in the present case apparently involved some factual aspects, for which the parties are required to adduce evidence, and as such, in my considered view, it shall not be appropriate to decide the question of validity of the sanction at this stage, without giving opportunity to the parties to adduce evidence. 27. The Apex Court in C.B.I. -Vs- Ashok Kr. Aggarwal (supra), dealing with the questions as to the stage for raising the question of validity of the sanction, held as under :- "46. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res- integra. 27. The Apex Court in C.B.I. -Vs- Ashok Kr. Aggarwal (supra), dealing with the questions as to the stage for raising the question of validity of the sanction, held as under :- "46. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res- integra. In Dinesh Kumar v. Chairman Airport Authority of India & Anr., AIR 2012 SC 858 , this Court dealt with an issue and placing reliance upon the judgment in Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274 , came to the conclusion as under: "13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal" 47. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage." 28. Having considered the facts and circumstances of the present case and the questions raised by the petitioners, I am of the considered view, that it would be appropriate to leave the matter relating to the validity of sanction in the present case to be decided at the trial, after giving opportunity to the parties to adduce evidence. The point no. 1 is answered accordingly. 29. As regards to the prosecution sanction for the offence under the Indian Penal Code, more particularly for criminal conspiracy or misappropriation of fund, Mr. Nayak submits, placing reliance on Rameshlal Jain (supra), that in order to prosecute a public servant for the offence u/s 120(B) or 409 IPC, no prosecution sanction is required, inasmuch as, such criminal act does not have any nexus with the official function. 30. As this Court has already decided to leave the question of validity of the sanction to be decided at the time of trial, no further discussion is felt necessary on this point. 31. 30. As this Court has already decided to leave the question of validity of the sanction to be decided at the time of trial, no further discussion is felt necessary on this point. 31. In view of the forgoing discussion, this petition is disposed of, leaving the question of validity of the sanction open to be decided at the time of trial. It is further made clear that while deciding the question of validity of the sanction, the trial court shall not be influenced by any observation and comment made here-in-before. 32. This criminal petition stands disposed of accordingly.