Page 1 of 9 AFR HIGH COURT OF CHHATTISGARH, BILASPUR Order reserved on: 7.3.2016 Order passed on: 19.4.2017 [CASE NUMBER] [ENTITY] S/o Late Shri Sunderlal Phuljhele, aged about 46 years, General Manager/Deputy Director of Industries, Directorate of Industries, Mining Bhawan Ring Road, Raipur (CG) Petitioner Versus 1. [ENTITY], through: Principal Secretary, Commerce and Industries Department, Govt. of Chhattisgarh, Secretariat, D.K. Bhawan, G.E. Road, Raipur (CG) 2. Shri [ENTITY], Additional District-Session Judge-cum- Special Judge, Durg (CG) 3. [ENTITY] (CG) 4. The [ENTITY] and also District Election Officer, Durg (CG) 5. [ENTITY] (CG) through General Manager 6. [ENTITY], MIG-II-2213, Housing Board Colony, Bhilai 7. [ENTITY], MIG-I-231, HUDCO, Bhilai 8. [ENTITY], Stamp Vendor, Sector-2, Bhilai, Distt.Durg (CG) Respondents
For Petitioner : Mr. [ENTITY], Advocate For Res.1, 3, 4 & 5 : Mr. [ENTITY] & Mr.[ENTITY], Panel Lawyer For Res.No.6 to 8 : Mr.[ENTITY], Advocate on behalf of Mr.[ENTITY], Advocate
Hon'ble Shri Justice [ENTITY] C.A.V. Order
1. 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 "[ACT]") and [SECTION] 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 19 th 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.[ENTITY], 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 [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/;iz n s' k 'kklu] lkekU; iz ' kklu foHkkx Kkiu dz e kad ,Q-1132@97@1&10]fnukad 28&2&1998- fo"k; & vkfFkZ d vijk/k vUos" k.k C;wj ksa ds iz d j.kksa esa 'kkldh; vf/kdkfj;ksa@ deZ p kfj;ksa ds fo:) vfHk;kst u Lohd` f rA iz n s' k esa Hkz z " Vkpkj ,oa vkfFkZ d vijk/kksa dh jksd Fkke ds fy, yksd k;q D r lax Bu rFkk jkT; vkfFkZ d vijk/k vUos" k.k C;wj ksa dk;Z j r gS aA bu laL Fkkvksa }kjk fd, x, vUos" k.k ds vk/kkj ij 3kkldh;
vf/kdkfj;ksa@ deZ p kfj;ksa ds vfHk;kst u ds iwo Z jkT; 3kklu dh Lohd` ` f r dh vko';drk gksr h gS A orZ e ku esa bu nksu ksa laL Fkkuksa ds iz d j.kksa esa vfHk;kst u Lohd` f r nsu s dh iz f dz ; k fHkUu&fHkUu gS A yksd k;q D r lax Bu ds lHkh iz d j.kksa esa vfHk;kst u Lohd` f r fof/k foHkkx }kjk tkjh dh tkrh gS ] tcfd vkfFkZ d vijk/k vUos" k.k C;wj ks ds iz d j.kksa esa vfHk;kst u Lohd` ` f r fu;q f DrdrkZ vf/kdkjh }kjk tkjh dh tkrh gS A blds QyLo:i C;wj ks ds vusd iz d j.kksa esa vfHk;kst u Lohd` f r tkjh gksu s esa foyac gksr k gS vkS j ,d gh iz k :Ik esa Lohd` f r tkjh ugha gksu s dh laH kkouk cuh jgrh gS ] D;ksaf d fofHkUu fu;q f DrdrkZ vf/kdkfj;ksa dks bldh dkuwu h ckjhfd;ksa dh tkudkjh ugha jgrhA 2+ mijksD r dkj.kksa ls 'kklu us fu.kZ y fy;k gS fd vkfFkZ d vijk/k vUos" k.k C;wj ks ds iz d j.kksa esa vfHk;kst u Lohd` ` f r ds fy, ogh iz f dz ; k viuk;h tk,xh] tks yksd k;q D r lax Bu ds iz d j.kksa esa lkekU; iz ' kklu foHkkx ds Kkiu dz e kad ,Q-15@6@96@1&10] fnukad 21&4&97 }kjk fu/kkZ f jr dh xbZ gS vkS j lela[ ;d Kkiu fnukad 10&7&97 }kjk la' kksf /kr dh xbZ gS vFkkZ r vkfFkZ d vijk/k vUos" k.k C;wj ksa }kjk ,sl s iz d j.k fof/k foHkkx dks Hkst s tk,ax sA fof/k foHkkx leLr vfHkys[ k ds lkFk ;s iz d j.k iz ' kkldh; foHkkx dks vfHker ds fy, Hkst sax sA iz ' kkldh; foHkkx ,d ekg dh le;kof/k esa viuk vfHker fof/k foHkkx dks miyC/k djk;sx k vkS j lkFk gh leLr vfHkys[ k fof/k foHkkx dks okil djsx kA ;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;kst u Lohd` ` f r tkjh dj ldsx kA "
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 [ACT], 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 [ENTITY].
7. In exercise of power conferred by [SECTION] of the [ACT], the Governor of Chhattisgarh has framed rules known as the [ACT]. [SECTION] states about the supplementary instructions under [SECTION] of the [ACT]. [SECTION] 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 invloved or the question of policy has been settled. For the purpose of instructions "Secretary" includes Additional Secretary.
8. By order dated 21.12.2014, [SECTION] 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 [SECTION] of the [ACT], it is quite vivid that the Additional Secretary, Department of Law & Legislative Affairs is competent to grant sanction on behalf of the [ENTITY] and, as such, the sanction granted by the Additional Secretary, Law & Legislative Affairs on behalf of [ENTITY] 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 [ENTITY].
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 Vs. [ENTITY]1 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. Asnoted 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 [PRECEDENT], 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 (2009) 15 SCC 533 (2014) 11 SCC 388 the parent department. Their Lordships of the Supreme Court relying upon the decisions rendered in case of [ENTITY] (supra) have held that in view of [SECTION] of the [ACT], 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 [ENTITY] v. State of Punjab 3 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 [ENTITY] (supra) it was further held that [SECTION] of the [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 [PRECEDENT]. In fact, a three- Judge Bench in State of M.P. V. [ENTITY] (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] of the [ACT], interdicting a criminal proceeding mid- course 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 (2007) 1 SCC 1 :(2007) 1 SCC (Cri) 193 (2009) 11 SCC 737: (2010) 1 SCC (cri)164 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 [PRECEDENT] 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 cost(s).
([ENTITY]) Judge B/-
[CASE NUMBER]