IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 237 of 2010. Date of Decision : 7.5.2011. State of H. P. …..Petitioner. Versus. Ramesh Kumar ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting? 1No. For the petitioner : Ms. Shubh Mahajan, Dy. Advocate General with Mr. Vinod Thakur, Dy. Advocate General. For the respondent : Mr. S.D. Gill, Advocate. Justice Dev Darshan Sud, J.(Oral). The State is aggrieved by the order passed by learned Special Judge, Mandi on 11th May, 2010 holding that respondent Ramesh Kumar, who was an official working with Punjab National Bank which is a nationalized bank owned and controlled by the Government comes within the definition of public servant under Section 2 (c)(ix) of Prevention of Corruption Act, 1988 which includes employee of such bank. The court noted that no sanction as required under Section 19(1) of Prevention of Corruption Act has been placed on record. It is held that the authority declined to grant prosecution sanction on the ground that the role of the accused was extremely limited which included only preparation of voucher and signing of forwarding letter and the loans were sanctioned by Mr. A.K. Sethi, Branch Manager.. The Court holds: 1 Whether the reports of the Local papers are allowed to see the judgment? Yes. 2 “18. In view of the matter, it has to be concluded that accused Chandra Sharma cannot be discharged for the alleged commission of offences but accused Ramesh Kumar has to be discharged for the alleged commission of offences because there is lack of valid sanction to prosecute him for alleged commission of offences” 2. State now challenges this order in revision. 3. Learned Deputy Advocate General placed reliance upon the judgment of Supreme Court in State of Madhya Pradesh versus Jiya Lal, (2009) 15 Supreme Court Cases 72 to urge that prior sanction is not necessary as even if the trial is commenced without sanction, the conviction cannot be set aside. In this case, the Supreme Court was dealing with the provisions of Section 19 (3)(a) of the Act which support non obstante clause and states that notwithstanding anything contained in the Code of Criminal Procedure (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 section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. 4. Learned Dy. Advocate General further places reliance upon the decision of Madhya Pradesh High Court in Ram Swaroop Rathore versus State of Madhya Pradesh, 2000 Cri. L. J. 1882 again on the same provisions. This was also a case where trial commenced and proceeded further. 3 5. I cannot accept the submissions made on behalf of the State as both the cases relate to the trial continuing despite there being no sanction. 6. The Supreme Court in State of H. P. versus Nishant Sareen, 2011(1) Him. L. R. 433, while considering the provisions of Section 19 of Prevention of Corruption Act and Section 197 of the Code of Criminal Procedure has held : “8. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997)7 SCC 622, this Court observed, ‘Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty’. Section 19 or for that matter Section 197 of Code of Criminal Procedure, 1973 (for short, ‘the Code’) does not make any express provision regarding review or reconsideration of the matter by the sanctioning authority once such power has been exercised. 9. In Gopikant Choudhary v. State of Bihar and Ors., (2000)9 SCC 53, initially the concerned Minister refused to accord sanction to prosecute the public servant therein and an order was passed to 4 that effect. Subsequently, after retirement of the public servant, the matter was taken up by the Chief Minister and he granted sanction for prosecution of the concerned public servant. The question that arose for consideration before this Court was the correctness of the order passed by the Chief Minister. This Court set aside the order of the Chief Minister granting sanction to prosecute the public servant, inter alia, on the ground that the Chief Minister did not have any occasion to reconsider the matter and pass fresh order sanctioning the prosecution. 10. In Romesh Lal Jain V. Naginder Singh Rana & Ors, (2006 1 SCC 294, it was held by this Court 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 the competent court of law. 11. Recently, in the case of State of Punjab and Anr. V. Mohammed Iqbal Bhatti, JT 2009 (13) SC 180, this Court had an occasion to consider the question whether the State has any power of review in matter of grant of sanction in terms of Section 197 of the Code. This Court observed as under.”7. Although the State in the matter of grant or refusal of grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent state, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that 5 while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered.” This Court then noticed the opinion of the High Court which was recorded as follows: “Once the Government passes, the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official, reviewing such an order on the basis of the same material, which already stood considered, would not be appropriate or permissible.” While affirming the above opinion of the High Court, this Court held in paragraphs 22 and 23 of the Report as under: “22. It was, therefore, not a case where fresh 6 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 aground 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.” 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 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 7 exercise and on change of the Government or change of the person authorized 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 material, thus, may keep on changing and there may not be any end to such statutory exercise. In order opinion, a change of opinion per seon 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.” (pages 435-436)(emphasis supplied) 7. This judgment is a complete answer to the submissions made on behalf of the State. There is no merit in this revision petition and it is dismissed accordingly. (Justice Dev Darshan Sud), Judge. 7th May, 2011, (jai)