t-r'r\f Post thiswrit petitjpn for pronouncement of the order on 28th Jutv. 2006 ..''^ , ^.^. Sd./- ChiefJustics A ~c ,f? '* /^ -'^ . 7 '/ ''A • SiNGLE BENCH : HON'BLE SHR! S.R. NAYAK, C.J. N0.3586 OF Vs. 1, 2, 3. Sudhakar Hatwar, S/o. Shri Ganpat Rao, Aged about 59 years, Occupation Ser/ice, pressntly posted as Executive Engineer, Public Works Department, Khairagarh, Distt. Rajnandgaon (Chhattisgarh) State of Chhattisgarh, Trhough: Secretary, Department of Law Legislative Affairs, Mantralaya, Dau Kalyan Singh Bhawan, Raipur, (Chhattisgarh) Superintendent of Police, Anti Corruption Sureau.-Raipur (Chhattisgarh) Inspector, Anti Corruption Bureau, Bastar (Jagdalpur) Distt. Baster (Chhattisgarh) Shri Manindra Shrivastava, tearned Sr. Advocate with Shri Amrito Das, learned counsel for the petitioner. Shn Utkarsh Verma, learned Dy. G.A. for the State of C.G. and its Authorities. (Passed on 28th ofJuly, 2006) The petitioner is presently serving as Executive Engineer in the Public Works Department of the State of Chhattisgarh. In this writ petition, he has assailed the validity of the order of the Government of Chhattisgam State dated 05.04.2006 passed in exercise of the power conferred under Section 19(1) ofthe Prevention ofCorruption Act, 1988 (forshort 'the PoC Act') and Section 197 of the Code of Crimina! Procedure, 1973 (for short 'the Cr.P.C.') according sanction for prosecution of the petitioner. The petitioner has also sought for quashing of the charge sheet dated 15.06.2006 filed by the inspector, Anti Corruption Bureau, Bastar Region, Jagdalpur in the Court of Special Judge (Prevention of Corruption Act), 2 Dantewara, (Chhattisgarh) against the petitioner alleging commission of offence under Sections 13(1) (d) and 13-(2) of the PoC Act read with Section 120-B ofthe Indian Penal Code in Crime No.24/99. The petitioner has only produced the sanction order dated 05.04.2006 and he has not charge sheet dated 15.06.2006. (2) The material part of the sanction order dated 05.04.2006 s as follows: "4?r ^'wi^ufT t?? iYn^' ^ ^a-Rf ^ 3TP:raTi3R ^?Fft ^q ^' 'iT? t ^ ^T 1996 ^ sTRNt rfr ''gsrra'? gricji<{ cit^? PpiN' ^TPT qfN^i ^turrs^ '4' it>ii[4i<7t'i Tf^t ^ q?? w *t4<d ati t ^ff ^? TR f^rf^ 04.06.06 (W q?PfTO '?t! ^S^ W R q?T afaRwi ff^FR ^Q ^FT SITCt-ift ^ft X^TOSTRO^PT -qtsrtt 3Tl ft? 3^ ^qT ft^r ?t ^ f. cit^ ft^N ^tTTTr ^Wry 4' ^Tpft^ ^^Tfe^rtt ^ IR i^ 'tiKt'id s} ] ^ft •^FT ^t 3TRO^to srf^^Tef Hte Pt*l["T I^TPT. 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TR VffTSR -S530/VS 3-8/04/19/'' riTT:Tr-1 f^-TfcF 27.02.06 ^ 5W ^?^ "^tr t I" (3) The Sanctioning Authority, i.e., the Government of Chhattisgarh State having referred to the materials placed before it has recorded a finding to its satisfaction that the complained act on the part of the petitioner tantamounts to criminal misconduct within the meaning of Section 13(1) (d) of the PoC Act which is punishable under sub-Section (2) of Section 13 of the PoC Act. On the basis of the above satisfaction, the Government of Chhattisgarh State has accorded the sanction under Section 19(1) ofthe PoC Act and Section 197 ofthe Cr.P.C. (4) I heard Shri Manindra Shrivastava, learned senior counsel and Shri Utkarsh Verma, learned Dy. G.A. for the respondents. Shri Manindra Shrivastava contended thaf the Government has accorded sanction in a mechanical way without application of mind to the facts and circumstances of the case and the relevant materials on record. According to learned senior counsel, the Govemmenf has completely overlooked the relevant record which would show that the approvals were obtained from the Purchase Committee. It was contended that the impugned sanction order is based on conjectures and surmises and there is absolutely no incriminating materials against the petitioner. Accordins to senior counsei, at the most, even taking all the allegations on their face 7 value, it would only tantamount to an irregularity in grant of contract and not a criminal misconduct. Learned senior'counsel would conclude that there is absoiutely no iota of legai evidence to make out an offence under Section 13(1)(d) ofthe PoC Act. Shri Manindra Shrivastava wouid place reliance on the judgment of the Supreme Court in the case of State of Tamii Nadu Vs. M.M. Rajendran in support of his submission. (5) Shri Utkarsh Verma, leamed Dy. Govt. Advocate, at the threshold, would contend that the prayer of the petitioner to quash the charge sheet dated 15.06.2006 is iiable to be rejected in limir^, because, though the petitioner has sought for a writ of certioran to quash the charge sheet, he has not produced the charge sheet. While supportin^ the impugned sanction order dated 15.06.2006, iearned Dy. G.A. wouid contend that whether sanction should be accorded in a particular case or not for prosecution of a public sen/ant is a matter depending upon the subjective satisfaction of the authority concerned and High Court cannot adjudicate upon the propriety or validity of such sanction on the ground that the satisfaction so arrived at was not proper. He wou!d submit that an order of sanction under Section 19(1) of the PoC Act and Section 197 of the Cr.P.C. is basicaliy an administrative order and not a guas/-j"udidal or judicial decision and as such the arguments advanced on behalf of the petitioner are not tenabie. (6) Having heard the learned counsel for the parties, 1 do not find any ground whateoever to quash the impugned sanction order. Quashing ofthe eharge sheet dated 15.06.2006 wou!d not arise, if not for 1.(1998)9SCC268 any other reason, but, for the reason that the same is not produced. Even according to Shri Manindra Shrivastava, learned senior counsel, the impugned charge sheet dated 15.06.2006 is Isabie to be quashed oniy if the sanction accorded by the State Government under Section 19(1) of the PoC Act and Section 197 of the Cr.P.C. is quashed. En other words, even according to learned senior counsei, if the impugned sanction order cannot be quashed, the chalienge to the charge sheet dated 15,06.2006 should fai!. (7) The materials and evidence to which reference is made in the sanction order themselves, if true, speak loudly about the criminal misconduct alieged to have been committed by the petitioner. The only question to be considered is whether if the allegations and pieces of evidence to which reference is made in the sanction order and charge sheet are taken to be true, it wouid amount to a criminal misconduct within the meaning ofCfause (d) of sub-Section (1) ofSection 13 ofthe PoC Act and whether it is punishable under sub-Section (2) of Section 13 of the PoC Act. The relevant provisions of sub-Sections (1) and (2) of Section 13ofthePoCActreadas "13. Criminal misconduct by a public servant- (1) A public servant is said to commit the offence of criminal mjsconduct- (a) xxx xxx xxx xxx (b) xxx xxx xxx x»< (0) XXX XXX XXX XXX (d) if he, - (i) by corrupt or illegal means, obtains fbr himself or for any other person any valuabte thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himseff or for any other person any valuable thing or peouniary advantage; or (iii) while holcting ofRce as a public servant, obtains for any person any valuable thing or pecuniary advantage wlthout any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the pubiic seryant cannot satisfactorily account, of pecuniary resouroes or property disproportionate to his known sourees of income. Explanafion. _ For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public sewant who commits criminal misconduot shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall afso be liabletofine." (8) If the allegations to which reference is made by the State Government in the impugned sanction order are taken to be true, it trite, it would amount to criminal misconduct within the meaning of Section 13 (1) (d) of the PoC Act. But, it is the contention of Shri Manindra Shrivastava, that the allegations are baseless and absolutely no materials or evidence on record to show that the petitioner is guiity of criminal misconduct within the meaning of Section 13 (1) (d) of the PoC Act, and that such a conclusion was recorded by the State Govemment without appiication of mind to the materials placed before it. The submission of the iearned senior counsel is not acceptabfe to the Court. As could be seen from the impugned sanction order, the Govemment has applied its mind to certified copies of the retevant documents enlisted in Appendix A as presented in 10 Crime No.24/99 of Special Potice Establishment Lokayukta Office, Madhya Pradesh, Bhopal and also certified copies of the depositions of the witnesses as noted in Appendix B thereof. The Govemment has atso in great elaboration referred So the. material facts and has conciuded that the petitioner had hatehed a criminal conspiracy to defraud the Government and in that direction proposed purchase of 20 portabie tar mixing hand driven containers, 3 mild steel huts, 18 two-wheeler side carrier and 18 hvo-wheeier water tankers ete. without any requisition by the Sub Divisional OfRcer, P.W.D. Sub Division Maddedh and without any necessity. It is afso alleged that tenders were invited without advertisement. It is also alleged that of the three firms who submitted tenders, two firms, nameiy, M/s. Mahalakshmi Industries, Raipur and M/s. Sharma Industries, Raipur were not in existence. There is no need for me to repeat what is contained in the impugned sanction order, extracted above. (9) Sub-section (1) of Section 197 of the Cr.P.C. contains a bar that when any person who is or was a Judge or Magistrate or a public servant not removabie from his office save by or with the sanction of the Government is accused of any offence alleged to hav®been committed by him while acting or purporting to act in the discharge of his ofRcial duty, no Court, shall take cognlzance of such offence except with the peivious sanction of the Central Government or the State Government, as the case may be. Similarly, sub-Section (1) of 19 of the PoC Act a!so contains similarbar. it reads as foitows: -<'-"S/- tt^ fon. - (1) No court shall take cognizance of an offence punishable under 11 sections7,1Q, 11,13 and 15 allegedto havebeen committed bya public sen/ant, except with the pen/ious sanction, - (a) in the case of a person who js employed in conneotion with the affairs of the Union and is nat removable from his office save by or with the sanction of the Central Govemment, of that Government; (b) in the case of a person who is employed in oannection 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." (10) The object of the bar contained in Section 19 (1) of the PoC Act and Section 197 of the Cr.P.C. is to protect Judges and other public servants against irresponsible, unjustified, frivoious or vexatious or unnecessary harassment for the acts done in discharge of official duty and to see that no prosecution is started unless there is some foundation for the charge brought. In other words, the object is before an officer is prosecuted the superior authority should screen. the allegations wiSh reference to the materiais on record and to see whether there is any substance in the allegations made aaainst the officers and is so, whether it is expedient to prosecute the pubiic servant !n a Court of law or to deal with him departmentally. !f the screenjng authority like the Centrai Government or the State Government after the screening is of the opinion that the a!!egations have absolutely no substance, then, at that ievel itseif the pubiic sencant can be protected from the prospective harassment so that the launching of an complaint itseif is barred. The object, no-doubt, is quite laudable and it carries with it a social interest to achieve. The appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been imposed as a safeguard before the actual proseeution commences. At the same time, it needs to be noticed that the intention is not to put a wall round pubiic servants, but to enable them to perform their duties fearlessly by protecting them from vexatious, mala fide or false prosecutions for act done in the performance of duties. The poiicy is not to set an official above the common iaw. !f he commits a common offence he has no speciai privilege. But if one of his official acts is alleged to be an offence, no prosecution will be aliowed without sanction for the obvious reason that otherwise official acfion wouid be beset by private prosecutions. As heid by the Courts, the bar contained in Section 19 (1) of the PoC Act and Section 197 of the Cr.P.C. is mandatofy as It is the foundation of the Court jurisdiction and that the special protection so provided should be sSrictiy construed. In that view of the matter, it is true that it is the duty of the appropriate Government to consider all re!evant materials and evidence coliected in order to dscide whether prosecution be sanctioned or forbidden. The appropriate Government must be satisfied that there is a prima facie case for starting the prosecution against the public sen/ant concerned before according sanction. Having gone through impugned sanction order and the materials placed before the Court, i am satisfied that the Government of Chhattisgarh State before according permission had duiy appiied its mind to all the relsvant materials and recorded its satisfaction that there is a prima facie case against the petitioner. Therefore, the impugned sanction order cannot be condemned as the one made by the Government of Chhattisgarh State without application of mind and without consideration of relevant materials. 13 '^. (11) For a sanction to be valid, it is true, it must be established that the facts aiteged against a pubiic servant, ifproved, would amount to an offence with which he is proposed to be charged. It is well settled that in considering the question whether or not sanction for prosecution was required, it is not necessary ror the Court to confine itself to the allegations in the compiaint. It can also take into account all the materials on the record at the time when the question is raised and falte for consideration. Order of sanction is only an administrative act and not quasi judia'al one nor a lis is involved. The sanctioning authority has to apply to its mind to the facts and evidence collected by the investigating agency to satisfy itself that it prima facie discloses the commission of an offence by the public servant concerned. While doing so, it wili not examine the sufficiency and admissibility of the evidence collected by the investigatins agency, because, that is the function of the Court. When a public servant 1s charged with an offence, whether sanction is or is not necessary must be determined with reference to the allegations in the complaint and not the defence that may be put forward. The oniy Shing to be seen by the Court is whether essential facts were present in the mind of the sanctioning authority before it decided to lift the bar to the prosecution. The sanctioning authority is not required to critically examine each piece evidence cotlected by the investigating agency, as if it is a Court of iaw. What is expected of the sanctioning authority is that it wil! look at the substance of the matter. if the Court is satisfied {hat al! the relevant facts were brought to the notice of the sanctioning authority, the sanctioning authority applied its mind to those facts and it has accorded sanction after due application of mind, it is not the power of the Court to sit in judgment over the judgment of the sanctioning_aythojibL-as if the Court is an appeiiate authority. Thers is no necessity that the sanctioning authority should refer to each and every document*and material information supplied by the investigating agency. The Section under which the aiieged offence falls or the name of the offence need not be specified in the sanction. It is enough if the facts constituting the offence are set out with sufRcient clarity in the order granting sanction. In this case, the sanction order contains the facts constituting the offence within the meaning of Section 13 (1) (d) of the PoC Act and the grounds of satisfaction. The validity of sanction has to be proved by evidence. It is onty a Court which can tay a presumption on the basis of evldence. Such a presumption does not arise at the stage of granting sanction but only at the stage when the proceedings are iaunched in Court. Thus, it is quits ciear that the scope of judicial review of a sanction order under Article 226 of the Constitution of India is vesy much iimited and circumscribed. (13) The judgment in the case of State of T.N. (supra ) is, in no way, helpful to the petitioner to support his contention. In that case, the respondent, M.M. Rajendran was a Sub-lnspector of police, Crimes attached to Saidapet Police Station. He was convicted by the learned Sessions Judge, Madras by the order dated 18-12-1992 for the offence under Sections 7 , 13(2) read with Section 13 (1) (d) (i) (ii) ofthe PoC Act and the consequential sentence passed for siich offences. Before the High Court, it was aiieged that the said criminal case was not maintainable for not obtaining proper sanction required to be given by appropriate authority for proceeding under the PoC Act. The trial Court, however, proceeded on the footing that proper sanction was accorded by the City Commissioner of Police, Madras who was the proper authority to grant sanction against the accused. The High Court came to the conclusion that il! the reievant materials including the statements recorded by the investigating Officer had not been placed for consideration by the City Commissioner of Police, Madras, because, oniy a report of the Vigiiance Department was placed before him. When that finding of She High Court was challenged before the Apex Court, the Apex Court opined that even assuming that the Commissioner of Poiice had considered a detailed report