IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 295 of 2010 (O&M) Date of Decision: August 9, 2010 Surat Ram Sharma …Appellant Versus State of Punjab and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Jasdeep Singh Gill, Advocate, for the appellant. Mr. Suvir Sehgal, Additional Advocate General, Punjab, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The appellant has come up in appeal under Clause X of the Letters Patent against the judgment dated 17.12.2009, passed by the learned Single Judge in CWP No. 14627 of 2007. The learned Single Judge has posed following two questions of law:- “i) Whether an order passed refusing sanction to prosecute under the provisions of Section 19 of the Prevention of Corruption Act, 1988 (for short 'the Act'), can be reviewed? ii) If answer to question No.1 is in the affirmative, whether, in the facts and circumstances of the case, order (Annexure P-3), under which the Vigilance Bureau was refused the LPA No. 295 of 2010 (O&M) sanction to prosecute the petitioner, could be reviewed by way of granting sanction for prosecution vide subsequent order (Annexure P-4)?” Learned Single Judge noticed the judgment of Hon’ble the Su- preme Court rendered in the case of State of Punjab v. Mohammed Iqbal Bhatti, 2009 (3) RCR (Criminal) and proceeded to answer the first question in affirmative. However, the argument raised on behalf of the petitioner-appellant that the condition precedent for exercising power of review in the matter of grant of sanction for prosecution is the availability of fresh material which has not been considered earlier. However, the learned Single Judge held that pres- ence of fresh material constitute one of the ground yet there is possibility of re- view if the sanctioning authority fails to take into consideration relevant facts or had earlier decided the question with regard to sanction by taking into consid- eration irrelevant facts. The aforesaid view of the learned Single Judge is dis- cernible from the following observation:- “ ……It is held that when fresh relevant material is placed before the sanctioning authority and the facts and circumstances warrant, order refusing sanction to prosecute can be reviewed. Further, in case, while dealing with the issue in the earlier order, the sanctioning authority fails to take into consideration relevant facts or takes into consideration irrelevant facts, the order can be reviewed. It is, however, required that reason for reconsideration of earlier order is shown to the sanctioning authority. It is an administrative order and if it is passed dehors the relevant considerations, it is required to be reviewed. Such an order has serious legal implication in so much as protection given to a public 2 LPA No. 295 of 2010 (O&M) servant is likely to be abused if the first order passed by the sanctioning authority is illegal. An offender is required to face trial before a court of law and the process cannot be allowed to be frustrated by way of abuse of the procedure provided for giving sanction to prosecute.” Thereafter the second question of law was taken up and the learned Single Judge held that while granting sanction by the impugned order dated 6.7.2007 (P-4), the sanctioning authority has based its decision on the investigation file. On the aforesaid question, the view of the learned Single Judge is discernible from the following observation: “ ……The case, as set up by the complainant in the F.I.R., has been noticed. The proceedings carried out by the Investigating Agency before laying the trap, including the role of each witness in the process, has been considered. The order Annexure P-4 further considers the details of recovery, recovery memos and the material and evidence collected during the course of investigation. It has, thereafter, been prima facie concluded that the act of the petitioner falls within the scope of offences committed under Sections 7 and 13(2) of the Act, whereupon sanction to prosecute the petitioner has been granted. So as to deal with the judgment cited on behalf of the petitioner in the context of second question i.e. Mohammed Iqbal Bhatti's case (supra), suffice it to say that the facts are distinguishable, as noticed in earlier part of the judgment, while dealing with the first question. The judgment, as confirmed by the Hon'ble Supreme Court of India, does not any where hold that 3 LPA No. 295 of 2010 (O&M) review of order cannot be made. Rather, the judgments indicate the conditions under which order denying sanction to prosecute may be reviewed.” We have heard learned counsel for the appellant at a considerable length and find that the view taken by the learned Single Judge does not suffer from any legal infirmity which may warrant interference of this Court. The power of review cannot be confined to the material which may be produced on record after the passing of the order under review. The review is also permissible if irrelevant consideration has entered into the reckoning of material or irrelevant consideration has been ignored. Even otherwise, Section 19(3) has been subject matter of interpretation by their Lordships’ of Hon’ble the Supreme Court in numerous judgments and the overriding principle which emerges is that there should not be failure of justice in grant of sanction. It would, therefore, be apposite to consider the provisions of Section 19 of the Act, which 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 4 LPA No. 295 of 2010 (O&M) 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, - (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, 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 5 LPA No. 295 of 2010 (O&M) powers of revision in relation to any interlocutory order passed in 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.” We would like to place reliance on the judgment of Hon’ble the Su- preme Court rendered in the case of State v. T. Venkatesh Murthy, (2004) 7 SCC 763. In that case the irregularity in grant of sanction was even graver than the one presented by the facts of the present case. There a charge sheet was filed against the accused for commission of offences relatable under Section 7, 13(1)(d) read with Section 13(2) of the Act. Even the charges were framed by the trial Court under the aforesaid provisions and evidence of witnesses had also been recorded. It was at that stage that the Public Prosecutor filed an appli- cation for adjudication of the question relating to validity of sanction for prose- cution. The accused, in fact, did not raise any objection to it. The sanction was accorded by the Superintending Engineer of the Karnataka State Electricity Board. The trial Court held that the competent authority for according sanction could not be the Superintending Engineer and, therefore, the accused was enti- 6 LPA No. 295 of 2010 (O&M) tled to discharge at that stage for want of sanction by a competent authority. However, the trial Court granted liberty to the prosecution to obtain fresh sanc- tion and then file fresh charge sheet. The order was eventually challenged be- fore Hon’ble the Supreme Court after the High Court dismissed the revision pe- tition. While interpreting sub-sections (3) and (4) of Section 19 of the Act, Hon’ble the Supreme Court observed in paras 7 to 11 as under:- “7. A combined reading of sub-sections (3) and (4) make the po- sition clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be re- versed 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. 8. Clause (b) of sub-section (3) is also relevant. It shows that no Court shall stay the proceedings under the Act on the ground of any error, omission or irregularity in the sanction granted by the author- ity, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. 9. Sub-section (4) postulates that in determining under sub-sec- tion (3) whether the absence of, or any error, omission or irregular- ity in the 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. 10. Explanation appended to the Section is also of significance. It provides, that for the purpose of Section 19, error includes com- petency of the authority to grant sanction. 7 LPA No. 295 of 2010 (O&M) 11. The expression "failure of justice" is too pliable or facile an expression, which could be fitted in any situation of a case. The ex- pression "failure or justice" would appear, sometimes, as an etymo- logical chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of Environment, (1977) 1 All ER 813. The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. [See Shamnssheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577].” On interpretation, the principle laid down by their Lordships’ of Hon’ble the Supreme Court is that the Courts are not to quash or stay the pro- ceedings under the Act merely on the ground of an error, omission or irregular- ity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice. While determining whether the absence of, or any error, omission or irregularity in the sanction has occasioned or resulted in failure of justice, the Court is to take into account whether an objection could and should have been raised at an earlier stage in the proceedings. The aforesaid view taken by their Lordships’ have been reiterated in the cases of Shankerbhai Laljibhai Rot v. State of Gujarat, (2004) 13 SCC 487; Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1; Paul Varghese v. State of Kerala and State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533. In all these cases one overriding principle which perme- ates the judgments is that unless there is failure of justice on account of error, omission or irregularity in grant of sanction for prosecution, the proceedings under the Act could not be vitiated. 8 LPA No. 295 of 2010 (O&M) In the present case, although there is no fresh material furnished to the Government but sanction was accorded vide order dated 6.7.2007 (P-4) by taking into account the whole investigation file. The aforesaid file although was presented to the sanctioning authority earlier but it does not seem to be con- sidered while passing earlier order on 20.9.2006 (P-3). The view of Hon’ble the Supreme Court in the case of Mohammed Iqbal Bhatti (supra) has been consid- ered by the learned Single Judge concluding that the scope of review is not con- fined only to a case where fresh material has been produced. The power can also be exercised when irrelevant consideration has been taken into account in the earlier order and relevant considerations have been ignored. We approve the aforesaid view. This is what has happened in this case. The question of al- ibi claimed by the petitioner is also not relevant because it would amount to ad- judication which is not the scope for grant of sanction for prosecution. The overriding principle of failure of justice has also been discussed in detail. Moreover, the question of granting sanction is procedural in nature and does not involve any principles of substantive law and, therefore, error of procedure would always be subjected to overriding principles of failure of justice. With these added reasons we uphold the view taken by the learned Single Judge and find that the appeal is wholly without merit. As a sequel to the above discussion, this appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) August 9, 2010 JUDGE 9 LPA No. 295 of 2010 (O&M) Pkapoor 10