Case: Mansukhlal Vithaldas Chauhan Vs. State Of Gujarat

The appellant, who as Divisional Accountant, held a Class III Post, in the Medium Irrigation Project Division at Ankleshwar, Gujarat, was prosecuted for offences under Section 161 IPC and Section 5(2) of the Prevention of Corruption Act, 1947, and was ultimately convicted and sentenced to two years rigorous imprisonment and a fine of Rs. 15,000/- for the offence under Section 5(2) of the Act and another two years rigorous imprisonment for the offence under Section 161 IPC, by the trial court, namely, Special Judge, Bharuch. This was upheld by the High Court in appeal.M/s R.L. Kalathia and Company, a partnership firm of eleven partners, one of whom was Mr. Harshadrai Laljibhai Kalathia, were awarded, in 1979, the contract for constructing Pigut Dam in Valia Taluka of District Bharuch at an estimated cost of Rupees eighty six lacs. The work was completed on 31st December, 1982. Excluding the payments made against running bills, there still remained a sum of Rupees eighty lacs to be paid to the contractor from whom the appellant allegedly demanded Rs. 20,000/- but Harshadrai Laljibhai Kalathia reported the matter to the Deputy Director (Anti Corruption), Shri Vaghela, who, in his turn, briefed the Police Inspector, Shri Agravat and the letter, namely, Shri Agravat arranged and laid a trap on 4.4.1983. The currency notes, treated with anthracene powder, were offered to the appellant who was, allegedly, caught red-handed by the raiding party. Police Inspector Agravat examined the hands of the appellant in the light of the ultra violet lamp which indicated marks of anthracene powder on the tips, palm and fingers of the left hand as also on his right hand. Some marks of blue anthracene powder were also found on the currency notes. Inspector Agravat gave a receipt of Rs. 20,000/- to the appellant and took the currency notes in his possession. The usual Panchnama was prepared and further investigation was carried out by Shri Agravat.5. In the meantime, the appellant submitted an application (Ex. 45) to the Home Minister on 9.3.1984 for investigation being handed over to an independent officer. The Home Minister by his order dated 13.3.1984 directed fresh investigation of the case, in pursuance of which the investigation was taken up by the Assistant Director, Shri Vaghela, who submitted a fresh report in December, 1984 against the appellant. On the receipt of this report, the Secretary, Gujarat Vigilance Commission, by his letter dated 3.1.1985, wrote to the Government to grant sanction for prosecuting the appellant as a prima facie case was made out against him after fresh investigation. The Government, however, did not immediately grant the sanction and consequently the complainant, Shri Harshadrai Laljibhai Kalathia, filed, in the name of the firm, M/s R.L. Kalathia and Company, a Special Civil Application No. 5126 of 1984 in the Gujarat High Court under Article 226 of the Constitution for a direction to the respondents, namely the State of Gujarat and others to sanction prosecution of the appellant for offences punishable under Section 161 IPC and 5(2) of the Act. The Gujarat High Court by its order dated 2.1.1985, partly allowed the petition and passed the following operative orderthe result, this petition is partly allowed. Respondent No. 7 (newly added) is directed to accord sanction under the relevant provisions of the Prevention of Corruption Act to prosecute M.V. Chauhan who was working as Divisional Accountant of Medium Irrigation Project at Ankleshwar as stated above. It need not be stated that prosecution will be for offences punishable under the relevant provisions of law. Respondent No. 7 is directed to accord sanction within one month from the receipt of the writ of this Court.Rule made absolute to the extent stated above with no order as to costs.The High Court by its order dated 21.1.1985 had directed the Secretary, Road and Building Department, to grant sanction within one month from the receipt of the order. The sanction order (Exhibit 9) is dated 23rd January, 1985 and is signed by Shri J.P. Lade, Deputy Secretary to the Government of Gujarat, Road and Building Department. Shri Lade has been examined as PW-8. He stated that on the relevant date, he was serving as Under Secretary and was also holding the additional charge of the Deputy Secretary, Road and Building Department and in that capacity, he gave the sanction as he felt that there was sufficient evidence against the appellant warranting his prosecution.37. PW-14, Shri Pravinchandra Jaisukhlal, who was the Secretary, Road and Building Department, where Shri Lade was the Under Secretary, stated that he had given the sanction for prosecution of the appellant. He further stated that before according sanction he had seen all the papers. He also stated that the signature on Exhibit 9 was that of Shri Lade as the correspondence is usually done by the Under Secretary after the orders are passed on the file.

Reasoning: On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the `sanction order was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings.From the notings of the Secretariat file, contained in Exhibit 70, as also the conflicting statements made by the Secretary and the Under Secretary, it is not possible to hold as to who actually granted the sanction. The Gujarat High Court has held that the sanction was granted by the Deputy Secretary, Shri Lade (PW-8), ignoring the fact that the file was also placed before the Secretary and he had also put his signature thereon. The file had, admittedly, been sent to the office of the Chief Minister from where it was received back on 30th January, 1985 and as such it is not understandable as to how sanction could be granted on 23rd January, 1985. This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. Secretary being the head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction. Deputy Secretary, who actually issued the order of sanction, he signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of appellants prosecution with the consequence that whole proceedings stood void ab initio.39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial.