[2009] 11 S.C.R. 790

STATE OF PUNJAB & ANR.

MOHAMMED IQBAL BHATII (Civil Appeal No. 4969 of 2009)

JULY 31, 2009

[S.B. SINHA AND DEEPAK VERMA, JJ.]

Code of Criminal Procedure, 1973: s.197 - State's power of review in the matter of grant of sanction in terms of s.197 - c Sanction for prosecution refused by competent authority - Matter again placed before competent authority after about 2 years and sanction granted - High Court holding that State had no power of review - Interference with - Held: Not called for - High Court had perused the entire records and arrived D at a finding of fact that no fresh material was placed before the competent authority for reconsidering the matter- Perusal of earlier order showed that before the competent authority all the relevant records were produced - Constitution of India, 1950 - Article 166 - Rules of Business - rr.8 and 9.

E An FIR was lodged against respondent-public servant. The sanction for prosecution was refused by ...

competent authority. The matter was again placed before the competent authority and sanction was granted. The

F respondent filed writ petition before High Court. High Court allowed the writ petition holding that the State had no power of review and in any event, the impugned order could not be passed as Uie State while passing its earlier order dated 15.12.2003 had exhausted its jurisdiction.

Hence the appeal.

G Dismissing the appeal, the Court

HELD: 1. The respondent is a public servant. The ..

Governor of the State of Punjab is his appointing

H 790

BHATII

authority. He is, therefore, not removable from his office A save by and with the sanction of the Government and in that view of the matter if he is accused in any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction is imperative in character in terms of B Section 197 Cr.PC. The power of the State is performed by an executive authority authorized in this behalf in terms of the Rules of Executive Business framed under "' Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Article 162 thereof. c Once a sanction is refused to be granted, no appeal lies thereagainst. [Para 6] [795-G-H; 796-A-B]

2. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the D same, however, would not mean that po.wer once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, 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 while passing an order for grant of E 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 !:!anction may attract judicial review by the Superior F Courts. 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, G 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_

A 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. The concerned authority cannot also B pass an order of sanction subject to ratification of a higher authority. [Paras 7 and 8) [796-C-H; 797-A]

Mansukhla/ vitha/das Chauhan v. State of Gujarat (1997) 3 SCC 622; State (Anti Corruption Branch) Govt. of N.C. T. c of Delhi and Anr. v. Dr. R.C. Anand and Anr. (2004) 4 sec 615, relied on

3. The High Court called for the entire records. It perused the same. It noticed that several queries were raised but remained unanswered. The Departmental D proceeding initiated against the respondent was dropped. The recommendations therefore were made not to grant sanction on the basis whereof the earlier order dated 15.12.2003 was passed. A finding of fact was arrived at by the High Court that no material was placed E before the competent authority. Only a communication was received from the Director, Vigilance Bureau dated - 22.6.2004 wherein reference of the letter dated 26.5.2004 was made. It, according to the High Court, was not a new material. [Para 9) [797-B-D]

4. The First Information Report was lodged in 2001.

The proceeding for grant of sanction was initiated in that year. Several queries were made to the Vigilance Department. Such queries had to be made as the respondent herein made a representation that he had G been falsely implicated at the instance of some of the officers of the Vigilance Department who had set up a tout therefor. [Para 14) [799-B-C) ~

5. In terms of Clause (3) of Article 166 of the

BHATTI

...

Constitution of India all orders of the government must A be issued in the name of the Governor. Such orders, however, may be signed by any authorities specified in Rule 9 of the Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of Business, no substantive power is conferred. The Rules of Executive Business B provided for three authorities before whom the records are to be placed, viz., Minister of the Department, Chief Minister and Cabinet It is now well-known that in the

f event it appears from the order and the records produced before the court, if any occasion arises therefor that even c if a valid order is not authenticated in terms of Clause (3) of Article 166 of the Constitution of India, the same would not be vitiated m law. Failure to authenticate an executive order is not fatal. The said provision is directory in nature and not mandatory. [Paras 19 and 20] [801-A-E] D

' I. T. C. Bhadracha/am Paperboards and Another v. • Manda/ Revenue Officer, A.P. and Others (1996) 6 SCC 634, relied on.

6. From a perusal of the order dated 15.12.2003, it is E evident that before the Hon'ble Minister all the relevant records were produced. The Vigilance Department did not contend that the Hon'ble Minister did not have any jurisdiction. It accepted the said order. It was not challenged. Only when a new government came in, a F request was made for reconsideration of the earlier order, as would be evident from the memo of the Secretary of the Department. It was, therefore, not a case where fresh 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 G

fact or took into consideration an irrelevant fact. If the

--t clarification sought for by the Hon'ble Minister had. been supplied, the same should have formed a ground for

A reconsideration of the order. [Paras 20 to 22] [801-F-H;

802-A-B]

7. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material

8 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 c of the materials placed before the sanctioning authority or otherwise. [Para 23] [802-C-D]

Case law reference:

(1997) 3 sec 622 relied on Para 7

(2004) 4 sec 615 relied on Para 8

(1996) 6 sec 634 relied on Para 20

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4969 of 2009.

E From the Judgment & Order dated 22.12.2005 of the High ..

Court of Judicature at Punjab & Haryana at Chandigarh in Civil Writ Petition No. 16402 of 2004.

F Vivek K. Goyal, AAG, Pb., Kuldeep Singh (for Arun K.

Sinha) for the Appellants.

Jasdeep Singh Gill, Dinesh Verma, A.P. Mohanty for the Respondent.

G The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. The short question which arises for consideration in this appeal is as to whether the State has any power of review i~ H the matter of grant of sanction in terms of Section 197 of the

STATE OF PUNJAB & ANR. v. MOHAMMED IQBAL 795

BHATTI [S.B. SINHA, J.]

Code of Criminal Procedure, 197.

3. The basic fact of the matter is not in dispute

Respondent was working as Block Development and Panchayat Officer. A First Information Repiort was lodged against him on or about 6.9.2001 under Sections 7 and 13(2) B

of the Prevention of Corruption Act, 1988. Upon completion of investigation, the Vigilance Department sought for sanction from

,.; the competent authority so as to enable it to prosecute the respondent. By an order dated 15.12.2002, grant of such sanction was refused. The matter, however, was placed before c the competent authority once again and on or about 14.9.2004 sanction to prosecute the respondent was granted. Questioning the legality and/or validity of the said order, the respondent filed a writ petition before the High Court of Punjab and Haryana.

By reason of the impugned judgment, the said writ petition D

;, was allowed opining that the State has no power of review and in any event, the impugned order could not have been passed as the State while passing its earlier order dated 15.12.2003 has exhausted its jurisdiction.

4. Mr. Vivek K. Goyal, learned Additional Advocate General appearing on behalf of the appellants, would urge that the jurisdiction for grant of sanction being an administrative one,

1 the State has the requisite power to review its earlier order. It

"- was urged that it is incorrect to contend that power once F exercised stands exhausted.

5. Mr. Jasdeep Singh Gill, learned counsel appearing on behalf of the respondent, on the other hand, urged that the order impugned in the writ petition having been passed by the State G on the same material, the said order was wholly illegal.

..,

6. The respondent is a public servant. The Governor of the State of Punjab is his appointing authority. He is, therefore, not removable from his office save by and with the sanction of the Government and in that view of the matter if he is accused in H

A any offence alleged to have been committed by him while

acting or purporting to act in discharging of his official duty, grant of prior sanction is imperative in character in terms of Section 197 of the Code of Criminal Procedure, 1973. The power of the State, as is well known, is performed by an

8 executive authority authorized in this behalf in terms of the Rules

of Executive Business framed under Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Article 162 thereof. Once a sanction is refused to be granted, no appeal lies thereagainst.

7. Although the State in the matter of grant or refusal to 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 stage, express power of review in the State may D not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that 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 E 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 F 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 G 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 lo do so. The source of power of an H authority passing an order of sanction must also be considered.

BHATTI [S.B. SINHA, J.] " [See Mansukh/a/ vitha/das Chauhan v. State of Gujarat A [(1997) 3 sec 5221

8. The concerned authority cannot also pass an order of sanction subject to ratification of a higher authority. [See State (Anti Corruption Branch) Govt. of N. C. T. of Delhi and Anr. v.

B Dr. R.C. Anand and Anr. [(2004) 4 SCC 615].

9. The High Court called for the entire records. It perused ,. the same. It noticed that several queries were raised but remained unanswered. The Departmental proceeding initiated against the respondent was dropped. The recommendations c

therefore were made not to grant sanction on the basis whereof the aforementioned order dated 15.12.2003 was passed. A finding of fact has been arrived at by the High Court that no material was placed before the competent authority. Only a communic; ation had been received from the Director, Vigilance D Bureau dated 22.6.2004 wherein reference of the letter dated 26.5.2004 was made. It, according to the High Court, was not a new material. In the aforementioned situation, the High Court, opined:

"Once the Government passes the order under Section 19 E

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, F would not be appropriate or permissible. The Government is expected to act consciously and cautiously while taking such serious decisions. The perusal of the record shows that pointed queries had been raised to be answered by the Vigilance Bureau but no answer was forthcoming nor G any had been submitted subsequently which culminated into passing of the later order dated September 30, 2004.

We refrain ourselves from mentioning the queries which had been raised but it would suffice to say that the queries were never answered at the relevant time when the order dated December 15. 2003 had been passed nor the same H

was ever commented upon as no answers were placed

before the competent authority for passing the impugned order dated September 30, 2004."

10. The State of Punjab in exercise of its jurisdiction under B Article 162 of the Constitution of India framed Rules of Executive Business. Pursuant to Rules 18 and 19 thereof, the Department of Rural Development and Panchayat made Standing Orders.

11: Rules 8 and 9 of the said Rules read, thus:

"8. All orders or instruments made or executed by or on

behalf of the Government of the State of Punjab shall be expressed to be made or executed in the name of the Governor.

9.(1) Every order or instrument of the Government of the State of Punjab shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary or an Under Secretary or such other officer as may be specifically empowered by the Governor in that behalf and the signature so made shall be deemed to be the proper authentication of such order or instrument. .. "

12. In terms of the said Rules as also the Standing Order, the Minister of Rural Development and Panchayats is the F competent authority to grant or refuse to grant sanction, so far as the respondent is concerned.

13. Before embarking on the rival contentions, we may also place on record that the Government of Punjab, Department of Vigilance had issued guidelines in terms whereof the grant of G sanction by the Administrative Department may be refused; some of the provisions whereof read as under:

"3. The cases should not be delayed at the level of administrative department when sent for prosecution H sanction. Generally, the cases should be decided with in

BHATTI [S.B. SINHA, J.]

two months time from the date, the reference is made by A the vigilance department.

4. Although the grant or refusal of prosecution sanction is a matter within the sole discretion of the competent , .authority. However, the authority can refuse to grant B prosecution sanction for reason such as ... "

14. The First Information Report was lodged in 2001. The proceeding for grant of sanction was initiated in that year.

Several queries were made to the Vigilance Depprtment. Such queries had to be made as the respondent herein made a C representation that he had been falsely implicated at the instance of some of the officers of the Vigilance Department who had set up a tout tnerefor.

15. The Hon'ble Minister noticed the said representation '':0 and by an order dated 15.12.2003 refused to grant sanction,.·· ·- stating:

"3. After minutely going through the averments made in the representation submitted by the said officer the Hon'ble Minister issued order for submitted the file. After E scrutinizing the fil~\by Hon'ble Minister it was found that the Vigilance Department has been unable to provide the clarification with regard to certain points as asked by the Panchayat Department from the Vigilance Department from which it is cleared that they did not want to submit F the clarification and want the true facts remain hidden and not come to the fore. Therefore, in this ituation, the sanction to prosecution Sh. Bhatti by the Vigilance Department is refused."

The said order was signed by the Special Secretary, Government of Punjab.

16. Before us, however, it was contended that requisite clarification was made by the Deputy Superintendent of Police.

Vigilance Bureau on 17.12.2002 stating:

A "Besides this Sh. Hans Raj Golden has no link with Vigilance Department. It is false that he is a tout of Vigilance Department."

17. However, it is stated that with the change in the

8 Government and after more than nine months of the said refusal

to grant sanction, the Vigilance Department again approached the concerned Secretary for grant of sanction by a letter dated

16.05.2004. The Deputy Secretary, Government of Punjab, Village Development and Panchayat Department by a letter C dated 30.09.2004 addressed to the Deputy Secretary,

Vigilance Bureau, stated as under:

"On the above mentioned subject this department vide

letter memo no. 6/37/2001-3 RDE-3/ 9925 dated 15.12.2003 had refused to grant sanction for prosecution of Sh. Mohammed Iqbal Bhatti.

2. Vide your letter under reference you had again requested to grant sanction for prosecution of the concerned official in the case and after reconsidering the case, sanction for prosecution Sh. Mohammed Iqbal Bhatti, District Development and Panchayat Officer is granted ... "

18. The Governor of Punjab in his order of sanction dated 14.09.2004 recorded the prosecution case presumably as c0ntained in the First Information Report and opined:

"Therefore, after perusing the above case police file, documents, challan and attached all the documents minutely the Rajya Pal Ji has become fully satisfied that the above Mohd. Iqbal D.D.P.O. Ferozepur during the tenure of his service/ posting, have committed an offence u/s 7, 13(2) 88 P.C. Act."

The said order was also signed by the Secretary, Government of Punjab, Rural Development and Panchayat Department.

BHATTI [S.B. SINHA, J.]

19. The contention of the learned Additional Advocate A General for the appellants is that Rule 8 of the Rules of Business shall apply whereas according to the learned counsel for the respondent, Rule 9 thereof shall apply. In terms of Clause

(3) of Article 166 of the Constitution of India all orders of the government must be issued in the name of the Governor. Such B orders, however, may be signed by any authorities specified in Rule 9 of the Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of Business, no substantive power is conferred. The RtJles of Executive Business inter alia provided for three authorities before whom the records are to be placed, c viz., Minister of the Department, Chief Minister and Cabinet. It has not been contended that in terms of the Rules of Executive Business read with the Standing Order, the Minister of the Department concerned could not have refused to grant sanction. What is contended before us is that Rule 8 of the .D Rules of Business should have been complied with .

20. ifis'now well-known that in the event it appears from the order and the records produced before the court, ifany occasion arises therefor that even if a valid order is not authenticated in terms of Clause (3) of Article 166 of the E Constitution of India, the same would not be vitiated in law.

Failure to authenticate an executive order is not fatal. The said provision is directory in nature and not mandatory. [See I. T.C.

Bhadrachalam Paperboards and Another v. Manda/ Revenue Officer, A.P. and Others (1996) 6 SCC 634]. From a perusal F of the order dated 15.12.2003, it is evident that before the Hon'ble Minister all the relevant records were produced.

21. The Vigilance Department did not contend that the Hon'ble Minister did not have any jurisdiction. It accepted the G said order. It was not challenged. Only when a new government came in, a request was made for reconsideration of the earlier order, as would be evident from the memo of the Secretary of the Department.

22. It was, therefore, not a case where fresh materials were H

A 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, B the same should have formed a ground 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 C perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration becme 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 D the sanctioning authority or otherwise.

24. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order E as to costs.

D.G.

Appeal dismissed.