Madhya Pradesh High Court
Sunderlal Shivana vs State Of Madhya Pradesh on 20 August, 1987
Equivalent citations: AIR1988MP70, AIR 1988 MADHYA PRADESH 70, (1988) 15 REPORTS 595, (1988) 1 CRILC 507, (1988) JAB LJ 126, (1988) MPLJ 119, 1988 CRILR(SC&MP) 74
JUDGMENT C.P. Sen, J.
1. The learned Single Judge has referred the following question for opinion of the Full Bench :--
"Whether a sanction issued in the name of the President or the Governor of a State, as the case may be, irrespective of the fact of issue of the sanction by particular department of the appropriate Government, could be a valid sanction and any objection as to the validity of such sanction raised under Sub-section (2) of Section 6 in the course of and thereafter, would be meritless?"
2. At the relevant time, the appellant was working as Naib-Tahsildar and was posted at Raipur, his appointing authority being the State Government, Naib-Tahsildar comes within the administrative control and supervision of the revenue department. While so posted there, it is alleged that the appellant demanded bribe of Rs. 300/- for settling encroachment case of the complainant, who had constructed a Tapra by encroaching on the Nazull and and was running a hotel there. It is said that the complainant paid Rs. 200/-to the Naib Tahsildar on 23-9-1979 and expressed his inability to pay any further sum, which did not satisfy the appellant, who was giving him threats every now and then and demanding the balance amount of Rs. l00/-, otherwise, he would throw out the complainant's Tapra by dismantling It. The complainant, therefore, met him on 31-10-1979 and again expressed his inability to pay any further amount, but the appellant insisted on payment, otherwise, he threatened to ta,ke immediate action against him. The complainant, therefore, paid Rs. 25/- to him and promised to pay the balance amount of Rs. 75/- in the evening. The appellant asked him to bring the amount at his residence in the evening. In the meantime, the appellant approached the Special Police Establishment of the Vigilance Commission at Raipur, and a trap wa arranged. Marked currency notes of Rs. 75/- smeared with phenol phthalein powder were given to the complainant for handing over to the appellant In the evening, the complainant went and handed over the amount of Rs. 75/- to the appellant, which the appellant kept in the pocket of his trousers. The complainant gave signal to the raiding party. Currency notes of Rs. 75/- were recovered from the appellant and on his hands and trousers traces of phenol phthalein were detected, after they were dipped in water. On completing the investigation, the prosecution applied for sanction from the State Government for prosecution of the appellant. The order granting sanction was issed on 3-12-198I, signed by the Deputy Secretary, Law and Legislative Affairs Department, in the name and under the order of the Governor. It may be mentioned here that the actual sanction has been given by the Cabinet Minister of the Law and Legislative Affairs Department on 16-11-1981 and thereafter the aforesaid order was issued. It is a detailed order. After finding a prima facie case, sanction has been given for the prosecution of the appellant for the offences under Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and Section 161, I.P.C., by invoking powers under Section 6(l)(b) and (c) of the Prevention of Corruption Act, and Section 197(1)(b), Cr.P.C. Accordingly, the appellant was charge sheeted for the offences and ultimately he has been convicted by the learned Special Judge for the aforesaid offences and sentenced to rigorous imprisonment for 18 months and fine of Rs. 500/-, or, in default, further rigorous imprisonment for six months on. the first count and Rule I. for one year on the second count, both substantive sentence to run concurrently. Against the conviction, the present appeal has been filed and when the matter was listed before the learned single Judge objection was taken by the appellant's counsel that it was only that authority who alone was competent to remove the appellant from service, who could give sanction and the sanction has not been given by the disciplinary authority in the revenue department, but by the Law and Legislative Affairs Department, Government of Madhya Pradesh, as required by Sub-section (2) of Section 6 of the Prevention of Corruption Act. In support, learned counsel for the appellant relies on a Division Bench decision in State of M.P. v. Shiv Prasad, Criminal Appeal No. 453 of 1983, decided on 6-3-1986. The learned single Judge as of the view that the validity of sanction, which is accorded under Sub-section (1) of Section 6 being not as an ex post facto requirement, cannot be decided with reference to Sub-section (2), which contains merely prescription for the sanctioning authority to know its bounds.
3. The relevant portion of Section 6 of the Prevention of Corruption Act is quoted hereunder : --
"6. Previous sanction necessary for prosecution.-
(1) No Court shall take cognizance of an offence punishable under Section 161 or Section 163-or Section 165 of the Indian Penal Code or under Sub-section (2) or Sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,--
XX XX XX
(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 Government.
XX XX XX (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or 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."
Therefore, in case of a person, who is employed in connection with the affairs of the State and is not removable from service, save by or with the sanction of the State Government, sanction of the State Government has to be obtained for his prosecution under Section 161 or 164 or 165, 1.P.C. or under Sub-section (2) or Sub-section (3A) of Section 5 of the Prevention of Corruption Act. Admittedly, the appellant's appointing authority was the State Government and he came within the supervision and control of the revenue department. The order of sanction has been signed by the Deputy-Secretary to Govt. Law and Legislative Affairs Depart merit, acting for and on behalf of the Governor. So we have losee whether the sanction given is valid or not. Here, we may quite Article 166 of the Constitution of India regarding conduct of Government business.
"166. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made ami executed in the name of (he Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor. and the validity of an order or instrument which is authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governer.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with resect to which the Governor is by or under this Constitution required to act in his discretion."
Under Sub-clause (2) orders executed in the name of the Governor shall not be called in quest ion on the ground that it is not an order made or executed by the Governor. Under Sub-clause (3). the Governor shall make rules for the more convenient transaction of business of the Government of the State and for allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion.
4. Now, we have to see under the allocation of business rules, who has to give sanction for prosecution under Section 161, I.P.C. or under Sub-section (2) of Section 5 of the Prevention of Corruption Act. Here, the offence was committed between the period 23-9-1979 to 31-10-1979. Under the Government of M. P. Business Allocation Rules, dt. 26-9-1957 and as corrected up to 1st Dec., 1977, Law and Legislative Affairs Department, amongst other matters was empowered to exercise power on behalf of the State Government,--
2. Criminal law, including all matters included in the Indian Penal Code.
3. Criminal procedure, including all matters included in the Code of Criminal Procedure, except probation of offenders."
So far item (2), referred to above, remained the same, while item (3) was amended from time to time, although it also remained the same under the amended rule dt. 18-11-1983. As per amended rules of 18-11-1983, it read as follows : --
"Criminal procedure, includingall matters included in the Code of Criminal Procedure, except probation of offenders, and sanction of prosecution under Section 197".
Under the amended rule, sanction for prosecution under Section 197 of the Cr.P.C, in respect of members of the services was given to the department, with which lie was concerned. Item 3 has been further amended by the amended rules dated 16-1-19h6. which now reads as follows : --
"3. Criminal Procedure, including all matters included in the Code of Criminal Procedure. 1973, except probation of offenders, sanction of prosecution under Section 197 of the Code of Criminal Procedure, 1973. and Section 6 of the Prevention of Corruption Act. 1947".
Sanction of prosecution under Section 197 of the Code and under Section 6 of the Prevention of Corruption Act has been given to the respective department to which the member of the service belongs. It may be seen that under the Business Allocation Rules, as prevalenl in 1979, when the offence took place the matters relating to criminal procedure, including all matters included in the Cr.P.C., except probation of offenders, were with the Law and Legislative Affairs Department, though specifically the power to give sanction under Section 197, Cr.P.C. or Section 6 of the Act, was not mentioned The words 'criminal law' and 'criminal procedure' are wide enough to include the procedure for giving sanction for offences committed which require sanction. The term 'criminal procedure' by subsequent amendment, has been clarified to include giving of sanction and the authority to give sanction has now been to the respective departments of the State Government to the member of the service belong by empowering each department to give sanction in respect of its members.
5. The Supreme Court, in Godavari v. State of Maharashtra, AIR 1964 SC 1128, has held :-
''Allocation of Business under Article 166(3) of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made. It is made with reference to the three lists of the Seventh Schedule to the Constitution, for the executive power of the Centre and the State together extends to matters with respect to which Parliament and the Legislature of a State may make laws."
Linder the Concurrent List III, of the Seventh Schedule to the Constitution, the following two entries are relevant : --
"1. Criminal law. including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
2. Criminal Procedure, including all matters included in the Cr.P.C. at the commencement of this Constitution.
So, under these two entries of the concurrent list, both the Union and the State legislatures are empowered to enact laws on these two subjects, and consequently pass executive orders also in view of Article 166 of the Constitution.
6. Therefore, under the Business Allocation Rules, the department of Law and Legislative Affairs was empowered to give sanction in respect of prosecution of the State^ Government employees, removable by it, under Section 197 of the Code and Section 6 of the Act. Here, the order of sanction has been issued by the Deputy Secretary of the Law and Legislative Affairs Department, acting for and on behalf of the Governor, as required under the Business Allocation Rules, showing thereby that the order is of the Governor. The Law and Legislative Affairs Department was empowered to give sanction in respect of all employees, irrespective of the departmenl to which they may belong. Now, the position has been changed by the amended Business Allocation Rules. Now sanction has to be given by the respective departments to which the members of the services belong.
7. Vyas, J. in Kashinath v. State of M.P., Cri. Revision No. 330 of 1978, decided on 12-4-1979, held that the fact that the applicant was appointed by the Director of Industries but. the sanction to prosecute him has been given by the highest executive authority of the State, cannot be ground for treating the sanction invalid. All that is required is that the sanction to prosecute should not be by the authority inferior in rank to the authority appointing the applicant. The Director of Industries is the authority subordinate to the Governor of the State. Recently, Suryavanshi, J. in Smt. Jamnabai v. State of M.P., Cri. Appeal No. 121 of 1984, decided in June, 1987 (reported in 1987 MPLJ 543), held that the matter relating to sanction under Section 6 would be a subject falling under t he criminal procedure. The expressions 'criminal law' and 'criminal procedure' under the Schedule to the Constitution as well as under the Business Allocation Rules are general expressionsof the import, which need be given a large and liberal construction. Under the criminal law and criminal procedure, powers regarding sanction are subsiduary and ancillary powers. So far as the subsequent amendment is concerned, if this interpretation is accepted, then the amendment were unnecessary. May be, they have been added by way of abundant caution or clarity for removal of doubts. The order, sanctioning the prosecution, has been passed by the State Government in the name of and by the order of the Governor. There is no contravention of Article 311 of the Constitution. The orders were passed by the highest authority in whom the executive actions have been vested In both the cases sanction orders were issued under the Signature of Dy. Secretary, Law and Legislative Affairs Department.
8. There are cases to show that the sanction has to be given by the appointing authority, who alone can remove or dismiss a delinquent. A lower authority cannot give such sanction. The Supreme Court, in Mahesh Prasad v. State of U. P., AIR 1955 SC 70 has held :-
"Article 311(1) of the Constitution and R. 1705(c) of the Railway Establishment Code cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It is enough that the removing authority is of the same rank or grade."
Again, in Raghubir Singh v. State of Haryana, AIR 1974 SC 1516, the Supreme Court held :~ "Rule 3(a) of the Railway Establishment Code is clear that Divisional Officers, Senior Scale, have the power to appoint class III railway officers. The contention that as only Divisional Personnel Officers are in execui ive charge of the staff of Divisional Officers and are entitled to control them, by implication other Divisional Officers are excluded from the delegation of powers in regard to appointments has no substance. "Establishment matters' in Rule 3(a) in regard to which the Divisional Personnel Officers are to exercise powers ordinarily cover routine items, not appointments and dismissals. The sanction granted by the Divisional Officer (Senior Scale) was, therefore, valid."
Recently, the Supreme Court in Sampuran Singh v. State of Punjab, AIR 1982 SC 1407, has held that Article 311 of the Constitution does not require that the dismissal or removal must be ordered by the same authority who made the appointment. There is a compliance with Clause (1) of Article 311, if the dismissing authority is not lower in rank or grade than the appointing authority. In that case, the appointing authority was the Chief Engineer, but the sanction was granted by the Chief Minister. In the present case, sanction has been given by the Governor, i.e. by the State Government, which is the appointing authority and the order has been issued by the Deputy Secretary of the Law and Legislative Affairs Department, which has been empowered under the Business Allocation Rules, then prevalent, which was the authority authorised to give such sanction. The Deputy Secretary has signed for and on behalf of the Governor. The order is of the Governor and it has been authenticated in the manner prescribed under Article 166 (2) and (3) and the Business Allocation Rules, wherein the signature by the Under Secretary or any other Secretary, authorised by the Rules of Business would suffice. Therefore, we are of the view that the Division Bench did not consider the Business Allocation Rules, nor the same were brought to its notice, while deciding as under in its judgment in StateofM.P. v. Shiv Prasad (supra).
"The first question to be seen is whether there is a valid sanction for prosecuting the respondent. According to the Jail Manual Vol. I. appointing authority of an Assistant Jailor is the Inspector General of Prisons. Instead of producing the sanction from the Inspector G eneral of Prisons, the prosecution relied on the sanction accorded by the Deputy Secretary, Law Department of the State of Madhya Pradesh. In the circumstance, the learned trial Court rightly held that the sanction was not in accordance with Section 6(l)(c) of the Prevention of Corruption Act."
We may point out that though in that case the Inspector General of Prisons was the appointing authority of the Assistant Jailor, sanction given by a higher authority, i.e. by the Governor was valid. The Division Bench proceeded under the impressions that the "sanction is by the Deputy Secretary, Law Department, which was not the appointing authority. In view of the aforesaid discussion, we hold that the Division Bench did not lay down the correct law.
9. However, learned counsel for the appellant relied on certain decisions of the Supreme Court in order to show that the sanction has to be given by the appointing authority and non else, otherwise, the sanction is invalid. The first case is. Sailendranth v. State of Bihar, AIR 1968 SC
292. In that case, sanction given by the Head of the Department, who was not competent to remove the accused from service, was held to he invalid. In the second case of R. J. Singh v. State of Delhi, AIR 1971 SC 1552 in view of the concession made by the Advocate that the Home Ministry had not sanctioned the appellant's prosecution and it was conceded that in the absence of such sanction, I he prosecution must fail, therefore, (it was) held, there was no valid sanction. This case has been distinguished by the Supreme Court in Lakshmi Shankar v. State of Delhi Administration, AIR 1979 S.C 451, pointing out that the judgment of that Court in R. J. Singh v. State of Delhi (supra), proceeded on concession and not on any analysis or examination of the relevant provision. It is of no avail as a judicial precedent. Lastly, in State of Rajasthan v. A. K. Dutta, AIR 1981 SC 20, it was held that under the Business Allocation Rules in respect of offences investigated by the Delhi Special Police Establishment, sanction was to be given by the Department of Personnel, Cabinet Secretariat, while under the amended rule, the sanction was to be given by the respective department and in that case sanction was not given by the Department of Personnel or the Department of Education, to which the accused belonged, but the sanction was granted by the Ministry of Home Affairs. All the aforesaid cases are clearly distinguishable. Therefore, sanction was not given by the authority authorised under the Business Allocation Rules, but by someother authority, which was not the appointing authority.
10. Now another question remains to be answered, i. e., whether the sanction issued in the name of the Governor, irrespective of the fact of issue of the sanction by a particular department, could be a valid sanction and any objection as to the validity of such sanction, raised under Sub-section (2) of Section 6, will be meritless. The Supreme Court, in Beant Singh v. State of Punjab, 1966 Cri App R (SC) 356, held that the sanction signed by the Secretary of the State Government stating that it is by order of the State Government and reciting that the Govemorof the Stateof Punjab has gone through the record of the case, cannot be said to be invalid on the ground" that the papers regarding sanction did not at any time go further than the Secretary, who signed it. It will be sufficient to quote from Basu's Shorter Constitution, 9th Edn. under Article 166, at page 362 : --
"The presumption under Clause (2) of Article 166 is to the extent that the order is expressed in the name of the Governor and duly authenticated according to the rules of business made by the Government in that behalf. The same shall not be called in question in any Court on the ground that it is not made or executed by the Governor."
This provision, however, does not oust the jurisdiction of the Court to examine the validity of the order on any of the following grounds-
(1) That the condition precedent for making of the order has not been fulfilled Thus here, the satisfaction of a particular authority is necessary under the law to make an order and the Court can enquire whether the order has been passed on such satisfaction (Ishwarlal v. State of Gujarat, AIR 1968 SC 870).
(2) That the order violates a provision of the Constitution or is contrary to the existing law. (Ishwarlal v. State of Gujarat (supra)).
(3) The person, who made the order on behalf of the Governor, had no authority to make decision on behalf of the Governor under the relevant rules. (Chitralekha v. State of Mysore, AIR 1964 SC 1823). This ground will arise only if the order is not authenticated as required under Clause (2) of Article 166, but has been issued by some authority on behalf of the Governor.
Here, the order of the Governor has been authenticated by the Deputy Secretary, Law and Legislative Affairs Department, the Deputy Secretary being authorised to authenticate such order. This shows that the order has been passed by the Governor. Under the Business Allocation Rules, sanction has to be given by the Law and Legislative. Affairs Department. Here, sanction has been given by the Minister in charge of the department, who, under the rules, was empowered to act on behalf of the State Government in this regard. So, the appellant could not have challenged the order, in view of the presumption under Clause 2 of Article 166, that the order has been passed by the Governor, but it was open to the appellant to show that the sanction has not been given by the prescribed authority, i.e., by the Law and Legislative Affairs Department. But here a valid order of sanction has been passed by the Minister of the department and the order has been authenticated as required under the rules by the Deputy Secretary.
11. Therefore, our answer is as under :--
(1) That the sanction given by the Law and Legislative Affairs Department for prosecution of the appellant under Section 161, I.P.C. and Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, is a valid sanction, although the appointing and removing authority is the revenue department, since under the Business Allocation Rules, then in force, it was the Law and Legislative Affairs Department, which alone could give sanction; and (2) the appellant could raise objection that the sanction is not valid, as it has not been given by the authority authorised under the Business Allocation Rules. But, here, the sanction being given by the appropriate authority, the objection has no merit.