Himachal Pradesh High Court
Omkar Sharma And Etc. vs State Of H.P. And Ors. on 6 June, 2002
Equivalent citations: 2003CRILJ1024
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. It is proposed to dispose of these three writ petitions by this judgment as common questions of law and fact are involved in all these petitions.
2. Facts as they emerge out of the pleadings of the parties are, that on the basis of the investigation in FIR No. 1 of 1989 of Police Station, Anti Corruption Zone, Solan, another FIR No. 16 of 90 was registered on 21-11-1990 at Police Station, Anti Corruption Zone, Shimla, Copy of this FIR is attached as Annexure P1 with the writ petition.
3. During the course of proceedings in Criminal Writ Petition No. 11/92, when the matter came up before this Court on 13-4-1993 regarding investigation of FIR No. 16/ 90, what was stated on behalf of the Respondent-State was as under :
"Shri M.S. Guleria, learned Deputy Advocate General has placed before us letter No. VIG(ENF) F-6(3)-51/92, dated April 8, 1993 from the Commissioner-cum-Secretary (Home and Vigilance) to the Government of Himachal Pradesh. In this communication, it has been decided relating to FIR No. 16 of 1990 that the investigation in this case is complete and the Government has come to the conclusion that there is no involvement of the petitioner................"
Thus it is evident that on 8-4-1993 investigation in FIR No. 16 of 90 was complete. What is the relevance of this date will be dealt with hereinafter.
4. In FIR Annexure P1 offences alleged are under Sections 420, 120-B of the IPC and under Section 13(2) of the Prevention of Corruption Act, 1988. For the prosecution of the public servant, as per provisions of Prevention of Corruption Act. sanction to prosecute such employees is required to be obtained from the appointing authority.
5. Since all the three petitioners in these cases are the employees of Respondent No. 2 Board, the matter was taken up with the said Board by the Commissioner-cum-Secretary (Vigilance) to the Government of H. P. who had forwarded the two challans A and B along with relevant documents.
6. All this material was put up before the competent authority for according sanction against the officers of the Board. This was declined vide communication Annexure P3 dated 10-11-2000. Stand as contained in this P3 was reiterated by the Respondent No. 2 (hereinafter referred to as the 'Board'), till the taking of impugned decision (Annexure P8). which resulted in issuing the impugned sanction Annexure R2/A. Contents of Annexure P3 are as under ;
"Subject: Case FIR No. 16/90 dated 29-11-90 against S/Sh. Kailash Chand Mahajan, the then Chairman and others.
Please refer to your office letter No. 865 dated 21-7-2000 on the subject cited above. It is to inform you that two challans A & B supplied by the Comm.-cum-Secy. (Vigilance) to the Govt. of H. P. along with relevant documents were placed before the competent authority for according prosecution sanction against the officers of the Board. The competent authority has observed that the processing of the tenders for purchase of any major item is done by the office of the Chief Purchase Officer. The proposal is then thoroughly examined in the F & A Wing of the Board and thereafter put up for approval of Store Purchase Committee which consists of all the whole Time Members of the Board and the decision is finally taken by the Store Purchase Committee as a composite body. The entire facts reveal that the entire procedural process was meticulously followed and it ensured that the financial interests of the Board were completely guarded. The competent authority was therefore of the view that there was no mala fides and decided to decline the prosecution sanction in both the cases.
Therefore in view of refusal of competent authority to accord prosecution sanction, the challans A & B along with relevant documents as received vide your office letter referred to above are returned herewith."
7. When again Additional Secretary (Power) to the Government of Himachal Pradesh had asked the Board to accord sanction. As already noted contents of Annexure P3 extracted above were reiterated. This was conveyed vide Annexure P5 and P6.
8. Thereafter Commissioner-cum-Secretary (Power), to the Govt. of Himachal Pradesh issued Annexure P7 on 29-11 -2001. This communication is as under :
"Sub : Case FIR No. 16/90 dated 29-11-1990 against Sh. Kailash Chand Mahajan & others, the then Chairman, HP SEE PS AC Zone, Shimla, H.P. Kindly refer to your letter No. HPSEB(SECTT)8-867/2001-2144-45 dated 6-6-2001 on the subject cited above.
In this context, it is stated that the matter regarding prosecution sanction against the officers of HP State Electricity Board was considered by the competent authority, Govt. of H. P. who has desired that the matter needs to be reconsidered in the Whole Time Members of the Board of H.P. State. Electricity Board once again.
You are requested to kindly initiate necessary action and submit the report to the Government immediately so as to proceed further in the matter accordingly.
This may be treated as most urgent."
9. As a fall out of Annexure P7 Respondent Board took up the matter in its meeting on 4/5-1-2002 and decided as under :
"The WTM after examining and pursuing the relevant case file decided to grant prosecution sanction."
This action of the Board was followed by sanction Annexure R2/A, is the subject matter of this writ petition.
10. Respondents were put to notice. Stay was granted against filing of the challan vide orders of this Court passed on 4-3-2002.
11. Stand of Respondents No. 1, 3 and 4 is that the sanction was to be accorded by the Board. Earlier refusal vide Annexure P3, is admitted being a matter of record. Regarding Annexures P5 and P6, it has been stated that those pertain to Respondent No. 2 and call for no reply from the replying respondents. They have justified the registration of a case as there was material against all the three petitioners in these cases.
12. It has further been stated that if the material makes out an offence, authority is bound to accord sanction but has to independently and impartially examine the material on record.
13. So far Respondent Board is concerned it has justified its action in resolving Annexure P8 to accord prosecution sanction. What was stated while justifying the sanction order in its reply by the Board is as under :
"The whole transaction can be divided into two parts, first part is regarding the procedure followed for giving approval to the quotations of the three firms for supply of the material. As far as the procedure concerned therewith is concerned, the whole time members of the Board whereof the firm view that all steps had been taken in accordance with the procedure laid down by the Board and the decision had been taken at the appropriate level. All the officers had done their duty in accordance with law and the procedure laid down for that purpose. The officer concerned with this part of the job had done their duty in an impartial manner and even if the so called quotations had not been accepted, cogent grounds had been given for that and anything that was done was in the best interests of the Board. As such, the Board decided that no sanction need be given for the prosecution of the officers who had taken part in the finalization of the tenders at any stage.
As far as the second part of the job i.e. the inspection of the material and the factory site or its subsequent despatch to various indenting officers is concerned, the officers at the Board secretariat level had no hand in the same. This part of the job was to be done by the officers at the lower level and the petitioner was one of the officers who inspected the material at the factory site and were responsible for the passing of sub standard poles being supplied to the indenting officers. This part of the job is quite separate from the one done at the Board Secretariat level. Since the police investigation in the case is found that this part of the job was not done in a fair manner the whole time members of the Board decided to give sanction for prosecution of the petitioner in their meeting held on 4/5-1-2001.
14. In the aforesaid background what falls from the aforesaid facts is that on the basis of materials before it, the competent authority had declined to accord sanction to prosecute all the three petitioners vide Annexure P3. This stand was reiterated by the competent authority i.e. Board vide Annexures P5 and P6. Therefore, the primary question that needs determination in this case is, that in the absence of there being any fresh/other and further material before it, could the Board review its earlier decision of refusing to accord sanction?
15. The purpose of the grant of sanction by the competent authority is neither a mere formality nor a ritual. It is in the nature of a safeguard provided to public servant of his being illegally and falsely being harassed, implicated and then prosecuted. It is also aimed at infusing confidence in the fair working of the public servants. At the same time it is also aimed at keeping a check on unscrupulous elements to deter the working of public servants by roping them in vexatious cases. This also ensures that those who are prima facie guilty of having committed some offences may be dealt with in accordance with law. With a view to achieve this object, when the matter is taken up for the grant of sanction to prosecute a public servant with the appointing authority, it is supposed to examine the whole material before it and thereafter then on due consideration deal with the same by either according sanction to prosecute or by declining the same.
16. In the aforesaid background when a reference is made to Annexure P3, it is manifestly clear that when the sanction was declined on 10-11-2000, the entire matter was before it including those facts on the basis whereof Respondent No. 2 has tried to justify Annexure P8 and on its basis granted sanction to prosecute the petitioners vide Annexure R2/A.
17. On a bare perusal of Annexure P8 it is clear that Annexures P3, P5 and P6 were not taken note of by the Board. As such on the existing materials sanction to prosecute all the petitioners could not have been accorded.
18. At the risk of repetition it may be noted that admittedly there was no fresh or other material before the Respondent Board when decision Annexure P8 followed by Annexure R2/A was taken by it. In this behalf, we may also note that the matter relating to grant of sanction/refusal is a matter which was within the domain of the appointing authority, Board in the present case. It has already taken a conscious decision as is evident from Annexure P3. So far power to review such a decision is concerned, it, could be exercised on the basis of some additional/further/new material which would have justified its action as contained in Annexures P-8 and R2/A. In such a situation there is no bar to review under the Prevention of Corruption Act, 1988. It is by now well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implications.
19. Whether sanction to prosecute once refused by the competent authority can be revised or reviewed on the same materials had been attending the attention of Courts. A reference to these decisions is being made hereinafter.
20. A Division Bench of Punjab & Haryana High Court had the occasion to deal with the matter relating to sanction under Section197 Cr. P.C. in Surjit Singh v. State of Punjab, ILR (1980) 1 Punj & Har 11 : (1979 Cri LJ NOC 214). In this case sanction to prosecute the petitioners was at one stage refused under Section 197, Cr. P.C. in the following terms :
".....The State Government after careful consideration of the matter have decided that permission sought by Shri Mohinder Singh for launching prosecution under Section 197 Cr. P.C. against Sarvshri Surjit Singh and Sukhdevinder Singh, then D.S.Ps., Ropar, be refused........."
21. However, with the change of the Government sanction was accorded. This action of the State of Punjab was challenged in the writ petition. A number of contentions were raised challenging the said action of the Government. For the present writ petition two contentions are relevant which are as under:
(1) That the State Government had no power to review its earlier order. There was no statutory provision granting power of review and in the absence of the same the subsequent order is wholly without jurisdiction;
(2) That the Government exercised its, powers under Section 197 of the Code and once having exercised that power under the statute, the power was exhausted and could not be exercised a second time and as such the first order became final.
22. After considering relevant facts and law on the subject Division Bench answered these contentions as under :
"A reading of the above shows that in exercise of its power, the Government carefully considered the entire matter and declined the permission sought for launching prosecution under Section 197 of the Code. Therefore, once having exercised its power, the Government had no jurisdiction or authority to pass a fresh order, annexure P3, on the same matter. Hence, the order annexure P-3 amounts to review of order annexure P-2, and as such is illegal and without jurisdiction. We decide point No. 1 in favour of the petitioner.
As regards point No. 2, that the Government having once exercised its power under Section 197 of the Code, had exhausted its power and as such it could not exercise the same for the second time, we are inclined to hold that there is merit in this contention. The power given to the State Government under Section197, having been exercised by it while passing the first order, annexure P-2, stood exhausted and the same could not be exercised second time while passing the impugned order, annexure P-3. For this decision of ours, we find support not only from the decision in Kanta Devi's case (AIR 1957 Rajasthan 134) (supra), but also from the quotation reproduced above in the case of M/s. Western India Watch Co.'s case (AIR 1970 SC 1205) (supra), wherein the Supreme Court did consider the question of exhausting the power. In that case it came to the conclusion that since the Government had refused to exercise its power, therefore, it was not exhausted. The necessary implication is that if the power had been exercised, then the same could not be exercised twice over. Furthermore, we find support from the decision of the Supreme Court in D. N. Ganguly's case (AIR 1958 SC 1018) (supra) where the subsequent order was held to be had although not on the reasoning that the power had been exhausted while passing the earlier order. Hence, we hold that the Government exhausted its power under Section 197 of the Code while passing the earlier order, Annexure PA and it could not exercise that power twice over while passing the impugned order, annexure P-3. On this ground also, the impugned order annexure P-3 is liable to be quashed as being null and void."
23. In Vijay Bahadur v. State of U. P. (1989) 1 Serv LR 93 : (1989 Cri LJ NOC 6.1) (All) while considering identical situation as in the present petition, what was held was as under:
The short question that arises for consideration in this petition is if the order refusing to sanction prosecution could be reviewed. The petitioner was a junior Engineer. He was alleged to have been apprehended by Inspector Vigilance in 1981. Since the petitioner could be prosecuted only after obtaining sanction of appointing authority the papers were sent to the Chief Engineer, U.P. State Electricity Board. On August 23, 1983 he passed the order that after perusal of material on record and case diary he was satisfied that no prima facie case was made out. He, therefore, did not grant sanction consequently the suspension order was revoked on August 29, 1983 and petitioner was reinstated. On April 5, 1984 the order was reviewed by the same Chief Engineer on same material. In counter-affidavit filed by the authority concerned, himself, the only reason given to review the order is erroneous impression. Not a word has been said that some new material was placed before him. This Court on April 26, 1981 therefore, stayed further proceeding in pursuance of order dated April 5, 1984.
2. Section 6 of the Prevention of Corruption Act, 1947 extends protection to a public servant against unwarranted harassment. It should, therefore, be construed in a manner which subserves the objective of its enactment keeping this in view of the order of April 5, 1984 is examined it leaves no room for doubt that it cannot be sustained. The order refusing to sanction was passed on entire material, case diary etc. The appointing authority was satisfied that no prima facie case was made out. What made him change his view? Not any fresh material but erroneous impression. Such review or going back on earlier order is fraught with danger. It is destructive of certainty and finality. It may leave room open for influence and pressure. An order, judicial or administrative, may be permitted to be reviewed or recalled only if it was passed under misapprehension of fact. Otherwise it gives rise to misgiving and speculation which is not conducive to the sense of justice. Since the earlier order was passed after careful consideration of material on record the opposite party was precluded from recalling it or passing fresh order on same material because of erroneous impression.
3. In the result the petition succeeds and is allowed. The order dated April 5, 1984 is quashed."
24. In the context of the present case, it may be noted that learned senior counsel appearing for the Board persisted with vehemence that his client is justified in resolving Annexure P 8 and issuing the sanction to prosecute the petitioners vide Annexure R2/A. With a view to advance his this line of argument, he stated that the aspect as extracted herein above was not considered by the Board while issuing Annexures P3, P5 and P7.
25. There is nothing on record to support this contention. In addition to this a perusal of these three annexures clearly indicates that the entire material was before the Board who had thereafter declined to accord sanction to prosecute all the three petitioners initially and had reiterated its stand subsequently. Once the Board had taken into consideration the relevant materials which were before it, and thereafter had taken a decision not to accord sanction it had exhausted its authority to review or accord sanction after re-consideration of the matter.
26. It may be noted that it was neither argued nor it is the case pleaded by the Board, that the entire material was not before it when permission to prosecute was refused as noted hereinabove. This is an additional ground to hold that the Respondent Board could not have reviewed the matter. No statutory provision has been brought to our notice whereby Board was empowered to have reconsidered/reviewed its earlier decision refusing the sanction to prosecute nor any decision contrary to the ones noted hereinabove has been brought to our notice either on behalf of the State or by the Board.
27. Further question that needs to be looked into is should the sword of damocles of prosecution be kept hanging for abnormal period of time on the head of a public servant like petitioners as in all these three cases?
28. As already noted hereinabove, investigation in FIR No. 16 of 90 was completed as was informed by the Commissioner-cum-Secretary, to Govt. of H. P. in view of what is extracted hereinabove from the order dated 13-4-1993 in Criminal Writ Petition No. 11 of 92. In case the investigation was completed in the early 1993, the matter relating to sanction should have been broached by the prosecution Agency with the competent authority. From the stand of the State in paragraph 15 of its reply the seriousness and promptitude with which the matter was being dealt with by its various functionaries is reflected.
29. After conclusion of proceedings against the petitioners in Criminal Writ Petition No. 11 of 92 on 13-4-1993, it took more than one year for sending the matter to Superintendent of Police Vigilance SR Shimla for obtaining sanction. This was on 4-6-1994. Again revised challan A & B was prepared and sent to S.P. Vigilance for obtaining sanction on 19-4-1996. The sanction to prosecute was declined by the competent authority of the accused. When it was declined there is no murmur in the reply. However, it is only on 15-11-2000 letter was sent to Superintendent of Police Vigilance for taking up the matter for reviewing the prosecution sanction. As such there was no delay in the investigation of the case per respondents 1.3 and 4. Had it been a case which had consumed the period till refusal of sanction time in its investigation against the petitioners in these three cases, it might have been a justifiable ground for delay in investigation of the case.
30. Plea of the petitioners that investigation was completed in the beginning of 1993 has not been controverted by any of the respondents. Thus raking up of cases after such a long time without any plausible cause cannot be justified by any of the respondents.
31. Here the plea of the petitioner in CWP No. 4 of 2001 also assumes some significance that this sanction has been accorded to prosecute him with a view to mar his. chances of promotion though this claim of the petitioner has been denied by the respondent Board. But there is no explanation worth the name, as to why the matter relating to sanction to prosecute the petitioners could not be taken up by respondents with expedition and promptitude. On this ground also respondents cannot be allowed now to prosecute the petitioners.
32. While dealing with a case relating to the grant of sanction after 11 years (on reconsideration of the case as in the present cases Supreme Court quashed the proceedings in case Ramanand Chaudhary v. State of Bihar (2002) 1 SCC 153 : (1994 Cri LJ 1221) as under :
"1. Ramanand Chaudhary, the appellant was employed as Circle Inspector in the Revenue Department of the State of Bihar. One Manik Singh filed a complaint before the police that the appellant had demanded Rs. 200 from him as bribe for getting his work done in the Revertue Department. As a consequence a raid was conducted on 30-3-1979 and it is alleged that two currency notes of the value of one hundred each were recovered from the appellant. Thereafter, no further action was taken by the police for about six years and it was only on 28-1-1985 that the opinion of the Public Prosecutor was sought by the Revenue Commissioner to enable him to consider the question of grant of sanction for the prosecution of the appellant. In a detailed opinion running into 17 pages the Public Prosecutor discussed the material collected by the investigating officer and finally came to the conclusion as under :
"Taking into account the facts and law stated above, I am of the opinion that the present case is full of absurdities, improbabilities and infirmities and it is not a fit case in which sanction for prosecution be granted."
2. The Revenue Commissioner, Patna considered the opinion of the Public Prosecutor and by his order dated 3-5-1998 refused to grant the sanction. The said order runs as under :
"Regarding the aforesaid subject and your Letter No. Nig.23/79 Nig. 1016 dated 17-2-1988, I have to say that I am satisfied after going through the case diary and other papers that there is neither sufficient cause to order for prosecution against Shri Ramanand Chaudhary, Circle Inspector, Nasariganj District, Rohtas upon which basis the Order of sanction for prosecution be issued against him.
Therefore, it is not possible to allow sanction for prosecution against Shri Ramanand Chaudhary, Circle Inspector, Nasariganj District, Rohtas in Vigilance PS Case no. 23(3) of 1979."
3. The Deputy Inspector General of Police (Vigilance) reopened the matter and by his letter dated 25-8-1989 requested the Revenue Commissioner to re-consider the question of the prosecution of the appellant. The Commissioner again asked for the opinion of the Public Prosecutor who reiterated his earlier opinion and by his letter dated 22-3-1990 opined that the case against the appellant was not fit for criminal prosecution. He however, recommended that departmental action may be taken against him. The Revenue Commissioner, however, by his order dated 27-3-1990 granted sanction to prosecute the appellant. The Special Judge (Vigilance), South Bihar, Patna took cognizance of the case on 21-11-1990. The appellant invoked the jurisdiction of the High Court under Section 482 of the Criminal Procedure Code praying for the quashing of criminal proceedings against him. The High Court dismissed the application in limine.
4. Mr. R. K. Jain, learned counsel for the appellant has challenged the criminal prosecution against the appellant, inter alia, on the ground that the Revenue Commissioner having refused to grant sanction in the first instance had no jurisdiction to review the said order and grant sanction by a subsequent order. In any case, according to him, before reviewing the earlier order it was obligatory for him to have afforded an opportunity of hearing to the appellant.
5. It is not necessary to go into the legal points raised by Mr. Jain as we are inclined to quash the prosecution against the appellant in the peculiar facts and circumstances of this case. After the raid no action was taken by the prosecution for six years. The Public Prosecutor consistently opined that no criminal case was made out against the appellant. The Commissioner on independent consideration refused to grant the sanction but later on at the asking of the DIG (Vigilance) he changed his view. The prosecution against the appellant is pending for over a period of thirteen years and it would be a travesty of justice to permit the prosecution at this stage which would mean that the appellant would suffer the trial/appeal for another decade. In view of the facts and circumstances of this case we quash the prosecution pending against the appellant and also the proceedings before the Special Judge (Vigilance), South Bihar, Patna who took cognizance of the case on 21-11-1990.
33. What follows from the aforesaid discussion is that appropriate authority who on consideration of all the material had refused to accord sanction to prosecute a public servant, has no power on re-consideration to review such an order and thereby according sanction to prosecute on the same material. It will be a totally different situation if any additional/fresh/new material is brought before the competent authority; that admittedly is not the situation in all the three cases nor is the case of any one of the respondents set out in their replies. Similarly, the long gap after completion of investigation and the grant of sanction is an additional ground to grant relief to the petitioners in all these three cases.
34. No other point is urged.
35. In view of the aforesaid discussion all these three writ petition are allowed. As a consequence of it Annexure P 8 annexed in all these three petitions as well as Annexure R2/A the permission to prosecute the petitioners granted by the Board is hereby quashed and set aside. Each one of the petitioners is further held entitled to costs assessed at Rs. 5000/- in each writ petitions, Registry is directed to place a copy of this judgment on the files of other two cases.