Gauhati High Court
WP(C)/5308/2018 on 24 April, 2025
GAHC010171192018
2025:GAU-AS:5073
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
WP(C) No. 5308/2018
Sri Magonjoy Thaosen,
S/o Late Sojen Thaosen
R/o Thana Road, Haflong, P.S.- Haflong,
in the district of Dima Hasao, Assam
........Petitioner
-Versus-
The State of Assam,
represented by the Chief Secretary,
Government of Assam, Dispur, Guwahati-
781006
2.The Secretary, Government of Assam,
Personnel (A) Department, Dispur, Guwahati-
781006
3.The Joint Secretary, Government of Assam,
Personnel (A) Department, Dispur, Guwahati-
781006.
.......Respondents.
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-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI Advocate for the petitioner : Mr. I. Choudhury, Sr. Advocate Mr. S. Chakraborty, Advocate Advocate for respondents : Mr. D. Nath, Sr. Government Advocate, Assam Date of hearing & Judgment : 24.04.2025 { Judgment & Order (Oral) Heard Mr. I. Choudhury, learned Sr. Counsel assisted by Mr. S. Chakraborty, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Sr. Government Advocate, Assam appearing for the respondents.
2. By this petition under Article 226 of the Constitution of India the petitioner is assailing the impugned order No.AAP.21/2013/354 dated 06.07.2013, whereby prosecution sanction was accorded in respect of the petitioner in R.C. No. RCSHG2011A0005 corresponding to Special Case No. 10/2013 under Sections 120(B)/420/468/ 471/409 IPC and under Section 13(2) read with Section 13(1)(c) & (d) of the Prevention of Corruption Act, 1988.
3. The brief facts of the case are that the petitioner, who is an ACS Officer, was posted as Project Officer, IJDP under the N.C. Hills Autonomous Council during the period 2006- Page | 2 2007 and on 30.01.2006, he was given additional charge as In-Charge B.D.O., Diyung Valley Development Block, Maibong. Thereafter, on 18.02.2006, he was released from the said additional charge. However, he was once again given additional charge as In-charge B.D.O., Diyung Valley Development Block, Maibong on 09.03.2006. Thereafter, on 09.05.2011, an FIR was lodged, alleging various irregularities in connection with MGNREGA Scheme within the jurisdiction of N.C. Hills Autonomous Council during 2006-2007, wherein the petitioner amongst others was named as an accused. Thereafter, the case was handed over to the CBI and the CBI filed separate charge-sheets against all accused named in the FIR including the petitioner. It is the specific case of the petitioner that though the sanction for prosecution in respect of two co- accused was declined, however, in case of the petitioner, the sanction for prosecution was granted. Situated thus, the present writ petition has been filed.
4. Mr. I. Choudhury, learned Sr. Counsel for the petitioner submits that the impugned prosecution sanction in respect of the petitioner is challenged primarily on the ground that several aspects that were considered to be germane and relevant for declining the issue pertaining to according prosecution sanction in case of the two other main co-accused, were entirely ignored in case of the petitioner, thereby vitiating the entire decision making process. He further submits that the three charge-sheets in Page | 3 respect of the petitioner and the other two said co-accused persons indicates that they were identically worded except for a few facts and figures, however, though prosecution sanction in respect of the other two accused persons were declined, prosecution sanction in respect of the petitioner was granted. He further submits that the protection guaranteed under Article 14 of the Constitution of India has been violated with all impunity, particularly since various relevant considerations in case of the petitioners such as brief tenure in the post of In-charge B.D.O. as additional charge having been made to serve against his will, primary responsibility of the Principal Secretary and Project Director for implementation of MGNREGA, assets and liabilities not being disproportionate to known source of income and most importantly the opinion of the learned Advocate General, Assam were entirely ignored. He accordingly submits that hostile discrimination has been meted out to the petitioner. He further submits that in the affidavit-in-opposition filed by the State respondents there is no explanation whatsoever as to why such germane and relevant considerations were ignored in case of the petitioner. In support of the aforesaid submission, he relies upon the following decisions of the Apex Court:- (i) T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors., reported in (2002) Vol. 8 SCC at page 481; (ii) Amita Vs. Union of India & Anr. reported in (2005) Vol. 13 SCC at Page 721; and (iii) Om Kumar Page | 4 & Ors. Vs. Union of India, reported in (2001) Vol. 2 SCC at Page 386.
5. In support of his contention that this Court under Article 226 of the Constitution can judicially review the legality and validity of the prosecution sanction order, he relies upon the following decisions of the Apex Court:- (i) Dwarka Nath Vs. Income Tax Officer, Special Circle, D Ward, Kanpur & Anr., reported in AIR 1966 SC 81;
(ii) Common Cause, A Registered Society Vs. Union of India & Ors., reported in (1999) Vol. 6 SCC at Page 667; (iii) A.K. Kaul & Anr. Vs. Union of India & Anr., reported in (1995) Vol. 4 SCC at Page 73 and (iv) Surya Dev Rai Vs. Ram Chander Rai and Ors., reported in (2003) Vol. 6 SCC at Page 675.
6. Further, by placing reliance in the decision of the Apex Court in the case of Neha Chandrakant Shroff & Anr. Vs. The State of Maharashtra & Ors., in Civil Appeal No.5098/2025, he submits that the constitutional power vested in the High Court cannot be fettered by any alternative remedy available to the party concerned and such Constitutional Court can struck down injustice, whenever and wherever it takes place.
7. Per contra, Mr. D. Nath, learned Sr. Government Advocate submits that the impugned prosecution sanction order has been passed by the competent authority after considering the materials placed before him and each case Page | 5 has been considered on its own merit and on the basis of the materials available and the relevant factors. He further submits that when a prosecution sanction order exists, its validity/invalidity shall have to be challenged before the trial Court irrespective of the grounds of challenge. In support of the aforesaid submission, he relies upon the following decisions of the Apex Court:- (i) Dinesh Kumar Vs. Chairman, Airport Authority of India & Anr., reported in (2012) Vol. 1 SCC at Page 532; (ii) The Director, CBI & Anr. Vs. Ashok Kumar Aswal & Anr., reported in (2015) Vol. 16 SCC at Page 163.
8. I have given my prudent considerations to the arguments advanced by the learned counsels appearing for the contending parties and have perused the material available on record. I have also considered the case laws submitted at the Bar.
9. It appears that pursuant to a complaint submitted by one Shri A.K. Nath, Deputy Secretary to the Government of Assam, Personnel (A) Department, Dispur by letter dated 07.12.2010 based on the enquiry report relating to excess expenditure during the period 2006-2007 under MGNREGA in N.C. Hills against the petitioner and five other ACS Officers, who at that relevant period of time served in the various Development Blocks in question as B.D.O. etc., a case was registered being CID Assam P.S. Case No.72/2010. Thereafter, the State Government handed over the Page | 6 investigation to the CBI and accordingly, a case was registered under Sections 120(B)/420/468/ 471/409 of the IPC and under Section 13(2) read with Section 13(1)(c) &
(d) of the Prevention of Corruption Act, 1988 against the petitioner and the other FIR named accused persons. It appears that pursuant to charge-sheet being issued by the CBI against the petitioner and other co-accused persons, prosecution sanction in respect of the petitioner was granted by the Government on 06.07.2013. However, prosecution sanction in respect of two co-accused persons i.e. Shri. Tonmoy Pratim Borgohain and Dimba Nath Morang were refused.
10. Apt at this juncture to refer to the relevant paragraph of the affidavit-in-opposition filed on behalf of the respondents, which reads hereunder-
"4. That with regards to the statements made in paragraph 9 of the writ petition the deponent respectfully states that after receipt of the proposal for Prosecution Sanction against the petitioner and others, the Prosecution Sanction against the petitioner was issued vide order dated 06.07.13. The petitioner who was the then B.D.O. of the Diyung Valley Development Block was functioning as Programme Officer in the Block w.e.f. 08.02.06 to 07.07.07 and he was responsible for proper implementation of the Schemes such as MNREGA, SGRY etc. The deponent respectfully states that from the available records it is found that the petitioner entered into a criminal conspiracy with his sub-ordinate staff to misappropriate public money for personal gain and hence the Authority after due consideration of the materials available on records issued the Prosecution Sanction Page | 7 against the petitioner vide order No.ΑΑΡ.21/2013/354 dated 06.07.13.
The deponent further respectfully states that the Prosecution Sanction against Sri Tonmoy Pratim Borgohain and Sri Dimba Nath Morang were denied by the Authority as after careful examination of the proposal for prosecution and relevant records furnished by the CBI Authority along with the assets and liabilities statements of Sri Tonmoy Protim Borgohain and Sri Dimba Nath Morang and also considering that both the Officers served in the Diyungbra Development Block for a brief period of 2 (two) months and 2 (two) months and 25 (twenty five) days respectively, criminal intent to earn wrongful gain on the part of the aforesaid two officers seemed not feasible. Therefore, Prosecution Sanction against them were refused by order No.ΑΑΡ.21/2013/257 Dtd. 06-07-2013 and No.AAP.21/2013/258 Dtd. 06-07-2013 respectively dated 06.07.13.
5. That with regards to statements made in paragraph 10 of the writ petition the deponent respectfully states that the Prosecution Sanction was considered on the basis of records and Sri Tonmoy Pratim Borgohain was given promotion as there was no sanction of prosecution against him.
6. That with regards to statements made in paragraph 11 of the writ petition the deponent respectfully states that proper implementation of schemes also includes proper and correct utilization of fund for which it was meant.
7. That with regard to statements made in paragraphs 12 of the writ petition the deponent respectfully states that the charges against Sri Tonmoy Pratim Borgohain relates only to Diyungbra Development Block and the Officer served there only for 2 (two) months.
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8. That with regard to statements made in paragraph 13 of the writ petition the deponent respectfully states that in the sanction order dated 06.07.13 it is clearly mentioned that the petitioner was holding the post of Programme Officer in Diyung Development Block from 08.02.06 to 07.07.07.
9. That with regard to statements made in paragraph 14 of the writ petition the deponent reiterates and reaffirms the statements made in paragraph 4 above.
10. That with regard to statements made in paragraph 15 of the writ petition the deponent respectfully states that as there was no prosecution pending against Sri Tonmoy Pratim Borgohain, he was promoted to the next higher post and due to pendency of criminal prosecution against the petitioner, his promotion is barred as per provisions of O.M. dated 09.05.06.
11. That with regard to statements made in paragraph 16 of the writ petition the deponent has no comments to offer.
12. That with regard to statements made in paragraph 17 of the writ petition the deponent respectfully states that as per provisions of the Rule 13 (3) of the Assam Civil Service Rules, 1998 promotion is considered on the basis of ability, integrity and character and when sanction for prosecution is pending against an Officer, his promotion cannot be considered.
13. That with regard to statements made in paragraph 18 of the writ petition the deponent respectfully states that the Prosecution Sanction was granted by the Authority considering all the aspects and records taking each case individually and with due application of mind. Therefore, it is not true that the opinion of the Advocate General, Assam was not placed before the Respondent Authorities Page | 9 or deliberately kept away or deliberately ignored by the Respondent Authorities.
14. That with regard to statements made in paragraphs 19, 20, 21, 22, 23 and 24 of the writ petition, the deponent denies that same yardstick was not applied in the matter of according Prosecution Sanction as well as promotion to the petitioner and the other officers and that the action on the part of the Respondent Authorities is tainted with unreasonableness, violative of principles of law, discriminatory, illegal and arbitrary. It is also denied that the Prosecution Sanction was accorded against the petitioner mechanically which has jeopardized the service career of the petitioner and that the action on the part of the Respondents have infringed petitioner's fundamental and other legal rights guaranteed under the Constitution of India. The deponent also denies that the Authorities have acted in an illegal, arbitrary, malafide, unfair and capricious manner and that the petitioner is entitled for a direction for setting aside the order dated 6.7.2013 by which Prosecution Sanction has been accorded against the petitioner. In this regard the deponent reiterates and reaffirms the statements made in paragraphs 4 and 5 above in the instant affidavit and respectfully stated that the order dated 6.7.2013 was issued according Prosecution Sanction to the petitioner after due consideration of the records."
11. Reading of the aforesaid averments, it appears that the stand taken by the respondents in the said affidavit-in- opposition is that the prosecution sanction order dated 06.07.2013 was issued against the petitioner after careful examination of all records and with due application of mind. It further appears that the petitioner at that relevant period was holding the post of B.D.O. of the Diyung Valley Page | 10 Development Block and was functioning as Programme Officer w.e.f. 08.02.2006 to 07.07.2007 and that he was responsible for proper implementation of MGNREGA Scheme etc. It further appears that it is the specific case of the respondents that it is found from the available records that the petitioner entered into a criminal conspiracy with his subordinate staff to misappropriate public money. It appears that the other two co-accused persons have served in the Development Block in question for a brief period of 2 (two) months and 2(two) months 25(twenty five) days respectively and considering such brief period of service and also after scrutinizing relevant records furnished by the CBI along with their assets and liabilities, criminal intent to earn wrongful gain having not seen feasible, prosecution sanction against the aforesaid two Officers were refused by the sanctioning authorities. It is worthwhile to mention at this juncture that as per direction of this Court, Mr. D. Nath, learned Sr. Government Advocate has placed the original records pertaining to the subject sanctioning order, perusal of which it appears that prosecution sanction in respect of the petitioner and three others were issued considering their relatively longer tenure in their respective posts upon being reasonably satisfied with the findings of the CBI in respect of them that they may have entered into criminal conspiracy with their subordinate staff to misappropriate public money for personal gain. It further appears that in respect of the two other co-accused, i.e., T.P. Borgohain and D.N. Morang, Page | 11 the Officers having served as B.D.O. for a very brief period of 2 (two) months and 2(two) months 25(twenty five) days respectively, the Personal Department was asked to examine their asset and liability statements and other such documents during the relevant period and after considering such report, prosecution sanction in respect of the two Officers was refused. What transpires from the above is that the sanctioning authority upon consideration of the totality of the facts and materials accorded approval for grant of sanction. That being so, the sufficiency of such reasons ought not to be gone into by this Court under Article 226 of the Constitution of India. Undoubtedly, prosecution sanction in respect to a government servant is not an empty formality, but a solemn and sacrosanct act, which affords protection to such government servant against frivolous prosecution, however, the same is not a shield for the guilty. Therefore, the requirement in law is that the prosecution sanction against a government servant must be preceded with a sanction order. However, when such prosecution sanction order exist and reasons are recorded in support of such prosecution sanction, the sufficiency of such reasons cannot be gone into by the constitutional court. It is only when such prosecution sanction order is not passed by the competent authority or is totally perverse, interference by the constitutional court may be called for.
12. Reference in this regard is made to the decision of the Supreme Court in the case of Dinesh Kumar (Supra).
Page | 12 Paragraph Nos. 9 to 13 of the aforesaid judgment are reproduced hereinbelow for ready reference:-
"9. This Court has in Mansukhlal Vithaldas Chauhan1 considered the significance and importance of sanction under the P.C. Act. It has been observed therein that the sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.
10. The provisions contained in Section 19(1),(2),(3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal and another5. In paras 47 and 48 of the judgment, the Court held as follows:
"47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard. 48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The Page | 13 former question can be agitated at the threshold but the latter is a question which has to be raised during trial."
11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal5 expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal5, this Court referred to invalidity of sanction on account of non-application of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non- availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal5, the challenge to which can always be raised in the course of trial.
12. In a later decision, in the case of Aamir Jaan4, this Court had an occasion to consider the earlier decisions of this Court including the decision in the case of Parkash Singh Badal5. Ameerjan4 was a case where the Trial Judge, on consideration of the entire evidence including the evidence of sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7,13(1)(d) read with Section 13(2) of the P.C. Act. However, the High Court overturned the judgment of the Trial Court and held that the order of sanction was illegal and the judgment of conviction could not be sustained. Dealing with the situation of the case wherein the High Court reversed the judgment of the Page | 14 conviction of the accused on the ground of invalidity of sanction order, with reference to the case of Parkash Singh Badal5, this Court stated in Ameerjan4 in para 17 of the Report as follows:
"17. Parkash Singh Badal, therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case."
13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal5 and not unjustified.
13. Reference is also made to the decision of the Supreme Court in the case of Ashok Kumar Aswal (supra). Paragraph Nos. 12 & 13 of the aforesaid judgment are reproduced hereinbelow for ready reference:-
"12. We have considered the submissions advanced. We have also examined the records-in-original placed before us. Having perused the said records we do not find that at any earlier point of time sanction was refused by the Competent Authority for prosecution of the Respondent No. 1 - Ashok Kumar Aswal. There is no dispute that the Competent Authority to grant sanction in the present case is the Finance Minister. Before the matter reaches the Finance Minister, naturally, it has to be processed at Page | 15 different levels and what we find from the nothings in the Original File is that certain authorities at different levels may have taken one view or the other of the matter. All such views which were earlier recorded in the file nothings were placed before the Finance Minister by cataloging the events in chronological order. It is on a consideration of the totality of the facts including the manner in which the matter had been processed at different levels, that the Finance Minister eventually accorded his approval for grant of sanction on 8th August, 2009. The file, in fact, had not reached the Finance Minister at any earlier point of time. We also do not find from the records in-original placed before us any indication of the exercise of any overt or unjustified pressure on the part of any authority on the Sanctioning Authority so as to sustain the argument advanced to the said effect on behalf of the Respondent No. 1 We have also looked into the relevant part of the original record with regard to the corrigendum issued and on a careful study of the contents of the said corrigendum and the context in which it has been made what we find therefrom is that the corrigendum dated 14th September, 2009 does not in any way affect the terms or conditions of the grant of sanction as made by the Finance Minister in the File on 8th August, 2009 on the basis of which the formal order dated 12th August, 2009 came to be issued.
13. In fact, all that the corrigendum does is to split up the alleged "reduced" demand of bribe into two separate amounts of Rs. 25 lakhs each instead of a lump-sum amount of Rs. 50 lakhs as mentioned in the Sanction Order dated 12th August, 2009. The corrigendum also dispenses with certain provisions of the Indian Penal Code. The aforesaid exclusion of some of the specific provisions of the Indian Penal Code really works to the benefit of the Respondent No. 1 accused and not to his prejudice. If the corrigendum does not, as we are inclined to hold, affect the substratum of the Sanction granted initially on 8th/12th August, 2009 we will have no reason to take the Page | 16 view that initial Sanction Order has in any way been modified or altered so as to require the approval of the Finance Minister once again. Surely for correction of typographical errors the file need not have traveled all the way upto the Finance Minister, once again. The fact that the said Sanction Order has been superseded may have been mentioned in the letter of the Under Secretary communicating the said Order dated 21st October, 2009 to the Appellant. However, what is of relevance is that the said fact of super session is not supported by reference to any authority or decision in the File and, therefore, would not deserve any further attention of the Court. All the above apart, time and again, this Court has laid down that the validity of a Sanction Order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either Under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding Under Article 226/227 of the Constitution."
14. Reading of the aforesaid decisions of the Apex Court, it is clear that in the event a prosecution sanction order exist, the legality and validity of the same ought not to be gone into by the constitutional court and the same is ought to be left to be determined by the trial Court as it involves essentially questions of facts. However, if no prosecution sanction order exist, certainly such prosecution can be challenged at the threshold before the constitutional court. In other words, this Court ought not sit in appeal against the prosecution sanction order and examine whether relevant materials were placed and considered by the sanctioning authority or not. Hence, when ground of non application of mind is raised, the same can be raised in the Page | 17 course of trial. Therefore, the constitutional court ought to exercise self restraint and leave it for the trial Court to adjudicate the same. In the present case, the prosecution sanction order does exist and the same is being assailed before this Court on the ground that due to non- consideration of relevant materials the order suffers from non-application of mind and as such, is illegal and arbitrary. That being so, the same can be raised during the course of trial. It is worthwhile also to mention that the case laws cited on behalf of the petitioner also have received due consideration from this Court, however, the same does not apply in the facts and circumstances of the present case and hence is of no relevance.
15. In view of the above, this Court in the interest of justice deems it appropriate to dispose of the writ petition by giving liberty to the petitioner to raise the issue concerning validity and legality of the impugned prosecution sanction order during trial, without going into the merit of the grounds urged in the instant writ petition.
16. Ordered accordingly.
17. With the aforesaid observation, the writ petition stands disposed of.
18. It is needless to be clarified that any observation made herein above as regards the merit of the grounds taken in the writ petition, the same is not binding upon the Page | 18 trial Court and the entire issue concerning the legality and validity of the impugned prosecution sanction order is kept open for adjudication by the trial Court, if the same is raised.
JUDGE Comparing Assistant Page | 19