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8. The decision in Sheetla Sahai (supra) has been referred to so as to contend that for the purpose of attracting the provisions of Section 197 Cr.P.C., it is not necessary that they must act in their official capacity but even where public servants purport to act in their official capacity, the same would attract the provisions of Section 197 of the Cr.P.C. The decision in Vineet Narayan (supra) was exclusively referred to by the learned counsel for the parties, which has been referred to in Subramanian Swamy (supra). It is in this decision, the Apex Court issued directions as contained in paragraph-58 of the judgment, one of which is the direction No. 15, in which referring to the particular recommendation, it was held that the time limit of three months for grant of sanction for prosecution must be strictly adhered to with additional time of one month where consultation is required with the Attorney General or any other law officer in his office. While the learned counsel for the petitioners argued that this time limit of three months does not lead to the inference that upon failure to adhere to the same there should be a deemed sanction.

So far as the charge under Section 13(2) of the P.C. Act is concerned, the learned Special Judge in his order dated 6.3.2012 has held that the prosecution sanction having not been accorded although sought for on 4.6.2010, the same shall be deemed to have been granted on expiry of three months from the date of seeking prosecution sanction. In this connection, he has referred to the decision in Subramanian Swamy (supra). Learned counsel for the petitioner argued that deemed sanction as mentioned in paragraph- 81 of the supplementing judgment of one of the Hon'ble Judges (A.K. Ganguly, J) is not in the realm of direction, but are guidelines for consideration of the Parliament. There is no gain saying that in Vineet Narain (supra) case referred to in Subramanian Swamy (supra), there was specific direction to adhere to the time lime of three months for granting of sanction for prosecution with the additional time limit of one month where consultation is required with the Attorney General or any Law Officer in his office. This position cannot be frustrated by shielding the accused by not granting prosecution sanction indefinitely.

79. Although, it was argued that neither in Vineet Narain nor in Subramanian Swamy (supra), the consequence of non-adherence to the time limit of three months having not been specified, there cannot be any deemed sanction, but the same will have to be considered in the light of the observations made in both the cases, which have been exclusively referred to above. The said observations are of significant importance.

80. If the conduct of a public servant amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It is not for nothing, the Apex Court in Vineet Narain (supra) fixed the time of three months for grant of prosecution sanction with the clear stipulation that the said time limit must be strictly adhered to. Following the said judgment and some other judgments, certain guidelines have also been issued by the Government of India, which have been held to be in conformity with the law laid down by the Apex Court. As recorded in paragraph 50 of the judgment in Subramanian Swamy (supra) while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.

81. As noted above, in the instant case, apart from the fact that there has been gross and unexplained delay on the part of the sanctioning authority, there is also no independent application of mind towards arriving at a prima facie satisfaction, but in some of the cases decision not to proceed judicially or criminally has been arrived at solely on the basis of the opinion of the learned Advocate General, Assam.

82. In paragraph-56 of the judgment in Subramanian Swamy (supra), the Apex Court has reiterated that every competent authority shall take appropriate action in the matter of sanction for prosecution strictly in accordance with the direction contained in Vineet Narain (supra). It is in this context, supplementing the judgment, one of the Hon'ble Judges (A.K. Ganguly, J) issued direction that the Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein 'due process of law' has been read into by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. Here lies the importance of judicial legislation upon failure on the part of the legislature in not laying down any time limit for prosecution sanction under Section 19 of the P.C. Act and on the face of inordinate delay on the part of the executive in the matter of prosecution sanction. The Apex Court had no other option than to judicially legislate towards stipulating time limit for prosecutions sanction. The direction contained in paragraph-81 of Subramanian Swamy's judgment will have to be considered in that context.