IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1971 OF 2015

(Arising out of S.L.P. (Civil) 18758 of 2014)

State of Madhya Pradesh & Ors . … Appellants

Versus

Anand Mohan & Anr … Respondents

J U D G M E N T

Prafulla C. Pant, J.

This Appeal is directed against judgment and order dated 03.09.2013

passed by the High Court of Madhya Pradesh at Jabalpur whereby said Court

has allowed Writ Petition No. 21246 of 2012 challenging the order of

sanction for prosecution, passed by Secretary, Law and Legislative Affairs,

Government of Madhya Pradesh, Bhopal.

2. Brief facts of the case are that respondent No.1 was an Executive

Engineer, and respondent No.2 was an Assistant Engineer with Bhopal

Development Authority (for short “BDA”). Said authority got constructed

33/11 KV Sub-Station at Raksha Vihar Colony, Bhopal, for which tenders were

invited on 25.07.1995, and work order was given in favour of one A.R.K.

Electricals, Bhopal. The construction was completed on 25.09.1997, and

ownership of the sub-station was transferred to Madhya Pradesh State

Electricity Board (for short “MPSEB”). It is alleged that the respondents,

in connivance with other accused, entered into a criminal conspiracy in

connection with above construction work, and got prepared a forged note-

sheet, pursuant to which excess payment of Rs. 9,51,657/- was paid to a

contractor (Ashok Johri). On this information, Economic Offences Wing (for

short “EOW”) of the State Government registered Crime No. 28 of 2004 in

respect of offences punishable under Sections 420, 467, 468, 471, 120B and

201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of

Prevention of Corruption Act, 1988 (for Short “the Act”) against the

respondents and other accused. After investigation, the Wing sought

previous sanction necessary for prosecution of the respondents from the

Administrative Department of the State Government. The Administrative

Department of the State Government, after examining the papers declined the

sanction vide its order dated 08.03.2011. However, on completion of

investigation, when charge sheet was filed against the accused before the

Court of Special Judge (Prevention of Corruption Act), Bhopal, the court,

vide its order dated 15.02.2012, directed that necessary sanction for the

prosecution of respondents be obtained from appellant No. 2, Secretary,

Department of Law and Legislative Affairs, Government of Madhya Pradesh,

which is the Competent Authority. Said Authority after examining the papers

vide order dated 20.11.2012, (Annexure P-8) granted necessary sanction to

prosecute the respondents.

3. The respondents challenged the order dated 20.11.2012, passed by

present appellant No.2 before the High Court through Writ Petition No.

21246 of 2012. The High Court allowed the Writ Petition holding that

appellant No. 2, i.e. Secretary, Department of Law and Legislative Affairs

was not the Competent Authority to grant the sanction.

4. Learned counsel for the appellants argued before us that the High

Court has erred in law in holding that the Law Department was not the

Competent Authority to grant sanction for the prosecution. In this

connection reference was made to the Order/Notification dated 03.02.1988

(Annexure P-1) issued by the State Government regarding amendment in the

relevant rules delegating the power relating to sanction of prosecution to

the Department of Law and Legislative Affairs passed by the State

Government.

5. On the other hand, learned counsel for the respondents contended that

the Competent Authority to grant sanction for prosecution against the

present respondents was appellant No. 1, Secretary, Housing and Environment

of Government of Madhya Pradesh, and said authority had declined to grant

the sanction vide its Order dated 08.03.2011. It is further submitted that

appellant No. 2 was conferred power to grant the sanction vide circular

dated 28.02.1998, as such it was not competent to grant sanction in respect

of offence alleged to have been committed by the respondents in the year

1997.

6. We have considered the rival submissions of the parties. Section 19

(1) of the Prevention of Corruption Act requires previous sanction for

prosecution of a public servant in respect of offence punishable under

Section 13 of the Act, Section 19 of the Act reads as under:

“19. Previous sanction necessary for prosecution.— (1) No court shall take

cognizance of an offence punishable under sections 7, 10, 11, 13 and 15

alleged to have been committed by a public servant, except with the

previous sanction, save as otherwise provided in the Lokpal and Loakayuktas

Act, 2013 -

(a) in the case of a person who is employed in connection with the affairs

of the Union and is not removable from his office save by or with the

sanction of the Central Government, of that Government;

(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, of that Government;

him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the

previous sanction as required under sub-section (1) should be given by the

Central Government or the 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.

(3) Notwithstanding anything contained in the Code of Criminal Procedure,

1973 (2 of 1974),—

(a) no finding, sentence or order passed by a special Judge shall be

reversed or altered by a court in appeal, confirmation or revision on the

ground of the absence of, or any error, omission or irregularity in, the

sanction required under sub-section (1), unless in the opinion of that

court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any

error, omission or irregularity in the sanction granted by the authority,

unless it is satisfied that such error, omission or irregularity has

resulted in a failure of justice;

and no court shall exercise the powers of revision in relation to any

interlocutory order passed in any inquiry, trial, appeal or other

proceedings.

(4) In determining under sub-section (3) whether the absence of, or any

error, omission or irregularity in, such sanction has occasioned or

resulted in a failure of justice the court shall have regard to the fact

whether the objection could and should have been raised at any earlier

stage in the proceedings.

Explanation.—For the purposes of this section,—

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any

requirement that the prosecution shall be at the instance of a specified

authority or with the sanction of a specified person or any requirement of

a similar nature.”

{In sub-section (1) words “save as otherwise provided in the Lokpal and

Lokayuktas Act, 2013” are added vide Act (1) of 2014 with effect from

16.01.2014 before clause (a) of the sub section (1) from clause (b) of sub

section (1).}

7. From the Section quoted above, it is clear that the sanction for

prosecution in respect of the public servant employed in connection with

affairs of the State, who is not removable from his office save by or with

the sanction of the State Government, such Government shall be, authority

to grant sanction for prosecution. It is not disputed that the previous

sanction was sought by the EOW for prosecution of the respondents. The only

issue is as to which of the department of the State was competent to grant

the sanction. Order dated 03.02.1988 (Annexure P-1), published in the

Official Gazette, whereby the Madhya Pradesh Works (Allotment) Rules (for

Short “MPWAR) were amended, reads as under:

“Madhya Pradesh Gazette

(Extraordinary)

Published by Authority

No. 35, Bhopal Wednesday, 3rd February, 1988

Personnel Administrative Reforms & Training Department

Bhopal, dated 3rd February, 1988

No. F A-1-1-88-49 (1)-225: In exercise of powers conferred by clauses (2)

and (3) of Article 166 of the Constitution of India the Hon’ble Governor of

Madhya Pradesh makes more amendments in Madhya Pradesh Works (Allotment)

Rules, namely:-

Amendment

In the aforesaid rules: -

(1) The para 4 is replaced with the following para in the policy made in

the para 21 in the Schedule-in (A) Department under Law & Legislative

Affairs Department, namely:-

4 (One) Criminal Procedure includes all subjects coming under Criminal

Procedure Code save the probation of the Criminals, and

(2) Sanction of prosecution under Section 6 of the Prevention of Corruption

Act, 1947.

(2) The following term added by the Notification No. 2980-3632-A(1),

dated 18th November, 1983 irrespective of any serial number to which it was

added, and which has been amended from time to time in respect of the

policy made in part (A) Department under the heads of all the departments,

be deleted.

Sanction of the prosecution under Section 173 of the Criminal

Procedure Code, 1973 and Section 6 of the Prevention of Corruption Act,

1947 in respect of services related to those departments.

By order & in the name of the Governor of MP

A.D. Mohile, Special Secretary”

8. Consequent to above amendment, Chief Minister of Madhya Pradesh vide

order dated 08.02.1988 (Annexure P-2) delegated the power to grant sanction

for prosecution of the public servants to the Law Secretary of Madhya

Pradesh Law Department. Said document is reproduced below:

“Madhya Pradesh Government

Personnel, Administrative Reforms and Training Department

ORDER

Bhopal, dated 8th February, 1988

According to the para (1) of Directive No.2 of Supplementary Directive Part-

5 under Rule-1 of Works Rules of the Madhya Pradesh Government made by the

Hon’ble Governor in exercise of powers conferred by Clause (2) and (3) of

Article 166 of Constitution of India, No. F A 1-1/88/49/1, pursuant to the

authority invested to me and superseding the order dated 4th November of

the General Administrative Department, I Motilal Vora, Chief Minister,

hereby direct that the Secretary, Madhya Pradesh Government, Law Department

shall dispose of the cases related to the prosecution sanction of the

Government servants.

Sd/-

Motilal Vora

Chief Minister”

9. By the Order dated 21.04.1997 (Annexure P-3), it is provided that the

Department of Law and Legislative Affairs shall obtain opinion of the

concern Administrative Department before granting the sanction. It is

further provided that in case of conflict between the two departments, the

matter shall be referred to Sub-Committee of the Cabinet. However, the

order dated 21.04.1997 (Annexure P-3) was withdrawn vide letter dated

10.07.1997 (Annexure P-4) to the extent that in case of conflict the matter

would be required to be referred to Sub-Committee of the Cabinet. Letter

dated 10.07.1997 (Annexure P-4) is reads as follows:

“State of Madhya Pradesh

General Administrative Department

No.F-15(6)/96/1-10 Bhopal dated 10.07.1997

All member Secretary/Secretaries of the

Government

State of Madhya Pradesh

Bhopal

Sub. Sanction for prosecution against the Government Employees/Officers.

Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997 issued by this

Department

Vide reference circular of this department, the procedure for according

sanction for prosecution was determined.

As per order following part is deleted from the prescribed procedure in

Para 2 of the said circular.

“In case of conflict between the Law Department and the Administrative

Department, the case shall be presented before the Sub-Committee of the

Cabinet by the Administrative Department.”

Remaining procedure of the reference circular shall remain as it is. Please

ensure action in the cases of sanction for prosecution in future

accordingly.

Sd/-

A.V. Gwaliorkar

Deputy Secretary

State of MP

General Administrative Department

No.F-15(6)/96/1-10 Bhopal dated 10.07.1997

Copy to

Officer on Special duty, Lokayukta Office, Madhya Pradesh Bhopal for

information

Sd/-

A.V. Gwaliorkar

Deputy Secretary

State of MP

General Administrative Department”

10. By the Order dated 28.02.1998, the State Government further clarified

that in the matters of sanction for prosecution, the papers shall be sent

by the Department of Law and Legislative Affairs along the record to the

Administrative Department for its opinion and the Administrative Department

shall give the same within a period of one month, whereafter Department of

Law and Legislative Affairs shall take a decision.

11. It is not disputed that State of Madhya Pradesh Economic Offence Wing

registered Crime No. 28 of 2004 in respect of offences under Sections 420,

467, 468, 471 and 120B IPC and under Section 13 (1) (d) read with Section

13 (2) Prevention of Corruption Act, 1988 against the respondents on the

allegation that the respondents in connivance with others prepared forged

note sheet, and made payment of Rs. 9,51,657/- to a contractor abusing

their position. It is also not disputed that when the EOW sought sanction

for prosecution from Department of Housing and Environment, it declined the

sanction vide order dated 08.03.2011 (Annexure P-6). Question before us is

that whether the Department of Law and Legislative Affairs which granted

the sanction vide its order dated 20.11.2012 (Annexure P-8) was competent

to do so or not.

12. The High Court in the impugned order observed that the (EOW) did not

challenge legality and validity of order dated 08.03.2011, and submitted

the charge sheet. It further held that since the appellant No. 2 was

conferred power to grant the sanction only vide circular dated 28.02.1998,

as such it was not competent to grant the sanction relating offences

alleged to have been committed in the year 1997.

13. We are unable to accept the view taken by the High Court for the

reason that from annexure P-1 and annexure P-2, it is evident that the

power to grant the sanction for prosecution, already existed with the

Department of Law and Legislative Affairs, since February, 1988. The

circular letter dated 28.02.1998 (Annexure P-5) does not confer any new

power and it only clarifies that Department of Law and Justice is a

competent authority not only in respect of investigations made by Lokayukta

Organization, but also the State Economic Offences Investigation Wing. The

power with the appellant No.2 to grant the sanction is, in fact, conferred

by the rule as amended vide notification dated 03.02.1988 published in the

Official Gazette. After such amendment in the rule whereby power to grant

sanction was delegated to Department of Law and Justice, it cannot said

that Administrative Department had power to decline sanction as it has done

vide its order dated 10.07.1997.

14. In DDA and others vs. Joginder S. Monga and others[1] discussing

the situation of conflict between statutory rule and executive instruction,

this Court has clarified as under:

“30. It is not a case where a conflict has arisen between a statute or a

statutory rule on the one hand and an executive instruction, on the other.

Only in a case where a conflict arises between a statute and an executive

instruction, indisputably, the former will prevail over the latter. The

lessor under the deed of lease is to fix the market value. It could do it

areawise or plotwise. Once it does it areawise which being final and

binding, it cannot resile therefrom at a later stage and take a stand that

in a particular case it will fix the market value on the basis of the price

disclosed in the agreement of sale.”

15. On behalf of the respondents, reliance is placed in the case of

Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke[2], but on going

through said case law we find that in said case investigation agency itself

filed closure report as against the appellant Sanjaysinh Ramrao Chavan, and

the same was accepted by the Magistrate, as such there was no question of

sanction to be obtained from the Department concerned. In the

circumstances, we find that the case of Sanjaysinh Ramrao Chavan (supra,)

is of little help to the present respondents.

16. Recently in State of Bihar and others v. Rajmangal Ram[3], this Court

has held as under: -

“9. In the instant cases the High Court had interdicted the criminal

proceedings on the ground that the Law Department was not the competent

authority to accord sanction for the prosecution of the respondents. Even

assuming that the Law Department was not competent, it was still necessary

for the High Court to reach the conclusion that a failure of justice has

been occasioned. …………..”

17. From the sanction granted by the Law Department, copy of which is

annexed as Annexure P-8, it is evident that the authority has examined the

material on record before granting the sanction.

18. Therefore, we are of the view that the High Court has erred in law in

allowing the Writ Petition filed by the respondents seeking quashing of

sanction dated 20.11.2012 granted by appellant No.2, Secretary, Department

of Law and Legislative Affairs, Government of Madhya Pradesh. We do not

find any infirmity as to the competence of appellant No.2 to grant the

sanction in the matter for the reasons discussed above. Accordingly, the

appeal is allowed. The impugned order dated 03.09.2013, passed by the High

Court, is set aside.

……………….....…………J.

[Dipak Misra]

.……………….……………J.

New Delhi; [Prafulla C. Pant]

July 09, 2015.

-----------------------

[1] (2004) 2 SCC 297

[2] 2015 (1) SCALE 457

[3] (2014) 11 SCC 388