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Supreme Court of India
State Of Gujarat vs K..V. Joseph Etc on 9 November, 2000
Bench: Umesh C. Banerjee, K.G. Balakrishnan
           CASE NO.:
Appeal (crl.)  601 of 1997

PETITIONER:
STATE OF GUJARAT

RESPONDENT:
K..V. JOSEPH ETC.

DATE OF JUDGMENT: 09/11/2000

BENCH:
UMESH C. BANERJEE & K.G. BALAKRISHNAN

JUDGMENT:

JUDGMENT

2000 Supp(4) SCR 485

The following Order of the Court was delivered :

The State of Gujarat is in appeal against the judgments of the Gujarat High
Court in these appeals. Whereas in Criminal Appeal No 601/97, judgment in
its entirety has been challenged as totally without jurisdiction, the
Criminal Appeal No. 802/1997, however, is having a limited challenge and
the main grievance pertains to certain directions. For convenience sake the
Criminal Appeal No. 602/1997 is taken up first for hearing.

Mr. K.N. Rawal, the learned Additional Solicitor General of India contended
that the directions contained at paragraph 26.1 at page 68-69 of the
paperbook in particular the last few lines are not only unwarranted but
wholly without jurisdiction. For convenience sake the same is set out
hereinbelow:-

“…………In fact, after registering the offence, sanction must be
obtained within one month or at the most within two months, and thereafter,
the chargesheet should be filed within fifteen days. If round about three
months if the chargesheet is not filed, Director General, Anti-Corruption
Bureau should call for necessary explanation and take appropriate
departmental action against the concerned Investigation Officer and also
must request the concerned departmental head to grant sanction immediately.
The concerned sanctioning authority from the date of the receipt of papers
shall grant sanction within two months failing which he would be liable for
the contempt proceedings of this Court in absence of reasonable
explanation. It will also be a duty of the trial court to see that if it
come across any belated granting of sanction and thereafter filing of the
chargesheet, appropriate observations are made against the concerned
officials by forwarding a copy of his judgment and order at the highest to
Secretary level. Incidentally, it may also be stated that some of the
learned PPs in charge of Corruption case do not cite Judgment of this Court
and Apex Court in favour of the prosecution. This is too sad!!..”

The learned Additional Solicitor General highlighting the initiation of
contempt proceedings in the absence of reasonable explanation from the
sanctioning authority in the event of there being a delay of two months,
contended that judicial proceedings ought not to prompt the judicial
officers to apprehend things and pass orders on apprehensions. It has
further been contended that as a matter of fact adaptation of procedure as
above would not only denegrate the Judiciary itself but the confidence
reposed by the people to the Judiciary would be shaken and resultantly a
total anarchy in the judicial system.

Incidentally, it may be noticed that use of temperate language and
tolerance are the two basic factors in any judicial approach and it is in
this perspective Mr. Rawal contended that direction as noticed above to the
trial court and use of strongest possible language as regards public
prosecutors cannot but be said to be rather unfortunate. A generalized
statement ought not to be made since restraint is the greatest virtue that
one may expect from a judge.

We do find some justification in Mr. Rawal’s criticism of the judgment.

In this view of the matter, and since the portion indicated above is rather
harsh, the same stands expunged from the judgment. Save as above, we do not
wish to disturb the finding of the court in the judgment under appeal. We
however record our appreciation at the gesture of the learned Add.
Solicitor General since he himself submitted that the rest of the order by
reason of the subsequent event should not be disturbed in any way. The
appeal is, therefore, dismissed though however the High Court’s judgment
shall stand modified to the extent indicated above.

Turning attention on to the Criminal Appeal No. 601/1997 unfortunately
however, the judgment under appeal is more pathetically couched and we
cannot possibly lend concurrence to use of such strong language by the High
Court. Significantly, the Indian Administrative Service Officers
Association as also the Union of India have made fervent appeals to this
Court for being impleaded as parties so as to be able to advance
submissions before this Court at the final disposal of the appeal. We
however are not inclined to pass any order on such submission.

In order however to appreciate the contentions raised in this matter the
directions as contained in the judgment are set out hereinbelow:-

“(I) Portion of para 4 of the Vigilance Manual is in direct conflict with
the statutory provisions viz. Sections 7, 13. 17, and 19 of the Prevention
of Corruption Act the same stands ultra vires and null and void.

(2) Once the proposal to grant sanction under Section 19 of the Prevention
of corruption Act is forwarded by the investigating agency to competent
authorities then to Bureau the same in passing appropriate order beyond the
period of 2 months amounts to lack of devotion to duty and in absence of
just and proper explanation, the concerned officer would be liable not only
for departmental proceedings but also for the contempt of Court.

(3) It is declared that once the sanction is duly accorded by the
competent authority under Section 19 of the Act neither Vigilance
Commission not for the purpose any other Department of the State Government
has any right, power whatsoever to direct the sanctioning authority either
to reconsider or withdraw or in any other way directing it to withdraw the
prosecution from the Court.

(4) The circular dated 13/6/1986 issued by the State Government evoking
the earlier circular dated 31st May 1986 is ultra vires and are quashed and
set aside.

(5) The charge levelled against Respondent that since he is a part and
parcel of the Government he had no business to confront the Government. The
said charge levelled by the Government is absolutely unfounded.

(6) So far as the withdrawal of prosecution is concerned, concerned
officers were involved in the process of illegal withdrawals the Chief
Secretary shall take immediate necessary departmental and criminal
proceedings against those officers.”

Be it noted that the judgment under appeal was delivered by the Appellate
Bench of the High Court on the basis of the letter written by the then
Incharge Anti-Corruption Bureau and the resultant effect of which is the
declaration of para 4 of the vigilance manual as ultra vires by reason of
the same being said to be in direct conflict with the statutory provisions
of Sections 7, 13, 17 and 19 of the Prevention of Corruption Act. No notice
however was sent to the Advocate-General of the State before such a
declaration was effected and the same thus can not but be termed to be not
sustainable.

While it is true that corruption cases against some influential public
servants ought not to be withdrawn at the instance of the Home Department
without any basis whatsoever, but in our view in terms of the doctrine of
forum convenience the High Court by itself cannot usurp the function in the
manner as it has in the matter, rather forwarded the same to such of the
Institutions as are available in the country for such inquiries. This is a
matter of propriety rather than convenience. In any event, time factor also
has a definite role to play in the event the matter is to be considered by
the High Court itself. Needless to record that the arrear issue is already
very high in the agenda and if matters like the present one are taken up by
the Court then and in that event the Court itself shoulders the
responsibility and resultantly further delay in disposals would be
inevitable. Expeditious disposal is the requirement and inordinate delay
should always be avoided.

In any event, we do feel however to record that the language used is rather
strong and as noticed above restraint and use of temperate language ought
to be the basic criteria in the judicial approach. The violation of the
principle of natural justice also have been contended by reason of the fact
that no notice was sent in the matter for the purposes of any explanation
neither any explanation obtained. The court passes an order on the basis of
the available materials and upon affording the reasonable opportunity of
hearing and in the event there is any deprivation in regard thereto
affectation of the cause of justice would be the effect.

In any event by reason of the factum of the non-availability of any
opportunity to any of the parties, we do not feel it inclined to proceed
with the matter in any further detail. The words and phrases used also to
say the least are not very apposite. The judgment thus in any event cannot
be sustained.

In that view of the matter, this appeal is allowed. The order under
challenge is set aside.

Considering however, the nature of the allegation levelled and by reason of
the involvement of high public officials, we do feel it expedient to refer
the matter to the Central Vigilance Commission for dealing with the eight
instances of sanction of prosecution as adumberated in the judgment and
take appropriate steps in accordance with law, preferably within a period
of one year from the date of communication of the order. Costs directed to
be paid in terms of the judgment however shall not be recovered.


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