REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2353 OF 2010
(Arising out of SLP (Criminal) No. 2239 of 2010)
State of Himachal Pradesh .... Appellant
Versus
Nishant Sareen .... Respondent
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The question raised in this appeal, by special leave, is as
regards the extent of power vested in the Government in reviewing
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its order granting or refusing sanction to prosecute the public servant
in terms of Section 19 of the Prevention of Corruption Act, 1988 (for
short, `the 1988 Act’).
3. Nishant Sareen–the respondent–was posted as Drug
Inspector, Bilaspur (Himachal Pradesh) in 2005. One, Dr. Ramdhan
Sharma, owner of Leelawati Hospital, Ghumarwin lodged a
complaint against the respondent in the Vigilance Department of the
State Government that the respondent had demanded Rs. 5,000/-
from him as bribe to allow him to run the said hospital without
checking by the Drug Inspector. Based on the said complaint, a first
information report (being No. 1/2005) was registered under Sections
7 and 13 (2) of the 1988 Act at Police Station AC Zone, Bilaspur.
Thereafter, a raiding party under the supervision of Deputy
Superintendent of Police, AC Zone, Bilaspur was constituted and a
trap was laid on May 12, 2005. The respondent is said to have been
caught red-handed on that day accepting the bribe from the
complainant. The respondent was arrested and produced before the
Additional Sessions Judge, Ghumarwin and was remanded to
judicial custody upto May 16, 2005. The respondent was released
on bail later on. Upon completion of investigation, the Vigilance
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Department sought for sanction under Section 19 of the 1988 Act
from the Government to prosecute the respondent. It is not in
dispute that the Principal Secretary (Health), Government of
Himachal Pradesh is the competent authority authorized under the
Rules of Business for according sanction in the matter.
4. The Principal Secretary (Health), on the basis of the
material placed before her and on examination of the case, found no
justification in granting sanction to prosecute the respondent. In the
order dated November 27, 2007 whereby sanction was refused, it
was observed as under :
“Therefore, after thorough examination of the case
taking all the aspects into consideration and scrutiny of
the service records it has been concluded that Sh.
Sareen in the course of his duties and responsibilities
and impartial discharge of his duties (sic). It appears
that the complainant has registered a case which
appears to be frivolous and has resulted in unnecessary
harassment and hindrance in the working of the Drug
Inspector. In view of this, there appears to be no
justification for launching prosecution against Sh.
Nishant Sareen, Drug Inspector as it appears to be a
case of Personal enmity.”5. It appears that the Vigilance Department took up the
matter again with the Principal Secretary (Health) for grant of
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sanction as in their opinion sufficient evidence existed to prosecutethe respondent.
6. The competent authority, thus, reconsidered the matter
and granted sanction to prosecute the respondent vide its order
dated March 15, 2008. In the sanction order dated March 15, 2008,
it was observed thus:
“I agree with the contention of the Vigilance Department
that in evaluating the evidence of criminal misconduct,
his general conduct and behaviour as perceived by his
superiors cannot secure precedence. I have been
through the case file and facts of the case in detail. I find
that the said Drug Inspector. Sh. Nishant Sareen has
been caught red handed, with a bribe of Rs. 5000/-.
There is nothing on record to show that this incident did
not occur. The facts do not support the contention that
Sh. Nishant Sareen was falsely implicated. In the
circumstances, I am of the opinion that the prosecution
sanction be granted in the instant case and accordingly
do so.”7. Section 19 of the 1988 Act reads as follows :
“S. 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,–(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 the4
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;
(c) in the case of any other person, of the
authority competent to remove 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;
(c) no Court shall stay the proceedings under this
Act on any other ground and no Court shall exercise
the powers of revision in relation to any interlocutory
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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.”
8. The object underlying Section 19 is to ensure that a public
servant does not suffer harassment on false, frivolous, concocted or
unsubstantiated allegations. The exercise of power under Section 19
is not an empty formality since the Government or for that matter the
sanctioning authority is supposed to apply its mind to the entire
material and evidence placed before it and on examination thereof
reach conclusion fairly, objectively and consistent with public interest
as to whether or not in the facts and circumstances sanction be
accorded to prosecute the public servant. In Mansukhlal Vithaldas
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Chauhan vs. State of Gujarat1, this Court observed, `Sanction 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’. Section 19 or for that matter Section 197 of Code of
Criminal Procedure, 1973 (for short, `the Code’) does not make any
express provision regarding review or reconsideration of the matter
by the sanctioning authority once such power has been exercised.
9. In Gopikant Choudhary v. State of Bihar and Ors.2, initially
the concerned Minister refused to accord sanction to prosecute the
public servant therein and an order was passed to that effect.
Subsequently, after retirement of the public servant, the matter was
taken up by the Chief Minister and he granted sanction for
prosecution of the concerned public servant. The question that arose
for consideration before this Court was the correctness of the order
passed by the Chief Minister. This Court set aside the order of the
Chief Minister granting sanction to prosecute the public servant, inter
alia, on the ground that the Chief Minister did not have any occasion
to reconsider the matter and pass fresh order sanctioning the
prosecution.
1
(1997) 7 SCC 622
2
(2000) 9 SCC 53
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10. In Romesh Lal Jain v. Naginder Singh Rana & Ors.3 , it
was held by this Court that an order granting or refusing sanction
must be preceded by application of mind on the part of the
appropriate authority. If the complainant or accused can demonstrate
such an order granting or refusing sanction to be suffering from non-
application of mind, the same may be called in question before the
competent court of law.
11. Recently, in the case of State of Punjab and Anr. v.
Mohammed Iqbal Bhatti4, this Court had an occasion to consider the
question whether the State has any power of review in the matter of
grant of sanction in terms of Section 197 of the Code. This Court
observed as under:
“7. Although the State in the matter of grant or
refusal to grant sanction exercises statutory
jurisdiction, the same, however, would not mean that
power once exercised cannot be exercised once
again. For exercising its jurisdiction at a subsequent
stage, express power of review in the State may not
be necessary as even such a power is administrative
in character. It is, however, beyond any cavil that
while passing an order for grant of sanction, serious
application of mind on the part of the concerned
authority is imperative. The legality and/or validity of
the order granting sanction would be subject to
review by the criminal courts. An order refusing to
3
(2006) 1 SCC 294
4
JT 2009 (13) SC 1808
grant sanction may attract judicial review by the
Superior Courts. Validity of an order of sanction
would depend upon application of mind on the part of
the authority concerned and the material placed
before it. All such material facts and material
evidences must be considered by it. The sanctioning
authority must apply its mind on such material facts
and evidences collected during the investigation.
Even such application of mind does not appear from
the order of sanction, extrinsic evidences may be
placed before the court in that behalf. While granting
sanction, the authority cannot take into consideration
an irrelevant fact nor can it pass an order on
extraneous consideration not germane for passing a
statutory order. It is also well settled that the
Superior Courts cannot direct the sanctioning
authority either to grant sanction or not to do so. The
source of power of an authority passing an order of
sanction must also be considered.”
This Court then noticed the opinion of the High Court which was
recorded as follows :
“Once the Government passes the order under Section
19 of the Act or under Section 197 of the Code of
Criminal Procedure, declining the sanction to prosecute
the concerned official, reviewing such an order on the
basis of the same material, which already stood
considered, would not be appropriate or permissible.”
While affirming the above opinion of the High Court, this Court held in
paragraphs 22 and 23 of the Report as under :
“22. It was, therefore, not a case where fresh materials
were placed before the sanctioning authority. No case,
therefore, was made out that the sanctioning authority
had failed to take into consideration a relevant fact or
took into consideration an irrelevant fact. If the
clarification sought for by the Hon’ble Minister had9
been supplied, as has been contended before us, the
same should have formed a ground for reconsideration
of the order. It is stated before us that the
Government sent nine letters for obtaining the
clarifications which were not replied to.”
“23.The High Court in its judgment has clearly held,
upon perusing the entire records, that no fresh material
was produced. There is also nothing to show as to why
reconsideration became necessary. On what premise
such a procedure was adopted is not known.
Application of mind is also absent to show the
necessity for reconsideration or review of the earlier
order on the basis of the materials placed before the
sanctioning authority or otherwise.”
12. It is true that the Government in the matter of grant or
refusal to grant sanction exercises statutory power and that would not
mean that power once exercised cannot be exercised again or at a
subsequent stage in the absence of express power of review in no
circumstance whatsoever. The power of review, however, is not
unbridled or unrestricted. It seems to us sound principle to follow
that once the statutory power under Section 19 of the 1988 Act or
Section 197 of the Code has been exercised by the Government or
the competent authority, as the case may be, it is not permissible for
the sanctioning authority to review or reconsider the matter on the
same materials again. It is so because unrestricted power of review
may not bring finality to such exercise and on change of the
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Government or change of the person authorised to exercise power of
sanction, the matter concerning sanction may be reopened by such
authority for the reasons best known to it and a different order may
be passed. The opinion on the same materials, thus, may keep on
changing and there may not be any end to such statutory exercise. In
our opinion, a change of opinion per se on the same materials cannot
be a ground for reviewing or reconsidering the earlier order refusing
to grant sanction. However, in a case where fresh materials have
been collected by the investigating agency subsequent to the earlier
order and placed before the sanctioning authority and on that basis,
the matter is reconsidered by the sanctioning authority and in light of
the fresh materials an opinion is formed that sanction to prosecute
the public servant may be granted, there may not be any impediment
to adopt such course.
13. Insofar as the present case is concerned, it is not even
the case of the appellant that fresh materials were collected by the
investigating agency and placed before the sanctioning authority for
reconsideration and/or for review of the earlier order refusing to grant
sanction. As a matter of fact, from the perusal of the subsequent
order dated March 15, 2008 it is clear that on the same materials,
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the sanctioning authority has changed its opinion and ordered
sanction to prosecute the respondent which, in our opinion, is clearly
impermissible.
14. By way of foot-note, we may observe that the
investigating agency might have had legitimate grievance about the
order dated November 27, 2007 refusing to grant sanction, and if that
were so and no fresh materials were necessary, it ought to have
challenged the order of the sanctioning authority but that was not
done. The power of the sanctioning authority being not of continuing
character could have been exercised only once on the same
materials.
15. There is no merit in this appeal and it is dismissed.
…………………….J.
(Aftab Alam)
………………….. J.
(R.M. Lodha)
NEW DELHI,
DECEMBER 9, 2010
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