Bombay High Court
Suryakant Gulabrao Yewale vs The State Of Maharashtra, Thr. ... on 26 September, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition NO. 651
OF 20
16
PETITIONER: Suryakant Gulabrao Yewale,
Aged 46 years, Occupation:Service,
at present residing at c/o Bhuvaneshwar
Z. Revatkar, Layout Bypass Chowk, Umred,
Dist. Nagpur.
-VERSUS-
RESPONDENTS: 1. The State of Maharashtra,
through the Principal Secretary, Revenue and
Forest Department, Mantralay, Mumbai-400
032.
2 The Joint Secretary,
Revenue and Forest Department, Mantralaya,
Mumbai-400 032.
3 Senior Inspector of Police,
Umred Police Station, Umred, Dist. Nagpur.
Shri. S.S. Sanyal, Advocate for the Appellant
Shri. N.R. Rode, Additional Government Pleader for State.
CORAM: R.K.DESHPANDE &
MANISH PITALE, JJ
DATED:
26 SEPTEMBER
th
, 201
7
.
Oral Judgment (Per Manish Pitale, J)
1. The petitioner was working as Naib Tahsildar at Umrer,
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Dist. Nagpur. On 18/08/2011, it is alleged that the petitioner was
caught demanding a sum of Rs. 10,000/- illegal gratification and
on the basis of trap laid by Anti-Corruption Bureau, the petitioner
was arrested and charged with offences punishable under Sections
7, 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988
read with Section 201 of Indian Penal Code.
2. Since the petitioner could be proceeded against only
after sanction being obtained from the Competent Authority, an
application was submitted to the Competent Authority for grant of
such sanction. On 14/01/2013 / 18/01/2013, an order was passed
by Competent Authority refusing to grant sanction for prosecution
for the petitioner. Consequently, on 30/01/2014, the Investigation
Officer submitted a closure report, referring to the refusal of grant
of sanction by the Competent Authority and requesting that the
petitioner be discharged in the matter.
3. Subsequently, on 21/07/2016, the Joint Secretary of
the Revenue and Forest Department of the State Government
issued a fresh order granting sanction for prosecution of the
petitioner for the above mentioned offences alleged against him. It
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is this subsequent order of grant of sanction for prosecution which
is made a subject matter of the writ petition by the petitioner. It is
the contention of the petitioner that in view of the law laid down
by the Hon'ble Supreme Court in the case of State of Himachal
Pradesh V/s Nishant Sareen reported in (2010) 14 SCC 527, an
order of refusal for grant of sanction could not have been reviewed
by the Competent Authority and therefore, the subsequent
impugned order dated 21/07/2016 deserves to be quashed and set
aside. In this regard, reliance is also placed on the Government
Resolution dated 31/01/2015, which at Para-4, specifically
provides that no review of an order refusing sanction shall be
undertaken unless fresh material comes on record. This
Government Resolution is clearly in terms of law laid down by the
Hon'ble Supreme Court in the aforesaid judgment.
4. On 14/08/2017 this Court passed following order :-
"Heard the learned counsels appearing
for the parties.
Rule made returnable on 29.08.2017.
Put up at Sr. No.1.
The interim order passed by this Court
shall continue to operate.
Learned Assistant Public Prosecutor
waives service of notice for respondents.
We expect the respondents to point out
the material, if any, available with them in
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terms of para 4 of the Government
Resolution dated 31.01.2015 and place the
same before the Court at the time of final
hearing. Similarly, we expect the learned
counsels for the parties to be ready with all
citations whichever they wanted to place
before the Court, failing which heavy costs
shall be imposed"
In response to the direction given in the said order, an
affidavit dated 07/09/2017 has been filed on behalf of respondent.
In the said affidavit, it is only stated that since the earlier order of
refusal of sanction was sought to be reviewed on the basis of
communication dated 28/01/2014, which was prior to the
Government Resolution dated 31/01/2015, the action of the
respondent in passing the subsequent sanction order dated
21/07/2016 was justified. In this affidavit, the respondent has
failed to place on record any fresh material on the basis of which
the subsequent order dated 21/07/2016 was passed. The relevant
paragraph of the affidavit dated 07/09/2017 reads as follows :-
"2. I say & submit that in my earlier reply dated
14/10/2016 I have pointed out that vide
communication dated 28/01/2014 the
Competent Authority has considered the material
available with him and as the earlier authority
has not applied the mind properly and in correct
aspects the Competent Authority then had
reconsidered the said proposal and in the light of
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the judgments of the Hon'ble Apex Court had
asked the concerned department to initiate action
in regards granting sanction to prosecute the
petitioner".
5. The position of law that emerges from the judgment of
the Hon'ble Supreme Court in case of State of Himachal Pradesh
v/s Nishant Sareen (supra) is that the Competent Authority can
review or reconsider an earlier order of refusal of sanction only if
fresh material is brought on record by the Investigating Agency.
Otherwise, power once exercised cannot be reviewed or
reconsidered. In this regard, the following paragraphs of the
judgment of the Hon'ble Supreme Court are relevant.
"12. It is true that the Government in the
matter of grant of 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 Government or
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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 persual of the
subsequent order dated March 15,2008 it is
clear that on the same materials, 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
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done. The power of the sanctioning authority
being not of continuing character could have
been exercised only once on the same materials."
6. As stated above, the aforesaid position of law is
reiterated in Government Resolution dated 31/01/2015,
particularly paragraph-4 thereof. Applying the said position of
law and the aforesaid Government Resolution to the facts of the
present case, it is evident that the subsequent order dated
21/07/2016 passed by the respondent reviewing its earlier order
dated 14/01/2013 / 18/1/2013, was illegal and unsustainable.
The affidavit dated 07/09/2017, filed on behalf of the respondent
clearly states that when earlier order was passed, the authority
had not applied its mind properly and that therefore, the
Competent Authority had reconsidered the earlier order. It is
precisely this nature of exercise of power that is prohibited as per
the law laid down by the Hon'ble Supreme Court and therefore it
is evident that the subsequent order dated 21/07/2016 is
unsustainable.
7. Accordingly, the Writ Petition stands allowed and the
order dated 21/07/2016 passed by the Respondent No.1 is
quashed and set aside.
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Rule is made absolute in the aforesaid terms with no
order as to cost.
JUDGE JUDGE
nandurkar
