Madhya Pradesh High Court
Bhupendra Singh vs The State Of Madhya Pradesh on 15 June, 2021
Author: Prakash Shrivastava
1
THE HIGH COURT OF MADHYA PRADESH
WP No.14090/2020
(Bhupendra Singh vs. State of M.P. and others)
JABALPUR DATED : 15.06.2021
Shri Anshuman Singh, learned counsel for the petitioner.
Shri A.P. Singh, learned Dy. Advocate General for the
respondent No.1/State.
Shri Satyam Agrawal, learned counsel for the respondent No.2-
Lokayukt.
Shri Harpreet Ruprah, learned counsel for respondent No.3.
Heard finally with consent.
By this writ petition, the petitioner has challenged the
communication dated 17.08.2020 sent by the Additional Director, Special
Police Establishment Office of Lokayukt (Respondent No.2) to the
Commissioner, Municipal Corporation, Jabalpur (Respondent No.3) for
reconsidering the matter and granting the sanction for prosecuting the
petitioner for offences under Section 13(1)(d) and 13(2) of the Prevention
of Corruption Act, 1988 (for short 'PC Act') and Section 120B, 420, 467,
468, 471 and 201 of the IPC.
2. The facts in nutshell are that an FIR was lodged against the
petitioner and other persons in the Police Station, SPE, Bhopal and earlier
the communication dated 25.01.2019 was sent by the respondent No.2 to
the respondent No.3 seeking sanction for prosecuting the petitioner and
the sanction was refused by the Mayor-in-Council of the respondent
Corporation in its meeting dated 27.01.2020. The allegation of the
petitioner is that the respondent No.2 on the basis of the same material
has sent the communication for reconsidering/reviewing the issue of grant
of sanction.
3. Learned counsel for the petitioner submits that once the sanction
for prosecution was refused by the Mayer-in-Council then on the basis of
the same material, the respondent No.2 is not justified in seeking the
review of the order of refusal. He further submits that no fresh
investigation has been done and there is no fresh material for review of
the order. In support of his submission, he has placed reliance upon the
judgment of the Supreme Court in the matters of State of Himachal
Pradesh vs. Nishant Sareen, (2010) 14 SCC 527 and State of Punjab
and another vs. Mohammed Iqbal Bhatti, (2009) 17 SCC 92.
4. Learned counsel for the respondent No.2 has opposed the
petition and has submitted that the review/fresh consideration for grant of
sanction has been sought on the basis of the additional material which is
enclosed with the impugned communication and in respect of the other
similarly situated co-accused person, the sanction for prosecution has
already been granted. He has further submitted that the petition is
premature and the respondent Corporation has not yet considered the
issue of review.
5. Learned counsel for the respondent No.3 has informed that the
respondent Corporation has been dissolved and the Divisional
Commissioner has been appointed as Administrator under Section 423 of
the Municipal Corporation Act, 1956.
6. We have heard the learned counsel for the parties and perused
the record.
7. The sanction for prosecution is granted in terms of Section 19 of
the PC Act and Section 197 of the Cr.P.C. There is no bar and there is no
provision which prohibits the competent authority of the State to review
the order refusing to grant sanction or reconsider the issue of grant of
sanction for prosecution if subsequently any fresh material is placed
before the authority. In this regard, the Supreme Court in the case of
Mohammed Iqbal Bhatti(supra) has held as under:
"6. 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 authority concerned 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 grant
sanction may attract judicial review by the Superior Courts."
In the matter of Nishant Sareen(supra), the Hon'ble Supreme Court has
held that mere change of opinion on the basis of the same material does
not furnish a ground for review or reconsideration of the matter but when
the fresh the material is placed before the sanctioning authority, it can
form an opinion to grant the sanction. The Supreme Court in the case of
Nishant Sareen(supra) has held as under:
"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 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.
13. 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 a course."
8. In the present case, the competent authority is yet to examine if
the impugned communication dated 17.08.2020 is based upon the same
material which was considered by Mayer-in-Council while rejecting the
sanction earlier in its meeting dated 27.01.2020. Though counsel for the
petitioner has referred and submitted that the communication dated
17.08.2020 largely contains the same averments which were contain in
the earlier communication dated 15.01.2019 but that alone is not
sufficient because the competent authority does not reach to the
conclusion merely upon the averments made in the communication but
takes a decision to grant or refuse sanction after examining the relevant
material which is conveyed. The said exercise has not been done by the
competent authority on the basis of the impugned communication dated
17.08.2020. We also noticed that the complete material which was
enclosed alongwith the communication dated 17.08.2020 is not before
this Court. Hence, we are of the opinion that the petition is premature.
The petitioner, at the most, will have a cause of action in case if the
sanction is granted by the competent authority in pursuance to the
communication dated 17.08.2020.
9. Needless to say that while considering the issue of
review/reconsideration for grant of sanction for prosecution of the
petitioner, the competent authority will have due regard to the judgment
of the Supreme Court in the matter of Nishant Sareen(supra) and
Mohammed Iqbal Bhatti(supra) noted above.
10. Hence, in view of the above, we are of the opinion that no
ground for interference in the impugned communication dated 17.08.2020
is made out at this stage. The petition is accordingly dismissed.
(PRAKASH SHRIVASTAVA) (VIRENDER SINGH)
JUDGE JUDGE
YS
Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.06.18 16:41:21 +05'30'
