Madhya Pradesh High Court
Madhav Prasad Kachhawaha vs The State Of Madhya Pradesh on 27 April, 2022
Author: Sheel Nagu
1 CRR-1412-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE MANINDER S BHATTI
th
ON THE 27 OF APRIL, 2022
CRIMINAL REVISION No. 1412 of 2022
Between:-
MADHAV PRASAD KACHHAWAHA S/O LATE
RATANLAL KACHHAWAHA, AGED ABOUT 58
YEARS, OCCUPATION: CO-OPERATIVE
SERVICE (RETIRED), HOUSE NO. 73, WARD NO.
11, AMBEDKAR WARD, BAMHNI BANJAR,
TAHSIL AND DISTRICT MANDLA (M.P.)
.....PETITIONER
(BY SHRI ASHOK TIWARI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC CELL WING JABALPUR, DISTRICT,
BHOPAL, MADHYA PRADESH, THROGH OFFICE
OF THE ECONOMIC CELL WING JABALPUR
(M.P.)
.....RESPONDENT
(BY SHRI MADHUR SHUKLA - ADVOCATE)
This revision coming on for admission this day, JUSTICE SHEEL
NAGU passed the following:
2 CRR-1412-2022
ORDER
The present petition u/S. 397/401 of Cr.P.C. assails the impugned order
dated 14.01.2022 passed by Special Judge, Prevention of Corruption Act,
Mandla in case No.SC.EOW/02/2018 wherein application preferred by the
petitioner-accused seeking setting aside of the order of grant of sanction on the
ground of incompetence of the sanctioning authority has been rejected.
2. Learned counsel for petitioner primarily raises the ground that the Board
of Directors of District Central Co-operative Bank Limited, Mandla, which had
granted sanction for prosecution was incompetent to do so as the authority
empowered to remove the petitioner-accused from service was Chief Executive
Officer of the Bank and not the Board of Directors.
3. After considering the decisions of the Apex Court in Parkash Singh
Badal & Another vs. State of Punjab & Others, (2007) 1 SCC 1; Central
Bureau of Investigation vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295;
Dinesh Kumar vs. Chairman, Airport Authority of India & Another, (2012)
1 SCC 532; State of M.P. vs. Virender Kumar Tripathi, (2009) 15 SCC 533;
State of Karnataka vs. Ameerjan, (2007) 11 SCC 273; P.L. Tatwal vs. State
of Madhya Pradesh, (2014) 11 SCC 431; State of Maharashtra through CBI
vs. Mahesh G. Jain, (2013) 8 SCC 119; State of M.P. vs. Dr. Krishna
Chandra Saksena, (1996) 11 SCC 439, the Co-ordinate Bench of this Court in
Sabit Khan Vs. State of M.P. and others (W.P. No.7818/2021 decided on
12.08.2021) while considering the scope of interference in order of sanction for
prosecution held thus :
"8. The issue relating to absence of sanction or the
order of sanction being a nullity can be raised at the
threshhold but a challenge to the order of sanction on the
3 CRR-1412-2022
ground that it suffers from the defect of improper
application of mind or non-consideration of relevant
material is required to be raised during the trial and
establish by leading evidence, when the prosecution will
also have an opportunity to produce all the relevant
material as also examine the sanctioning authority.
9. The Supreme Court in the matter of Parkash
Singh Badal & Another vs. State of Punjab & Others
reported in (2007) 1 SCC 1 has drawn the distinction
between a case where there was absence of sanction and a
case where the order of sanction was vitiated on some
ground and has held that where there is absence of
sanction the issue can be agitated at the threshhold of trial
but when the sanction exists then question as to vitiation
has to be raised during trial.....
10. The Supreme Court in the matter of Central
Bureau of Investigation vs. Ashok Kumar Aggarwal
reported in (2014) 14 SCC 295 has reiterated that the
proper stage of examining the validity of sanction is
during trial......
11. In the matter of Dinesh Kumar vs. Chairman,
Airport Authority of India & Another reported in (2012)
1 SCC 532 in a case where cognizance was already taken
by the trial Court, the Hon'ble Supreme Court has
affirmed the order of the High Court whereby the
question of validity of sanction was left open for
consideration by the trial Court by giving liberty to the
accused to raise this issue in course of trial.....
12. In the matter of State of M.P. vs. Virender Kumar
Tripathi, reported in (2009) 15 SCC 533 in a case where
the High Court had quashed the proceedings on the ground
that Law & Legislative Department was required to
consult parent department of the accused for want of
which there was no proper sanction, the Hon'ble Supreme
4 CRR-1412-2022
Court found that there was no whisper or pleading about
failure of justice and the stage when failure of justice was
to be eastablished was yet to be reached as the issue of
failure of justice could be determined once trial
commenced and evidence is led......
13. xxx xxx xxx
14. The Supreme Court in the matter of State of
Karnataka vs. Ameerjan reported in (2007) 11 SCC 273
considering the issue of grant of sanction under Section 19
of the PC Act has held that the sanction order must be
demonstrative of the fact that there had been proper
application of mind on the part of sanctioning authority.
The material collected during investigation which would
prima facie establish existence of evidence in regard to
commission of offence should be available before the
sanctioning authority before the order of sanction is
passed. It has further been held that if the sanction order
does not indicate application of mind as to the material
produced before the authority then the same may be
produced before the Court to show that such a material
was infact produced before the competent authority. That
was a case where in appeal the High Court had reversed
the judgment on the ground of invalid sanction and the
sanctioning authority himself was examined before the
trial Court......
15. In the matter of P.L. Tatwal vs. State of Madhya
Pradesh reported in (2014) 11 SCC 431, it has been held
that grant of sanction is an administrative function which
intend to protect public servant against frivolous and
vaccacious litigation. It has further been clarified that if
the relevant material is not reflected in the order, it should
be capable of proof before the Court......
16. In the matter of State of Maharashtra through CBI
vs. Mahesh G. Jain reported in (2013) 8 SCC 119, it has
been held that the adequacy of material placed before the
5 CRR-1412-2022
sanctioning authority cannot be gone into by the Court as it
does not sit in appeal over the sanction order and that an
order of sanction should not be construed in a pedantic
manner and there should not be a hypertechnical approach
to test its validity. Symphoning technicalities cannot be
allowed to become tool in the hands of accused.....
17. In the matter of State of M.P. vs. Dr. Krishna
Chandra Saksena reported in (1996) 11 SCC 439, it has
been held that where the sanction order is not ex facie
illegal or invalid, the proceeding cannot be quashed. It has
further been held that non-consideration of relevant
documents supporting the accused while granting sanction
cannot be a ground for quashing the proceedings and such
aspect can be examined at the stage of trial for invalidating
the sanction......
18. Having examined the present case in the light of the
above judicial pronouncements, we find that the order of
sanction in the present case is not a nullity and since the
petitioner is raising the issue of improper application of
mind by the sanctioning authority, therefore, he will have
an opportunity to raise it during the trial and the challenge
to the sanction order at this stage is premature. Hence, the
writ petition is dismissed, however, with liberty to the
petitioner to raise the issue during the trial and establish it
by leading evidence."
4. More so, this Court in the case of Ankit Pathak Vs. The State of M.P.
through Special Police Establishment, Lokayukta, District Sagar (CRR
No.2283 of 2021 decided on 10.03.2022) has also taken a view by relying upon
decisions of Apex Court in Mahesh Prasad v. State of U.P., AIR 1955 SC 70,
State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751 and Sampuran Singh
Vs. State of Punjab, (1982) 3 SCC 200 that the order of grant of sanction per se
does not become vitiated merely because it has been passed by an authority
6 CRR-1412-2022
superior to the one which is competent to grant sanction. The relevant extract of
the said judgment is reproduced below for ready reference and convenience:-
"3. The question before this Court is as to whether an order of
grant of sanction for prosecution stands vitiated in law if the same is
passed by an authority superior in rank to the authority competent to
remove the government servant from service.
3.1 The aforesaid issue/question is no more res integra as it stands
concluded by the decisions of Apex Court in Mahesh Prasad v. State
of U.P., AIR 1955 SC 70, State of U.P. v. Babu Ram Upadhya, AIR
1961 SC 751 and Sampuran Singh Vs. State of Punjab, (1982) 3
SCC 200, the relevant extract of which is reproduced below for ready
reference and convenience:-
Mahesh Prasad (supra)
"In view of Article 311(1) of the Constitution of India and
Rule 1705(c) of the Indian Railway Establishment Code, Vol. I
(1951 Edition) a sanction under Section 6(c) of the Prevention
of Corruption Act, 1947 (as it existed prior to August 12,
1952) may be given either by the very authority who
appointed the public servant or by an authority who is directly
superior to such appointing authority in the same department.
But such sanction is also legal if it is given by an authority
who is equal in rank or grade with the appointing authority.
Sanction is invalid if it is given by one who is subordinate to
or lower than the appointing authority."
Babu Ram Upadhya (supra)
The position with regard to the tenure of public servants
and to the taking of disciplinary action against them under the
present Constitution was as follows:
"(i) Every person who was a member of a public service
described in Article 310 of the Constitution held office during
the pleasure of the President or the Governor.
(ii) The power to dismiss a public servant at pleasure was
outside the scope of Article 154 and, therefore, could not be
7 CRR-1412-2022
delegated by the Governor to a subordinate officer, and could
be exercised by him only in the manner prescribed by the
Constitution.
(iii) This tenure was subject to the limitations or
qualifications mentioned in Article 311.
(iv) Parliament or the legislature of States could not make
a law abrogating or modifying this tenure so as to impinge
upon the overriding power conferred upon the President or
the Governor under Article 310, as qualified by Article 311.
(v) Parliament or the legislatures of States could make a
law regulating the conditions of service of such a member
which included proceedings by way of disciplinary action,
without affecting the powers of the President or the Governor
under Article 310 read with Article 311.
(vi) Parliament and the legislatures also could make a law
laying down and regulating the scope and content of the
doctrine of "reasonable opportunity" embodied in Article 311
but the said law was subject to judicial review.
(vii) If a statute could be made by legislatures within the
foregoing permissible limits, the rules made by an authority in
exercise of the power conferred thereunder would likewise be
efficacious within the said limits."
Sampuran Singh (supra)
26. The pleasure of the President under Article 310 of the
Constitution cannot be fettered except by the provisions of
Article 311. Accordingly the pleasure of the President or the
Governor cannot be fettered by ordinary legislation. Again in
Union of India v. K.S. Subramanian, (1976) 3 SCC 677,
dealing with the pleasure of the President under Article 310
this Court observed that the Rules [Central Civil Services
(Classification, Control and Appeal) Rules, 1965, framed
under Article 309], deal principally with the procedure for
disciplinary proceedings and penalties and appeals and
reviews against orders passed under the Rules. They are
applicable if disciplinary proceedings had been taken against
the respondent, but they do not make disciplinary proceedings
8 CRR-1412-2022
incumbent or obligatory whenever the services of a person are
terminated."
4. From the aforesaid, it is evident that the Apex Court drawing
analogy from the scheme of Article 311(1) of Constitution held that
so long as the authority granting sanction for prosecution is not
subordinate to the authority competent to dismiss government
servant concerned, no fault can be found in the order of grant of
sanction solely on the ground of incompetence of sanctioning
authority.
5. In view of above exposition of law on the point, this court
need not enter into prolixity of dwelling upon the contentions of
petitioner in detail.
6. Consequently, since the order of grant of sanction herein is
issued by an authority (State Government) superior to the competent
sanctioning authority (Sub-Divisional Officer), the same cannot be
held to be bad in the eyes of law."
5. In view of above, the view taken by the learned Trial Judge cannot
be found fault with.
6. However, the legality and validity of the order of grant of sanction
is open to be tested by the petitioner-accused during trial in accordance
with law except the aspect of competency of sanctioning authority.
7. With the aforesaid observation, present criminal revision stands
dismissed without commenting upon merits of the matter.
(SHEEL NAGU) (MANINDER S BHATTI)
JUDGE JUDGE
DV
Digitally signed by
DINESH VERMA
Date: 2022.04.29
11:24:16 +05'30'
