Madhya Pradesh High Court
Sayyed Zarina Ali vs The State Of Madhya Pradesh Through ... on 4 March, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4th OF MARCH, 2024
WRIT PETITION No. 24499 of 2019
BETWEEN:-
SAYYED ZARINA ALI W/O SAYEED SABIR ALI,
AGED ABOUT 46 YEARS, OCCUPATION: GOVT.
SERVICE, WARD NO. 2, JAPESHWAR MARG, NEAR
JAMA MASJID, SHUJALPUR CITY, DISTRICT:
SHAJAPUR (MADHYA PRADESH)
.....PETITIONER
(SHRI VINAY SARAF LEARNED SENIOR ADVOCATE WITH SHRI VIVEK
PHADKE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
SECRETARY, REVENUE DEPARTMENT,
1. MANTRALAYA, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
SECRETARY, DEPARTMENT OF LAW AND
LEGISLATIVE AFFAIRS, BHOPAL (MADHYA
2.
PRADESH)
COLLECTOR, DISTRICT SHAJAPUR (MADHYA
3. PRADESH)
4 SUPERINTENDENT OF POLICE, SPECIAL
POLICE ESTABLISHMENT, LOKAYUKT, UJJAIN
2
(MADHYA PRADESH)
INSPECTOR GENERAL OF POLICE, SPECIAL
5 POLICE ESTABLISHMENT, LOKAYUKT,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VAIBHAV JAIN, ADVOCATE (R-4)
(SHRI ANIKET NAIK, DY. ADVOCATE GENERAL (R-2))
------------------------------------------------------------------------------------------
Reserved on : 16.10.2023
Pronounced on : 04.03.2024
---------------------------------------------------------------------------------------------------------
This Writ Petition having been heard and reserved for judgment,
coming on for pronouncement this day, Hon'ble Shri Justice Sushrut
Arvind Dharmadhikari passed the following:
JUDGMENT
Heard finally with the consent of both the parties.
2. The instant writ petition under Article 226 of the Constitution of
India the petitioner has assailed the legality, validity and propriety of the
order dated 17.09.2019 (Annexure P-1) whereby the sanction has been
accorded for prosecution of the petitioner by reviewing its earlier order
dated 17.03.2015 under Sections 7, 8, 13(1)d & 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as "the Act of 1988") r/w
Section 120-B of the I.P.C.
3. The moot question involved in this matter is "whether the
sanctioning authority has power and jurisdiction to review its order in the
matter of sanction under Section 19 of the Prevention of Corruption Act,
1988 (for short, 'the Act of 1988') for offence under Section 13(1)(e) read
with Section 13(2) of the Act of 1988 and an order passed refusing
sanction to prosecute under Section 19 of the Act of 1988 can be reviewed
and a fresh order granting sanction can be passed."
4. In nutshell, the relevant facts of the case are that the petitioner is a
public servant and at the relevant time she was working as Patwari. On
31.07.2013 at about 11.00 AM, the complainant namely Kailash S/o
Bapulal Chamar filed a written complaint before the Respondent No.4
alleging therein that the petitioner had demanded Rs. 500/- towards illegal
gratification for preparing new Revenue Book (Rin Pustika), out of which
he had already paid Rs. 200/-, but now he does not wish to pay further
amount of Rs. 300/- but he wants her to be trapped. As a result, a voice
recorder was put into action and the entire conversation between
complainant and the petitioner was recorded. As a consequence, the case
was registered under Crime No. 240/2013 for the offences punishable
under Sections 7, 8, 13(1)d & 13(2) of the Prevention of Corruption Act,
1988 and Section 120-B of I.P.C. However being a Government servant,
prosecution sanction is required to be obtained under Section 19 of the Act
of 1988. The prosecution sanction was denied vide order dated 17.03.2015
(Annexure P-4) refusing to grant sanction.
5. To the utter surprise of the petitioner, after lapse of more than 4
years, she came to know that sanction for prosecution has been granted for
the same Crime No. 240/2013 for which, the permission was denied
earlier.
6. Learned Senior Counsel appearing on behalf of the petitioner made
the twofold submissions. Firstly, that the order of sanction has been
granted against the petitioner by reviewing the earlier order declining to
grant sanction without there being any fresh material brought on record
which is in teeth of the provisions contained in Section 19 of the Act of
1988. Secondly, the sanction for prosecution has been granted pursuant to
the opinion given by the Administrative Department wherein a prima facie
opinion disagreeing with the earlier order has been given. Moreover, the
matter was referred to the Law & Legislative Affairs Department, Bhopal.
After following the due procedure for grant of sanction, the Law &
Legislative Affairs Department came to the conclusion that the present
case is a fit case for grant of prosecution sanction. The General
Administration Department Circular dated 05.09.20214 has been followed
and the sanction has been granted.
7. Learned counsel for the petitioner further contended that it is a
settled legal position that once the sanction is refused the power cannot be
exercised again or at a subsequent stage, in the absence of express power
of review particularly, considering the fact that new no material was
produced before grant of sanction.
8. Learned counsel appearing on behalf of the respondents contended
that the sanctioning authority finding error apparent on the face of record,
in the earlier order, has rightly accorded sanction against the petitioner
under Section 19 of the Act of 1988. The writ petition deserves to be
dismissed.
9. We have heard learned counsel for the parties and considered their
rival submissions and also perused the records.
10. In order to unlock the question so posed for consideration, it would
be appropriate and expedient to notice Section 19 of the Act of 1988 which
provides as under: -
"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 save as otherwise provided in the Lokpal and
Lokayuktas Act, 2013--
(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 the 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) xxx xxx xxx
(3) xxx xxx xxx
(4) xxx xxx xxx"
11. The requirement of obtaining sanction is to ensure that no public
servant is unnecessarily harassed. Such protection is however not absolute
or unqualified - while a public servant should not be subjected to
harassment, genuine charges and allegations should be allowed to be
examined by court. (See State through Anti-Corruption Bureau,
government of Maharashtra, Bombay v. Krishanchand Khushalchand
Jagtiani reported in AIR 1996 SC 1910)
12. The sanction for prosecution of a public servant is a weapon to
ensure discouragement of frivolous and vexatious prosecution. It is
safeguard for innocent, not a shield for a guilty. The object underlying
Section 19 of the Act of 1988 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 of the Act of 1988 is
not an empty formality since the Government or for that matter the
sanctioning authority is required to apply its mind to the entire material
and evidence placed before it and on examination thereof reach a
conclusion fairly, objectively and consistent with public interest as to
whether or not in the facts and circumstances, sanction should be accorded
to prosecute the Government servant. (See Mansukhlal Vithaldas
Chauhan v. State of Gujarat reported in AIR 1997 SC 3400)
13. An order granting or refusing sanction must be preceded by
application of mind on the part of appropriate authority on material placed
before it. (See Romesh Lal Jain v. Naginder Singh Rana and others
reported in (2006) 1 SCC 294.)
14. While granting sanction, the authority can neither take into
consideration an irrelevant fact nor can it pass an order on extraneous
consideration not germane for passing a statutory order. Although the
State, in the matter of grant or refusal to grant sanction, exercises statutory
jurisdiction, it does not mean that the power once exercised cannot be
exercised once again. For exercising its jurisdiction at a subsequent stage,
express power of review in State may not be necessary as such power is
administrative in character.
15. The Supreme Court in the matter of State of Punjab and another
v. Mohammed Iqbal Bhatti reported in 2010 AIR SCW 1186 has
considered the question whether State has any power of review in the
matter of grant of sanction in terms of Section 197 of the Code of Criminal
Procedure, 1973 and held 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
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. [See
Mansukhlal Vithaldas Chauhan v. State of Gujarat
[(1997)3 SCC 622] : (1997 AIR SCW 3478 : AIR 1997 SC
3400)."
16. Their Lordships further noticed the opinion of the High Court as
under: -
"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. The Government is expected to
act consciously and cautiously while taking such serious
decisions. The perusal of the record shows that pointed
queries had been raised to be answered by the Vigilance
Bureau but no answer was forthcoming nor any had been
submitted subsequently which culminated into passing of the
later order dated September 30, 2004. We refrain ourselves
from mentioning the queries which had been raised but it
would suffice to say that the queries were never answered at
the relevant time when the order dated December 15, 2003
had been passed nor the same was ever commented upon as
no answers were placed before the competent authority for
passing the impugned order dated September 30, 2004."
17. Finally, approving the opinion of the High Court, Their Lordships
observed 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 had 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."
18. Recognising the power of review on the part of sanctioning
authority, Their Lordships of the Supreme Court in the matter of State of
Himachal Pradesh v. Nishant Sareen reported in (2010) 14 SCC 527 :
AIR 2011 SC 404 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 a 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."
19. Thus, the order passed under Section 19 of the Act of 1988 by the
sanctioning authority can be reviewed / reconsidered on the following
circumstances: -
1. Where fresh materials have been collected by the
investigating agency and if on that basis, the matter can be
reconsidered.
2. When the authority has failed to take into consideration a
relevant fact or took into consideration an irrelevant fact.
20. Thus, it is quite vivid that the order under Section 19 of the Act of
1988 can be reviewed by the sanctioning authority where fresh material
has been collected and brought to the notice of the said authority and
secondly, when the sanctioning authority has failed to take into
consideration relevant facts and took into consideration irrelevant facts
while passing order under Section 19 of the Act of 1988.
21. Taking note of the aforesaid pronunciations, this Court is of the
considered opinion that it is not permissible for the sanctioning authority to
review or reconsider the matter on the same materials again. Admittedly,
no fresh material was brought on record so as to review its earlier order.
This Court is aware of the fact that reviewing the order is not unbridled or
unrestricted in absence of new material. In the present case, no fresh
material was collected by the Investigating Agency and placed before the
sanctioning authority for reconsideration/ review of the earlier order
refusing to grant sanction. As a matter of fact, from the perusal of the
subsequent order dated 17.09.2019 it is clear that on the same materials,
the sanctioning authority has changed its opinion and ordered sanction to
prosecute the petitioner herein, which in our opinion, is clearly
impermissible.
22. As a fallout and consequence of the aforesaid discussion, the writ
petition deserves to be and is hereby allowed and order dated 17.09.2019
(Annexure P-1) is hereby quashed and as a consequence, the proceedings
emanating from the sanction order also stands quashed.
23. Accordingly, the petition stands allowed.
No order as to costs.
(S.A. DHARMADHIKARI) (PRANAY VERMA )
JUDGE JUDGE
Vatan
VATAN SHRIVASTAVA
2024.03.04 13:12:02 +05'30'
