Punjab-Haryana High Court
Vijay Kumar Syal vs State Of Punjab on 10 March, 2025
Neutral Citation No:=2025:PHHC:034495
CWP-4521-2025 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
118 CWP-4521-2025
Date of Decision : March 10, 2025
VIJAY KUMAR SYAL -PETITIONER
V/S
STATE OF PUNJAB -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Atul Lakhanpal, Sr. Advocate with
Mr. Arvind Pal Singh Grover, Advocate
for the petitioner.
Mr. Pardeep Bajaj, D.A.G., Punjab.
***
KULDEEP TIWARI, J. (ORAL)
1. The solitary grievance engendering the instant writ petition
originates from the order dated 08/09.08.2024 (Annexure P-17),
wherethrough, the competent authority has accorded sanction for
prosecution of the petitioner in FIR No.07 dated 05.04.2016, under Sections
420, 467, 468, 471, 120-B of the Indian Penal Code, and, Section 13(1)(D)
read with Section 13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as the 'P.C. Act'), registered at P.S. Vigilance
Bureau, Bathinda Range, Bathinda, District Bathinda.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE
PETITIONER
2. The arguments, as pitched by the learned senior counsel for the
petitioner, in his endeavoring to decimate the validity of the impugned
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sanction order, are compendiously extracted hereinafter:-
(i) In respect of the same set of allegations, departmental
enquiry became launched against the petitioner and culminated
in his exoneration, however, the said enquiry report has not
been taken into account by the sanctioning authority while
according sanction for prosecution of the petitioner;
(ii) The sanction for prosecution of the petitioner is the
outcome of mala fide intent on the part of the sanctioning
authority inasmuch as the petitioner had, owing to bribe
becoming demanded from him, made complaint against the
ministerial staff deployed in the office of the Chief Secretary;
(iii) The sanction for prosecution of the petitioner suffers
from the vice of delay inasmuch as the FIR in the case at hand
was registered way back in the year 2016, however, sanction
for prosecution was sought in the year 2022 and it was finally
granted in the year 2024. Therefore, the sanction has been
accorded in violation of the provisions enclosed in Section 19
of the P.C. Act.
(iv) There is likelihood of the investigating agency not
producing the complete challan before the sanctioning
authority, hence the dearth of complete record before the latter
makes the impugned sanction order amenable for interference,
inasmuch as, in such circumstances, it is merely a mechanical
exercise conducted by the competent authority.
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SUBMISSIONS OF THE LEARNED STATE COUNSEL
3. The arguments advanced by the learned senior counsel for the
petitioner have been vociferously opposed by the learned State counsel by
making the hereinafter summarized submissions:-
(i) The allegations embodied in the present FIR were
thoroughly investigated into by the Vigilance Department and
statements of witnesses were also recorded, which not only
duly established demand, but also acceptance of bribe by the
petitioner, thereby inviting the mischief of the P.C. Act;
(ii) After concluding enquiry, the enquiry officer concerned
requested the competent authority, through proper channel, to
accord sanction for prosecution of the prosecution. Initially,
this request was sent to S.P. (Vigilance), which was
subsequently marked to Director (Vigilance), and, then to the
Chief Secretary. Finally, the Chief Secretary, after having
sanction from the Chief Minister of the State, granted the
sanction for prosecution of the petitioner.
(iii) The allegations of mala fide intent, as alleged by
the petitioner, cannot be looked into at this stage, especially
when the legality of the impugned sanction order is amenable
for being examined by the trial Court. Not only this, the issue of
mala fide intent is a disputed question of fact, which can only
be adjudicated by the trial Court after appreciation of
evidence, as becomes adduced before it by the parties.
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(iv) The impugned sanction order has been passed
while taking into account the essential and substantial
material/evidence, including the statements of witnesses
recorded under Section 161 Cr.P.C. Hence, the impugned
sanction order cannot be said to be passed without
appreciation of apposite material.
EVALUATING THE LEGALITY OF THE IMPUGNED SANCTION
ORDER
4. This Court has heard at length the rival submissions of the
contesting litigants and also made a thorough perusal of the record, and in
aftermath thereof, this Court is coaxed to formulate the following issues for
adjudication of lis.
(i) Whether the impugned sanction order, nature
whereof is primarily administrative, can be subjected to
judicial review?
(ii) Whether the impugned sanction order is banked
upon consideration and application of mind to the material
placed before the author thereof by the investigating
agency?
5. For penning down an affirmative opinion upon the first issue,
this Court deems it imperative to refer to the judgment rendered by the
Hon'ble Supreme Court in "State of Punjab and another Vs. Mohammed
Iqbal Bhatti", (2009) 17 Supreme Court Cases 92, inasmuch as, it has
been categorically held therein that, 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
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superior courts. The relevant paragraphs of this judgment are reproduced
hereinafter:-
"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 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.
7. 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 evidence
must be considered by it. The sanctioning authority must apply its
mind on such material facts and evidence collected during the
investigation. Even such application of mind does not appear from
the order of sanction, extrinsic evidence 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) 7 SCC 622]. The authority concerned
cannot also pass an order of sanction subject to ratification of a
higher authority. [See State v. Dr. R.C. Anand] [(2004) 4 SCC
615]."
6. Also, in the verdict rendered in "Mansukhlal Vithaldas
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Chauhan Vs. State of Gujarat", (1997) 7 SCC 622, the Hon'ble Supreme
Court has, while concurring with the ratio of law laid down in "Sterling
Computers Ltd. Vs. M&N Publications Ltd.", (1993) 1 SCC 445, held
that while exercising the power of judicial review, the Court is concerned
primarily as to whether there has been any infirmity in the decision-
making process. The relevant paragraph of Mansukhlal Vithaldas
Chauhan's verdict (supra) is reproduced hereunder:-
"28. In Sterling Computers Ltd. vs. M & N Publications Ltd., AIR
1966 SC 51, it was pointed out that while exercising the power of
judicial review, the Court is concerned primarily as to whether
there has been any infirmity in the decision-making process? In
this case, the following passage from Professor Wade's
Administrative Law was relied upon :
"The doctrine that powers must be exercised reasonably
has to be reconciled with the no less important doctrine
that the Court must not usurp the discretion of the public
authority which Parliament appointed to take the decision.
Within the bounds of legal reasonableness is the area in
which the deciding authority has genuinely free discretion.
If it passes those bounds, it acts ultra vires. The Court must
therefore resist the temptation to draw the bounds too
tightly, merely according to its own opinion. It must strive
to apply an objective standard which leaves to the deciding
authority the full range of choices which legislature is
presumed to have intended."
7. In view of the above, this Court can delve upon the exercise
of gauging the legality of the impugned sanction order, whereby, sanction
for prosecution of the petitioner has been granted.
8. Insofar as the second issue is concerned, the Hon'ble
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Supreme Court has, in "State of Karnataka Vs. Ameerjan", (2007) 11
Supreme Court Cases 273, held that application of mind on the part of
the sanctioning authority is imperative. The order granting sanction must
be demonstrative of the fact that there had been proper application of
mind on the part of the sanctioning authority. The relevant paragraphs of
this verdict are reproduced as under:-
"9. We agree that an order of sanction should not be construed in
a pedantic manner. But, it is also well settled that the purpose for
which an order of sanction is required to be passed should always
be borne in mind. Ordinarily, the sanctioning authority is the best
person to judge as to whether the public servant concerned should
receive the protection under the Act by refusing to accord
sanction for his prosecution or not.
10. For the aforementioned purpose, indisputably, application of
mind on the part of the sanctioning authority is imperative. The
order granting sanction must be demonstrative of the fact that
there had been proper application of mind on the part of the
sanctioning authority. We have noticed hereinbefore that the
sanctioning authority had purported to pass the order of sanction
solely on the basis of the report made by the Inspector General of
Police, Karnataka Lokayukta. Even the said report has not been
brought on record. Thus, whether in the said report, either in the
body thereof or by annexing therewith the relevant documents, IG
Police, Karnataka Lokayuktha had placed on record the materials
collected on investigation of the matter which would prima facie
establish existence of evidence in regard to the commission of the
offence by the public servant concerned is not evident. Ordinarily,
before passing an order of sanction, the entire records containing
the materials collected against the accused should be placed
before the sanctioning authority. In the event, the order of
sanction does not indicate application of mind as (sic to) the
materials placed before the said authority before the order of
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sanction was passed, the same may be produced before the court
to show that such materials had in fact been produced."
9. Furthermore, in Mansukhlal Vithaldas Chauhan's verdict
(supra), it has also been held that, the order of sanction must ex facie
disclose that the sanctioning authority had considered the evidence and
other material placed before it. The validity of sanction depends on the
applicability of mind by the sanctioning authority to the facts of the case,
as also the material and evidence collected during investigation. The
relevant paragraphs of this verdict are reproduced hereunder:-
"18. The validity of the sanction would, therefore, depend upon
the material placed before the sanctioning authority and the fact
that all the relevant facts, material and evidence have been
considered by the sanctioning authority. Consideration implies
application of mind. The order of sanction must ex facie disclose
that the sanctioning authority had considered the evidence and
other material placed before it. This fact can also be established
by extrinsic evidence by placing the relevant files before the Court
to show that all relevant facts were considered by the sanctioning
authority. (See also Jaswant Singh vs. State of Punjab, AIR 1958
SC 124; State of Bihar vs. P.P. Sharma, 1991 Cri. L.J. 1438).
19. Since the validity of "sanction" depends on the applicability of
mind by the sanctioning authority to the facts of the case as also
the material and evidence collected during investigation, it
necessarily follows that the sanctioning authority has to apply its
own independent mind for the generation of genuine satisfaction
whether prosecution has to be sanctioned or not. The mind of the
sanctioning authority should not be under pressure from any
quarter nor should any external force be acting upon it to take
decision one way or the other. Since the discretion to grant or not
to grant sanction vests absolutely in the sanctioning authority, its
discretion should be shown to have not been affected by any
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extraneous consideration. If is shown that the sanctioning
authority was unable to apply its independent mind for any reason
whatsoever or was under an obligation or compulsion or
constraint to grant the sanction, the order will be had for the
reason that the discretion of the authority "not to sanction" was
taken away and it was compelled to act mechanically to sanction
the prosecution."
10. On the anvil of the hereinabove discussed legal propositions
of law concerning the issue No.(ii), this Court proceeds to adjudicate the
legality of the impugned sanction order.
11. Although it is a trite law that, refusal to take into
consideration a relevant fact or acting on the basis of irrelevant and
extraneous factors not germane to the purpose of arriving at the
conclusion would vitiate an administrative order and certainly requires
judicial review, however, in the instant case, the competent authority has
taken into account all the relevant factors and material while drawing the
impugned sanction order. The reasons for drawing this inference are
elaborated hereinafter.
12. The allegations voiced in the present FIR are that, the
petitioner while him being posted as D.T.O., Faridkot, registered a Verna
car in Faridkot, despite its seller and buyer being residents of Rajasthan.
The other allegations are that, the petitioner got appointed one Rakesh
Kumar Sharma as Data Entry Operator through Smart Chip Company
Private Limited and got allotted him D.T.O. Office employee seat L.L.
Testing in place of Harkamal Singh @ Hari, who was already posted
there. Moreover, the petitioner is alleged to be taking work of Smart Card
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MS for about 02 months from co-accused Rakesh Kumar Sharma, which
was required to be done by the employees of D.T.O. Apart from this,
various irregularities committed by the petitioner, while him being posted
as D.T.O. Faridkot, have also been narrated in the FIR. Not only these
allegations, but, the allegations of collection of bribe by petitioner's co-
accused at his behest, have also been substantiated by the witnesses in
their statements recorded under Section 161 Cr.P.C.
13. The impugned sanction order makes vivid display that, all
the material evidence including the statements of witnesses recorded
under Section 161 Cr.P.C., as collected by the investigating agency while
conducting detailed investigation, were placed before the maker thereof
for consideration. The sanctioning authority made studied survey of the
material evidence placed before it and found the same to be lending
vigour to the allegations levelled against the petitioner and accordingly
granted sanction for prosecution of the petitioner. The relevant portion of
the impugned sanction order, which reflects due application of mind by
the sanctioning authority to the material placed before it, is reproduced
hereunder:-
"4. On viewing the complete file of the aforementioned case along
with the statements of the witnesses under section 161 Cr.P.C. the
competent is fully convinced that during his deployment DTO
Vijay Kumar Syal collected money through cheating and
collecting bribe money, in this way he has committed offence
under sections 420, 467, 468, 471, 120-B IPC and 13(I) D read
with 13(2) PC Act 1988."
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14. In summa, this Court has no hesitation to hold that, the
impugned sanction order is banked upon consideration and application of
mind to the material placed before the author thereof by the investigating
agency, hence there is no ground to interfere in the same.
15. Insofar as the argument with regard to delay is concerned,
the purported vice of delay does not ipso facto render the impugned
sanction order, which otherwise passed the test of legality on the anvil of
other considerations, to be illegal.
16. Consequently, the instant writ petition is dismissed and the
impugned sanction order is upheld.
(KULDEEP TIWARI)
March 10, 2025 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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