Sections 420, 467, 468, 471, 120B and
201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of
Prevention of Corruption Act, 1988 (for Short “the Act”) - Who has to give Sanction for prosecution whether the Law Department vested with such powers - High court allowed the writ - Apex court held that it is evident that the power to grant the sanction for prosecution, already existed with the Department of Law and Legislative Affairs, since February, 1988. The circular letter dated 28.02.1998 (Annexure P-5) does not confer any new
power and it only clarifies that Department of Law and Justice is a competent authority not only in respect of investigations made by Lokayukta Organization, but also the State Economic Offences Investigation Wing. The power with the appellant No.2 to grant the sanction is, in fact, conferred by the rule as amended vide notification dated 03.02.1988 published in the Official Gazette. After such amendment in the rule whereby power to grant
sanction was delegated to Department of Law and Justice, it cannot said that Administrative Department had power to decline sanction as it has done vide its order dated 10.07.1997.-2015 SC MSKLAWREPORTS
It is alleged that the respondents,
in connivance with other accused, entered into a criminal conspiracy in
connection with above construction work, and got prepared a forged note-
sheet, pursuant to which excess payment of Rs. 9,51,657/- was paid to a
contractor (Ashok Johri).
On this information, Economic Offences Wing (for
short “EOW”) of the State Government registered Crime No. 28 of 2004 in
respect of offences punishable under Sections 420, 467, 468, 471, 120B and
201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of
Prevention of Corruption Act, 1988 (for Short “the Act”) against the
respondents and other accused.
After investigation, the Wing sought
previous sanction necessary for prosecution of the respondents from the
Administrative Department of the State Government.
The Administrative
Department of the State Government, after examining the papers declined the
sanction vide its order dated 08.03.2011. However, on completion of
investigation, when charge sheet was filed against the accused before the
Court of Special Judge (Prevention of Corruption Act), Bhopal, the court,
vide its order dated 15.02.2012, directed that necessary sanction for the
prosecution of respondents be obtained from appellant No. 2, Secretary,
Department of Law and Legislative Affairs, Government of Madhya Pradesh,
which is the Competent Authority. Said Authority after examining the papers
vide order dated 20.11.2012, (Annexure P-8) granted necessary sanction to
prosecute the respondents.
Writ filed - High court allowed the writ
Learned counsel for the appellants argued before us that the High
Court has erred in law in holding that the Law Department was not the
Competent Authority to grant sanction for the prosecution.
From the Section quoted above, it is clear that the sanction for
prosecution in respect of the public servant employed in connection with
affairs of the State, who is not removable from his office save by or with
the sanction of the State Government, such Government shall be, authority
to grant sanction for prosecution.
It is not disputed that the previous
sanction was sought by the EOW for prosecution of the respondents.
The only
issue is as to which of the department of the State was competent to grant
the sanction.
Apex court held that
Order dated 03.02.1988 (Annexure P-1), published in the
Official Gazette, whereby the Madhya Pradesh Works (Allotment) Rules (for
Short “MPWAR) were amended, reads as under:
“Madhya Pradesh Gazette
(Extraordinary)
Published by Authority
No. 35, Bhopal Wednesday, 3rd February, 1988
Personnel Administrative Reforms & Training Department
Bhopal, dated 3rd February, 1988
No. F A-1-1-88-49 (1)-225: In exercise of powers conferred by clauses (2)
and (3) of Article 166 of the Constitution of India the Hon’ble Governor of
Madhya Pradesh makes more amendments in Madhya Pradesh Works (Allotment)
Rules, namely:-
Amendment
In the aforesaid rules: -
(1) The para 4 is replaced with the following para in the policy made in
the para 21 in the Schedule-in (A) Department under Law & Legislative
Affairs Department, namely:-
4 (One) Criminal Procedure includes all subjects coming under Criminal
Procedure Code save the probation of the Criminals, and
(2) Sanction of prosecution under Section 6 of the Prevention of Corruption
Act, 1947.
(2) The following term added by the Notification No. 2980-3632-A(1),
dated 18th November, 1983 irrespective of any serial number to which it was
added, and which has been amended from time to time in respect of the
policy made in part (A) Department under the heads of all the departments,
be deleted.
Sanction of the prosecution under Section 173 of the Criminal
Procedure Code, 1973 and Section 6 of the Prevention of Corruption Act,
1947 in respect of services related to those departments.
By order & in the name of the Governor of MP
A.D. Mohile, Special Secretary”
Consequent to above amendment, Chief Minister of Madhya Pradesh vide
order dated 08.02.1988 (Annexure P-2) delegated the power to grant sanction
for prosecution of the public servants to the Law Secretary of Madhya
Pradesh Law Department. Said document is reproduced below:
“Madhya Pradesh Government
Personnel, Administrative Reforms and Training Department
ORDER
Bhopal, dated 8th February, 1988
According to the para (1) of Directive No.2 of Supplementary Directive Part-
5 under Rule-1 of Works Rules of the Madhya Pradesh Government made by the
Hon’ble Governor in exercise of powers conferred by Clause (2) and (3) of
Article 166 of Constitution of India, No. F A 1-1/88/49/1, pursuant to the
authority invested to me and superseding the order dated 4th November of
the General Administrative Department, I Motilal Vora, Chief Minister,
hereby direct that the Secretary, Madhya Pradesh Government, Law Department
shall dispose of the cases related to the prosecution sanction of the
Government servants.
Sd/-
Motilal Vora
Chief Minister”
By the Order dated 21.04.1997 (Annexure P-3), it is provided that the
Department of Law and Legislative Affairs shall obtain opinion of the
concern Administrative Department before granting the sanction. It is
further provided that in case of conflict between the two departments, the
matter shall be referred to Sub-Committee of the Cabinet. However, the
order dated 21.04.1997 (Annexure P-3) was withdrawn vide letter dated
10.07.1997 (Annexure P-4) to the extent that in case of conflict the matter
would be required to be referred to Sub-Committee of the Cabinet. Letter
dated 10.07.1997 (Annexure P-4) is reads as follows:
“State of Madhya Pradesh
General Administrative Department
No.F-15(6)/96/1-10 Bhopal dated 10.07.1997
To
All member Secretary/Secretaries of the
Government
State of Madhya Pradesh
Bhopal
Sub. Sanction for prosecution against the Government Employees/Officers.
Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997 issued by this
Department
Vide reference circular of this department, the procedure for according
sanction for prosecution was determined.
As per order following part is deleted from the prescribed procedure in
Para 2 of the said circular.
“In case of conflict between the Law Department and the Administrative
Department, the case shall be presented before the Sub-Committee of the
Cabinet by the Administrative Department.”
Remaining procedure of the reference circular shall remain as it is. Please
ensure action in the cases of sanction for prosecution in future
accordingly.
Sd/-
A.V. Gwaliorkar
Deputy Secretary
State of MP
General Administrative Department
No.F-15(6)/96/1-10 Bhopal dated 10.07.1997
Copy to
Officer on Special duty, Lokayukta Office, Madhya Pradesh Bhopal for
information
Sd/-
A.V. Gwaliorkar
Deputy Secretary
State of MP
General Administrative Department”
By the Order dated 28.02.1998, the State Government further clarified
that in the matters of sanction for prosecution, the papers shall be sent
by the Department of Law and Legislative Affairs along the record to the
Administrative Department for its opinion and the Administrative Department
shall give the same within a period of one month, whereafter Department of
Law and Legislative Affairs shall take a decision.
We are unable to accept the view taken by the High Court for the
reason that from annexure P-1 and annexure P-2, it is evident that the
power to grant the sanction for prosecution, already existed with the
Department of Law and Legislative Affairs, since February, 1988.
The
circular letter dated 28.02.1998 (Annexure P-5) does not confer any new
power and it only clarifies that Department of Law and Justice is a
competent authority not only in respect of investigations made by Lokayukta
Organization, but also the State Economic Offences Investigation Wing.
The
power with the appellant No.2 to grant the sanction is, in fact, conferred
by the rule as amended vide notification dated 03.02.1988 published in the
Official Gazette.
After such amendment in the rule whereby power to grant
sanction was delegated to Department of Law and Justice, it cannot said
that Administrative Department had power to decline sanction as it has done
vide its order dated 10.07.1997.
From the sanction granted by the Law Department, copy of which is
annexed as Annexure P-8, it is evident that the authority has examined the
material on record before granting the sanction.
Therefore, we are of the view that the High Court has erred in law in
allowing the Writ Petition filed by the respondents seeking quashing of
sanction dated 20.11.2012 granted by appellant No.2, Secretary, Department
of Law and Legislative Affairs, Government of Madhya Pradesh. We do not
find any infirmity as to the competence of appellant No.2 to grant the
sanction in the matter for the reasons discussed above. Accordingly, the
appeal is allowed. The impugned order dated 03.09.2013, passed by the High
Court, is set aside.
201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of
Prevention of Corruption Act, 1988 (for Short “the Act”) - Who has to give Sanction for prosecution whether the Law Department vested with such powers - High court allowed the writ - Apex court held that it is evident that the power to grant the sanction for prosecution, already existed with the Department of Law and Legislative Affairs, since February, 1988. The circular letter dated 28.02.1998 (Annexure P-5) does not confer any new
power and it only clarifies that Department of Law and Justice is a competent authority not only in respect of investigations made by Lokayukta Organization, but also the State Economic Offences Investigation Wing. The power with the appellant No.2 to grant the sanction is, in fact, conferred by the rule as amended vide notification dated 03.02.1988 published in the Official Gazette. After such amendment in the rule whereby power to grant
sanction was delegated to Department of Law and Justice, it cannot said that Administrative Department had power to decline sanction as it has done vide its order dated 10.07.1997.-2015 SC MSKLAWREPORTS
It is alleged that the respondents,
in connivance with other accused, entered into a criminal conspiracy in
connection with above construction work, and got prepared a forged note-
sheet, pursuant to which excess payment of Rs. 9,51,657/- was paid to a
contractor (Ashok Johri).
On this information, Economic Offences Wing (for
short “EOW”) of the State Government registered Crime No. 28 of 2004 in
respect of offences punishable under Sections 420, 467, 468, 471, 120B and
201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of
Prevention of Corruption Act, 1988 (for Short “the Act”) against the
respondents and other accused.
After investigation, the Wing sought
previous sanction necessary for prosecution of the respondents from the
Administrative Department of the State Government.
The Administrative
Department of the State Government, after examining the papers declined the
sanction vide its order dated 08.03.2011. However, on completion of
investigation, when charge sheet was filed against the accused before the
Court of Special Judge (Prevention of Corruption Act), Bhopal, the court,
vide its order dated 15.02.2012, directed that necessary sanction for the
prosecution of respondents be obtained from appellant No. 2, Secretary,
Department of Law and Legislative Affairs, Government of Madhya Pradesh,
which is the Competent Authority. Said Authority after examining the papers
vide order dated 20.11.2012, (Annexure P-8) granted necessary sanction to
prosecute the respondents.
Writ filed - High court allowed the writ
Learned counsel for the appellants argued before us that the High
Court has erred in law in holding that the Law Department was not the
Competent Authority to grant sanction for the prosecution.
From the Section quoted above, it is clear that the sanction for
prosecution in respect of the public servant employed in connection with
affairs of the State, who is not removable from his office save by or with
the sanction of the State Government, such Government shall be, authority
to grant sanction for prosecution.
It is not disputed that the previous
sanction was sought by the EOW for prosecution of the respondents.
The only
issue is as to which of the department of the State was competent to grant
the sanction.
Apex court held that
Order dated 03.02.1988 (Annexure P-1), published in the
Official Gazette, whereby the Madhya Pradesh Works (Allotment) Rules (for
Short “MPWAR) were amended, reads as under:
“Madhya Pradesh Gazette
(Extraordinary)
Published by Authority
No. 35, Bhopal Wednesday, 3rd February, 1988
Personnel Administrative Reforms & Training Department
Bhopal, dated 3rd February, 1988
No. F A-1-1-88-49 (1)-225: In exercise of powers conferred by clauses (2)
and (3) of Article 166 of the Constitution of India the Hon’ble Governor of
Madhya Pradesh makes more amendments in Madhya Pradesh Works (Allotment)
Rules, namely:-
Amendment
In the aforesaid rules: -
(1) The para 4 is replaced with the following para in the policy made in
the para 21 in the Schedule-in (A) Department under Law & Legislative
Affairs Department, namely:-
4 (One) Criminal Procedure includes all subjects coming under Criminal
Procedure Code save the probation of the Criminals, and
(2) Sanction of prosecution under Section 6 of the Prevention of Corruption
Act, 1947.
(2) The following term added by the Notification No. 2980-3632-A(1),
dated 18th November, 1983 irrespective of any serial number to which it was
added, and which has been amended from time to time in respect of the
policy made in part (A) Department under the heads of all the departments,
be deleted.
Sanction of the prosecution under Section 173 of the Criminal
Procedure Code, 1973 and Section 6 of the Prevention of Corruption Act,
1947 in respect of services related to those departments.
By order & in the name of the Governor of MP
A.D. Mohile, Special Secretary”
Consequent to above amendment, Chief Minister of Madhya Pradesh vide
order dated 08.02.1988 (Annexure P-2) delegated the power to grant sanction
for prosecution of the public servants to the Law Secretary of Madhya
Pradesh Law Department. Said document is reproduced below:
“Madhya Pradesh Government
Personnel, Administrative Reforms and Training Department
ORDER
Bhopal, dated 8th February, 1988
According to the para (1) of Directive No.2 of Supplementary Directive Part-
5 under Rule-1 of Works Rules of the Madhya Pradesh Government made by the
Hon’ble Governor in exercise of powers conferred by Clause (2) and (3) of
Article 166 of Constitution of India, No. F A 1-1/88/49/1, pursuant to the
authority invested to me and superseding the order dated 4th November of
the General Administrative Department, I Motilal Vora, Chief Minister,
hereby direct that the Secretary, Madhya Pradesh Government, Law Department
shall dispose of the cases related to the prosecution sanction of the
Government servants.
Sd/-
Motilal Vora
Chief Minister”
By the Order dated 21.04.1997 (Annexure P-3), it is provided that the
Department of Law and Legislative Affairs shall obtain opinion of the
concern Administrative Department before granting the sanction. It is
further provided that in case of conflict between the two departments, the
matter shall be referred to Sub-Committee of the Cabinet. However, the
order dated 21.04.1997 (Annexure P-3) was withdrawn vide letter dated
10.07.1997 (Annexure P-4) to the extent that in case of conflict the matter
would be required to be referred to Sub-Committee of the Cabinet. Letter
dated 10.07.1997 (Annexure P-4) is reads as follows:
“State of Madhya Pradesh
General Administrative Department
No.F-15(6)/96/1-10 Bhopal dated 10.07.1997
To
All member Secretary/Secretaries of the
Government
State of Madhya Pradesh
Bhopal
Sub. Sanction for prosecution against the Government Employees/Officers.
Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997 issued by this
Department
Vide reference circular of this department, the procedure for according
sanction for prosecution was determined.
As per order following part is deleted from the prescribed procedure in
Para 2 of the said circular.
“In case of conflict between the Law Department and the Administrative
Department, the case shall be presented before the Sub-Committee of the
Cabinet by the Administrative Department.”
Remaining procedure of the reference circular shall remain as it is. Please
ensure action in the cases of sanction for prosecution in future
accordingly.
Sd/-
A.V. Gwaliorkar
Deputy Secretary
State of MP
General Administrative Department
No.F-15(6)/96/1-10 Bhopal dated 10.07.1997
Copy to
Officer on Special duty, Lokayukta Office, Madhya Pradesh Bhopal for
information
Sd/-
A.V. Gwaliorkar
Deputy Secretary
State of MP
General Administrative Department”
By the Order dated 28.02.1998, the State Government further clarified
that in the matters of sanction for prosecution, the papers shall be sent
by the Department of Law and Legislative Affairs along the record to the
Administrative Department for its opinion and the Administrative Department
shall give the same within a period of one month, whereafter Department of
Law and Legislative Affairs shall take a decision.
We are unable to accept the view taken by the High Court for the
reason that from annexure P-1 and annexure P-2, it is evident that the
power to grant the sanction for prosecution, already existed with the
Department of Law and Legislative Affairs, since February, 1988.
The
circular letter dated 28.02.1998 (Annexure P-5) does not confer any new
power and it only clarifies that Department of Law and Justice is a
competent authority not only in respect of investigations made by Lokayukta
Organization, but also the State Economic Offences Investigation Wing.
The
power with the appellant No.2 to grant the sanction is, in fact, conferred
by the rule as amended vide notification dated 03.02.1988 published in the
Official Gazette.
After such amendment in the rule whereby power to grant
sanction was delegated to Department of Law and Justice, it cannot said
that Administrative Department had power to decline sanction as it has done
vide its order dated 10.07.1997.
From the sanction granted by the Law Department, copy of which is
annexed as Annexure P-8, it is evident that the authority has examined the
material on record before granting the sanction.
Therefore, we are of the view that the High Court has erred in law in
allowing the Writ Petition filed by the respondents seeking quashing of
sanction dated 20.11.2012 granted by appellant No.2, Secretary, Department
of Law and Legislative Affairs, Government of Madhya Pradesh. We do not
find any infirmity as to the competence of appellant No.2 to grant the
sanction in the matter for the reasons discussed above. Accordingly, the
appeal is allowed. The impugned order dated 03.09.2013, passed by the High
Court, is set aside.
