Holding

A mandamus directing a sanctioning authority to grant sanction under the Prevention of Corruption Act, 1947, is ultra vires as it deprives the authority of its statutory discretion and renders the sanction invalid.

Summary

M.V. Chauhan, a Divisional Accountant, was caught in a trap involving anthracene‑treated currency notes and was prosecuted under Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 IPC. The Gujarat High Court, on a writ petition, directed the Secretary of the Vigilance Commission to grant sanction for prosecution within a month, effectively compelling the authority to sanction the case. The Supreme Court held that the High Court’s mandamus usurped the statutory discretion vested in the sanctioning authority, resulting in a mechanically issued sanction without independent application of mind. Because the sanction was invalid, the prosecution was barred and the conviction set aside. However, given the lapse of fourteen years since the alleged offence, the Court declined to remit the matter for fresh sanction, deeming it contrary to the right to a speedy trial under Article 21. Consequently, the appeal was allowed, the judgments of the trial and High Courts were set aside, and the appellant was acquitted.

Issues considered

The validity of a High Court mandamus directing a government authority to grant sanction under Section 6 of the Prevention of Corruption Act, 1947.
Whether the sanction order issued under such direction satisfies the statutory requirement of independent application of mind.
Whether the High Court's direction infringes the discretion of the sanctioning authority and violates principles of natural justice.
Whether the proceedings should be remitted for fresh sanction despite the lapse of time, in view of Article 21's guarantee of a speedy trial.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Indian Penal Code, 1860s. 161, s. 197, s. 21(12)
Prevention of Corruption Act, 1947s. 5(2), s. 6

Subjects

Prevention of Corruption Actsanctionmandamuspublic servantadministrative discretionArticle 226Article 21fair trialjudicial reviewCriminal Procedure CodeIndian Penal Code

Judgment

MANSUKHLAL VITHALDAS CHAUHAN A
v.
STATE OF GUJARAT

SEPTEMBER 3, 1997
B
[M.K. MUKHERJEE AND S. SAGHIR AHMED, JJ.)

Prevention of Corporation Act, 1947-Ss. 5(2 ), 6-Sanct!on for prosecu-
tio!Hndependent application of mind by sanctioning authority based on
material and evidence collected during investigation necessary-The section C
while prohibiting Courts from taking cognizance gives discretion to the con-
cerned Govt./authority for sanctioning prosecution-Mandamus directing the
concerned authority to grant sanction takes away the discretion of the authority
and robs the appellant of a right to a fair trial-Order void ab initio-However,
matter not remitted for reconsideration due to lapse of time-Scheme of the
Statue guides in deciding whether the duty under the Statute is mandatory or D
directory-Indian Penal Code-Sections 21(12), 161 & S. 197.

M/s. K, a contracting firm reported to the concerned authority that
the Appellant was demanding Rs. 20,000. A trap was then laid by treating
currency notes with anthrancene powder. Later the appellant was ex- E
amined and it was found that he had powder traces on his hands and also
on the currency notes given to him. So further investigation was carried
out, The Appellant made an application to the Home Minister to hand over
the investigation to an independent officer which was accepted. The fresh
report also found the Appellant guilty and so the Secretary, Vigilance
Commission, Gujarat, wrote to the Government to grant sanction for
F
prosecution of the appellant. Since the sanction was delayed, M/s. K filed
a Writ Petition in the High Court to diretct the Govt. to sanction prosecu-
tion of the Appellant. The High Court made the Secretary of the depart-
ment a party and directed him to sanction prosecution within one month
from the date of the order. Based on this order of the High Court, sanction G
was given and the appellant was prosecuted.

The Appellant submitted, before this Court, inter alia, that there was
no application of mind by the concerned authority while granting the
sanction for prosecution. H
705
706 SUPREME C~URTREPORTS [1997] SUPP. 3 S.C.R.

A Allowing the Appeal, this Court

Held : 1. By issuing a direction to the Secretary to grant sanction,
the High Court closed all other alternatives to the Secretary and compelled
him to proceed only in one direction and to act only in one way, namely,
B to sanction the prosecution of the appellant. The secretary was not allowed
to consider whether it would be feasible to prosecute the appellant; whether
the complaint of illegal gratification which was sought to be supported by
'trap' was false and whether the prosecution would be vexatio'us particular-
ly as it was in the knowledge of the Goyt. that the firm had been black-listed
once and there was demand for some ar•10nnt to be paid by the firm in
C connection with t.his contract. The discretion not to sanction the prosecu-
tion was taken away by the High Court. The High Court assumed the role
of the sanctioning authority, considered the whole matter, formed an
opinion that it was a fit case in which sanction should be granted and
because it itself could not grant sanction under sectio_n 6 of the Act, it
D directed the Secretary to sanction the prosecution so that the sanction
order may be treated to be an order passed by the Secretary and not that
of the High Court. This is a classic case where a Brand name is changed
to give a new colour to the package without changing the contents thereof.
In these circumstances, the sanction order cannot but be held to be wholly
erroneous having been passed mechanically at the instance of the High
E Court. [720-G-H, 721-A-D]

The Vice Chancellor, Utkal University and Ors. v. S.K Ghosh and Ors.,
[1954) SCR 883 = AIR (1954) SC 217; Tata Cellular v. Union of India,
AIR (1996) SC 11 = [1994) 6 SCC 651; Sterling Computers Ltd. v. M/s. M
p & N Publications Ltd. and Ors., AIR (1996) SC 51 = [1993) 1 SCR 81 =
[1993) 1 SCC 445 and U.P. Financial Corporation v. M/s. Gem Cap (India)
Pvt. Ltd. and Ors., AIR (1993) SC 1435 = [1993) 2 SCR 149 = [1993) 2
sec 299, relied on.
2. Mandamus which is a discretionary remedy under Article 226 of
G the Constitution is requested to be issued, inter alia, to compel perfor·
mance of public duties which may be administrative, ministerial or
...
statutory in nature. Statutory duty may be either directory or mandatory."
Statutory duties, if they are intended to be mandatory in character, are
indicated by the use of the words "shall" or "must". But this is not con-
H elusive as "shall" and "must" have, sometimes, been interpreted as 'may'.
M.V. CHAUHAN v. STATE 707

What is determinative of the nature of duty, whether it is obligatory, A
mandatory or directory, is the scheme of the Statute in which the "duty"
has been set out. Even if the "duty" is not set out clearly and specifically
in the Statute, it may be implied as co-relative to a "Right". In the perfor-
mance of this duty, if the authority in whom the discretion is vested under
the Statue, does not act independently and passes an order under the B
instructions and orders of another authority, the Court would intervene
in the matter, quash the order and issue a mandamus to that authority to
exercise its own discretion. [716-H, 717-A-C]

3. Once the person against whom prosecution is to be launched is
found to be covered by the definition of "public servant" and the require- C
ment to that extent is satisfied, the next question whether he is to be
prosecuted or not is considered either by the Central Government or by
the State Government and if the person is neither the employee of the
Central Government nor of the State Government, the question of sanction
is considered by the person who is competent to remove him from the office D
held by him. Sub-section (2) of Section 6 is clarificatory in nature inas-
much as it provides that if any doubt arises whether the sanction is to be
given by the Central Government or the State Government or any other
authority, it shall be given by the appropriate Government or the
authority, which was competent to remove that person from the office on E
the date on which offence was committed. This rule is a departure from
normal rule under which the relevant date is the date of taking cognizance
as laid down in R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684 = (1984)
Cr.LJ. 613. Since the Section clearly prohibits the Courts from taking
cognizance of the offences specified therein, it envisages that Central or
the State Government or the "other authority" has not only the right to
F.
consider the question of grant of sanction, it has also the discretion to
grant or not to grant sanction. [714-C-H]

4. Sanction lifts the bar to prosecution. The grant of sanction is not
an idle formality or an acrimonious exercise but a solemn and sacrosanct G
act which affords protection to Government Servants against frivolous
prosecutions. Sanction is a weapon to ensure discouragement of firvolous
and vexatious prosecutions and is a safeguard for the innocent but not a
shield for the guilty. The validity of the sanction would, therefore, depend
upon the material placed before the sanctioning authority and the fact that H
708 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A all the relevant facts, material and evidene have been considered by the
sanctioning authority. Consideration means 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
B the Court to show that all relevant facts were considered by the sanctioning
authority. (715-F -H, 716-A]

Gokulchand Dwarakadas Morarka v. The King, AIR (1948) PC 82;
Basdeo Agarwal/a v. Emperor, AIR (1945) FC 16; State Through Anti-Cor-
ruption Bureau, Government of Maharashtra, Bombay v. Krishnachand
C Khusalchand fagtiani, (1996] 4 SCC 472 and Mohd. Iqbal Ahmed v. State
of Andhra Pradesh, AIR (1979) SC 677, referred to.

5. Since the validity of "sanction" depends on the applicability of mind
of the sanctoning authority to the facts of the case as also the material and
D 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 sanc-
tioned or not. The mind of the sanctioning authority should not be under
pressure from any quarter nor should external force be acting upon it to
E take a decision one way or the other. Since the discretion to grant or not
to grant sanction vests absolutely in the sanctioning authority, its discre-
tion should be shown to have not been affected by any extraneous con-
sideration. If it is shown that the sanctioning authority was unable to apply
its independent mind for any reason whatever or was under an obligation
or compulsion or constraint to grant the sanction, the order will be bad
F 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. [716-C-D]

6. The appellant has questioned the legality o.f "sanction" on many
G grounds one of which is that the sanctioning authority did not apply its
' .
own mind and acted at the behest of the High Court which had. issued a
mandamus to sanction the prosecution. On a consideration of the whole
matter, that sanctioning authority, in the instant case, was left with no
choice except to sanction prosecution and in passing the order of sanction;
H it acted mechanically in obedience to the mandamus issued by the High
M.V. CHAUHAN v. STATE 709

Court by putting the signature on a profonna drawm up by the office. Since A
the correctness and validity of the 'sanction' order was assailed this Court
· has to consider the High Court judgment and its impact on the "sanction".
The so-called finality cannot shut out the scrutiny of the judgment in terms
of actus curie neminem gravabit as the order of the Gujarat High Court in
directing the sanction to be granted. besides being erroneous, was harmful B
to the interest of the appellant, who had a right, a valuable right, of fair
trial at every stage, from initiation till conclusion of the proceedings.
[721-F-H]

7. From the no tings of the Secretariat file, contained in Exhibit 70,
as also the conflicting statements made by the Secretary and the Under C
Secretary, it is not possible to hold as to who actually granted the sanction.
The confusion also appears to be the result of the order passed by the High
Court that the sanction must be granted within one month. Secretary being
Head of the Department stated on oath that he had granted the sanction,
particularly as the mandamus was directed to him and he had to comply D
with that direction. Deputy Secretary, who actually issued the order of
sanction, had signed it and, therefore, he owned the sanction and stated
that he had sanctioned .the prosecution. Both tried to exhibit that they
faithfully obeyed the mandamus issued by the High Court and attempted
to save their skin, destroying, in the process, the legality and validity of E
the sanction which constituted the basis of the appellant's prosecution with
the consequence that whole proceedings stood void ab initio.
[722-F-H, 723-A]

8. Normally when the sanction order is held, to be bad, the case is
remitted back to the authority for re-consideration of the matter and to ,F
pass a fresh order of sanction in accordance with law. But in the instant
case, the incident is of 1983 and, therefore, after a lapse of fourteen years,
it will not be fair and just to direct that the proceedings may again be
initiated from the stage of sanction so as to expose the appellant to another
innings of litigation and keep him on trial for an indefinitely long period G
contrary to the mandate of Article 21 of the Contitution, which as part of
. _> the right to life, philosophizes early end of criminal proceedings through
a speedy trial. [723-B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
502 of 1993. H
710 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A From the Judgment and Order dated 16.4.93 and 17.6.93 of the
Gujarat High Court in Crl.A. No. 1189 of 1986.

U.R. Lalit and S.C. Patel for the Appellant.

Y. Adhyaru and Ms. Hemantika Wahi for the Respondent.
B
The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. The appellant, who as Divisional
Accountant, held a Class III Post, in the Medium Irrigation Project
Division at Ankleshwar, Gujarat, was prosecuted for offences under
C Section 161 IPC and Section 5(2) of the Prevention of Corruption Act,
1947, and was ultimately convicted and sentenced to two years' rigorous
imprisonment and a fine of Rs. 15,000 for the offence under Section 5(2)
of the Act and another two years' rigorous imprisonment for the offence
under Section 161 IPC, by the trial court, namely, Special Judge, Bharuch.
D This was upheld by the High Court in appeal.

2. Mr. U .R. Lalit, senior counsel appearing on behalf of the appellant
has strenuously contended that the entire proceedings, namely, the
proceedings before the trial court as also the High Court are liable to be
set aside as there was no valid sanction within the meaning of Section 6 of
E the Prevention of Corruption Act, 1947 (hereinafter referred to as "the
Act") with the consequence that the trial court had no jurisdiction to take
cognizance of these offences, much less try them. This contention is
challenged by the counsel appearing on behalf of the State of Gujarat, who
has contended that there was proper and valid sanction granted within the
F meaning of the Act and it was thereafter that the trial court took
cognizance of the offences and initiated the case which ultimately ended
in the conviction of the appellant. The trial court as also the High Court
before whom the question of want of "sanction" was raised have held
concurrently that there was proper sanction by the competent authority and
G therefore, the appellant was rightly convicted particularly as the charges
were proved against him.

3. In order to appreciate the controversy as regards "sanction", we
may set out the following few facts.

H 4. M/s R.L. Kalathia & Company, a partnership firm of eleven
M.V. CHAUHAN v. STATE [S. SAGHIR AHMAD, J.] 711

part11ers, one ·of whom was Mr. Harshadrai Laljibhai Kalathia, were A
awarded, in 1979, the contract for constructing Pigut Dam in Valla Taluka
of District Bharuch at an estimated cost of Rupees eighty six lacs. The work
was completed on 31st December, 1982. Excluding the payments made
against running hills, there still remained a sum of Rupees eighty lacs to
be paid to the contractor from whom the appellant allegedly demanded B
Rs. 20,000 but Harshadrai Laljibhai Kalathia reported the matter to the
Deputy Director (Anti-Corruption), Shri Vaghela, who, in his turn, briefed
the Police Inspector, Shri Agravat and the latter, namely, Shri Agravat
arranged and laid a trap on 4.4.83. The currency notes, treated with
anthracene powder, were offered to the appellant who was, allegedly, C
caught red-handed by the raiding party. Police Inspector Agravat examined
the hands of the appellant in the light of the ultra violet lamp which
indicated marks of anthrancene powder on the tips, palm and fingers of
the left hand as also on his right hand. Some marks of blue anthracene
powder were also found on the currency notes. Inspector Agravat gave a
receipt of Rs. 20,000 to the appellant and took the currency notes in his D
possesion. The usual Panchnama was prepared and further investigation
was carried out by Shri Agravat.

5. In the meantime, the appellant submitted an application (Ex. 45)
to the Home Minister on 9.3.1984 for investi11:ation being handed over to E
an independant officer. The Home Minister by his order dated 13.3.1984
directed fresh investigation of the case, in pursuance of which the inves-
tigation was taken up by the Assistant Director, Shri Vaghela, who sub-
mitted a fresh report in December, 1984 against the appellant. On the
receipt of this report, the Secretary, Guratat Vigilance Commission, by his
letter dated 3.1.1985, wrote to the Government to grant sanction for F
prosecuting the appellant as a prim a f acie case was made out against him
after fresh investigation. The Government, however, did not immediately
grant the sanction and consequently the complainant, Shri Harshadrai
Laljibhai Kalathia, filed, in the name of the firm, M/s. R.L. Kalathia &
Company, a Special Civil Application No. 5126 of 1984 in the Gujarat High G
Court under Article 226 of the Constitution for a direction to the respon-
dents, namely the Staie of Gujarat and others, to sanction prosecution of
the appellant for offences punishable under Section 161 IPC and 5(2) of
the Act. The Gujarat High Court, by its order dated 2.1.1985, partly
allowed the petition and passed the following operative order :
H
712 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A "In the result, this petition is partly allowed. Respondent No. 7
(newly added) is directed to accord sanction under the relevant
provisions of the Prevention of Corruption Act to prosecute M.V.
Chauhan who was working as Divisional Accountant of Medium
Irrigation Project at Ankleshwar as stated above. It need not be
stated that prosecution will be for offences punishable under the
B relevant provisions of law. Respondent No. 7 is directed to accord
sanction within one month from the receipt of the writ of this
Court.

Rule made absolute to the extent stated abvoe with no order
as to costs."
c
6. From the above it will be seen that the Secretary of the Depart-
ment who was not originally a party in the writ petition, was impleaded as
respondent No. 7, and a direction was given by the High Court to the
Secretary to grant Sanction for prosecuting the appellant.
D 7. In view of the judgment of the Gujarat High Court, sanction was
given and the appellant was prosecuted.

8. Section 197 of the Criminal Prosedure Code which deals with the
Prosecution of Judges and Public Servants for offences alleged to have
E been committed by them while acting or purporting to act in the discharge
of their official duty, lays down that no court shall take cognizance of such
offences except with the previous sanction either of the Central Govern-
ment or the State Government, as the case may be. Section 6 of the Act,
however, contains a special provision for sanction for prosecution for a few
sepcific offences, including the offence punishable unable Section 161 IPC.
F It provides as under :

"6. Previous sanction necessary for prosecution. - (1) No court
shall take cognizance of an offence punishable under Section 161
(or Section 164) or Section 165 of the Indian Penal Code (45 of
1860), or under sub-section (2) or sub-section (3A) of Section 5
G
of this Act, alleged to have been committed by a public servant,
except with the previous sanction.

(a) in the case of a person who is employed in connection
with the affairs of the (Union) and is not removable from his
H office save by or with the sanction of the Central Govemment,
M.V. CHAUHAN v. STATE [S. SAGHIR AHMAD,J.) 713
(of the) Central Goverment; A
(b) in the case of a person who is employed in connection
with the affaris of (a State) and is not removable from his
office save by or with the sanction of the State Government,
(of the) State Government:
B
( c) in the case of any other person, of the authority com-
petent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether
the previous sanction as required under sub-section (1) should be
given by the Central or State Gover&lllent or any other authority, C
such sanction shall be given by that Government or authority which
would have been competent to remove the public servant from his
office at the time when the offence was alleged to have been
committed."
D
. 9. This Section places a_bar on the Court from taking cognizance of
the offences specified in Sub-section (1) against Public Servants unless the
prosecution for those offences has been sanctioned either by the Central
Government, if the person who has allegedly committed the offence, is
employed in connection with the affairs of the Union Government and is
not removable from his office except with the sanction of the Central E
Government, or by the State Government if that person is employed in
connection with the affairs of the State Government. But if the "public
servant" is not an employee of either the Central Government or the State
Government, sanction, is to be given by the authority competent to remove
him from the office held by him. F
10. "Public servant" is defined in Section 21 of the IPC as a person
falling under any of the categories specified therein. Twelfth Clause of
Section 21 embraces within the fold of "public servant'', every person who
is :-
G
(a) In the service of the Government or remunerated by fees or
commission for the performance of any public duty by the
Government.

(b) In the service or pay of a local authority, a Corporation
established by or under a Central, Pr~vincial or other State H
714 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A Act or a Government company as defined in Section 617 of
the Companies Act, 1956. .: .
11. Clause Twelfth was added by the Criminal Law (Amendment)
Act (2 of 1958) and was substituted, in its present form, by Anti-Corruption
Laws (Amendment) Act, 1964 (11 of 1964). The definition of "public
B servant", as set out in Section 21 of the IPC, has been adopted by the Act
so that there is no difference between the "public servant" as defined in the
Code and the public servant defined in the Act.

12. Once the person against whom prosecution is to be launched is
c found to be covered by the definition of "public servant" and the
requirement to that extent is satisfied, the next question whether he is to
be prosecuted or not is considered either by the Central Government or
by the State Government and if the person is neither the employee of the
Central Government nor of the State Government, the question of sanction
D is considered by the person who is competent to remove him from the
office held by him.

13. Sub-section (2) of Section 6 is clarificatory in nature inasmuch as
it provides that if any doubt arises whether the sanction is to be given by
E the Central Government or the State Government or any other authority,
it shall be given by the appropirate Government or the authority, which -. ··-
was competent to remove that person from the office on the date on which
the offence was committed. This rule is a departure from the normal rule
under which the relevant date is the date of taking cognizance, as laid down
by this Court in R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684 = (1984)
F Cr. L.J. 613.

14. From a perusal' of Section 6, it would appear that the Central or
the State Government or any other authority (depending upon the category
of the public servant) has the right to consider the facts of each case and
G to decide whether that "public servant" is to be prosecuted or not. Since
the Section clearly prohibits the Courts from taking cognizance of the ....
offences specified therein, it envisages that Central or the State
Government or the "other authority" has not only the right to consider the
question of grant of sanction, it has also the discretion to grant or not to
H grant sanction.
M.V. CHAUHAN v. STATE [S. SAGHIRAHMAD, J.] 715

15. In Gokulchand Dwarkadas Morarka v. 17ie King, AIR (1948) PC A
82, it was pointed out that :-

"The sanction to prosecute is an important matter, it constitutes
a condition precedent to the institution of the prosecution and the
Govemment have an absolute discretio11 to gra11t or withhold their
sa11ction. They are not, as the High Court seem to have thought, B
concerned merely to see that the evidence discloses a prim a f acie
case against the person sought to be prosecuted. They can refuse
sanction on any ground which commends itself to them, for ex-
ample, that on political or economic grounds they regard a
prosecution as in-expedient. Looked at as a matter of substance it C
is plain that the Government cannot adequately discharge the
obligation of deciding whether to give or withhold a sanction
without a knowledge of the facts of the case."

16. In Basdeo Agarwalla v. Emperor, AIR (1945) FC 16, it was
pointed out that sanction under the Act is not intended to be, nor is an D
automatic formality and it is essential that the provisions in regard to
sanction should be observed with complete strictness. This Court in State
through Anti-Comtption Bureau, Government of Maharashtra, Bombay v.
Krishanchand Khushalchand Jagtiani, [1996) 4 SCC 472, while considering
the provisions of Section 6 of the Act held that one of the guiding principles E
for sanctioning authority would be the public interest and, therefore, the
protection available under Section 6 cannot be said to be absolute.

17. Sanction lifts the bar for prosecution. The grant of sanction is not
an idle formality or an acrimonious exercise but a solemn and sacrosanct
! act which affords protection to Government Servants against frivolous F
prosecutions. (See : Mohd. Iqbal Ahmed v. ·state of Andhra Pradesh, AIR
(1979) SC 677). Sanction is a weapon to ensure discouragement of frivolous
and vexatious prosecutions and is a safeguard for the innocent but not a
shield for the guilty.

18. The validity of the sanction would, therefore, depend upon the
C
. ·-"
material placed before the sanctioning authority and the fact that all the
relevant facts, material and evidence have been considered by the sanction-
ing authority. Consideration implies application of mind. The order of
sanction must ex f acie disclose that the sanctioning authority had con-
sidered the evidence and other material placed before it. This fact can also H
716 SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A 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 v. The State of Punjab, (1958] SCR
762=AIR (1958) SC 12; State ofBihar & Anr. v. P.P. Shanna, (1991) Cr.
L.J. 1438 (SC)).

B 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 sanc-
C tioned 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 a decision one way or the otht:r. 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 extraneous
consideration. If it is shown that the sanctioning authority was unable to
D 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 bad 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.
E
20. The narration of facts, set out in the beginning of the Judgment,
would show that while the matter of grant of sanction was under the
consideration of the State Government, Harshadrai had filed a petition on
behalf of his firm in the Gujarat High Court under Article 226 of the
Constitution for a writ in the nature of mandamus directing the State
F Government to grant sanction. In this petition, the Secretary of the Depart-
ment who, originally was not impleaded, was, subsequently, arrayed as
respondent No. 7 and a direction was issued to him to grant sanction and
the Secretary, acting in pursuance of the order of the High Court, granted
the sanction.
G 21. The question is whether the High Cowt could issue a mandamus
of this nature and whether the order of Sanction, in these circumstances, is
valid.

22. Mandamus which is a discretionary remedy under Article 226 of
H the Constitution is requested to be issued, inter alia, to compel perfor-
M.V. CHAUHAN v. STATE [S. SAGHIR AHMAD, J.] 717

mance of public duties which may be administrative, ministerial or statutory A
in nature. Statutory duty may be either directory or mandatory. Statutory
duties, if they are intended to be mandatory in character, are indicated by
the use of the words "shall" or "must". But this is not conclusive as "shall"
and "must" have, sometimes, been interpreted as "may". What is determina-
tive of the nature of duty, whether it is obligatory, mandatory or directory, B
is the scheme of the Statute in which the "duty" has been set out. Even if
the "Duty" is not set out clearly and specifically in the Statute, it may be
implied as co-relative to a "Right".

23. In the performance of this duty, if the authority in whom the
discretion is vested under the Statute, does not act independently and C
passes an order under the instructions and orders of another authority, the .
Court would intervene in the matter, quash the order and issue a man-
damus to that authority to exercise its own discretion.

24. In 1he Vice-Cliancel/01; Utkal University and other v. S.K. Ghosh
and Other., [1954] SCR 883 =AIR (1954) SC 217, this Court pointed out D
that in a proceeding for mandamus, the Court cannot sit as a Court of
Appeal or substitute its own discretion for that of the authority in which
the Statute had vested the discretion. It was pointed out :-

"(18). We also think the High Court was wrong on the second E
point. The leamed Judges 1ightly hold that in a 'mandamus' petition
the High Cowt cannot constitute itself into a Court of appeal from
the auth01ity against which the appeal is sought, but having said that
they went on to do just what they said they could not. The learned
Judges appeared to consider that it is not enough to have facts
established from which a leakage can legitimately be inferred by F
reasonable minds but that there must in addition be proof of its
quantum and amplitude though they do not indicate what the
yard-stick of measurement should be. That is a proposition to
which we are not able to assent.

(19). We are not prepared to perpetrate the error into which the G
learned High Court Judges permitted themselves to be led and
examine the facts for ourselves as a Court of appeal but in view
of the strictures the High Court has made on the Vice-Chancellor
and the Syndicate we are compelled to observe that we do not feel
they are justified. The question was one of urgency and the Vice- H
718 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A Chancellor and the members of the Syndicate were well within
their rights in exercising their discretion in the way they did. It may
be that the matter could have been handled in some other way, as,
for example, in the manner the learned Judges indicate, but it is
not the function of Courts of law to substitute their wisdom and
discretion for that of the persons to whose judgment the matter in
B
question is entrusted by the law."

25. This principle was reiterated in Tata Cellular v. Union of India,
AIR (1996) SC 11 = [1994] 6 SCC 651, in which it was, inter alia, laid down
that the Court does not sit as a Court of Appeal but merely reviews the
C manner in which the decision was made particularly as the Court does not
have the expertise to correct the administrative decision. If a review of the
administrative decision is permitted, it will be substituting its own decision
which itself may be fallible. The Court pointed out that the duty of the
Court is to confine itself to the question of legality. Its concern should
D be: I
1. Whether a decision-making authority exceeded its powers?

2. committed an error of law;

E 3. committed a breach of the rules of natural justice;

4. reached a decision which no reasonable Tribunal would have
reached; or

F

"P11rlh1m\lnt gfl\ln \lntn1~t~ tlw ciill'l~lml gf 11 m11tt\lr tg 11
~fl\l\llflllct iwr~\lll gr b\lcty, wlthm1t prnvidl~ for imy llflfl\lill. It m11y
b\l 11judllli11l liillll~!gll, gr 11 qm1~lojuctkial ci\l1Ji1ii@, gr llll adminl~tra·
tlw \l~pislm1. Sgm1itimil~ Parlil\mllnt ~~ it~ dill!l~lgn l~ tu b<i fin11l,
At utlwr timil~ it ~ll~ ngthl112 l\lmut lt. /11 o.11 thl?$fl P~f!s thfl C@wts
will 11t:JI thl'»1$tJ/w~· to.kf! thl' pla~f! Pf thl' lwtfy t:Jf whoo1 Parlitm1l'11t
has v111mst11d thfl d11cisim1. '11rn Qm1rts will 11t:Jt th(Jf™f!Mts embark
f:lll o. 1Y!hvo.itn11 t:Jf thf! mo.tff!r 1 S1ie lff!O.lfl)! v, Mi11ist11r Pf /:f(lo./lh, (l9SS]
H l QB 221."
M.V. CHAUHAN v. STATE [S. SAGHIR AHMAD, J.] 719

27. Loard Denning further observed as under : A

''If the decision-mala"ng body is influenced by considerations
which ought not influence it; or fails to take into account matters
which it ought to take into account, the Court will inteifere : see,
Padfield v. Minister of Agriculture, Fisheries and Food, (1968) AC B
997."

28. In Sterling Computers Ltd. v. Mis M & N Publications Ltd. and
others, AIR (1996) SC 51 = [1993] 1 SCR 81 = [1993] 1 SCC 445, 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 C
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 D
must not usurp the discretion of the public authority which Parlia-
ment 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 E
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."

~' It ID§Y bll pglntlld t'l\!1 thl!t thlM llflllllipill W1!8 1!\~g l!pplllld by
F
flfgfo~~gr W1!1fa tg Q\ll!~i=judltlil!l bodll:l~ l!nd thlllr dllcl~loo~. Rll~ llp@
thll dlllll~ioo in fh(! Q«Wll \', Jusli~s tJ_f L@l1dw1, {l1!9~) l OD U4, Pmf~SSfM'
Wad{! li!ld dgwn thll p,rlnlllplil th11t whilfil a 1mhllll l!\lthority WI!~ ~Vil!\
} pgWilf tg diltiltmillll 1! ml!Uilf1 mand@m«s wo11ld not Iii! to f!OfflJWl if ttl mallh
Stirn(! p@lfimlflf dllf!iSlfMI, Q

30. A DM~llm D1intll gf th!~ (;gqrt Qgmflflslng gf Kllldlp Singh !!nd
D.P. JililVlm R1iddy, JJ, in U.P. Flnanelal CmpfJrnlion v. Mis Q(!m Cap
(India) Pvt. Ltd. and oth(JTSi AIR (1993) SC 1435 = [199;\) ~ SCI\
149 ={199;1] ~ sec i!l!l, 9b§1irv1id "~ undilr : H
720 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A "The obligation to act fairly on the part of the administrative
authorities was evolved to ensure the Rule of Law and to prevent
failure of justice. This doctrine is complementary to tb~ principles
of natural justice which the Quasi-Judicial Authorities are bound
to observe. It is true that the distinction between a quasi-judicial
and the administrative action has become thin, as pointed out by
B
this court as far back as 1970 in AK. Kraipak v. Union of India,
AIR (1970) SC 150. Even so the extent of judicial scrutiny/judicial
review in the case of administrative action cannot be larger than
in the case of quasi judicial action. If the High Court cannot sit as
an appellate authority over the decisions and orders of quasi-judi-
c cial authorities it follows equally that it cannot do so in the case
of administrative authorities. In the matter of administrative action,
it is well-known, more than one choice is available to the ad-
ministrative authorities; they have a certain amount of discretion
available to them. They have "a right to choose between more than
one possible course of action upon which there is room for
D
reasonable people to hold differing opinions as to which is to be
I
preferred" (Lord Diplock in Secretary of State for Education v.
Tameside Metropolitan Borough Council, (1977) AC 1014 at 1064).
I
The Court cannot substitute its judgment for the judgment of
adminsistrative authorities in such cases. Only when the action of
E the administrative authority is so unfair or unreasonable that no
reasonable person would have taken that action, can the Court
intervene."

31. In the background of the above principles, let us now scrutinise
p the judgment of the Gujarat High Court which, let us say here and now,
could only direct the Govt. for expeditious disposal of the matter of
sanction.

32. By issuing a direction to the Secretary to grant sanction, the High
Court closed all other alternatives to the Secretary and compelled him to
G proceed only in one direction and to act only in one way, namely, to
sanction the prosecutio~ of the appellant. The Secretary was not allowed
to consider whether it would be feasible to prosecute the appellant :
whether the complaint of Harshadrai of illegal gratification which was
sought to be supported by "trap" was false and whether the prosecution
H would be vexatious particularly as it was in the knowledge of the Govt. that
M.V. CHAUHAN v. STATE [S. SAGHIRAHMAD, J.) 721

the firm had been black-listed once and there was demand for some A
amount to be paid to Govt. by the firm in connection with this contract.
The discretion not to sanction the prosecution was thus taken away by the
High Court.

33. The High Court put the Secretary in a piquant situation. While B
the Act gave him the discretion to sanction or not to sanction the prosecu-
tion of the appellant, the judgment gave him no choice except to sanction
the prosecution as any other decision would have exposed him to an action
in contempt for not obeying the mandamus issued by the High Court. The
High Court assumed the role of the sanctioning authority, considered the
whole matter, formed an opinion that it was a fit case in which sanction C
should be granted and because it itself could not grant sanction under
Section 6 of the Act, it directed the Secretary to sanction the prosecution
so that the sanction order may be treated to be an order passed by the
secretary and not that of the High Court. This is a classic case where a
Brand name is changed to give a new colour to the package without D
changing the contents thereof. In these circumstances, the sanction order
cannot but be held to be wholly erroneous having been passed mechanically
at the instance of the High Court.

34. Learned counsel for the State of Gujarat contended that the
judgment passed by the High Court cannot be questioned in these E
proceedings as it had become final. This contention is wholly .devoid of
substance. The appellant has questioned the legality of "sanction" on many
grounds one of which is that the sanctioning authority did not apply its own
mind and acted at the behest of the High Court which had issued a
mandamus to sanction the prosecution. On a consideration of the whole F
matter, we are of the positive opinion that the sanctioning authority, in the
instant case, was left with no choice except to sanction the prosecution and
in passing the order of sanction, it acted mechanically in obedience to the
mandamus issued by the High Court by putting the signature on a proforma
drawn up by the office. Since the correctness and validity of the 'sanction G
order' was assailed before us, we had necessarily to consider the High
- __. Court judgment and its impact on the "Sanction." The so-called finality
cannot shut out the scrutiny of the judgment in terms of actus curiae
neminem gravabit as the order of the Gujarat High Court in directing the
sanction to be granted, besides being erroneous, was harmful to the interest
of the appellant, who had a right, a valuable right, of fair trial at every H
722 SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A stage, from the initiation till the conclusion of the proceedings.
35. There is another aspect of the matter.

36. The High Court by its order dated 21.1.1985 had directed the
Secretary, Road & Building Department, to grant sanction within one
B month from the receipt of the order. The sanction order (Exhibit 9) is
dated 23rd January, 1985 and is signed by Shri J.P. Lade, Deputy Secretary
to the Government of Gujarat, Road & Building Department. Shri Lade
has been examined as·PW-8. He stated that on the relevant date, he was
serving as Under Secretary and was also holding the additional charge of
C the Deputy Secretary, Road & Building Department and in that ~apacity,
he gave the sanction as he felt that there was sufficient evidence against
the appellant warranting his prosecution.

37. PW-14, Shri Pravinchandra Jaisukhlal, who was the Secretary,
Road & Building Department, where Shri Lade was the Under Secretary,
D stated that he had given the sanction for prosecution of the appellant. He
further stated that before according sanction he had seen all the papers.
He also stated that the signature on Exhibit 9 was that of Shri Lade as the
correspondence is usually done by the Under Secretary after the orders
are passed on the file.

E 38. From the notings of the Secretariat file, contained in Exhibit 70,
as also the conflicting statements made by the Secretary and the Under
Secretary, it is not possible to hold as to who actually granted the sanction.
The Gujarat High Court has held that the sanction was granted by the
D@puty Sll(ll'\ltllry, Shri Llld!l (PW·S), igMfing th!l fllct that the filti was also
F phlll\ld hilforn thil S@\lrntacy imd h\l had alMl put hi~ ~Jt!naturn th\lrnon, 'l'hll
fllil h11d, 11dmlttlldly, htJiln ~ilnt to thil pffkil l'lf thll Chilif Minl~t\lr fr\'lm
wh1irn it wa~ r\lt;i\llwd l:iaQI\ oo ~0th J11muwy, lll8$ and a~ ~u(Jh it i~ nPt
\lnd\l1'~landaNll a~ tP bow ~11nPtlPn Qm!M Ptl !Jrnnttld Pn ~;lrd J111rnary, l98~.
Thi~ rnnf\rnlon al~P 11,p,1war~ tP bll thll r1m1lt pf th\l mdllr p11~~lld by thll
O Hil!h C\rnrt thllt thll ~anQtiPn mu~t h\l ~rnntild within Pn\l mPnth, S\lllfiltllry
h\linl! thll h1;1ild pf tlw P1ipartmtlnt ~tatild Qn mith that h1;1 h11d grnnt1;1d th\l
~!lnlltlQn, pt1rtl11ulilr·ly 11~ th\l milm:lllm11~ Wi\~ dlrflQt\ld tQ him and hfl hild tg .... .
11omply with that dln111hon, Pllp11ty S111;initary, whg a\lt\li\lly l~~lltld thtl grdtlr
of ~a1w\loo, h11d ~i1J1Wd It 1mct, th@rnforn, h~ gwnild thei ~llnfltltm and ~tlltlld
th11t h@ had ~llnPtlo1wd thll prn~epµtio11. Both trll'ld to 1!,xhlblt th11t thily hl\d
H fl\lthfully gbl!yed !hll m1mdam11~ 1~~11\ld by thtl Hlah Co\lrt and aU1impttld
M.V. CHAUHAN v. STATE [S. SAGHIR AHMAD, J.] 723

to save their skin, destroying; in the process, the legality and validity of the A.
sanction which constituted the basis of appellant's prosecution with the
consequence that whole proceedings stood void ab initio.

39. Normally when the sanction order is held to be bad, the case is
remitted back to the authority for re-consideration of the matter and to
pass a fresh order of sanction in accordance with law. But in the instant B
case, the incident is of 1983 and, therefore, after a lapse of fourteen years,
it will not, in our opinion, be fair and just to direct that the proceedings
may again be initiated from the stage of sanction so as rn expose the
appellant to another innings of litigation and keep him on trial for an
indefinitely long period contrary to the mandate of Article 21 of the C
Constitution which, as part of right to life, philosophizes early end of
criminal proceedings through a speedy trial.

40. The appeal is consequently allowed. The judgments passed by the
trial court as also by the High Court are set aside and the appellant is
acquitted. He is on bail. He need not surrender. His bail bonds are D
cancelled.

I.MA Appeal allowed.