Supreme Court of India
STATE OF MADHYA PRADESH & ORS.versusANAND MOHAN &ANR.
- Citation
- 2015 INSC 492
- Decided
- 9 July 2015
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The Department of Law and Legislative Affairs, having been delegated the power to grant prior sanction under the Prevention of Corruption Act by the 1988 amendment and order, was the competent authority, rendering the High Court’s finding of incompetence erroneous.
Summary
The respondents, who were public servants, were accused of corrupt practices in the construction of a sub‑station and the Economic Offences Wing sought prior sanction for their prosecution under the Prevention of Corruption Act, 1988. The Administrative Department declined to grant sanction, and the Special Judge directed that the sanction be obtained from the Secretary, Department of Law and Legislative Affairs, who subsequently granted it. The respondents challenged the sanction before the Madhya Pradesh High Court, which held that the Law Department was not the competent authority because its power to grant sanction was said to arise only from a 1998 circular, after the alleged offence of 1997. On appeal, the Supreme Court examined the 1988 amendment to the Madhya Pradesh Works (Allotment) Rules and the 1988 order of the Chief Minister delegating sanction power to the Law Department, concluding that the authority to grant sanction existed since February 1988 and the 1998 circular merely clarified that power. Consequently, the Court held that the Law Department was the proper competent authority and set aside the High Court’s order, allowing the appeal.
Issues considered
- Whether the Department of Law and Legislative Affairs is the competent authority to grant prior sanction for prosecution under Section 13 of the Prevention of Corruption Act, 1988.
- Whether the timing of the alleged offence (1997) precludes the Law Department from exercising sanction power conferred by a 1998 circular.
- Whether the High Court erred in holding the sanction invalid due to alleged lack of competence of the Law Department.
Legislation cited
- Code of Criminal Procedure, 1973s. 173
- Lokpal and Lokayuktas Act, 2013
- Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 19(1), s. 19(3)
Subjects
corruptionprior sanctionPrevention of Corruption Actcompetent authorityadministrative lawsanction for prosecutionMadhya PradeshHigh CourtSupreme Court
Judgment
[2015] 8 S.C.R. 352
A STATE OF MADHYA PRADESH & ORS.
v.
ANAND MOHAN &ANR.
(Civil Appeal No. 1971 of2015)
B
JULY09, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.)
c Prevention of Corruption Act, 1988-s."19(1)-Previous
sanction for prosecution - Initiation of criminal proceedings
ulss. 420, 467, 468, 471, 120Band201IPCandulss.13(1)(d)
rlw s. 13(2) of Prevention of Corruption Act- Previous sanction
for prosecution denied by Administrative Department of the
o State - Thereafter, Department of Law and Legislative Affairs
granted the sanction - The order granting sanction, set aside
by High Court holding that the Department of Law having got
authority to grant sanction in the year 1998 was not competent
to grant sanction in respect of offence committed in the year
· E 1997- On appeal, held: The power to grant the sanction
already existed with the Department of Law and Legislative
Affairs since 1988 - Thus there is no infirmity as to
competence of the Department to grant the sanction.
F Allowing the appeal, the court
HELD: 1. The High Court was not correct in holding
that since appellant No. 2 was conferred power to grant
the sanction only vide circular dated 28.02.1998, as such
G it was not competent to grant the sanction relating to
offences alleged to have been committed in the year
1997. The power to grant the sanction for prosecution,
already existed with the Department of Law and
H 352
STATE OF MADHYA PRADESH v. ANAND MOHAN 353
Legislative Affairs, since February, 1988. The circular A
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 B
Investigation Wing. The power with 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 C
Department of Law and Justice, it cannot be said that
Administrative Department had power to decline
sanction as it has done vide its order dated 10.07.1997.
[Paras 12-13) [363-D-H; 364-A]
D
State of Bihar and others v. Rajmangal Ram 2014
=
(4) SCR 602 2014 (11) sec 388 - Relied on.
Sanjaysinh Ramrao Chavan Vs. Dattatray Gu/abrao
Pha/ke, 2015 (1) SCALE 457- Distinguished. E
ODA and others vs. Jog7nder S. Monga and others 2003
=
(6) Suppl. SCR 786 2004 (2) SCC 297 - Referred to.
2. From the sanction granted by the Law F
Department, copy of which is annexed asAnnexure P-8,
it is evident that the authority has examined the material
on record before granting the sanction. There is no
infirmity as to the competence of appellant No.2 to grant
the sanction. [Para 17-18) [365-C-E] G
Case Law Reference
2015 (1) SCALE 457 Distinguished para 15
2003 (6) Suppl. SCR 786, Referred to para 14 H
354 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 2014 (4) SCR 602 Relied on para 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1971 of2015.
B From the Judgment and Order dated 03.09.2013 in W. P.
No. 21246.of2012 of the High Court of Madhya Pradesh at
Jabalpur.
Mishra Saurabh, Vanshaja Shukla and Ankit Kumar Lal
for the Appellants.
c
Anuj Puri and Abhishek Vikas for the Respondents.
The Judgment of the Court was delivered by
D PRAFULLA C. PANT, J. 1. This Appeal is directed against
judgment and order dated 03.09.2013 passed by the High
Court of Madhya Pradesh at Jabalpur whereby said Court has
allowed Writ Petition No. 21246 of2012 challenging the order
of sanction for prosecution, passed by Secretary, Law and
E Legislative Affairs, Government of Madhya Pradesh, Bhopal.
2. Brief facts of the case are that respondent No.1 was an
Executive Engineer, and respondent No.2 was an Assistant
Engineer with Bhopal DevelopmentAuthority (for short "BOA").
F Said authority got constructed 33/11 KV Sub-Station at Raksha
Vihar Colony, Bhopal, for which tenders were invited on
25.07.1995, and work order was given in favour of oneA.R.K.
Electricals, Bhopal. The construction was completed on
25.09.1997, and ownership of the sub-station was transferred
G to Madhya Pradesh State Electricity Board (for short
"MPSEB"). 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 excass payment of Rs.
H 9,51,657/- was paid to a contractor (Ashok Johri). On this
STATE OF MADHYA PRADESH v. ANAND MOHAN 355
[PRAFULLAC. PANT, J:]
information, Economic Offences Wing (for short "EOW") of the A
State Government registered Crime No. 28 of 2004 in respect
of offences punishable under Sections 420, 467, 468, 471,
1208 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 B
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. C
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 D·
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 E
to prosecute the respondents.
3. The respondents challenged the order dated
20.11.2012, passed by present appellant No.2 before the High
Court through Writ Petition No. 21246 of2012. The High Court F
allowed the Writ Petition holding that appellant No. 2, i.e.
Secretary, Department of Law and Legislative Affairs was not
the Competent Authority to grant the sanction.
4. Learned counsel forthe appellants argued before us
that the High Court has erred in law in holding that the Law G
Department was not the Competent Authority to grant sanction
for the prosecution. In this connection reference was made to .
the Order/Notification dated 03.02.1988 (Annexure P-1) issued
by the State Government regarding amendment in the relevan~ H
rules delegating the power relating to sanction of prosecution
i
356 SUPREME COURT REPORTS [2015] 8 S.C.R.
A to the Department of Law and Legislative Affairs passed by
the State Government.
5. On the other hand, learned counsel for the respondents
contended that the Competent Authority to grant sanc~ion for
B prosecution against the present respondents was appellant
No. 1, Secretary, Housing and Environment of Government of
Madhya Pradesh, and said authority had declined to grant the
sanction vide its Order dated 08.03.2011. It is further submitted
that appellant No. 2 was conferred power to grant the sanction
C vide circular dated 28 .02 .1998, as such it was not competent
to grant sanction in respect of offence alleged to have been
committed by the respondents in the year 1997.
6. We have considered the rival submissions of the
D parties. Section 19 (1) of the Prevention of Corruption Act
requires previous sanction for prosecution of a public servant
in respect of offence punishable under Section 13 of the Act,
Section 19 of the Act reads as under:
E "19. Previous sanction necessary for prosecution.-ill
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
F Loakayuktas Act, 2013 -
.(fil 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
G Government, of that Government;
.{Ql 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;
H
STATE OF MADHYA PRADESH v. ANAND MOHAN 357
[PRAFULLAC. PANT, J.]
.{£} in the case of any other person, of the authority. A
competent to remove him from his office. ·
0 Where for any reason whatsoever any doubt arises
as to whether the previous sanction as required under sub-
section ( 1) should be given by the Central Government or B
the State Government or any other authority, 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. C
.@. Notwithstanding anything contained in the· Code of
Criminal Procedure, 1973 (2of1974),-
(§1 no finding, sentence or order passed by a special D
Judge shall be reversed or altered by a court in appeal,
confirmation or revision on the ground of the absence of,
or any error, omission or irregularity in, the sanction
required under sub-section (1), unless in the opinion.of
that court, a failure of justice has in fact been occasioned E
thereby;
.(Ql no court shall stay the proceedings under this Act on
the ground of any error, omission or irregularity in the
sanction granted by the authority, unless it is satisfied that F
such error, omission or irregularity has resulted in a failure
of justice;
.{£}no court shall stay the proceedings under this Act on
any other ground and no court shall exercise the powers
of revision in relation to any interlocutory order passed in G
any inquiry, trial, appeal or other proceedings.
ffi In determining under sub-section (3) whether the
absence of, or any error, omission or irregularity in,such
sanction has occasioned or resulted in a failure of justice H
358 SUPREME COURT REPORTS [2015) 8 S.C.R.
A the court shall have regard to the fact whether the objection
could and should have been raised at any earlier stage in
the proceedings.
Explanation.-Forthe purposes of this section,-
B
.@l error includes competency of the authority to grant
sanction;
.(Q} a sanction required for prosecution includes reference
to any requirement that the prosecution shall be at the
c instance of a specified authority or with the sanction of a
specified person or any requirement of a similar nature."
{In sub-section (1) words "save as otherwise provided in
the Lokpal and Lokayuktas Act, 2013" are added vide Act (1)
D of 2014 with effect from 16.01.2014 before clause (a) of the
sub section (1) from clause (b) of sub section (1).}
7. From the Section quoted above, it is clear that the
sanction for prosecution in respect of the public servant
E 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
F respondents. The only issue is as to which of the department
of the State was competent to grant the sanction. 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:
G
"Madhya Pradesh Gazette
(Extraordinary)
Published by Authority
H No. 35, Bhopal Wednesday, 3rd February, 1988
STATE OF MADHYA PRADESH v. ANAND MOHAN 359
[PRAFULLAC. PANT, J.]
Personnel Administrative Reforms & Training A
Department
Bhopal, dated 3rd February, 1988
No. F A-1-1-88-49 (1 )-225: In exercise of powers conferred
8
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 c
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 D
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 E
(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 181h November, 1983 irrespective of any F
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.
G
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.
H
360 SUPREME COURT REPORTS [2015] 8 S.C.R.
A By order & in the name of the Governor of MP
A.O. Mohile, Special Secretary''
8. Consequent to above amendment, Chief Minister of
Madhya Pradesh vide order dated 08.02.1988 (Annexure P-
B 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
c Personnel, Administrative Reforms and Training
Department
ORDER
D Bhopal, dated atti 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
E Governor in exercise of powers conferred by Clause (2) and
(3) of Article 166 of Constitution of India, No. FA 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
F the Secretary; Madhya Pradesh Government, Law Department
shall dispose of the cases related to the prosecution sanction
of the Goverryment servants.
Sd/-
Motilal Vora
G
Chief Minister''
9. By the Order dated 21.04.1997 (Annexure P-3), it is
provided that the Department of Law and Legislative Affairs
H shall obtain opinion of the concern Administrative Department
STATE OF MADHYA PRADESH v. ANAND MOHAN 361
[PRAFULLAC~ PANT, J.]
before granting the sanction. It is further provided that in case A
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 withdrawri vide letter
dated 10.07.1997 (Annexure P-4) to the extentthat in case of
conflict the matter would be required to be referred to Sub- B
Committee of the Cabinet. Letter dated 10.07 .1997 (Annexure
P-4) is reads as follows:
"State of Madhya Pradesh
c
General Administrative Department
No. F-15(6)/96/1-10 Bhopal dated 10.07.1997
To
D
All member Secretary/Secretaries of the
Government
State of Madhya Pradesh
Bhopal
Sub. Sanction for prosecutiori against the Government E
-Employees/Officers.
Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997
issued by this Department ·
F
Vide ref~rence circular of this department, the procedure
for according sanction for prosecution was determined.
As per orde.r following part is deleted from the prescribed
procedure in Para 2 of the said circular. G
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."
H
362 SUPREME COURT REPORTS (2015) 8 S.C.R.
A 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/-
B A.V. Gwaliorkar
Deputy Secretary
State of MP
General Administrative Department
c No. F-15(6)/96/1-10 Bhopal dated 10.07.1997
Copy to
Officer on Special duty, Lokayukta Office, Mad.hya
Pradesh Bhopal for information
D
Sd/-
A.V. Gwaliorkar
Deputy Secretary
State of MP
E GeneralAdministrative Department"
10. By the Order dated 28.02.1998, the StateGovemment
further clarified that in the matters of sanction for prosecution,
the papers shall be sent by the Department of Law and
F Legislative Affairs along the record to the Administrative
Department for its opinion and theAdministrative Department
shall give the same within a period of one month, whereafter
Department of Law and Legislative Affairs shall take a
decision.
G
11. It is not disputed that State of Madhya Pradesh
Economic Offence Wing registered Crime No. 28 of 2004 in
respect of offences under Sections 420, 467, 468, 471 and
1208 IPC and under Section 13 (1) (d) read with Section 13
H (2) Prevention of Corruption Act, 1988 against the respondents
STATE OF MADHYA PRADESH v. ANAND MOHAN 363
[PRAFULLA C. PANT, J.]
on the allegation that the respondents in connivance with others A
prepared forged note sheet, and made payment of Rs.
9,51,657/-to a contractor abusing their position. It is a!so not
disputed that when the EOW sought sanction for prosecution
from Department of Housing and Environment, it declined the
sanction vide order dated 08.03.2011 (Annexure P-6). B
Question before us is that whether the Department of Law and
Legislative Affairs which granted the sanction vide its order
dated 20.11.2012 (Annexure P-8) was competent to do so or
not.
c
12. The High Court in the impugned order observed that
the (EOW) did not challenge legality and validity of order dated
08.03.2011, and submitted the charge sheet. It further held that
since the appellant No. 2 was conferred power to grant the
sanction only vide circular dated 28.02.1998, as such it was D
not competent to grant the sanction relating offences alleged
to have been committed in the year 1997.
13. We are unable to accept the view taken by the High
Court for the reason that from annexure P-1 and annexure P- E
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 F
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 G
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 H
364 SUPREME COURT REPORTS (2015] 8 S.C.R.
A 10.07.1997
14. In DDA and others vs. Joginder S. Monga and
others1 discussing the situation of conflict between statutory
rule and executive instruction, this Court has clarified as under:
B
"30. It is not a case where a conflict has arisen between a
statute or a statutory rule on the one hand and an executive
instruction, on the other. Only in a case where a conflict
arises between a statute and an executive instruction,
c indisputably, the former will prevail over the latter. The
lessor under the deed of lease is to fix the market value. It
could do it areawise or plotwise. Once it does it areawise
which being final and binding, it cannot resile therefrom at
a later stage and take a stand that in a particular case it
D will fix the market value on the basis of the price disclosed
in the agreement of sale."
15. On behalf of the respondents, reliance is placed in the
case of Sanjaysinh Ramrao Chavan Vs. Dattatray
E Gu/abrao Phalke 2 , but on going through said case law we
find that in said case investigation agency itself filed closure
report as against the appellant Sanjaysinh Ramrao Chavan,
and the same was accepted by the Magistrate, as such there
was no question of sanction to be obtained from the
F Department concerned. In the circumstances, we find that the .
case of Sanjaysinh Ramrao Chavan (supra,) is of little help
to the present respondents.
16. Recently in State of Bihar and others v. Rajmangal
G Ram 3, this Court has held as under: -
"9. In the instant cases the High Court had interdicted the
1 (2004) 2 sec 297
2 2015 (1) SCALE 457
H 'c2014) 11 sec 388
STATE OF MADHYA PRADESH v. ANAND MOHAN 365
[PRAFULLAC. PANT, J.]
criminal proceedings on the ground that the Law A
Department was not the competent authority to accord
sanction for the prosecution of the respondents. Even
assuming that the Law Department was not competent, it
was still necessary for the High Court to reach the
conclusion that a failure of justice has been occasioned. B
"
17. From the sanction granted by the Law Department,
copy of which is annexed asAnnexure P-8, it is evident that
the authority has examined the material on record before C
granting the sanction.
18. Therefore, we are oftheviewthatthe 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 D
appellant No.2, Secretary, Department of Law and Legislative
Affairs, Governmentof Madhya Pradesh. We do not find any
infirmity as to the competence of appellant No2 to grant the
sanction in the matter for the reasons discussed above.
Accordingly, the appeal is allowed. The impugned order dated E
03.09.2013, passed by the High Court, is set aside.
Kalpana K. Tripathy Appeal allowed.
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