VIVEK BATRAversusUNION OF INDIA AND OTHERS

                        [2016] 8 S.C.R. 177



                         VIVEK BATRA                                    A
                                 v.
                UNION OF INDIA AND OTHERS
                (Criminal Appeal No. 2491 of2014)
                       OCTOBER 18, 2016                                 B

      [RANJAN GOGOi AND PRAFULLA C. PANT, JJ.)
       Prevention of Corruption Act, 1988 - s.19 and ss. 7, JO, 11,
13 and 15 - Public Servant - Offence of criminal misconduct -
Assets disproportionate to the known sources of income - Petition C
chaf/enging sanction for prosecution of appellant u!s.13 of the Act
- Dismissed by High Court - Propriety - Held: Sanction cannot be
held invalid only for the reason that in the administrative notings,
different authorities have opined differently before the competent
authority took the decision in the matter - There was proper
application of mind on the part of the co1i1petent authority before D
the sanction was accorded - No reason to interfere with impugned
order of High Court - Government of India (Allocation of Business)
Rules, 1961- rr.3(3), (4) - Central Vigilance Commission Act, 2003
- s.8 (g).
      Dismissing the appeal, the Court                                  E
      HELD: 1. The sanction cannot be held invalid only for the
reason that in the administrative no tings different authorities have
opined differently before the competent authority took the
decision in the matter. It is not a case where the finance Minister
was not the competent authority to grant the sanction. What is          F
required u/s.19 of the Prevention of Corruption Act, 1988 is that
for taking the cognizance of an offence, punishable u/ss. 7, 10,
11, 13 and 15 of the Act committed by the public servant, is
necessary by the Central Govemment or the State Government,
as the case may be, and in the case of a public servant, who is
neither employed in connection with affairs of the Union or the         G
State, from the authority competent to remove him. Sub-section
(2) of Section 19 of the Act provides that 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
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                                 177
178            SUPREME COURT REPORTS                      [2016] 8 S.C.R.


A     Government or the State Government or any authority, such
      sanction shall be given by that Government or authority which
      could have been competent to remove the public servant from
      his office at the time when the offence was alleged to have been
      committed. [Para 10][183-B-E]
B           2. It is evident that there had been proper application of
      mind on the part of the competent authority before the sanction
      was accorded. Perusal of the record does not indicate that any
      decision was taken by the competent authority, at any point of
      time, not to grant sanction so as to give the decision to grant
      sanction the colour of a review of any such earlier order. The
c     opinion ofCVC, which was reaffirmed and ultimately prevailed in
      according the sanction, cannot be said to be irrelevant for the
      reason that clause (g) of Section 8 of the Central Vigilance
      Commission Act, 2003 provides that it is one of the functions of
      the CVC to tender advice to the Central Government on such
D     matters as may be referred to it by the Government. [Para
      11][184-C-D]
            Jasbir Singh Chhabra and Ors. v. State of Punjab and
            Ors. (2010) 4 SCC 192; Sethi Auto Service Station and
            another v. Delhi Development Authority and Ors. (2009)
 E          1 SCC 180: 2008 (14) SCR 598 - relied on.
            Nazir Ahmad v. King Emperor AIR 1936 PC 253;
            Bachhittar Singh v. The State of Punjab (1962) Suppl.
            3 SCR 713 - referred to.
                            Case Law Reference
 F          AIR 1936 PC 253              referred to         Para4
            (1962) Suppl. 3 SCR 713      referred to         Para 7
            (2010) 4 sec 192             relied on           Para8
            2008 (14) SCR 598            relied on           Para9
G           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      2491 of2014.
             From the Judgment and Order dated 29.10.2013 of the High Court
      of Judicature at Bombay in Writ Petition (Criminal) No. 3654 of2012.
            K. K. Venugopal, Sr. Adv., Ms. Prachi V. Sharma, Ms. Suhasini
H
      VIVEK BATRA v. UNION OF INDIA AND OTHERS                               179



Sen, Ms. Shraddha Deshmukh, Pradeep Kumar Bakshi, Advs. for the              A
Appellant.
       Ms. Vibha Datta Makhija, A. K. Panda, Sr. Advs., Abhinav
Mukherjee, Ms. Niranjana Singh, Ms. Disha Yaish, P. K. Dey, B. V.
Balaram Das, Shailender Saini, M. K. Maroria, Mrs. Anil Katiyar, Advs.
for the Respondents.                                                         B
      The Judgment of the Court was delivered .by
       PRAFULLA C. PANT, J. 1. This appeal is .directed against
judgment and order dated 29.10.2013, passed by the High Court of
Judicature at Bombay in Criminal Writ Petition No. 3654of2012, whereby
the petition challenging the sanction dated 09.10.2012 for prosecution of     C
the appellant under Section 13 of the Prevention of Corruption Act, 1988
is dismissed.
       2. Brief facts of the case are that the appellant is an officer of
cadre of Indian Revenue Service (for short "IRS"), who entered into
the service through 1992 batch. It is stated that an FIR RC No. BAI/          D
20051ADO17 was registered on 04.04.2005 by Central Bureau of
Investigation (CBI) (Respondent No. 4) in respect of disproportionate
assets to the known sources of the appellant. The prosecution case is
that the appellant has amassed the assets valued at Rs.1,27,38,3531- in
his name and in the names of his wife and minor son during the check          E
period 04.01.1993 to 31.03.2004, which is disproportionate to the known
sources of his income. The investigation took almost six years to get
completed, which revealed that a sum of Rs.56,30,296/- was invested
by the appellant through Benami transactions in the names of his wife
and son in two companies, namely, Mls.ARJ Impex Private Limited and
Mis. Malik Hospitality Services Private Limited. According to CBI, the        F
appel !ant's wife Priyanka Batra incorporated a company, Mis. ARJ Impex
 Limited, to engage in import-expo11 business, and then sold her shares in
the company to her two uncles, namely, Karan Singh and Vijay Kumar.
The company's main source of income was unsecured loans obtained
 from various companies and individuals, many of which were never paid        G
 back, several of these loans were from Priyanka Batra herself. Further,
 though the sale ofincome of the company was minimal, it acquired assets
 of Rs.85,70,7701- during the check period. It appears that Karan Singh
 and Vijay Kumar had incorporated another company called Mis. Malik
 Hospitality Services, whose main source of income was unsecured loans
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180             SUPREME COURT REPORTS                           [2016] 8 S.C.R.


A     from various individuals and companies. The company had acquired
      assets ofRs.20,52,013/- and had unrepaid loans ofRs.26, 77,000/-during
      the check period. Priyanka Batra was connected to Malik Hospitality
      Services as a public notice appeared in Nav Bharat Times, showing her
      as the intended purchaser of a property that was to be bought for the
      company.
B
             3. The appellant was arrested on 02.09 .20 I0, and after about three
      days released on bail. He was placed under suspension by the authority
      concerned. The CBI sought sanction for prosecution of the appellant
      from the competent authority on which the file was processed, and at
C     the first stage on 03.05.2011 advice of Central Vigilance Commission
      (CVC) was sought by the Finance Department. On 01.09.2011, the
      CVC recommended that the sanction for prosecution be granted. The
      department concerned (Finance Department) endorsed the matter again
      on 01.11.2011 for fresh opinion of the CVC. But the CVC, through its
      Office Memorandum dated 02.11.2011, reiterated its opinion. The
D     Finance Department thereafter referred the matter to Department of
      Personnel and Training (for short "DOPT") for its views. The DOPT
      did not appreciate the stand of the Finance Department that the sanction
      should be accorded only if the CBI provides sufficient evidence and
      communicated the same through letter dated 29.03.2012. However, it
      observed that administrative warning could be issued to the appellant for
E
      not intimating the transactions to Finance Department. Through letter
      dated 28.05.2012, the DOPT conveyed that insufficiency of evidence
      can be tested in the court of law and sanction for prosecution can be
      granted. Finally, the competent authority, vi de its order dated 09 .10.2012,
      granted sanction for prosecution of the appellant, who challenged the
F     same before the High Court in the writ petition, which was dismissed by
      the impugned order.
         4. Mr. K.K. Venugopal, learned senior counsel appearing on behalf
  of the appellant, argued that there was categorical opinion of the Finance
  Department that the evidence laid before it was not sufficient to grant
G sanction for prosecution. It is pointed out that there was difference of
  opinion between Finance Ministry and the CVe. Not only this, even
  DOPT opined that warning to the officer could be sufficient. It is further
  submitted that the earlier competent authority (Finance Minister,
  Government of India) had referred the matter back to the eve, as
  such, the sanction for prosecution stood declined, and grant of the sanction
H
         VIVEK BATRA v. UNION OF INDIA AND OTHERS                            181
                   [PRAFULLA C. PANT, J.]

by the successor Finance Minister cannot be said to be a valid sanction      A
for prosecution. It is further argued that the Rules of Business are not
followed, as such, it cannot be said that the sanction was accorded by
the competent authority. In support of his argument learned senior counsel
placed reliance on Nazir Ahmad v. Ki11g-Emperor 1, and argued that
where a power is given to do a certain thing in a certain way, the thing     B
must be done in that way or not at all.
      5. We have considered the submissions oflearned senior counsel,
and perused the record.
      6. Before further discussion, we thing it just and proper to quote
relevant part of Government oflndia (Allocation of Business) Rules,           C
1961. Sub-rules (3) and (4) ofRule 3 of the Rules read as under: -
      "(3) Where sanction for the prosecution of any person for
      any offence is required to be accorded -

         a) lfhe is a Government servant, by the Department which
                                                                              D
         is the Cadre Controlling authority for the service of which
         he is a member, and in any other case, by the Department
         in which he was working at the time of commission of the
         alleged offence;

         b) If he is a public servant other than a Government servant,        E
         appointed by the Central Government, by the Department
         administratively concerned with the organization in which
         he was working at the time of commission of the alleged
         offence; and
                                                                              F
         c) In any other case, by the Department which administers
         the Act under which the alleged offence is committed; ,

         Provided that where, for offences alleged to have been
         committed, sanction is required under more than one Act, it
         shall be competent for the Department which administers              G
         any of such Acts to accord sanction under all such Acts.

         (4) Notwithstanding anything contained in sub-rule (3), the
         President may, by general or special order, direct that in
 I   AIR 1936 PC 253
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182            SUPREME COURT REPORTS                             [2016] 8 S.C.R.



A           any case or class of case, the sanction shall be by the
            Department of Personnel and Training."
             7. There is no dispute that for an IRS officer Cadre Controlling
      Authority is the Finance Minister of the Government of India. In
      Bac/1hittar Singh v. The State of Punja//, Constitution Bench of this
B     Court has held that the business of the State is a complicated one and
      has necessarily to be conducted through the agency of large number of
      officials and authorities.
              8. In Jasbir Singh Cltlwbra and others v. State of Punjab and
      otlzers 3, this Cou1t held as under: -
c           "35. It must always be remembered that in a democratic
            polity like ours, the functions of the Government are carried
            out by different individuals at different levels. The issues
            and policy matters which are required to be decided by the
            Government are dealt with by several functionaries some
            of whom may record notings on the files favouring a
D           paiticular person or group of persons. Someone may suggest
            a pa1ticular line of action, which may not be conducive to
            pub! ic interest and others may suggest adoption ofa different
            mode in larger public interest. However, the final decision
            is required to be taken by the designated authority keeping
E           in view the larger public interest. The notings recorded in
            the files cannot be made basis for recording a finding that
            the ultimate decision taken by the Government is tainted by
            mala fides or is influenced by extraneous
            considerations ...... "
           9. In Sethi Auto Service Station and another v. Delhi
F
      Development Authority and others 4, this Court observed as under: -
            "14. It is trite to state that notings in a depa1tmental file do
            not have the sanction of law to be an effective order. A
            noting by an officer is an expression of his viewpoint on the
            subject. It is no more than an opinion by an officer for
G
            internal use and consideration of the other officials of the
            department and for the benefit of the final decision-making
            authority. Needless to add that internal notings are not meant
      '(1962] Supp. 3 SCR 713
      ' (201 oJ -1 sec 192
H     't2009J 1 sec 1so
      YIVEK BATRA v. UNION OF INDIA AND OTHERS                          183
                [PRAFULLA C. PANT, J.]

      for outside exposure. Notings in the file culminate into an       A
      executable order, affecting the rights of the parties. only
      when it reaches the final decision-making authority in the
      department, gets his approval and the final order is
      communicated to the person concerned."
        10. In view of the law laid down by this Court, as above, we are B
of the opinion that the sanction cannot be held invalid only for the reason
that in the administrative notings different authorities have opined
differently before the competent authority took the decision in the matter.
It is not a case where the Finance Minister was not the competent
authority to grant the sanction. What is required under Section 19 of the
Prevention of Corruption Act, 1988 is that for taking the cognizance of c
an offence, punishable under Sections 7, 10, 11, 13 and 15 of the Act
committed by the public servant, is necessary by the Central Government
or the State Government, as the case may be, and in the case ofa public
servant, who is neither employed in connection with affairs of the Union
or the State, from the authority competent to remove him. Sub-section D
(2) of Section 19 of the Act provides that where for any reason
whatsoever any doubt arises as to whether the previous sanction, as
required under sub-section (I) should be given by the Central Government
or the State Government or any authority, such sanction shall be given
by that Government or authority which could have been competent to
remove the public servant from his office at the time when the offence E
was alleged to have been committed. Sub-section (3) of Section 19 of
the Prevention of Corruption Act, 1988 provides as under: -
       "(3) Notwithstanding anything contained in the Code of
       Criminal Procedure, 1973 (2of1974), -
                                                                         F
      (a) no finding, sentence or order passed by a special 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
                                                                         G
      justice has in fact been occasioned thereby;

      (b) 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
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184                SUPREME COURT REPORTS                       [2016] 8 S.C.R.


A           such error, omission or irregularity has resulted in a failure
            ofjustice;


            ( c) no court shall stay the proceedings under th is Act on
            any other ground and no court shall exercise the powers of
B           revision in relation to any interlocutory order passed in any
            inquiry, trial, appeal or other proceedings."
             11. Having gone through the copy of note-sheets relating to
      sanction in question placed before us as part of rejoinder affidavit, it is
      evident that there had been proper application of mind on the part of the
C     competent authority before the sanction was accorded. Our perusal of
      the said record does not indicate that any decision was taken by the
      competent authority, at any point oftime, not to grant sanction so as to
      give the decision to grant sanction the colour of a review of any such
      earlier order, as has been contended before us. The opinion of CVC,
      which was reaffinned and ultimately prevailed in according the sanction,
D     cannot be said to be irrelevant for the reason that clause (g) of Section
      8 of the Central Vigilance Commission Act, 2003 provides that it is one
      of the functions of the CVC to tender advice to the Central Government
      on such matters as may be referred to it by the Government.
              12. For the reasons, as discussed above, we find no reason to
 E    interfere with the impugned order passed by the High Court dismissing
      the writ petition. Accordingly, the appeal is dismissed. The interim
      order dated 25.11.2014, passed by this Comt, is hereby vacated. The
      trial court is directed to conclude the trial expeditiously. However, we
      clarify that we have not given any opinion as to the merits of the case.
      There shall be no order as to costs.
 F

      Ankit Gyan                                                  Appeal dismissed.