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TMI Blog1997 (9) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 theat there was proper sanction by the competent authority and 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 following few facts. 4. M/s R.L. Kalathia Company, a partnership firm of eleven partners, one of whom was Mr. Harshadrai Laljibhai Kalathia, were awarded, in 1979, the contract for constructing Pigut Dam in Valia Taluka of District Bharuch at an estimated cost of Rupees eighty six lacs. The work was completed on 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is (newly added) is directed to accord sanction under the relevant provisions of the Prevention of Corruption Act to prosecute M.V. Chauhan who was woking as Divisional Accountant of Medium Irrigation Project at Ankleshwar as stated above. It need not be stated the prosecution will be for offences punishable under the 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 above with no order as to costs. 6. From the above it will be seen that the Secretary of the Department 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. 7. In view if the judgment of the Gujarat High Court, sanction was given and the appellant was prosecuted. 8. Section 197 of the Criminal Procedure Code which deals with the prosecution of Judges and Public Servants for offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, lays down that no court shall ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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:- (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 establish by or under a Central, Provincial or other State 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 from, by Anti-Corruption Laws (Amendment) Act, 1964 (11 of 1964). The definition of public 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that sanction under the Act is not intended to be, nor is an 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- Corruption Bureau, Government of Maharashtra, Bombay vs. Krishanchand Khushalchand Jagtiani. (1996) 4 SCC 472, while considering the provisions of Section 6 of the Act held that one of the guiding principles 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 prosecutions. ( See: Mohd. Iqbal Ahmed vs. 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 material placed before the sanctioning authority and the fact that all the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could issue a mandamus of their and whether the order of Sanction, in these circumstances, is valid. 22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance 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 conclusive as shall and must have, sometimes, been interpreted as may . What is determinative of the nature of duty, whether it is obligatory, 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 specially in the Statute, it may be implied as co-relative to a Right . 23. In the performance of this Study, if the authority in whom the discretion is vested under the Statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the orders and issue a mandamus to that authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey duty of the Court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers? 2. committed an error of law; 3. committed, a breach of the rules of natural justice; 4. reached a decision which no reasonable Tribunal would have reached; or 5. abused its powers. 26. In this case, Lord Denning was quoted as saying : Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. it may be a judicial decision, or a quasi- judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the Courts will not themselves take the place of the body of whom Parliament has entrusted the decision. The Courts will not themselves embark on a rehearing of the matter : See Healey v. Minister of Health (1955) 1 QB 221. 27. Lord Denning further observed as under : If the decision-making 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- judicial 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 administrative 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 reasonable people to hold differing opinions as to which is to preferred (Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Council - 1997 AC 1014 at 1064). The Court cannot substitute its judgment for the judgment of administrative authorities in sch cases. Only when the action of 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 the judgment of the Gujarat High Court which, let us say here and now, could only direct the Govt. for expeditious disposal of the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pro forma drawn up by the office. Since the correctness and validity of the `sanction 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 pair trial at every 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 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 Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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