9911796707
TMI Blog2022 (10) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... er the CVC Act is specifically entrusted with the duty and function of providing expert advice on the subject. It may be necessary for the appointing authority to call for and seek the opinion of the CVC before it takes any decision on the request for sanction for prosecution. The statutory scheme under which the appointing authority could call for, seek and consider the advice of the CVC can neither be termed as acting under dictation nor a factor which could be referred to as an irrelevant consideration. The opinion of the CVC is only advisory - The issue is, therefore, answered by holding that there is no illegality in the action of the appointing authority, the DoPT, if it calls for, refers, and considers the opinion of the Central Vigilance Commission before it takes its final decision on the request for sanction for prosecuting a public servant. Whether the criminal proceedings could be quashed for the delay in the issuance of the sanction order? - HELD THAT:- Grant of sanction being an exercise of executive power, it is subject to the standard principles of judicial review such as application of independent mind; only by the competent authority, without bias, after considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) The period of three months, extended by one more month for legal consultation, is mandatory. Appeal dismissed. - B.R. GAVAI AND PAMIDIGHANTAM SRI NARASIMHA, JJ. For the Appellant : Mahesh Jethmalani, Sr. Adv., P.V. Yogeswaran, AOR, Ashish Kumar Upadhyay, Mugdha Pandey, Y. Lokesh, V. Sibi Kargil, V. Kandhan Prabhu, Arun Singh, Anubhav Chaturvedi, Pankaj Kumar Agarwal, Surya Narayana Patro, L.R. Venkatesan, C. Thangaraja, Shiwani Tushir, Maitri Goal and Priyanka Chowdhary, Advs. For the Respondent : Arvind Kumar Sharma, AOR JUDGMENT PAMIDIGHANTAM SRI NARASIMHA, J. 1. Leave Granted. 2. Two important questions of law arise for consideration in this appeal. The first question is whether an order of the Appointing Authority granting sanction for prosecution of a public servant Under Section 19 of the Prevention of Corruption Act, 1988 hereinafter referred to as 'the PC Act'. , would be rendered illegal on the ground of acting as per dictation if it consults the Central Vigilance Commission for its decision. The second question is whether the period of three months (extendable by one more month for legal consultation As per the 2018 Amendment through the 2nd Proviso to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Commission hereinafter referred to as 'the CVC'. on 07.01.2016. 7. CVC followed it up and sought clarification from CBI on 18.03.2016, i.e., two and a half months after the opinion of the CVC. After examining the clarifications tendered by the CBI, the CVC believed that this to be a strong case for grant of sanction subject to the CBI conducting a re-investigation on certain aspects of the case. This opinion was communicated to the DoPT on 01.06.2016. 8. Since the communication dated 01.06.2016 was unclear, the DoPT vide letter dated 26.08.2016 sought to know whether the CVC recommended the grant of sanction or whether the CVC had advised the CBI to re-investigate. A month later, on 20.09.2016, CVC clarified to the DoPT that the CBI should re-investigate the matter and come up with its revised findings. Accordingly, the DoPT informed CVC on 05.10.2016 that it will treat the proposal for sanction for prosecution of the Appellant as closed until the re-investigation is completed and a new proposal is received from CBI. By this time, thirteen months had passed since the request for sanction was made. 9. Meanwhile, on 27.09.2016, CBI submitted a revised explanation to the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on dictation by the CVC, and for this purpose, the said sanction order must be set aside. In support of this submission, he relied on the decision of this Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622. 12.2. The second submission of Shri Jethmalani is about the delay in granting the sanction for prosecution. While the CBI requested for sanction on 18.09.2015, the order of sanction came to be passed on 24.07.2017, after almost two years. According to Shri Jethmalani, this delay is fatal, the consequence being that the proceedings against the Appellant must be quashed. For this purpose, he relied on the decision of this Court in Vineet Narain and Ors. v. Union of India and Anr. (1998) 1 SCC 226 followed by Subramanian Swamy v. Manmohan Singh and Anr. (2012) 3 SCC 64 as per which this Court has set an outer limit of three months for granting sanction. 13.1. Shri S.V. Raju, learned Additional Solicitor General for India would submit that the DoPT, while granting sanction for prosecution, merely called for and considered the report of the CVC and had, in fact applied its independent mind. He took us through the correspondence between the CBI, CVC, and Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned 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 other. 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 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. 16. The decision in Mansukhlal (supra) was rendered in the year 1997, when the legislative changes to the Code of Criminal Procedure, 1973 hereinafter referred to as 'the Cr.P.C.' , were not made. Further, the decision was prior to the enactment of the CVC Act and also the amendments to the PC Act. The submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . III. For the purpose of assisting the sanctioning authority in arriving at a decision, the Government, through a 1997 resolution, constituted a body under the Ministry of Home Affairs referred to as the CVC. An Independent Review Committee (IRC), constituted by the Government of India, also suggested conferring statutory status to the CVC. This recommendation became compelling after the decision of this Court in Vineet Narain (supra). These directions resulted in the promulgation of three ordinances for giving statutory status to the CVC, and eventually, in 2003, the Parliament enacted the CVC Act. IV. The preamble to the CVC Act states that the Commission is constituted to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988. Section 8 of the CVC Act evidences the interplay of powers and duties of the three agencies, being the sanctioning authority (Union Government), the prosecuting agency (the CBI), and the advisory body (the CVC), all subserving the same public interest of ensuring integrity in governance. The following provisions evidence the same. V. The CVC shall exercise superintendence over C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities for sanction of prosecution under the PC Act. [Section 8(1)(f), CVC Act] XIII. The appropriate Government or the competent authority is obligated, under the 2018 amendment to the PC Act, to endeavour to convey the decision on the proposal for sanction within three months with an extended period of one more month when legal consultation is required. For this purpose, guidelines may be prescribed. The CVC has, in fact, issued necessary guidelines in furtherance of this duty. [Proviso to Section 19(1) of PC Act] 18. It is evident from the above referred formulation that the position of law and the legal regime obtained by virtue of the five legislations on the subject of corruption, operates as integrated scheme. The five legislations being the Code of Criminal Procedure, DSPE Act, PC Act, CVC Act, and Lokpal Act, must be read together to enable the authorities to sub-serve the common purpose and objectives underlying these legislations. The Central Vigilance Commission, constituted under the CVC Act is specifically entrusted with the duty and function of providing expert advice on the subject. It may be necessary for the appointing authority to call for and seek the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purporting to act in the discharge of his official duty except with the previous sanction of the Government of Union territory of Jammu and Kashmir. Section 88. Protection of action taken in good faith- No suit, prosecution or other legal proceedings shall lie against the Central Government, the State Government, the Food Authority and other bodies constituted under this Act or any officer of the Central Government, the State Government or any member, officer or other employee of such Authority and bodies or any other officer acting under this 60 Act for anything which is in good faith done or intended to be done under this Act or the Rules or regulations made thereunder. are incorporated in statutes extending protection to officers exercising statutory duties in good faith. This protection is only to ensure that a public servant serves the State with courage, confidence, and conviction. It is apt to recall the speech of the then Home Minister, Shri Sardar Vallabhbhai Patel, during the Constituent Assembly Debates Constituent Assembly Debates, Volume No. 10, Page 51 , also referred to by H.M. Seervai in his commentary on the Constitution while dealing with the Services under the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant as permitting further prosecution would be a travesty of justice and a mere ritual or formality so far as the prosecution agency is concerned, and unnecessary burden as regards the courts. and Ramanand Chaudhary v. State of Bihar and Ors. (2002) 1 SCC 153 5. It is not necessary to go into the legal points raised by Mr. Jain as we are inclined to quash the prosecution against the Appellant in the peculiar facts and circumstances of this case. After the raid no action was taken by the prosecution for six years. The Public Prosecutor consistently opined that no criminal case was made out against the Appellant. The Commissioner on independent consideration refused to grant the sanction but later on at the asking of the DIG (Vigilance) he changed his view. The Prosecution against the Appellant is pending for over a period of thirteen years and it would be a travesty of justice to permit the prosecution at this stage which would mean that the Appellant would suffer the trial/appeal for another decade. In view of the facts and circumstances of this case we quash the prosecution pending against the Appellant ........ this Court found it expedient to quash the criminal proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is not possible within the three months mentioned in Clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in Clause (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time-limit. (c) At the end of the extended period of time-limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge-sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time-limit. 26. Yet another legislative development took place in 2018 when the Parliament, by way of an amendment to the PC Act, inserted the following provisos to Section 19 of the PC Act; 19. Previous sanction necessary for prosecution.-- (1) No court shall take cognizance of an offence punishable Under Sections 7, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e risk of making future generations getting accustomed to corruption as a way of life. Viewed in this context, the duty to take an early decision inheres in the power vested in the appointing authority to grant or not to grant sanction. In fact, the statement of object and reasons for the 2018 amendment of Section 19 clearly explain the purpose as under: 2(i) ...Further, in the light of a recent judgment of the Supreme Court, the question of amending Section 19 of the Act to lay down clear criteria and procedure for sanction of prosecution, including the stage at which sanction can be sought, timelines within which order has to be passed, was also examined by the Central Government and it is proposed to incorporate appropriate provisions in Section 19 of the Act. Bill No. LIII of 2013, GOI (Ex.) Part II Sec 2 No. 31 dated 19.8.2013 (amendment implemented in the year 2018) 29. The intention of the Parliament is evident from a combined reading of the first proviso to Section 19, which uses the expression 'endeavour' with the subsequent provisions. The third proviso mandates that the extended period can be granted only for one month after reasons are recorded in writing. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er remedy available for judicial redressal if the criminal proceedings stand automatically quashed. At the same time, a decision to grant deemed sanction may cause prejudice to the rights of the Accused as there would also be non-application of mind in such cases. 32. It is in between these competing interests that the Court must maintain the delicate balance. While arriving at this balance, the Court must keep in mind the duty cast on the competent authority to grant sanction within the stipulated period of time. There must be a consequence of dereliction of duty to giving sanction within the time specified. The way forward is to make the appointing authority accountable for the delay in the grant of sanction. 33. Accountability in itself is an essential principle of administrative law. Judicial review of administrative action will be effective and meaningful by ensuring accountability of the officer or authority in charge. 34. The principle of accountability is considered as a cornerstone of the human rights framework. It is a crucial feature that must govern the relationship between duty bearers in authority and right holders affected by their actions. Accountability of institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the competent authorities, and this function must take within its sweep the power to deal with the consequences of failure of the competent authority to comply with its statutory duty. This power and responsibility of CVC is clear from the provisions of the statute and decipherable from functions entrusted to it. 37. In conclusion, we hold that upon expiry of the three months and the additional one-month period, the aggrieved party, be it the complainant, Accused or victim, would be entitled to approach the concerned writ court. They are entitled to seek appropriate remedies, including directions for action on the request for sanction and for the corrective measure on accountability that the sanctioning authority bears. This is especially crucial if the non-grant of sanction is withheld without reason, resulting in the stifling of a genuine case of corruption. Simultaneously, the CVC shall enquire into the matter in the exercise of its powers Under Section 8(1)(e) and (f) and take such corrective action as it is empowered under the CVC Act. 38. The second issue is answered by holding that the period of three months, extended by one more month for legal consultation, is man ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
