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TMI Blog2022 (10) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 19(1) of the PC Act.) for the Appointing Authority to decide upon a request for sanction is mandatory or not. The further question in this context, is whether the criminal proceedings can be quashed if the decision is not taken within the mandatory period. Facts leading to the filing of this Appeal 3. The Appellant challenges the order of the High Court of Judicature at Madras Criminal Revision Petition No. 349 of 2019 dated 06.01.2022. allowing a criminal revision petition filed by the State against an order of the Trial Court Criminal Misc. Petition No. 3908 of 2018 in C.C. No. 3 of 2018 dated 13.12.2018., discharging the Appellant on the ground that the order of sanction Under Section 19 of the PC Act, is vitiated due to non-application of mind by the sanctioning authority. 4. The Appellant is an official of the Central Secretarial Service, Government of India. During the period between 01.01.2005 to 31.10.2012, when his official postings were in New Delhi and Bangalore, he is alleged to have acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osal 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 seven questions posed by the CVC. Satisfied with the same, the CVC advised DoPT on 25.11.2016 to grant sanction. Responding to the proposal, DoPT, by its letter dated 16.12.2016, sought to know if the CBI had completed the re-investigation, to which the CVC responded on 09.02.2017, stating that it was satisfied with the proposal of the CBI. Finally, on 24.07.2017, DoPT granted sanction for prosecution. Thus, the proposal requesting the sanction for prosecution made by the CBI on 08.09.2015 was given by the sanctioning authority on 24.07.2017, after about one year and ten months. Before the Trial Court: 10. The Appellant filed a discharge application Under Section 227 of the Code of Criminal Procedure before the Principal Special Judge for CBI. This application was filed on the ground that the sanction order was passed without application of mind. The Trial Court by its order dated 13.12.2018, allowed the application and discharged the Appellant. The reason for allowing the application for discharge wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 DoPT to make his point good. 13.2. Replying to the second submission made by Shri Jethmalani, the learned ASG submits that this issue was never raised at any point. For that matter, even the Special Leave Petition does not contain any ground to this effect. However, as the Court heard submissions on the ground of delay, he clarified that the time period is merely directory and not mandatory. He would further submit that, as per the above referred decisions of this Court, the consequence of non-grant of sanction within three months would only be deemed sanction, rather than quashing the criminal proceedings. 14. Having heard the parties in detail, we formulate two issues for our consideration. While the first issue pertains to whether the order of sanction is illegal due to non-application of mind by the DoPT for acting as per dictation of CVC, the second issue pertains to whether the criminal proceedings could be quashed for the delay of about two years in the issuance of the sanction order. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal 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 submission of Shri Jethmalani therefore overlooks the march of law, which we have endeavoured to explain hereinunder. 17. Sanction for prosecution of an employee of the Union under the PC Act would involve invocation of specific provisions of the Code of Criminal Procedure, the Delhi Special Police Establishment Act, 1946 hereinafter referred to as 'the DSPE Act'., the PC Act, and the CVC Act, all of which constitute a unified scheme. The legal regime that encompasses the above-referred statutes for matters concerning preliminary inquiry, investigation, sanction, and prosecution are well integrated and can be recounted as under: I. Section 197 of the Code of Criminal Procedure provides a mandatory requirement of sanction for the prosecution of judges, magistrates, and public servants. While interpreting this provision, this Court has identified two principles, which are that, (a) there must be relevant material placed before the sanctioning authority before it takes a decision; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency (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 CBI in relation to the investigation of offences under the PC Act [Section 8(1)(a), CVC Act.]. The CVC shall also give directions to CBI in the discharge of its functions Under Section 4(1) of the DSPE Act [Section 8(1)(b), CVC Act]. VI. The CVC shall inquire on a reference made to it by the Central Government (DoPT) about an alleged offence committed by a public servant under the PC Act [Section 8(1)(c), CVC Act]. The CVC shall also inquire into any complaint against a public servant alleged to have committed an offence under the PC Act [Section 8(1)(d), CVC Act]. VII. The CVC shall review the progress of the investigation by the CBI for offences under the PC Act [Section 8(1)(e), CVC Act]. VIII. The CVC shall tender advice to the Central Government on such matters as may be referred to it [Section 8(1)(g), CVC Act]. IX. The CVC shall exercise limited superintendence over vigilance administration of various Ministries of the Central Government [Section 8(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. It is nevertheless a valuable input in the decision-making process of the appointing authority. The final decision of the appointing authority must be of its own by application of independent mind. 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. 19. Returning to the case facts, we have examined the correspondence and the long-drawn comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 State H.M. Seervai, Constitutional Law of India, 4th Edition, Volume 3, pg. 2987: To-day, my Secretary can write a note opposed to my views. I have given that freedom to all my secretaries. I have told them 'If you do not give your honest opinion for fear that it will displease your Minister, please then you had better go. I will bring another Secretary.' I will never be displeased over a frank expression of opinion. (C.A.D. Vol. 10, P. 51). 21. Statutory provisions requiring sanction before prosecution either Under Section 197 Code of Criminal Procedure or Under Section 97 of the PC Act also intend to serve the very same purpose of protecting a public servant. These protections are not available to other citizens because of the inherent vulnerabilities of a public servant and the need to protect them. However, the said protection is neither a shield against dereliction of duty nor an absolute immunity against corrupt practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 proceedings due to the abnormal delay in granting a sanction for prosecution. 23. Noticing that there is no legislation prescribing the period within which a decision for sanction is to be taken, this Court, in Vineet Narian (Supra), sought to fill the gap by setting a normative prescription of three months for grant of sanction. 58. (I)(15) Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office. 24. Legislative reforms for expeditious grant of sanction for prosecution started with the enactment of the CVC Act, whereunder Parliament has expressly empowered the CVC Under Section 8(1)(f) of the CVC Act to review the progress of applications for sanction "Section 8: Functions and Powers of the Central Vigilance Commission- (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 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 Lokayuktas Act, 2013]- (a) in the case of.... (b) in the case of.... (c) in the case of.... Provided further that ..... Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this Sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt: Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month: Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary..... 27. The new proviso to Section 19 mandating that the competent author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 is no further extension. The fourth proviso, which empowers the Central Government to prescribe necessary guidelines for ensuring the mandate, may also be noted in this regard. It can thus be concluded that the Parliament intended that the process of grant of sanction must be completed within four months, which includes the extended period of one month. 30. If it is mandatory for the sanctioning authority to decide in a time-bound manner, the consequence of non-compliance with the mandatory period must be examined. This is a critical question having no easy answer. In Subramanian Swamy, this Court suggested that Parliament may consider providing deemed sanction if a decision is not taken within the prescribed period. The Appellant herein contends the very opposite that the criminal proceedings must be quashed if the decision is not taken within the prescribed period. 31. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 institutions is also one of the development goals adopted by the United Nations in 2015 United Nations General Assembly Resolution 70/1 dated 25th September, 2015 and is also recognized as one of the six principles of the Citizens Charter Movement Citizens Charter adopted by the Government in the 'Conference of Chief Ministers of various States and Union Territories' held in May 1997 in New Delhi, available from https://goicharters.nic.in/public/website/home. 35. Accountability has three essential constituent dimensions. (i) responsibility, (ii) answerability and (iii) enforceability. Responsibility requires the identification of duties and performance obligations of individuals in authority and with authorities. Answerability requires reasoned decision-making so that those affected by their decisions, including the public, are aware of the same. Enforceability r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uption. 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 mandatory. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason. The competent authority shall be Accountable for the delay and be subject to judicial review and administrative action by the CVC Under Section 8(1)(f) of the CVC Act. 39. Returning to the facts of the present case, we have noticed that the CBI made the application for sanction for prosecution on 08.09.2015, and the same was granted on 24.07.2017, i.e., after one year and ten months. As the Appellant did not question the legality of the delay either before the Trial or the High Court but chose to confine the challenge only to the appointing authority acting under the dictation of the CVC, there was no occasion for CBI to respond to the submission of delay. The submission was raised for the first time before this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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