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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 456    OF 2014 [Arising out of S.L.P.(Criminal) No. 9999/2011]

P. L. Tatwal … Appellant (s)   

Versus

State of Madhya Pradesh … Respondent (s)

J U D G M E N T  

KURIAN, J.:   

Leave granted.    

2. The appellant along with two others were sought to be  

prosecuted  under  Section  13(1)(d)  and  13(2)  of  the  

Prevention of Corruption Act, 1988 (hereinafter referred  

to  as  the  ‘PC  Act’).  The  allegations  pertain  to  the  

irregularities  in  the  award  of  the  contract  and  

construction of administrative building for the Corporation  

of  Ujjain  during  the  period  1991-1993.  At  the  relevant  

time, the appellant was working as the Assistant Engineer  

in the Corporation and the Corporation was ruled by an  

Administrator. In the case of the                 co-accused  

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Shri  D.L.  Rangotha,  the  then  Commissioner  of  the  

Municipal  Corporation  and  Shri  D.  P.  Tiwari,  the  then  

Administrator of the Corporation, the State Government  

and the Central Government respectively had declined to  

grant  sanction,  while  they  were  in  service.  Since  the  

prosecution  was  sought  to  be  launched  after  their  

retirement,  the  same  was  challenged  before  the  trial  

court  and  the  High  Court  unsuccessfully.  However,  by  

order dated 21.08.2013, in Criminal Appeal No. 1213 of  

2013 and Criminal Appeal No. 1214 of 2013, this Court  

quashed the proceedings for prosecution against Shri D.  

L. Rangotha and Shri D. P. Tiwari on the ground that once  

sanction  for  prosecution  is  refused  by  the  competent  

authority  while  the  officer  is  in  service,  he  cannot  be  

prosecuted after retirement notwithstanding the fact that  

no sanction for prosecution under the PC Act is necessary  

after the retirement of a public servant. The order was  

passed  following  the  decision  in  Chittaranjan Das v.  

State of Orissa1.  

3. However,  in  the  case of the  appellant  herein,  sanction  

was  granted  by  the  Standing  Committee  of  the  

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Corporation while  he was in  service.  Though the  same  

was subsequently withdrawn, that order was set aside by  

the High Court holding that the order on withdrawal was  

passed without proper application of mind.  

4. The appellant has three main contentions:

(i)  Since he was appointed in service by the Administrator,  

sanction  for  prosecution  can  be  given  only  by  the  

Administrator  and  in  case,  the  Administrator  is  not  in  

position, then the sanction is  to be given by the State  

Government who appoints the Administrator.

(ii) At any rate, there is no proper and valid sanction by the  

competent authority.

(ii) Since the proceedings for prosecution against his superior  

officers have been quashed by this Court, proceedings in  

his case also be quashed since it is not likely in such a  

situation to have a successful prosecution.  

5. It is not in dispute that the appellant was appointed by  

the Administrator when the Corporation was ruled by the  

Administrator.  Therefore,  it  is  the  contention  of  the  

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appellant that the competent authority to give sanction  

for  prosecution  under  Section  19  of  the  PC  Act  is  the  

Administrator  and  in  case  the  Administrator  is  not  

available,  the  sanction  is  to  be  given  by  the  State  

Government.  

6. We are afraid, the contentions cannot be appreciated as  

the same do not found any basis in law or logic. Section  

19(1) of the PC Act reads as follows:

“19.  Previous  sanction  necessary  for  prosecution.-(1) 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,-

(a) 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  Government,  of  that  Government;

(b) 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;

(c) in the case of any other person, of the authority  competent to remove him from his office.”

(Emphasis supplied)

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7. The  appellant  comes  under  Section  19(1)(c).  The  

competent  authority  to  give  previous  sanction  is  the  

authority  competent  to  remove  one  from  service.  No  

doubt the appointing authority is the authority competent  

to  remove  him  from service.  Under  Section  58  of  the  

Municipal Corporation Act, 1956, the Standing Committee  

is the competent authority for appointment in any post in  

the municipality having a salary for more than Rs.400/-  

per  month.  For  easy  reference,  we  may  extract  the  

relevant portion from the statement made on behalf of  

the State Government on a specific query from the court:

“The Respondent most respectfully submits that  (sic)  Section  45  and  48  of  the  Municipal  Corporation  Act  1956  empowers  the  Municipal  Corporation  to  establish  the  committees  and  through  Gazette  Notification  1977  dated  21.03.1977 whereby Section 58 of the Municipal  Corporation Act was amended, power was vested  in  the  Standing  committee  to  appoint  any  persons on the post of any such municipal post,  which  has  maximum  salary  of  more  than  Rs.400/-. …

xxx xxx xxx xxx

The Respondent  most  respectfully  submits  that  the above mentioned amendment was made in  1977 and the Petitioner was initially appointed in  

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the  Municipal  Corporation  on  17.12.79  by  the  Standing committee…”  

8. The Administrator is only an  ad hoc arrangement made  

by  the  Government  under  Section  424  of  the  Madhya  

Pradesh Municipal Corporation Act, 1956 when an elected  

committee  is  superseded  or  dissolved.  It  so  happened  

that the appointment of the appellant was at a time when  

the Municipal Corporation was ruled by the Administrator.  

That  does  not  mean  that  there  should  be  an  

Administrator  to  take  any  decision  with  regard  to  the  

sanction for  prosecution of the appellant  under  the  PC  

Act.

9. The Statute is very clear that the authority competent to  

remove an officer  from service is the authority to give  

sanction  for  prosecution.  In  the  case  of  the  appellant,  

being an employee having a salary of more than Rs.400/-  

per month, the authority competent to remove him from  

service  is  the  Standing  Committee.  It  is  the  Standing  

Committee  which gave the sanction by its  order  dated  

27.08.1996. Therefore, the trial court and the High Court  

cannot be faulted in taking the view that there was an  

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order  of  sanction  for  prosecution  from  the  competent  

authority.  

10. It is vehemently contented by the learned counsel for the  

appellant that there is no proper and valid sanction for  

prosecuting the appellant. The authority has not applied  

its  mind  and  has  not  taken  a  conscious  decision  by  

referring to any of the relevant materials. It is pointed out  

that  the  authority  has  only  accepted  the  

recommendations  of  the  Commissioner.  But  there  is  

nothing to show that the recommendation was before the  

authority. Still further, it is pointed out that the order of  

sanction  does  not  indicate  reference  to  any  material;  

however,  the  enclosures  give  an  indication  that  the  

inquiry  report  of  the  Special  Police  Establishment  and  

government letter were before the competent authority.  

In order to appreciate the contention properly, we shall  

extract the Resolution of the Standing Committee, which  

reads as follows:

“RESOLUTION NO.309 DATED 27-08-1996 OF  STANDING  COMMITTEE  MEETING,  UJJAIN  MUNICIPAL CORPORATION   

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With regard (sic) to sanction of prosecution  in  Crime  No.  54/93  against  Administrator  of  Municipal  Corporation  and  others,  letter  of  Commissioner  Municipal  Corporation  No.310  dated 22.06.1996 stating that “the Government  has sought sanction for prosecution of Shree R.K.  Sharma, the then Superintending Engineer, Shree  R.K.  Bhagat  the  then  City  Engineer,  Shree  P.L.  Tatwal,  the  then  Assistant  Engineer,  who were  posted with Municipal  Corporation Ujjain.  Under  section 19(1)(c) (sic) of Prevention of Corruption  Act, sanction for prosecution can be accorded by  the authority which is competent to remove such  public  servant  from  the  office.  The  Standing  Committee  is  the  Appointing  Authority  of  the  above  three  officers.  That  way  Corporation  is  competent  to  accord  sanction  for  prosecution  against  them.  The  factual  position  about  the  three officers is as below. Shree R.K. Sharma the  then Superintending Engineer was not from this  department and was sent on deputation by the  government  and  is  now  at  presently  retired.  Shree  R.K.  Bhagat  the  then  City  Engineer  has  since  retired  and  Shree  P.L.  Tatwal  the  then  Assistant  Engineer  is  presently  posted  with  Municipal Corporation Ujjain. So please intimate  Honourable  Mayor  about  the  above  factual  position and decision about grant of sanction be  intimated  so  that  the  government  may  be  intimated of the decision.

After discussion, unanimously resolved that  as  per  the  recommendation  of  Municipal  Commissioner, sanction is granted to take action  to  prosecute  the  concerned  officers.  Action  be  taken according to law.

Sd/- (Smt. Anju Bhargav) Chairman, Standing Committee

Municiipal Corporation Ujjain Copy:-

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         Sr. No.:- 1334              Date :- 11-9- 96

Commissioner,  Ujjain  Municipal  Corporation  to  take necessary action. Enclosed :- Government   letter   and  

photocopy    of enquiry report of Special Police  Establishment.

Sd/- Municipal Secretary

Ujjain Municipal Corporation”

(Emphasis supplied)

11. It  may be seen that  only the second paragraph of the  

Resolution speaks about the sanction and that is following  

the  recommendation  of  the  Municipal  Commissioner.  

Whether that formed part of the government letter, it is  

not  clear.  The  contents  otherwise  of  the  government  

letter are also not clear.

12. The grant of sanction is only an administrative function. It  

is  intended  to  protect  public  servants  against  frivolous  

and vexatious litigation. It also ensures that a dishonest  

officer is brought before law and is tried in accordance  

with law. Thus, it is a serious exercise of power by the  

competent  authority.  It  has  to  be  apprised  of  all  the  

relevant materials, and on such materials, the authority  

has to take a conscious decision as to whether the facts  

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would  reveal  the  commission  of  an  offence  under  the  

relevant provisions. No doubt, an elaborate discussion in  

that  regard in  the order  is  not necessary. But  decision  

making on relevant materials should be reflected in the  

order and if not, it should be capable of proof before the  

court.  

13. In a recent decision in  State of Maharashtra through  

Central Bureau of Investigation v.  Mahesh G.Jain2,  

the  court  has  referred to the various decisions on this  

aspect  from paragraph 8 onwards. It  has been held at  

paragraph 8 as follows:

“8. In  Mohd. Iqbal Ahmed v.  State of A.P.5 this  Court  lucidly  registered  the  view  that  (SCC  p. 174, para 3) it is incumbent on the prosecution  to prove that a valid sanction has been granted  by the sanctioning authority after being satisfied  that  a  case  for  sanction  has  been  made  out  constituting an offence and the same should be  done  in  two  ways;  either  (i)  by  producing  the  original  sanction which itself  contains  the  facts  constituting  the  offence  and  the  grounds  of  satisfaction,  and  (ii)  by  adducing  evidence  aliunde  to  show  the  facts  placed  before  the  sanctioning authority and the satisfaction arrived  at by it. It is well settled that any case instituted  without a proper sanction must fail because this  being a manifest defect in the prosecution, the  entire proceedings are rendered void ab initio.”

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14. After  referring  to  subsequent  decisions,  the  main  

principles  governing the  issue have been culled out  at  

paragraph 14 which reads as follows:

“14.1. It  is  incumbent  on  the  prosecution  to  prove that the valid sanction has been granted by  the sanctioning authority after being satisfied that a  case for sanction has been made out.

14.2. The  sanction  order  may  expressly  show  that  the  sanctioning  authority  has  perused  the  material placed before it and, after consideration of  the  circumstances,  has  granted  sanction  for  prosecution.

14.3. The  prosecution  may  prove  by  adducing  the evidence that the material  was placed before  the  sanctioning  authority  and  its  satisfaction  was  arrived  at  upon  perusal  of  the  material  placed  before it.

14.4. Grant of sanction is only an administrative  function and the sanctioning authority is required to  prima facie reach the satisfaction that relevant facts  would constitute the offence.

14.5. The  adequacy  of  material  placed  before  the  sanctioning  authority  cannot  be  gone into  by  the  court  as  it  does  not  sit  in  appeal  over  the  sanction order.

14.6. If the sanctioning authority has perused all  the  materials  placed before it  and some of  them  have  not  been  proved  that  would  not  vitiate  the  order of sanction.

14.7. The order of sanction is a prerequisite as it  is  intended  to  provide  a  safeguard  to  a  public  servant against frivolous and vexatious litigants, but  simultaneously an order of sanction should not be  construed in a pedantic manner and there should  not  be  a  hypertechnical  approach  to  test  its  validity.”

15. Though the appellants made a specific objection in this  

regard  before  the  Special  Judge,  unfortunately  in  the  

order dated 27.12.2004, it is seen that there is no inquiry  

by the court in this regard. There is no reference at all to  

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the  recommendation  made  by  the  Municipal  

Commissioner.  Before  the  High  Court  also,  though  the  

submissions  were  reiterated,  the  only  consideration  in  

that regard is available at paragraph 21 of the impugned  

order which reads as follows:

“21. It is not a case of the applicant that standing  committee of the Municipal Corporation was  not  competent  to  grant  sanction  under  section 19 of the Prevention of Corruption  Act,  1988.  Undisputedly,  the  competent  authority had passed the orders of sanction  against all the accused persons concerned.  The order of the sanction was passed after  considering  the  whole  record  of  the  case  and  proper  application  of  mind.  The  applicant failed to demonstrate the order of  sanction is suffering from non application of  mind.”

16. In such circumstances, we are of the view that the trial  

court should conduct a proper inquiry as to whether all  

the relevant materials were placed before the competent  

authority  and  whether  the  competent  authority  has  

referred  to  the  same  so  as  to  form  an  opinion  as  to  

whether  the  same  constituted  an  offence  requiring  

sanction for prosecution. In that view of the matter, we  

set aside the impugned order passed by the High Court  

and also order dated 27.12.2004 passed in Special Case  

No. 12 of 2004 by the trial court and remit the matter to  

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the  Special  Judge  (P.C.  Act,  1988),  Ujjain,  Madhya  

Pradesh.

17. Incidentally, we may also refer to the third point raised by  

the appellant. It is the submission that the proceedings  

for  prosecution  in  the  case  of  the  Commissioner  and  

Administrator,  who were  the  controlling  officers  of  the  

appellant,  having  been  quashed,  there  is  no  point  in  

continuing the trial  in  the case of the appellant  and it  

would  only  be  an  attempt  in  futility.  This  subsequent  

development may also be brought to the notice of the  

Special Judge which would be considered at the time of  

consideration of charge, in case the court enters a finding  

on valid sanction and decide to proceed with the case.  

The court  may  also  consider  the  fact  that  there  is  no  

sanction for prosecution in the case of the Superintendent  

Engineer and the City Engineer, who were the superior  

officers of the appellant at the relevant time and in whose  

case,  the  Standing  Committee  decided  not  to  give  

sanction  on  the  ground  that  they  were  not  in  service  

when the decision on sanction was taken.  

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18. The appeal is allowed to that extent. Parties to appear  

before the Special Judge (P.C. Act, 1988), Ujjain, Madhya  

Pradesh on 05.04.2014.

                                                                                                                ………..…………………….….. …………J.

         (SUDHANSU JYOTI  MUKHOPADHAYA)

                                                    ………………….. …………………………J.

            (KURIAN JOSEPH) New Delhi; February 19, 2014.  

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