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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2491 OF 2014

Vivek Batra … Appellant

Versus

Union of India and others … Respondents

J U D G M E N T

Prafulla C. Pant, J.

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. 3654 of 2012, whereby

the  petition  challenging  the  sanction  dated  09.10.2012  for

prosecution  of  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.  BA1/2005/A0017  was  registered  on

04.04.2005  by  Central  Bureau  of  Investigation  (CBI)

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(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.1,27,38,353/- in his name and in the names of his wife

and  minor  son  during  the  check  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, M/s.

ARJ Impex Private Limited and M/s. Malik Hospitality Services

Private  Limited.   According  to  CBI,  the  appellant’s  wife

Priyanka  Batra  incorporated  a  company,  M/s.  ARJ  Impex

Limited, to engage in import-export 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 back, several

of  these  loans  were  from Priyanka  Batra  herself.   Further,

though the  sale  of  income of  the  company was minimal,  it

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acquired assets of Rs.85,70,770/- during the check period.  It

appears that Karan Singh and Vijay Kumar had incorporated

another  company  called  M/s.  Malik  Hospitality  Services,

whose  main  source  of  income  was  unsecured  loans  from

various  individuals  and  companies.   The  company  had

acquired assets of Rs.20,52,013/- and had unrepaid loans of

Rs.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.

3. The  appellant  was  arrested  on  02.09.2010,  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  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

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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

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  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,  vide  its  order  dated

09.10.2012, granted sanction for prosecution of the appellant,

who challenged the 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

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opinion  of  the  Finance  Department  that  the  evidence  laid

before it was not sufficient to grant sanction for prosecution.

It is pointed out that there was difference of opinion between

Finance  Ministry  and  the  CVC.   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 CVC, as such, the sanction for prosecution

stood  declined,  and grant  of  the  sanction by  the  successor

Finance  Minister  cannot  be  said  to  be  a  valid  sanction  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. King-Emperor1, and argued that where a power is

given to do a certain thing in a certain way, the thing must be

done in that way or not at all.

5. We have  considered the  submissions of  learned senior

counsel, and perused the record.   

1 AIR 1936 PC 253

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6. Before further discussion, we thing it just and proper to

quote  relevant  part  of  Government  of  India  (Allocation  of

Business) Rules, 1961.  Sub-rules (3) and (4) of Rule 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) If  he  is  a  Government  servant,  by  the Department  which  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,  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

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 any of such Acts to accord sanction under all  such Acts.

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(4) Notwithstanding  anything  contained  in sub-rule (3), the President may, by general or special order, direct that in 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 Bachhittar Singh v. The State of

Punjab2, Constitution Bench of this 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  Chhabra  and  others  v.  State  of

Punjab and others3, this Court held as under: -

“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 particular  person  or  group  of  persons.  Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be  taken  by  the  designated  authority  keeping  in

2 [1962] Supp. 3 SCR 713 3 (2010) 4 SCC 192

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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

Development Authority and others4, this Court observed as

under: - “14. It  is  trite  to  state  that  notings  in  a departmental 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 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 for outside exposure. Notings  in  the  file  culminate  into  an  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 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

4 (2009) 1 SCC 180

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to grant the sanction.  What is required under Section 19 of

the Prevention of Corruption Act, 1988 is that for taking the

cognizance of 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 of a 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 (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 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.

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 (2 of 1974), -

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(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 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 such error, omission  or  irregularity  has  resulted  in  a failure of justice;

(c) no court shall stay the proceedings under this Act  on any other  ground and no court  shall exercise  the powers of  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  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 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,  as  has  been contended before  us.   The

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opinion of CVC, 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 matters as may be referred to it by the Government.

12. For the reasons, as discussed above, we find no reason to

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 Court, 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.

……………………………..J. [Ranjan Gogoi]

……………………………..J. [Prafulla C. Pant]

New Delhi; October 18, 2016.