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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1971 OF 2015 (Arising out of S.L.P. (Civil) 18758 of 2014)

State of Madhya Pradesh & Ors. … Appellants

Versus

Anand Mohan & Anr … Respondents

J U D G M E N T

Prafulla C. Pant, J.

     This  Appeal  is  directed  against  judgment  and  order

dated  03.09.2013  passed  by  the  High  Court  of  Madhya

Pradesh  at  Jabalpur  whereby  said  Court  has  allowed  Writ

Petition No. 21246 of 2012 challenging the order of sanction

for  prosecution,  passed  by  Secretary,  Law  and  Legislative

Affairs, Government of Madhya Pradesh, Bhopal.

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2.     Brief facts of the case are that respondent No.1 was an

Executive  Engineer,  and  respondent  No.2  was  an  Assistant

Engineer  with  Bhopal  Development  Authority  (for  short

“BDA”).  Said authority got constructed 33/11 KV Sub-Station

at  Raksha  Vihar  Colony,  Bhopal,  for  which  tenders  were

invited on 25.07.1995, and work order was given in favour of

one  A.R.K.  Electricals,  Bhopal.  The  construction  was

completed on 25.09.1997, and ownership of  the sub-station

was transferred to Madhya Pradesh State Electricity Board (for

short  “MPSEB”).  It  is  alleged  that  the  respondents,  in

connivance  with  other  accused,  entered  into  a  criminal

conspiracy in connection with above construction work, and

got prepared a forged note-sheet,  pursuant to which excess

payment of  Rs.  9,51,657/- was paid to a contractor (Ashok

Johri).   On  this  information,  Economic  Offences  Wing  (for

short “EOW”) of the State Government registered Crime No. 28

of  2004 in respect of offences punishable under Sections 420,

467, 468, 471, 120B and 201 IPC, and under Section 13 (1) (d)

read with Section 13 (2) of Prevention of Corruption Act, 1988

(for  Short  “the  Act”)  against  the  respondents  and  other

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accused.  After  investigation,  the  Wing  sought  previous

sanction  necessary  for  prosecution of  the  respondents  from

the Administrative Department of the State Government.   The

Administrative  Department  of  the  State  Government,  after

examining  the  papers  declined  the  sanction  vide  its  order

dated 08.03.2011.  However,  on completion of  investigation,

when charge sheet was filed against the accused before the

Court of Special Judge (Prevention of Corruption Act), Bhopal,

the  court,  vide  its  order  dated  15.02.2012,  directed  that

necessary  sanction  for  the  prosecution  of  respondents  be

obtained from appellant No. 2, Secretary, Department of Law

and Legislative Affairs, Government of Madhya Pradesh, which

is the Competent Authority. Said Authority after examining the

papers vide order dated 20.11.2012, (Annexure P-8) granted

necessary sanction to prosecute the respondents.

3. The respondents challenged the order dated 20.11.2012,

passed  by  present  appellant  No.2  before  the  High  Court

through Writ  Petition  No.  21246 of  2012.   The  High Court

allowed  the  Writ  Petition  holding  that  appellant  No.  2,  i.e.

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Secretary, Department of Law and Legislative Affairs was not

the Competent Authority to grant the sanction.  

4. Learned counsel for the appellants argued before us that

the  High  Court  has  erred  in  law  in  holding  that  the  Law

Department  was  not  the  Competent  Authority  to  grant

sanction for the prosecution. In this connection reference was

made to the Order/Notification dated 03.02.1988 (Annexure

P-1) issued by the State Government regarding amendment in

the relevant rules delegating the power  relating to sanction of

prosecution to the Department of Law and Legislative Affairs

passed by the State Government.

5. On the other hand, learned counsel for the respondents

contended that the Competent Authority to grant sanction for

prosecution  against  the  present  respondents  was  appellant

No. 1, Secretary, Housing and Environment of  Government of

Madhya Pradesh, and said authority had declined to grant the

sanction  vide  its  Order  dated  08.03.2011.  It  is  further

submitted that appellant No. 2 was conferred power to grant

the sanction vide circular dated 28.02.1998, as such it was

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not competent to grant sanction in respect of offence alleged to

have been committed by the respondents in the year 1997.  

6. We have considered the rival submissions of the parties.

Section  19  (1)  of  the  Prevention  of  Corruption  Act  requires

previous  sanction  for  prosecution  of  a  public  servant  in

respect  of  offence  punishable  under  Section  13  of  the  Act,

Section 19 of the Act reads as under:

“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,  save  as  otherwise  provided  in  the Lokpal and Loakayuktas Act, 2013 -  

(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.

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the  respondents.  The  only  issue  is  as  to  which  of  the

department of the State was competent to grant the sanction.

Order  dated  03.02.1988  (Annexure  P-1),  published  in  the

Official  Gazette,  whereby  the  Madhya  Pradesh  Works

(Allotment) Rules (for Short “MPWAR) were amended, reads as

under:

“Madhya Pradesh Gazette (Extraordinary)

Published by Authority

No. 35, Bhopal Wednesday, 3rd February, 1988 Personnel Administrative Reforms & Training

Department Bhopal, dated 3rd February, 1988

No.  F  A-1-1-88-49  (1)-225:  In  exercise  of  powers conferred by clauses (2) and (3) of Article 166 of the Constitution  of  India  the  Hon’ble  Governor  of Madhya  Pradesh  makes  more  amendments  in Madhya Pradesh Works (Allotment) Rules, namely:-

Amendment

In the aforesaid rules: -

(1) The para 4 is replaced with the following para in the policy made in the para 21 in the Schedule-in (A)  Department  under  Law  &  Legislative  Affairs Department, namely:-

4  (One)  Criminal  Procedure  includes  all  subjects coming  under  Criminal  Procedure  Code  save  the probation of the Criminals, and

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(2) Sanction of prosecution under Section 6 of the Prevention of Corruption Act, 1947.

(2) The following  term added by  the  Notification No.  2980-3632-A(1),  dated  18th November,  1983 irrespective  of  any serial  number to which it  was added, and which has been amended from time to time  in  respect  of  the  policy  made  in  part  (A) Department under the heads of all the departments, be deleted.

Sanction of the prosecution under Section 173 of the Criminal Procedure Code, 1973 and Section 6 of the Prevention of Corruption Act, 1947 in respect of services related to those departments.

By order & in the name of the Governor of MP A.D. Mohile, Special Secretary”

8. Consequent  to  above  amendment,  Chief  Minister  of

Madhya Pradesh vide order dated 08.02.1988 (Annexure P-2)

delegated the power to grant sanction for prosecution of the

public servants to the Law Secretary of Madhya Pradesh Law

Department. Said document is reproduced below:

“Madhya Pradesh Government Personnel, Administrative Reforms and Training

Department

ORDER

Bhopal, dated 8th February, 1988

According  to  the  para  (1)  of  Directive  No.2  of Supplementary  Directive  Part-5  under  Rule-1  of

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Works Rules of  the Madhya Pradesh Government made by the Hon’ble Governor in exercise of powers conferred by  Clause  (2)  and (3)  of  Article  166 of Constitution  of  India,  No.  F  A  1-1/88/49/1, pursuant  to  the  authority  invested  to  me  and superseding  the  order  dated 4th November  of  the General Administrative Department, I Motilal Vora, Chief  Minister,  hereby  direct  that  the  Secretary, Madhya  Pradesh  Government,  Law  Department shall dispose of the cases related to the prosecution sanction of the Government servants.

Sd/- Motilal Vora

Chief Minister”   

9. By  the  Order  dated  21.04.1997  (Annexure  P-3),  it  is

provided that the Department of  Law and Legislative Affairs

shall obtain opinion of the concern Administrative Department

before granting the sanction. It is further provided that in case

of conflict between the two departments, the matter shall be

referred to Sub-Committee of the Cabinet. However, the order

dated 21.04.1997 (Annexure  P-3)  was withdrawn vide  letter

dated 10.07.1997 (Annexure P-4) to the extent that in case of

conflict  the  matter  would  be  required  to  be  referred  to

Sub-Committee  of  the  Cabinet.   Letter  dated  10.07.1997

(Annexure P-4) is reads as follows:

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“State of Madhya Pradesh General Administrative Department

No.F-15(6)/96/1-10 Bhopal dated 10.07.1997

To All member Secretary/Secretaries of the Government State of Madhya Pradesh Bhopal

Sub. Sanction for prosecution against the  Government Employees/Officers.

Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997  issued by this Department

Vide  reference  circular  of  this  department,  the procedure  for  according  sanction  for  prosecution was determined.

As  per  order  following  part  is  deleted  from  the prescribed procedure in Para 2 of the said circular.

“In  case  of  conflict  between  the  Law  Department and the Administrative Department, the case shall be  presented  before  the  Sub-Committee  of  the Cabinet by the Administrative Department.”

Remaining procedure of the reference circular shall remain as it is. Please ensure action in the cases of sanction for prosecution in future accordingly.

Sd/- A.V. Gwaliorkar

Deputy Secretary State of MP

General Administrative Department

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No.F-15(6)/96/1-10 Bhopal dated 10.07.1997

Copy to

Officer on Special duty, Lokayukta Office,  Madhya Pradesh Bhopal for information

Sd/- A.V. Gwaliorkar

Deputy Secretary State of MP

General Administrative Department”

10. By the Order  dated 28.02.1998, the State  Government

further  clarified  that  in  the  matters  of  sanction  for

prosecution,  the papers shall  be sent by the Department of

Law  and  Legislative  Affairs  along  the  record  to  the

Administrative  Department  for  its  opinion  and  the

Administrative Department shall give the same within a period

of one month, whereafter Department of Law and Legislative

Affairs shall take a decision.

11. It  is  not  disputed  that  State  of  Madhya  Pradesh

Economic Offence Wing registered Crime No.  28 of  2004 in

respect  of  offences  under  Sections  420,  467,  468,  471 and

120B IPC and under Section 13 (1) (d) read with Section 13 (2)

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Prevention of Corruption Act, 1988 against the respondents on

the allegation that the respondents in connivance with others

prepared  forged  note  sheet,  and  made  payment  of  Rs.

9,51,657/- to a contractor abusing their position.  It is also

not  disputed  that  when  the  EOW  sought  sanction  for

prosecution from Department of Housing and Environment, it

declined the sanction vide order dated 08.03.2011 (Annexure

P-6).  Question before us is that whether the Department of

Law and Legislative Affairs which granted the sanction vide its

order dated 20.11.2012 (Annexure P-8) was competent to do

so or not.

12. The High Court in the impugned order observed that the

(EOW) did not  challenge legality  and validity of  order dated

08.03.2011, and submitted the charge sheet. It further held

that since the appellant No. 2 was conferred power to grant

the sanction only vide circular dated 28.02.1998, as such it

was  not  competent  to  grant  the  sanction  relating  offences

alleged to have been committed in the year 1997.   

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13. We are unable to accept the view taken by the High Court

for the reason that from annexure P-1 and annexure P-2, it is

evident that the power to grant the sanction for prosecution,

already existed with the Department  of  Law and Legislative

Affairs,  since  February,  1988.  The  circular  letter  dated

28.02.1998 (Annexure P-5) does not confer any new power and

it  only  clarifies  that  Department  of  Law  and  Justice  is  a

competent authority not only in respect of investigations made

by  Lokayukta  Organization,  but  also  the  State  Economic

Offences  Investigation  Wing.  The  power  with  the  appellant

No.2 to grant the sanction is, in fact, conferred by the rule as

amended vide notification dated 03.02.1988 published in the

Official Gazette.  After such amendment in the rule whereby

power to grant sanction was delegated to Department of Law

and Justice,  it  cannot  said  that  Administrative  Department

had power to decline sanction as it  has done vide its order

dated 10.07.1997.  

14.       In  DDA and others vs.  Joginder S.  Monga and

others1 discussing the situation of conflict between statutory 1 (2004) 2 SCC 297

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rule  and  executive  instruction,  this  Court  has  clarified  as

under:

“30. It  is  not  a  case  where  a  conflict  has  arisen between a  statute  or  a  statutory  rule  on the  one hand  and  an  executive  instruction,  on  the  other. Only  in  a  case  where  a  conflict  arises  between a statute and an executive instruction, indisputably, the  former  will  prevail  over  the  latter.  The  lessor under the deed of lease is to fix the market value. It could  do  it  areawise  or  plotwise.  Once  it  does  it areawise which being final  and binding, it  cannot resile therefrom at a later stage and take a stand that in a particular case it will fix the market value on the basis of the price disclosed in the agreement of sale.”

15. On behalf of the respondents, reliance is placed in the

case  of  Sanjaysinh  Ramrao  Chavan Vs.  Dattatray

Gulabrao Phalke2,  but on going through said case law we

find that in said case investigation agency itself filed closure

report as against the appellant Sanjaysinh Ramrao Chavan,

and the same was accepted by the Magistrate, as such there

was  no  question  of  sanction  to  be  obtained  from  the

Department concerned. In the circumstances, we find that the

case of Sanjaysinh Ramrao Chavan (supra,) is of little help

to the present respondents.

2 2015 (1) SCALE 457

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16. Recently in  State of Bihar and others  v. Rajmangal

Ram3, this Court has held as under: -

“9. In  the  instant  cases  the  High  Court  had interdicted the criminal proceedings on the ground that  the  Law Department  was  not  the  competent authority to accord sanction for the prosecution of the  respondents.   Even  assuming  that  the  Law Department  was  not  competent,  it  was  still necessary  for  the  High  Court  to  reach  the conclusion  that  a  failure  of  justice  has  been occasioned. …………..”

17. From the sanction granted by the Law Department, copy

of which is annexed as Annexure P-8, it is evident that the

authority  has  examined  the  material  on  record  before

granting the sanction.

18.  Therefore, we are of the view that the High Court has

erred  in  law  in  allowing  the  Writ  Petition  filed  by  the

respondents seeking quashing of sanction dated 20.11.2012

granted by appellant No.2, Secretary, Department of Law and

Legislative Affairs,  Government of Madhya Pradesh.  We do

not find any infirmity as to the competence of appellant No.2

to grant the sanction in the matter for the reasons discussed

3 (2014) 11 SCC 388

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above.   Accordingly,  the appeal  is  allowed.   The impugned

order  dated  03.09.2013,  passed  by  the  High  Court,  is  set

aside.   

……………….....…………J. [Dipak Misra]

     .……………….……………J. New Delhi; [Prafulla C. Pant] July 09, 2015.