Page 1 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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REPORTABLE

Page 2 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 Orissa

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.

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

was granted by the Standing Committee of the

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(2011) 7 SCC 167

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Page 3 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was subsequently withdrawn, that order was set aside by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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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.Jain

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,

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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(2013) 8 SCC 119

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Page 11 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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Page 12 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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Page 13 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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Page 14 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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