Prosecution Sanction Under Section 197 Cr.P.C Explained By Justice V Ram Kumar [Part-5]

T. Can the Government empower a responsible and senior officer to accord sanction on behalf of the Government either under the Cr.P.C or under the P.C Act, 1988 ?

21. Yes. Where it is the Government which has to accord prosecution sanction, the Government can empower a responsible and senior officer to accord such prosecution sanction. As per an amendment to the Rules of Business of the Government of Kerala, the Secretary (Vigilance) was authorised to grant prosecution sanction with effect from 23-04-1994 . Hence, sanction accorded by the said authority prior to the said date was held to be without the jurisdiction. Therefore, the appellant's conviction was not sustained and he was consequently acquitted of the charges. (Vide K. Devassia v. State of Kerala (2006) 10 SCC 447) – B. N. Agrawal. A.K. Mathur – JJ; P.A. Mohandas v. State of Kerala (2003) 9 SCC 504 - G. B. Pattanaik, Brijesh Kumar - JJ, wherein proceedings were quashed for want of jurisdiction of Secretary (Vigilance) to accord prosecution sanction prior to 23-04-1994, was followed.

NOTES BY THE AUTHOR: It eludes one's comprehension as to how the public servant in K. Devassia's case could be acquitted for want of prosecution sanction by the competent authority. The proper order should have been one of discharge which will not prevent a fresh trial on a valid sanction. (Vide Nanjappa v. State of Karnataka AIR 2015 SC 3060 - T. S. Thakur, Amitava Roy - JJ.)

In Krishna Iyer v. State of Kerala - 2005 (1) KLT 391 (D.B) - J. B. Koshy, J. M. James - JJ, the argument of the accused that the Secretary, Vigilance Department was not competent to grant sanction to prosecute an officer working under another Department, was repelled by a Division Bench of the Kerala High Court . It was held that as per the Rules Business of the Government of Kerala issued under Article 166 of the Constitution of India, the sanction order issued by the Secretary, Vigilance Department on behalf of the Government, was proper and that even if there was any irregularity, the conviction cannot be set aside in view of Section 465 Cr.P.C.

Additional Secretary, Department of Law and Legislative Affairs of the State of Chhattisgarh authorised by the Government as the Appropriate Authority to grant sanction on behalf of the State Government, granted sanction in the name of the Governor of the State. This was upheld by the Chattisgarh High Court (Vide Pappu Singh Rajput v. State of Chhattisgarh 2016 KHC 2441 = 2016 Cri.L.J 612 – (Chhattisgarh H.C.) - Sanjay K. Agarwal - J.)

U. The power to accord prosecution sanction by an “authority superior” to the authority competent to grant prosecution sanction

22. Prosecution Sanction must be given by an authority competent to remove the accused from the office. It is enough that the authority giving sanction is of the same or higher rank or grade of the Authority who appointed the public servant. (Vide Mahesh Prasad v. State of U.P AIR 1955 SC 70 = 1955 Cr.L.J. 249 - 3 Judges - B. K. Mukherjea, Vivian Bose, B. Jagannadhadas - JJ). See also Sampuran Singh v. State of Punjab (1982) 3 SCC 200 = AIR 1982 SC 1407 – 3 Judges - A. P. Sen, E. S. Venkataramiah, R. B. Misra - JJ.)

The Special Officer who was competent to grant sanction was appointed by the Government. Hence prosecution sanction granted by the authority superior to the competent authority is valid. (Vide State of T.N v. T. Thulasingam 1994 Supp. (2) SCC 405 = AIR 1995 SC 1314 – Yogeshwar Dayal, Kuldip Singh – JJ.)

V. The Sanctioning authority whether can blindly and mechanically sign a ready-made sanction order prepared by the Police

23. No. The sanctioning authority should not blindly or mechanically sign a readymade sanction order prepared and sent to him by the Investigating Police Officer. The sanctioning authority should go through the relevant investigation papers placed before him and it is only after applying his mind to the facts constituting the offence and arriving at the requisite satisfaction that he can affix his signature on the readymade sanction order. If the application of mind and subjective satisfaction is discernible from the sanction order, then merely because he has put his signature on a readymade sanction order cannot render the order of sanction invalid. (Vide para 9 of Indu Bhusan Chatterjee v. State of W.B. – AIR 1958 SC 148 – 3 Judges - B. P. Sinha, S. J. Imam, J. L. Kapur - JJ.)

But the sanction was held valid in a case where the sanctioning authority had before it only the FIR and a letter of Superintendent of Police containing all the facts and circumstances of the case and the order of the sanctioning authority showing that sanction was given after considering all the facts disclosed in the aforesaid two documents. (Vide Ram Sagar Pandit v. State of Bihar (1964) 2 Cri.L.J 65 (SC) – 4 Judges - S. Jafer Imam; K. Subba Rao; N. Rajagopala Ayyangar; J. R. Mudholkar - JJ.)

W. The permissibility of the sanctioning authority to call for proof or records to examine the truth of the materials relied on by the prosecution.

24. It is not open to the sanctioning authority to call for the records or proof of the allegations made against the public servants for judging the truth or otherwise of the allegations. (Vide para 9 of Indu Bhusan Chatterjee v. State of W.B – AIR 1958 SC 148 – 3 Judges - B. P. Sinha, S. J. Imam, J. L. Kapur - JJ.)

The adequacy of the material placed before the sanctioning authority cannot be gone into by the Court also since the Court does not sit in appeal over the sanction order. (Vide para 13 (e) of State of Maharashtra v. Mahesh G. Jain (2013) 8 SCC 119 - Dr. B. S. Chauhan, Dipak Misra - JJ.)

X. The permissibility of the sanctioning authority to reconsider his earlier order refusing sanction

25. Sanctioning authority is not bound by its earlier order refusing sanction and can reconsider the same. (Vide para 4 of Parmanand Dass v. State of A.P – (1978) 4 SCC 32 = AIR 1978 SC 1745 - Jaswant Singh, P. S. Kailasam – JJ – held that the validity of the sanction can only be considered at the time when it is filed before the Special Judge and that there is no legal bar in the sanctioning authority revising its own opinion before the sanction order is placed before the Special Court. This was a prosecution under the P. C. Act, 1947.)

Y. Whether the grant of prosecution sanction a quasi-judicial act or an administrative act

26. Grant of prosecution sanction is only an administrative act and not a quasi judicial function although it may result in the consequence of the accused being saddled with the liability to be prosecuted in a court of law. That is why the sanctioning authority is not bound to give an opportunity of being heard to the delinquent/accused. (Vide –

• K. Veeraswami v. Union of India (1991) 3 SCC 655 - 5 Judges - B. C. Ray, K. Jagannatha Shetty, L. M. Sharma, M. N. Venkatachaliah, J. S. Verma - JJ;
• State of Bihar v. P.P. Sharma - 1992 supp (1) SCC 222 = AIR 1991 SC 1260 - Kuldip Singh, K. Ramaswamy – JJ;
• State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542 = AIR 1996 SC 722 - M. K. Mukherjee, B. N. Kirpal - JJ;
• State of M.P v. Dr. Krishna Chandra Saksena – (1996) 11 SCC 439 - A. S. Anand, S. B. Majmudar - JJ;
• Supdt. Of Police (CBI) v. Deepak Chowdhary (1995) 6 SCC 225 = AIR 1996 SC 186 - K. Ramaswamy, B. L. Hansaria - JJ;
• State Anti-Corruption Bureau v. P. Suryaprakasam – 1999 SCC (Cri) 373 – M. K. Mukherjee, S. P. Kurdurkar – JJ;
• Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64 - G. S. Singhvi, A. K. Ganguly - JJ;
• P. L. Tatwal v. State of M.P (2014) 11 SCC 431 - S. J. Mukhopadhaya, Kurian Joseph - JJ.)

NOTES BY THE AUTHOR: After the amendment of the Prevention of Corruption Act, 1988 with effect from 26-07-2018 where a “public servant” is prosecuted by means of a complaint by a private person, the second proviso to Section 19 (1) of the Prevention of Corruption Act, 1988 provides for an opportunity of hearing to the public servant concerned. But no corresponding right is sought to be given to the complainant. This provision may go to show that at least in the case of prosecution sanction in a private complaint, the grant of sanction may not be strictly an administrative act.

Incidently, it is interesting to note that as per the amended Section 19, in the case of a private complaint, the complainant is to obtain prosecution sanction only when the complaint is not dismissed under Section 203 Cr.P.C. and the Court has directed the complainant to obtain the sanction for prosecution against the “public servant” for proceeding further. (Vide clause (ii) of the first proviso to Section 19 (1) of P. C. Act.) This is a post-cognizance procedure and the law-maker expects this to be done before the Court taking cognizance of the offence. There is an apparent contradiction in the said amended provision which also is expected to be rectified by the law maker.

Z. The necessity, if any, to examine the sanctioning authority as a witness before Court

27. There is no need to examine the sanctioning authority as a witness during the trial of the case before Court. What the prosecution has to prove is that the sanctioning authority applied his mind to the facts constituting the offence. If this is discernible from the sanction order itself, there ends the matter. If the above aspect is not discernible on the face of the sanction order, then what the prosecution is expected to do is not to examine the sanctioning authority as a witness, but instead, prove by extraneous evidence that the relevant facts were placed before the sanctioning authority.

Sanctioning authority need not be examined as a witness. In paragraph 8 of State of M.P. v. Jiyalal - (2009) 15 SCC 72 = AIR 2010 SC 1451 = 2009 KHC 975 - K. G. Balakrishnan - C. J., P. Sathasivam - J, the Apex Court held as follows:-

“8. It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bonafide manner. It was of course open to the respondent to question the genuineness or the validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution”

(emphasis supplied)

In Antony Cardoza v. State of Kerala 2011 (1) KLT 946 = 2011 (1) KHC 377 = ILR 2011 (1) Ker. 530 - V. Ramkumar - J, decided by me, I observed that the sanctioning authority should have been examined as a witness for proving the order of sanction, his application of mind and the requisite satisfaction. The said observation was made without being aware of Jiyalal's case referred to above. From the law journals I subsequently came to know that relying on Antony Cardoza, the High Court of Kerala in several cases, had recorded unmerited acquittals for the non-examination of the authority who had accorded prosecution sanction. Pained by such unmerited acquittals, I was constrained to pen an article titled “PROSECUTION SANCTION – A FORMER JUDGE PLEADS GUILTY”, which had been published in the “live law” and other law journals.

NOTES BY THE AUTHOR: But, if either the prosecution or the defence wants to elicit any apparent contradiction in the order of the sanctioning authority, it is open to them to summon the sanctioning authority and seek a clarification.