REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   4969          OF 2009 (Arising out of SLP (C) No.14030 of 2006)

State of Punjab & Anr. … Appellants

Versus

Mohammed Iqbal Bhatti … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. The short question which arises for consideration in this appeal is as  

to  whether  the  State  has  any  power  of  review in  the  matter  of  grant  of  

sanction in terms of Section 197 of the Code of Criminal Procedure, 197.

3. The basic fact of the matter is not in dispute.

Respondent  was  working  as  Block  Development  and  Panchayat  

Officer.  A First  Information Report was lodged against him on or about

6.9.2001 under Sections 7 and 13(2) of the Prevention of Corruption Act,  

1988.  Upon completion of investigation, the Vigilance Department sought  

for sanction from the competent authority so as to enable it to prosecute the  

respondent.   By  an  order  dated  15.12.2002,  grant  of  such  sanction  was  

refused.  The matter,  however, was placed before the competent authority  

once again and on or about 14.9.2004 sanction to prosecute the respondent  

was granted.  Questioning the legality and/or validity of the said order, the  

respondent  filed  a  writ  petition  before  the  High  Court  of  Punjab  and  

Haryana.

By  reason  of  the  impugned  judgment,  the  said  writ  petition  was  

allowed opining that the State has no power of review and in any event, the  

impugned order could not have been passed as the State while passing its  

earlier order dated 15.12.2003 has exhausted its jurisdiction.

4. Mr. Vivek K. Goyal, learned Additional Advocate General appearing  

on behalf  of  the  appellants,  would urge that  the  jurisdiction  for  grant  of  

sanction being an administrative one, the State has the requisite power to  

review its  earlier  order.   It  was urged that  it  is  incorrect  to contend that  

power once exercised stands exhausted.

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5. Mr. Jasdeep Singh Gill,  learned counsel appearing on behalf of the  

respondent,  on the other hand, urged that the order impugned in the writ  

petition having been passed by the State on the same material, the said order  

was wholly illegal.   

6. The respondent  is  a public  servant.   The Governor  of  the State  of  

Punjab is his appointing authority.  He is, therefore, not removable from his  

office save by and with the sanction of the Government and in that view of  

the matter if he is accused in any offence alleged to have been committed by  

him while acting or  purporting to act  in discharging of his official  duty,  

grant of prior sanction is imperative in character in terms of Section 197 of  

the Code of Criminal Procedure, 1973.  The power of the State, as is well  

known, is performed by an executive authority authorized in this behalf in  

terms of the Rules of Executive Business framed under Article 166 of the  

Constitution of India insofar as such a power has to be exercised in terms of  

Article 162 thereof.  Once a sanction is refused to be granted, no appeal lies  

thereagainst.   

7. Although the State in the matter of grant or refusal to grant sanction  

exercises  statutory  jurisdiction,  the  same,  however,  would  not  mean  that  

power once exercised cannot be exercised once again.  For exercising its  

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jurisdiction at a subsequent stage, express power of review in the State may  

not be necessary as even such a power is administrative in character.  It is,  

however, beyond any cavil that while passing an order for grant of sanction,  

serious  application  of  mind  on  the  part  of  the  concerned  authority  is  

imperative.  The legality and/or validity of the order granting sanction would  

be subject  to  review by the criminal  courts.   An order  refusing to  grant  

sanction may attract judicial review by the Superior Courts.  Validity of an  

order of sanction would depend upon application of mind on the part of the  

authority  concerned and the material  placed before it.   All  such material  

facts  and material  evidences  must  be  considered  by  it.   The  sanctioning  

authority must apply its mind on such material facts and evidences collected  

during the investigation.  Even such application of mind does not appear  

from the order of sanction,  extrinsic  evidences may be placed before the  

court in that behalf.  While granting sanction, the authority cannot take into  

consideration  an  irrelevant  fact  nor  can  it  pass  an  order  on  extraneous  

consideration  not  germane for  passing  a  statutory  order.   It  is  also  well  

settled that the Superior Courts cannot direct the sanctioning authority either  

to  grant  sanction  or  not  to  do so.   The source  of  power  of  an authority  

passing  an  order  of  sanction  must  also  be  considered.  [See  Mansukhlal  

vithaldas Chauhan v. State of Gujarat [(1997) 3 SCC 622]

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8. The concerned authority cannot also pass an order of sanction subject  

to ratification of a higher authority.  [See  State (Anti Corruption Branch)  

Govt. of N.C.T. of Delhi and Anr. v.  Dr. R.C. Anand and Anr.     [(2004) 4  

SCC 615].

9. The High Court called for the entire records.  It perused the same.  It  

noticed  that  several  queries  were  raised  but  remained  unanswered.   The  

Departmental proceeding initiated against the respondent was dropped.  The  

recommendations  therefore  were made not  to grant  sanction on the basis  

whereof the aforementioned order dated 15.12.2003 was passed.  A finding  

of fact has been arrived at by the High Court that no material was placed  

before the competent authority.  Only a communication had been received  

from the Director, Vigilance Bureau dated 22.6.2004 wherein reference of  

the letter dated 26.5.2004 was made.  It, according to the High Court, was  

not a new material.  In the aforementioned situation, the High Court, opined:

“Once  the  Government  passes  the  order  under  Section 19 of the Act or under Section 197 of the  Code  of  Criminal  Procedure,  declining  the  sanction  to  prosecute  the  concerned  official,  reviewing such an order on the basis of the same  material,  which  already  stood  considered,  would  not  be  appropriate  or  permissible.   The  Government  is  expected  to  act  consciously  and  cautiously  while  taking  such  serious  decisions.  The  perusal  of  the  record  shows  that  pointed  

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queries  had  been  raised  to  be  answered  by  the  Vigilance Bureau but no answer was forthcoming  nor  any  had  been  submitted  subsequently  which  culminated  into  passing  of  the  later  order  dated  September 30, 2004.   We refrain ourselves from  mentioning the queries which had been raised but  it would suffice to say that the queries were never  answered at the relevant time when the order dated  December 15, 2003 had been passed nor the same  was  ever  commented  upon  as  no  answers  were  placed before the competent authority for passing  the impugned order dated September 30, 2004.”

10. The State of Punjab in exercise of its jurisdiction under Article 162 of  

the Constitution of India framed Rules of Executive Business.  Pursuant to  

Rules  18  and  19  thereof,  the  Department  of  Rural  Development  and  

Panchayat made Standing Orders.   

11. Rules 8 and 9 of the said Rules read, thus:

“8. All orders or instruments made or executed by  or  on  behalf  of  the  Government  of  the  State  of  Punjab shall be expressed to be made or executed  in the name of the Governor.

9.(1) Every order or instrument of the Government  of the State of Punjab shall be signed either by a  Secretary,  an  Additional  Secretary,  a  Joint  Secretary,  a  Deputy  Secretary  or  an  Under  Secretary  or  such  other  officer  as  may  be  specifically  empowered  by  the  Governor  in  that  behalf and the signature so made shall be deemed  

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to  be  the  proper  authentication  of  such order  or  instrument…”

12. In terms of the said Rules as also the Standing Order, the Minister of  

Rural Development and Panchayats is the competent authority to grant or  

refuse to grant sanction, so far as the respondent is concerned.   

13. Before  embarking  on the  rival  contentions,  we  may  also  place  on  

record that the Government of Punjab, Department of Vigilance had issued  

guidelines  in  terms  whereof  the  grant  of  sanction  by  the  Administrative  

Department may be refused; some of the provisions whereof read as under:

“3. The cases should not be delayed at the level of  administrative  department  when  sent  for  prosecution sanction.  Generally, the cases should  be decided with in two months time from the date,  the reference is made by the vigilance department.

4.  Although  the  grant  or  refusal  of  prosecution  sanction is  a matter  within the sole discretion of  the competent authority.   However,  the authority  can refuse to grant prosecution sanction for reason  such as…”

14. The First Information Report was lodged in 2001.  The proceeding for  

grant of sanction was initiated in that year.  Several queries were made to the  

Vigilance  Department.   Such  queries  had  to  be  made  as  the  respondent  

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herein  made  a  representation  that  he  had  been  falsely  implicated  at  the  

instance of some of the officers of the Vigilance Department who had set up  

a tout therefor.

15. The Hon’ble Minister noticed the said representation and by an order  

dated 15.12.2003 refused to grant sanction, stating:

“3.  After  minutely  going  through  the  averments  made in the representation submitted by the said  officer  the  Hon’ble  Minister  issued  order  for  submitted the file.   After scrutinizing the file by  Hon’ble Minister it  was found that the Vigilance  Department  has  been  unable  to  provide  the  clarification with regard to certain points as asked  by the Panchayat Department from the Vigilance  Department from which it is cleared that they did  not want to submit the clarification and want the  true facts remain hidden and not come to the fore.  Therefore,  in  this  situation,  the  sanction  to  prosecution  Sh.  Bhatti  by  the  Vigilance  Department is refused.”

The said order was signed by the Special Secretary, Government of  

Punjab.   

16. Before us, however, it was contended that requisite clarification was  

made  by  the  Deputy  Superintendent  of  Police,  Vigilance  Bureau  on  

17.12.2002 stating:

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“Besides  this  Sh.  Hans  Raj  Golden  has  no  link  with Vigilance Department.  It is false that he is a  tout of Vigilance Department.”

17. However, it is stated that with the change in the Government and after  

more than nine months of the said refusal to grant sanction, the Vigilance  

Department again approached the concerned Secretary for grant of sanction  

by a letter dated 16.05.2004.  The Deputy Secretary, Government of Punjab,  

Village  Development  and  Panchayat  Department  by  a  letter  dated  

30.09.2004 addressed to the Deputy Secretary, Vigilance Bureau, stated as  

under:

“On the above mentioned subject this department  vide  letter  memo  no.  6/37/2001-3  RDE-3/  9925  dated 15.12.2003 had refused to grant sanction for  prosecution of Sh. Mohammed Iqbal Bhatti.

2. Vide your letter under reference you had again  requested to grant sanction for prosecution of the  concerned  official  in  the  case  and  after  reconsidering  the  case,  sanction  for  prosecution  Sh. Mohammed Iqbal Bhatti, District Development  and Panchayat Officer is granted…”

18. The Governor of  Punjab in his  order  of  sanction dated 14.09.2004  

recorded  the  prosecution  case  presumably  as  contained  in  the  First  

Information Report and opined:

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“Therefore,  after  perusing  the  above  case  police  file,  documents,  challan  and  attached  all  the  documents minutely the Rajya Pal Ji has become  fully satisfied that the above Mohd. Iqbal D.D.P.O.  Ferozepur during the tenure of his service/ posting,  have  committed  an offence  u/s  7,  13(2)  88 P.C.  Act.”

The  said  order  was  also  signed  by  the  Secretary,  Government  of  

Punjab, Rural Development and Panchayat Department.   

19. The contention of the learned Additional Advocate General for the  

appellants  is  that  Rule  8  of  the  Rules  of  Business  shall  apply  whereas  

according to the learned counsel  for the respondent,  Rule 9 thereof shall  

apply.  In terms of Clause (3) of Article 166 of the Constitution of India all  

orders of the government must be issued in the name of the Governor.  Such  

orders, however, may be signed by any authorities specified in Rule 9 of the  

Rules of Business.  By reason of either Rule 8 or Rule 9 of the Rules of  

Business,  no  substantive  power  is  conferred.   The  Rules  of  Executive  

Business inter alia provided for three authorities before whom the records  

are  to  be  placed,  viz.,  Minister  of  the  Department,  Chief  Minister  and  

Cabinet.  It has not been contended that in terms of the Rules of Executive  

Business  read  with  the  Standing  Order,  the  Minister  of  the  Department  

concerned  could not  have refused to  grant  sanction.   What  is  contended  

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before us is that Rule 8 of the Rules of Business should have been complied  

with.   

20. It is now well-known that in the event it appears from the order and  

the records produced before the court, if any occasion arises therefor that  

even if a valid order is not authenticated in terms of Clause (3) of Article  

166 of the Constitution of  India,  the same would not  be vitiated in law.  

Failure to authenticate an executive order is not fatal.  The said provision is  

directory  in  nature  and  not  mandatory.  [See  I.T.C.  Bhadrachalam  

Paperboards  and  Another v.  Mandal  Revenue  Officer,  A.P.  and  Others  

(1996) 6 SCC 634].   From a perusal  of the order dated 15.12.3003, it  is  

evident  that  before  the  Hon’ble  Minister  all  the  relevant  records  were  

produced.   

21. The Vigilance Department did not contend that the Hon’ble Minister  

did  not  have  any  jurisdiction.   It  accepted  the  said  order.   It  was  not  

challenged.  Only when a new government came in, a request was made for  

reconsideration of the earlier order, as would be evident from the memo of  

the Secretary of the Department.   

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22. It was, therefore, not a case where fresh materials were placed before  

the  sanctioning  authority.   No  case,  therefore,  was  made  out  that  the  

sanctioning authority had failed to take into consideration a relevant fact or  

took into consideration an irrelevant fact.  If the clarification sought for by  

the Hon’ble Minister had been supplied, as has been contended before us,  

the same should have formed a ground for reconsideration of the order.  It is  

stated  before  us  that  the  Government  sent  nine  letters  for  obtaining  the  

clarifications which were not replied to.   

23. The High Court in its judgment has clearly held, upon perusing the  

entire records, that no fresh material was produced.  There is also nothing to  

show as to why reconsideration became necessary.  On what premise such a  

procedure was adopted is not known.  Application of mind is also absent to  

show the necessity for reconsideration or review of the earlier order on the  

basis of the materials placed before the sanctioning authority or otherwise.

24. For the reasons aforementioned, there is no merit in this appeal which  

is dismissed accordingly.  However, in the facts and circumstances of the  

case, there shall be no order as to costs.

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……………………………….J. [S.B. Sinha]

..…………………………..…J.     [Deepak Verma]

New Delhi; July 31, 2009

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