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PETITIONER: MANSUKHLAL VITHALDAS CHAUHAN

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       03/09/1997

BENCH: M.K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD. J.      The appellant,  who as  Divisional Accountant,  held  a Class III Post, in the medium Irrigation Project Division at Ankleshwar,  Gujarat,  was  prosecuted  for  offences  under Section 161  IPC and  Section  5(2)  of  the  Prevention  of Corruption  Act,  1947  and  was  ultimately  convicted  and sentenced to  two years’ rigorous imprisonment and a fine of Rs.15,000/- for  the offence  under Section  5(2) of the Act and another  two years rigorous imprisonment for the offence under Section  161 IPC,  by the  trial court namely, Special Judge, Bharuch. This was upheld by the High Court in appeal. 2.   Mr. U.R.  Lalit, Senior  counsel appearing on behalf of the appellant  has strenuously  contended  that  the  entire proceedings, namely,  the proceedings before the trial court as also  the High  Court are liable to be set aside as there was no valid sanction within the meaning of Section 6 of the Prevention of  Corruption Act, 1947 (hereinafter referred to as "the  Act") with the consequence that the trial court had no jurisdiction  to take  cognizance of these offences, much less try  them. This contention is challenged by the counsel appearing on  behalf  of  the  State  of  Gujarat,  who  has contended that  there was  proper and valid sanction granted within the meaning of the Act and it was thereafter that the trial court  took cognizance  of the  offences and initiated the case  which ultimately  ended in  the conviction  of the appellant. The  trial court  as also  the High  Court before whom the question of want of "sanction" was raised have held concurrently  theat   there  was   proper  sanction  by  the competent authority and therefore, the appellant was rightly convicted particularly  as the  charges were  proved against him. 3.   In order  to  appreciate  the  controversy  as  regards "sanction", we may set out following few facts. 4.   M/s R.L.  Kalathia &  Company, a  partnership  firm  of eleven partners,  one of  whom was  Mr. Harshadrai Laljibhai Kalathia,  were   awarded,  in   1979,  the   contract   for constructing Pigut  Dam in  Valia Taluka of District Bharuch at an estimated cost of Rupees eighty six lacs. The work was completed on  31st December,  1982. Excluding  the  payments

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made against  running bills,  there still  remained a sum of Rupees eighty  lacs to  be paid  to the contractor from whom the appellant  allegedly demanded Rs.20,000/- but Harshadrai Laljibhai  Kalathia   reported  the  matter  to  the  Deputy Director (Anti  Corruption), Shri Vaghela, who, in his turn, briefed the  Police Inspector,  Shri Agravat and the latter, namely Shri  Agravat arranged and laid a trap on 4.4.83. The currency notes, treated with anthracene powder, were offered to the  appellant who  was, allegedly,  caught red-handed by the raiding  party. Police  Inspector Agravat  examined  the hands of the appellant in the light of the ultra violet lamp which indicated marks of anthracene powder on the tips, palm and fingers of the left hand as also on his right hand. Some marks of  blue anthracene  powder were  also  found  on  the currency  notes.   Inspector  Agravat   gave  a  receipt  of Rs.20.000/- to  the appellant and took the currency notes in his possession. The usual Panchnama was prepared and further investigation was carried out by Shri Agravat. 5.   In the meantime, the appellant submitted an application (Ex. 45)  to the Home Minister on 9.3.1984 for investigation being handed  over  to  an  independant  officer.  The  Home Minister  by   his  order  dated  13.3.1984  directed  fresh investigation  of  the  case,  in  pursuance  of  which  the investigation was  taken up  by the Assistant Director, Shri Vaghela, who  submitted a  fresh report  in  December,  1984 against the  appellant. On  the receipt  of this report, the Secretary, Gujarat Vigilance Commission, by his letter dated 3.1.1985, wrote  to the  Government to  grant  sanction  for prosecuting the appellant as a prima facie case was made out against  him  after  fresh  investigation.  The  Government, however,  did   not  immediately   grant  the  sanction  and consequently  the  complainant,  Shri  Harshadrai  Laljibhai Kalathia, filed,  in the name of the firm, M/s R.L. Kalathia & Company,  a Special  Civil Application No. 5126 of 1984 in the Gujarat High Court under Article 226 of the Constitution for a  direction to  the respondents,  namely the  State  of Gujarat and others, to sanction prosecution of the appellant for offence punishable under Section 161 IPC and 5(2) of the Act. The  Gujarat High  Court, by  its order dated 2.1.1985, partly  allowed   the  petition  and  passed  the  following operative order :      "In the  result, this  petition  is      partly allowed.  Respondent  No.  7      (newly added) is directed to accord      sanction   under    the    relevant      provisions  of  the  Prevention  of      Corruption Act  to  prosecute  M.V.      Chauhan   who    was   woking    as      Divisional  Accountant   of  Medium      Irrigation Project at Ankleshwar as      stated above. It need not be stated      the   prosecution   will   be   for      offences   punishable   under   the      relevant   provisions    of    law.      Respondent No.  7  is  directed  to      accord sanction  within  one  month      from the  receipt of  the  writ  of      this Court.      Rule made  absolute to  the  extent      stated above  with no  order as  to      costs." 6.   From the  above it  will be  seen that the Secretary of the Department  who was  not originally  a party in the writ petition, was impleaded as respondent No. 7, and a direction was given  by the  High Court  to  the  Secretary  to  grant

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sanction for prosecuting the appellant. 7.   In view  if the  judgment of  the Gujarat  High  Court, sanction was given and the appellant was prosecuted. 8.   Section 197  of the Criminal Procedure Code which deals with the  prosecution of  Judges  and  Public  Servants  for offence alleged  to have been committed by them while acting or purporting  to act  in the  discharge of  their  official duty, lays  down that no court shall take cognizance of such offences except  with the  previous sanction  either of  the Central Government  or the State Government, as the case may be. Section  6 of  the  Act,  however,  contains  a  special provision for  sanction for  prosecution for  a few specific offences, including the offence punishable under Section 161 IPC. It provides as under :      "6, Previous sanction necessary for      prosecution.- (1)  No  court  shall      take  cognizance   of  an   offence      punishable under  Section  161  [or      Section 164]  or Section 165 of the      Indian Penal  Code (45 of 1860), or      under  sub-section   (2)  [or  sub-      section (3A)  of Section  5 of  its      Act, 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    the]   Central      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    the]    State      Government;      (C)  in   the  case  of  any  other      person, of  the authority competent      to remove him from his office.      (2) Where for any reason whatsoever      any  doubt   arises   whether   the      previous sanction as required under      sub-section (1)  should be given by      the Central  or State Government or      any other  authority such  sanction      shall be  given by  that Government      or authority  which would have been      competent  to   remove  the  public      servant from his office at the time      when the  offence  was  alleged  to      have been committed."      This Section  places a  bar on  the Court  from  taking cognizance of  the offences  specified  in  Sub-section  (1) against Public  Servants unless  the prosecution  for  those offences  has   been  sanctioned   either  by   the  Central Government, if  the person  who has  allegedly committed the offence, is  employed in  connection with the affairs of the Union Government and is not removable from his office except with the sanction of the Central Government, or by the State Government if that person is employed in connection with the affairs of the State Government. But if the "public servant" is not  employee of  either the  Central Government  or  the

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state Government, sanction, is not be given by the authority competent to remove him from the office held by him. 10.  "Public servant" is defined in Section 21 of the IPC as a person  falling under  any  of  the  categories  specified therein. Twelfth  Clause of  Section 21  embraces within the fold of "public servant", every person who is:- (a)  In the service of the Government or remunerated by fees      or commission for the performance of any public duty by      the Government. (b)  In  the   service  or  pay  of  a  local  authority,  a      Corporation establish by or under a Central, Provincial      or other  State Act  or a Government company as defined      in Section 617 of the Companies Act, 1956. 11.  Clause  Twelfth   was  added   by  the   Criminal   Law (Amendment) Act  (2 of  1958) and  was substituted,  in  its present from,  by Anti-Corruption Laws (Amendment) Act, 1964 (11 of 1964). The definition of "public servant", as set out in Section  21 of  the IPC,  has been  adopted by the Act so that there  is no difference between the "public servant" as defined in  the Code  and the  public servant defined in the Act. 12.  Once the  person against  whom  prosecution  is  to  be launched is found to be covered by the definition of "public servant" and  the requirement  to that  extent is satisfied, the next  question whether  he is to be prosecuted or not is considered either  by the Central Government or by the State Government and  if the person is neither the employee of the Central Government nor of the State Government, the question of sanction  is considered by the person who is competent to remove him from the office held by him. 13.  Sub-section (2) of Section 6 is clarificatory in nature inasmuch as it provides that if any doubt arises whether the sanction is  to be  given by  the Central  Government or the State Government  or any  other authority, it shall be given by the  appropriate Government or the authority, it shall be given by  the appropriate Government or the authority, which was competent  to remove  that person from the office on the date on  which the  offence was  committed. This  rule is  a departure from the normal rule under which the relevant date is the date of taking cognizance, as laid down by this Court in R.S.  Nayak vs.  A.R. Antulay,  AIR 1984  SC 684  =  1984 Cr.L.J.613. 14.  From a  perusal of  Section 6, it would appear that the Central or  the State  Government  or  any  other  authority (depending upon  the category of the public servant) has the right to  consider the  facts of  each case  and  to  decide whether that  "public servant"  is to  be prosecuted or not. Since the  Section clearly  prohibits the Courts from taking cognizance of  the offences  specified therein, it envisages that  Central   or  the   State  Government  or  the  "other authority" has  not only  the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction. 15.  In Gokulchand  Dwarkadas Morarka  V. The King, AIR 1948 PC 82, it was pointed out that:-      "The sanction  to prosecute  is  an      important matter,  it constitutes a      condition    precedent    to    the      institution of  the prosecution and      the  Government  have  an  absolute      discretion  to  grant  or  withhold      their sanction.  They are  not,  as      the  High   Court  seen   to   have      thought, concerned  merely  to  see      that the evidence discloses a prima

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    facie  case   against  the   person      sought to  be prosecuted.  They can      refuse sanction on any ground which      commends  itself   to   them,   for      example,  that   on  political   or      economic  grounds   they  regard  a      prosecution  of   substance  it  is      plain that  the  Government  cannot      adequately discharge the obligation      of  deciding  whether  to  give  or      withhold  a   sanction  without   a      knowledge  of   the  facts  of  the      case." 16.  In Basdeo  Agarwalla v. Emperor, AIR 1945 FC 16, it was pointed out  that sanction  under the Act is not intended to be, nor  is an  automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness.  This  Court  in  State  through  Anti- Corruption Bureau,  Government of  Maharashtra,  Bombay  vs. Krishanchand Khushalchand  Jagtiani. (1996) 4 SCC 472, while considering the provisions of Section 6 of the Act held that one of  the guiding  principles  for  sanctioning  authority would be  the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute. 17.  Sanction lifts  the bar  for prosecution.  The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords  protection to Government Servants  against frivolous  prosecutions. ( See: Mohd. Iqbal  Ahmed vs.  State of Andhra Pradesh, AIR 1979 SC 677). Sanction  is a  weapon  to  ensure  discouragement  of frivolous and  vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. 18.  The validity  of the  sanction would, therefore, depend upon the  material placed  before the  sanctioning authority and the  fact that  all the  relevant  facts,  material  and evidence have  been considered by the sanctioning authority. Consideration implies  application of  mind.  The  order  of sanction  must   ex  facie  disclose  that  the  sanctioning authority had  considered the  evidence and  other  material placed before  it. This  fact can  also  be  established  by extrinsic evidence  by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.  (See also:  Jaswant  Singh  vs.  The State of  Punjab, 1958  SCR 762  = AIR  1958 SC 12; State of Bihar & Anr. vs. P.P. Sharma, 1991 Cr.L.J. 1438 (SC)). 19.  Since  the   validity  of  "Sanction"  depends  on  the applicability of  mind by  the sanctioning  authority to the facts  of  the  case  as  also  the  material  and  evidence collected during investigation, it necessarily follows, that the sanctioning  authority has  to apply its own independent mind for  the  generation  of  genuie  satisfaction  whether prosecution has  to be  sanctioned or  not. The  mind of the sanctioning authority  should not be under pressure from any quarter nor  should any  external force be acting upon it to take decision  one way or the other. Since the discretion to grant or  not to  grant sanction  vests  absolutely  in  the sanctioning authority,  its discretion  should be  shown  to have not  been affected  by any extraneous consideration. If is shown  that the sanctioning authority was unable to apply its independent  mind for any reason whatsoever or was under an obligation  or compulsion  or  constraint  to  grant  the sanction, the  order will  be had  for the  reason that  the discretion of the authority "not to sanction" was taken away and it  was compelled  to act  mechanically to  sanction the prosecution

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20.  The narration  of facts,  set out  in the  beginning of judgment would  show that  while  the  matter  of  grant  of sanction  was   under  the   consideration  of   the   State Government, Harashadrai  had filed  a petition  of behalf of his firm  in the Gujarat High Court under Article 226 pf the Constitution for  a writ in the nature of mandamus directing the State  Government to  grant sanction. In this petition , the  Secretary   of  Department   who,  originally  was  not impleaded, was, subsequently, arrayed as respondent No.7 and a direction  was issued  to him  to grant  sanction and  the Secretary, acting  in pursuance  of the  order of  the  High Court, granted the sanction. 21.  The question  is whether  the High  Court could issue a mandamus of  their and  whether the  order of  Sanction,  in these circumstances, is valid. 22.  Mandamus which  is a discretionary remedy under Article 226 of  the Constitution  is requested  to be  issued, inter alia, to  compel performance  of public  duties which may be administrative,  ministerial   or   statutory   in   nature. Statutory  duty   may  be  either  directory  or  mandatory. Statutory duties,  if they  are intended  to be mandatory in character, are  indicated by the use of the words "shall" or "must". But  this is  not conclusive  as "shall"  and "must" have,  sometimes,  been  interpreted  as  "may"  .  What  is determinative  of   the  nature   of  duty,  whether  it  is obligatory, mandatory  or directory,  is the  scheme of  the Statute in  which the  ’duty" has  been set out. Even if the "Duty" is  not set out clearly and specially in the Statute, it may be implied as co-relative to a "Right". 23.  In the  performance of  this Study, if the authority in whom the  discretion is  vested under  the Statute, does not act independently and passes an order under the instructions and orders  of another  authority, the Court would intervene in the matter, quash the orders and issue a mandamus to that authority to exercise its own discretion. 24.  In The Vice-Chancellor, Utkal University and others vs. S.K. Ghosh  and others,  (1945) SCR  883 =  AIR 1954 SC 217, this Court  pointed out  that in  a proceeding for mandamus, the Court  cannot sit as a Court of Appeal or substitute its own discretion  for that  of  the  authority  in  which  the Statute had vested the discretion. It was pointed out:-      "(18). We also think the High Court      was wrong  on the second point. The      learned Judges rightly hold that in      a  ‘mandamus’   petition  the  High      Court cannot constitute itself into      a Court  of appeal  from  authority      against  which   the   appeals   is      sought, but  having said  that they      went on  to do  just what they said      they could  not. The learned Judges      appeared to consider that it is not      enough to  have  facts  established      from   which    a    leakage    can      legitimately   be    inferred    by      reasonable  minds  but  that  there      must in  addition be  proof of  its      quantum and  amplitude though  they      do not indicate what the yard-stick      of measurement should be. That is a      proposition to  which  we  are  not      able to assent.      (19).  We   are  not   prepared  to      perpetrate the error into which the      learned High Court Judges permitted

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    themselves to  be led  and  examine      the facts  for ourselves as a Court      of  appeal   but  in  view  of  the      strictures the  High Court has made      on  the   Vice-Chancellor  and  the      Syndicate  we   are  compelled   to      observe that  we do  not fell  they      are justified  . The  question  was      one  of   urgency  and   the  Vice-      Chancellor and  the members  of the      Syndicate were  well  within  their      rights    in    exercising    their      discretion in  the way they did. It      may be  that the  matter could have      been handled in some other way, as,      for  example,  in  the  manner  the      learned Judges  indicate, but it is      not the  function of  Courts of law      to  substitute   their  wisdom  and      discretion for  that of the persons      to whose  judgment  the  matter  in      question is entrusted by the law." 25.  This principle  was reiterated  in  Tata  Cellular  vs. Union of  India. AIR 1966 SC 11 = (1994) 6 SCC 651, in which it was, inter alia, laid down that the Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was  made particularly  as the  Court does not have the expertise  to correct  the administrative decision. If a review of  the administrative decision is permitted, it will be  substituting  its  own  decision  which  itself  may  be fallible. The  Court pointed out that they duty of the Court is to  confine itself  to  the  question  of  legality.  Its concern should be :      1.   Whether   a    decision-making      authority exceeded its powers?      2. committed an error of law;      3. committed, a breach of the rules      of natural justice;      4.  reached  a  decision  which  no      reasonable  Tribunal   would   have      reached; or      5. abused its powers. 26.  In this case, Lord Denning was quoted as saying :      "Parliament  often   entrusts   the      decision of a matter to a specified      person or  body, without  providing      for  any   appeal.  it   may  be  a      judicial  decision,   or  a  quasi-      judicial    decision,     or     an      administrative decision.  Sometimes      Parliament says  its decision is to      be final.  At other  times it  says      nothing  about  it.  In  all  these      cases   the    Courts   will    not      themselves take  the place  of  the      body   of   whom   Parliament   has      entrusted the  decision. The Courts      will not  themselves  embark  on  a      rehearing  of   the  matter  :  See      Healey v. Minister of Health (1955)      1 QB 221." 27.  Lord Denning further observed as under :      "If  the  decision-making  body  is      influenced by  considerations which      ought not influence it; or fails to

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    take into  account matters which it      ought to  take  into  account,  the      Court   will   interfere   :   see,      Padfield     v.     Minister     of      Agriculture,  Fisheries   and  Food      1968 AC 997." 28.  In Sterling  Computers Ltd.  vs. M/s M & N Publications Ltd. and others, AIR 1966 SC 51 = (1993) 1 SCR 81 = (1993) 1 SCC 445,  it was pointed out that while exercising the power of judicial  review, the  Court is concerned primarily as to whether there  has been any infirmity in the decision-making process? In  this case, the following passage from Professor Wade’s Administrative Law was relied upon :      "The doctrine  that powers  must be      exercised  reasonably   has  to  be      reconciled   with   the   no   less      important doctrine  that the  Court      must not  usurp the  discretion  of      the    public    authority    which      Parliament appointed  to  take  the      decision.  Within   the  bounds  of      legal reasonableness is the area in      which the  deciding  authority  has      genuinely free  discretion.  If  it      passes those  bounds, it acts ultra      vires.  The  Court  must  therefore      resist the  temptation to  draw the      bounds    too    tightly,    merely      according to  its own  opinion.  It      must strive  to apply  an objective      standard  which   leaves   to   the      deciding authority  the full  range      of  choices  which  legislature  is      presumed to have intended." 29.  It may  be pointed  out that  this principle  was  also applied by Professor Wade to quasi-judicial bodies and their decisions. Relying upon the decision in The Queen v. Justice of London,  (1895) 1  QB 214,  Professor, Wade laid down the principle that  where a  public authority was given power to determined a matter, mandamus would not lie to compel it to reach some particular decision. 30.  A Division  Bench of  this Court  comprising of  Kuldip Singh  and   B.P.  Jeevan   Reddy,  JJ.   in  U.P  Financial Corporation vs.  M/s. Gem  Cap (India) Pvt. Ltd. and others, AIR 1993  SC 1435  = (1993)  2 SCR  149 =  (1993) 2 SCC 229, observed as under :      "The obligation  to act  fairly  on      the  apart  of  the  administrative      authorities was  evolved to  ensure      the Rule  of  Law  and  to  prevent      failure of  justice. This  doctrine      is complementary  to the principles      of natural justice which the Quasi-      Judicial Authorities  are bound  to      observe.  It   is  true   that  the      distinction   between    a   quasi-      Judicial  and   the  administrative      action has  become thin, as pointed      out by  this court  as far  back as      1970 in  A.K. Kraipak  v. Union  of      India AIR  1970 SC 150. Even so the      extent         of          judicial      scrutiny/judicial  review   in  the      case   of   administrative   action      cannot be  larger than  in the case

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    of quasi  judicial action.  If  the      High  Court   cannot  sit   as   an      appellate   authority    over   the      decisions  and   orders  of  quasi-      judicial  authorities   it  follows      equally that it cannot do so in the      case of administrative authorities.      In  the  matter  of  administrative      action, it is well-known, more than      one  choice  is  available  to  the      administrative  authorities;   they      have a certain amount of discretion      available to  them.  They  have  "a      right to  choose between  more than      one possible  course of action upon      which there  is room for reasonable      people to  hold differing  opinions      as to  which is to preferred" (Lord      Diplock in  Secretary of  State for      Education v.  Tameside Metropolitan      Borough Council  - 1997  AC 1014 at      1064). The  Court cannot substitute      its judgment  for the  judgment  of      administrative authorities  in  sch      cases. Only  when the action of the      administrative  authority   is   so      unfair  or   unreasonable  that  no      reasonable person  would have taken      that   action,    can   the   Court      intervene." 31.  In the  background of  the above principles, let us now scrutinise the judgment of the Gujarat High Court which, let us say  here and  now,  could  only  direct  the  Govt.  for expeditious disposal of the matter of sanction. 32.  By issuing  a  direction  to  the  Secretary  to  grant sanction, the  High Court  closed all  other alternatives to the Secretary  and compelled  him to  proceed  only  in  one direction and  to act  only in  one way, namely, to sanction the prosecution  of the  appellant. The  Secretary  was  not allowed  to   consider  whether  it  would  be  feasible  to prosecute the appellant; whether the complaint of Harshadraj of illegal gratification which was sought to be supported by "trip" was  false  and  whether  the  prosecution  would  be vexatious particularly  as it  was in  the knowledge  of the Govt. that the firm had been black-listed once and there was demand for  some amount  to be  paid to Govt, by the firm in connection  with   this  contract.  The  discretion  not  to sanction the  prosecution was  thus taken  away by  the High Court. 33.  The  High   Court  put   the  Secretary  in  a  piquant situation.  While  that  Act  gave  him  the  discretion  to sanction  or   not  to   sanction  the  prosecution  of  the appellant,  the  judgment  gave  him  no  choice  except  to sanction the  prosecution as  any other  decision would have exposed him  to action  in  contempt  for  not  obeying  the mandamus issued  by the  High Court.  The High Court assumed that role of the sanctioning authority, considered the whole matter, formed  an opinion  that it  was a fit case in which sanction should  be granted  and because it itself could not grant sanction  under Section  6 of the Act, it directed the Secretary to  sanction the  prosecution so that the sanction order may  be created to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Brand name is changed to  give a new colour to the package without   changing    the   contents   thereof.   In   these

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circumstances the  sanctions order  cannot but be held to be wholly erroneous  having been  passed  mechanically  at  the instance of the High Court. 34.  Learned counsel for the State of Gujarat contended that the judgment  passed by  the High Court cannot be questioned is these  proceedings as it had become final. The contention is wholly  devoid of substance. The appellant has questioned the legality  of "sanction"  on many grounds one of which is that the  sanctioning authority  did not  apply its own mind and acted at the behest of the High Court which had issued a mandamus to  sanction the prosecution. On a consideration of the whole  matter, we  are of  the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued  by the  High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the ‘sanction order’ was assailed before us, we had  necessarily to  consider the High Court judgment and its impact  on the "Sanction". The so-called finality cannot shut out  the scrutiny  of the  judgment in  terms of  actus curiae neminem  gravabit as  the order  of the  Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of pair trial at every stage, from the initiation till the conclusion of the proceedings. 35.  There is another aspect of the matter. 36.  The  High  Court  by  its  order  dated  21.1.1985  had directed the Secretary, Road & Building Department, to grant sanction within one month from the receipt of the order. The sanction order  (Exhibit 9)  is dated 23rd January, 1985 and is  signed  by  Shri  J.P.  Lade  Deputy  Secretary  to  the Government of Gujarat, Road & Building Department. Shri Lade has been  examined as  PW-8. He  stated that on the relevant date, he was serving as Under Secretary and was also holding the additional  charge of  Deputy Secretary, Road & Building Department and  in that capacity, he gave the sanction as he felt  that   there  was   sufficient  evidence  against  the appellant warranting his prosecution. 37.  PW-14,  Shri  Pravinchandra  Jaisukhlal,  who  was  the Secretary, Road,  & Building Department, where Shri Lade was the Under  Secretary, stated  that he had given the sanction for prosecution  of the  appellant. He  further stated  that before according  sanction he  had seen  all the  papers. He also stated that the signature on Exhibit 9 was that of Shri Lade as  the correspondence  is usually  done by  the  Under Secretary after the orders are passed on the file. 38.  From the nothings of the Secretariat file, contained in Exhibit 70,  as also  the conflicting  statement made by the Secretary and  the Under  Secretary, it  is not  possible to hold as  to who  actually granted  the sanction. The Gujarat High Court  has held  that the  Sanction was  granted by the Deputy Secretary,  Shri Lade  (PW-8), ignoring the fact that the file  was also  placed before  the Secretary  and he had also put his signature thereon. The file had, admitted, been sent to  the office  of the Chief Minister from where it was received back  on 30th  January, 1985  and as such it is not understandable as  to how  sanction could be granted on 23rd January, 1985.  This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. Secretary being the head of the Department stated  on oath that he had granted the sanction, particularly as  the mandamus was directed to him and he had to comply with that direction Deputy Secretary, who actually issued the  order of sanction, had signed it and, therefore,

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he owned  the sanction and stated that he had sanctioned the prosecution. Both  tried to exhibit that they had faithfully obeyed the  mandamus issued  by the High Court and attempted to save their skin, destroying, in the process, the legality and validity  of the sanction which constituted the basis of appellant’s prosecution  with  the  consequence  that  whole proceedings stood void ab initio. 39.  Normally when the sanction order is held to be bad, the case is  remitted back to the authority for re-consideration of the  matter and  to pass  a fresh  order of  sanction  in accordance with  law. But  in the instant case, the incident is of  1983 and  therefore, after a lapse of fourteen years, it will not, in our opinion, be fair just to direct that the proceedings  may  again  be  initiated  from  the  stage  of sanction so as to expose the appellant to another innings of litigation and  keep him  on trial  for an indefinitely long period  contrary  to  the  mandate  of  Article  21  of  the Constitution  which,   as  a   part  of   right   to   life, philosophizes early  and of  criminal proceedings  through a speedy trial. 40.  The appeal is consequently allowed. The judgment passed by the  trail court  as also by the High Court are set aside and appellant  is acquitted.  He is  on bail.  He  need  not surrender. His bail bonds are cancelled.