REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 2353 OF 2010 (Arising out of SLP (Criminal) No. 2239 of 2010)

State of Himachal Pradesh …. Appellant

      Versus  

Nishant Sareen           …. Respondent  

JUDGMENT

R.M. Lodha, J.  

Leave granted.   

2. The question raised in this appeal, by special leave, is as  

regards the extent of power vested in the Government in reviewing  

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its order granting or refusing sanction to prosecute the public servant  

in terms of  Section 19 of the Prevention of Corruption Act, 1988 (for  

short, ‘the 1988 Act’).

3.  Nishant Sareen—the respondent—was posted as  Drug  

Inspector, Bilaspur (Himachal Pradesh) in 2005. One, Dr. Ramdhan  

Sharma,  owner  of  Leelawati  Hospital,  Ghumarwin  lodged  a  

complaint against the respondent in the Vigilance Department of the  

State Government that the respondent had demanded Rs. 5,000/-  

from  him  as  bribe  to  allow  him  to  run  the  said  hospital  without  

checking by the Drug Inspector. Based on the said complaint, a first  

information report (being No. 1/2005) was registered under Sections  

7 and 13 (2) of the 1988 Act at Police Station AC Zone, Bilaspur.  

Thereafter,  a  raiding  party  under  the  supervision  of  Deputy  

Superintendent of Police, AC Zone, Bilaspur was constituted and a  

trap was laid on May 12, 2005. The respondent is said to have been  

caught  red-handed  on  that  day  accepting  the  bribe  from  the  

complainant. The respondent was arrested and produced before the  

Additional  Sessions  Judge,  Ghumarwin  and  was  remanded  to  

judicial custody upto May 16, 2005. The respondent was released  

on bail  later  on.   Upon completion  of  investigation,  the  Vigilance  

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Department sought for sanction under Section 19 of the 1988 Act  

from  the  Government  to  prosecute  the  respondent.   It  is  not  in  

dispute  that  the  Principal  Secretary  (Health),  Government  of  

Himachal Pradesh is the competent authority authorized under the  

Rules of Business for  according sanction in the matter.

4. The  Principal  Secretary  (Health),  on  the  basis  of  the  

material placed before her and on examination of the case, found no  

justification in granting sanction to prosecute the respondent.  In the  

order dated November 27,  2007 whereby sanction was refused,  it  

was observed as under :

“Therefore,  after  thorough  examination  of  the  case  taking all the aspects into consideration and scrutiny of  the  service  records  it  has  been  concluded  that  Sh.  Sareen in the course of his duties and responsibilities  and impartial  discharge of  his  duties (sic).  It  appears  that  the  complainant  has  registered  a  case  which  appears to be frivolous and has resulted in unnecessary  harassment and hindrance in the working of the Drug  Inspector.  In  view  of  this,  there  appears  to  be  no  justification  for  launching  prosecution  against  Sh.  Nishant Sareen, Drug Inspector as it  appears to be a  case of Personal enmity.”

5. It  appears that  the  Vigilance Department  took up the  

matter  again  with  the  Principal  Secretary  (Health)  for  grant  of  

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sanction as in their opinion sufficient evidence existed to prosecute  

the respondent.   

6.  The competent authority, thus,  reconsidered the matter  

and  granted  sanction  to  prosecute  the  respondent  vide  its  order  

dated March 15, 2008.  In the sanction order dated March 15, 2008,  

it was observed thus:

“I agree with the contention of the Vigilance Department  that  in evaluating the evidence of criminal misconduct,  his general conduct and behaviour as perceived by his  superiors  cannot  secure  precedence.  I  have  been  through the case file and facts of the case in detail. I find  that  the  said  Drug  Inspector.  Sh.  Nishant  Sareen  has  been  caught  red  handed,  with  a  bribe  of  Rs.  5000/-.  There is nothing on record to show that this incident did  not occur. The facts do not support the contention that  Sh.  Nishant  Sareen  was  falsely  implicated.  In  the  circumstances, I am of the opinion that the prosecution  sanction be granted in the instant case and accordingly  do so.”  

7. Section 19 of the 1988 Act reads as follows :

“S. 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   

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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.  

(2) Where for any reason whatsoever any doubt arises  as to whether the previous sanction as required under  sub-  section  (1)  should  be  given  by  the  Central  Government  or  the  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.   (3) Notwithstanding anything contained in the Code of  Criminal Procedure, 1973 (2 of 1974 .),--  

(a) no finding, sentence or order passed by a special  Judge  shall  be  reversed  or  altered  by  a  Court  in  appeal, confirmation or revision on the ground of the  absence of, or any error, omission or irregularity in,  the sanction required under sub- section (1), unless  in the opinion of that court, a failure of justice has in  fact been occasioned thereby;  

(b)  no Court  shall  stay the proceedings under this  Act  on  the  ground  of  any  error,  omission  or  irregularity in the sanction granted by the authority,  unless  it  is  satisfied  that  such  error,  omission  or  irregularity has resulted in a failure of justice;  

(c)  no Court shall stay the proceedings under this  Act on any other ground and no Court shall exercise  the powers of revision in relation to any interlocutory  

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order  passed  in  any  inquiry,  trial,  appeal  or  other  proceedings.  

(4)  In determining under sub- section (3) whether the  absence  of,  or  any  error,  omission  or  irregularity  in,  such sanction has occasioned or resulted in a failure of  justice the court shall have regard to the fact whether  the objection could and should have been raised at any  earlier stage in the proceedings.  

Explanation.-- For the purposes of this section,--  

(a) error includes competency of the authority to  grant sanction;  

(b)  a  sanction  required  for  prosecution  includes  reference  to  any  requirement  that  the  prosecution  shall  be at  the instance of a specified authority or  with  the  sanction  of  a  specified  person  or  any  requirement of a similar nature.”  

8. The object underlying Section 19 is to ensure that a public  

servant does not suffer harassment on false, frivolous, concocted or  

unsubstantiated allegations.  The exercise of power under Section 19  

is not an empty formality since the Government or for that matter the  

sanctioning  authority  is  supposed  to  apply  its  mind  to  the  entire  

material and evidence placed before it  and on examination thereof  

reach conclusion fairly, objectively and consistent with public interest  

as  to  whether  or  not  in  the  facts  and  circumstances  sanction  be  

accorded  to prosecute the public servant.  In  Mansukhlal Vithaldas  

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Chauhan vs.  State of Gujarat1, this Court observed, `Sanction is a  

weapon  to  ensure  discouragement  of  frivolous  and  vexatious  

prosecution and is a safeguard for the innocent but not a shield for  

the guilty’.     Section 19 or for that matter Section 197 of Code of  

Criminal Procedure, 1973 (for short, `the Code’)  does not make any  

express  provision regarding review or reconsideration of the matter  

by the sanctioning authority once such power has been exercised.   

9. In Gopikant Choudhary v. State of Bihar and Ors.2, initially  

the concerned Minister refused to accord sanction to prosecute the  

public  servant  therein  and  an  order  was  passed  to  that  effect.  

Subsequently, after retirement of the public servant, the matter was  

taken  up  by  the  Chief  Minister  and  he  granted  sanction  for  

prosecution of the concerned public servant. The question that arose  

for consideration before this Court was the correctness of the order  

passed by the Chief Minister. This Court set aside the order of the  

Chief Minister granting sanction to prosecute the public servant, inter  

alia, on the ground that the Chief Minister did not have any occasion  

to  reconsider  the  matter  and  pass  fresh  order  sanctioning  the  

prosecution.

1 (1997) 7 SCC 622  2 (2000) 9 SCC 53

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10. In  Romesh Lal Jain v.  Naginder Singh Rana & Ors.3 , it  

was held by this Court  that  an order granting or refusing sanction  

must  be  preceded  by  application  of  mind  on  the  part  of  the  

appropriate authority. If the complainant or accused can demonstrate  

such an order granting or refusing sanction to be suffering from non-

application of mind, the same may be called in question before the  

competent court of law.

11. Recently,  in  the  case  of  State  of  Punjab  and  Anr. v.  

Mohammed Iqbal Bhatti4, this Court had an occasion to consider the  

question whether the State has any power of review in the matter of  

grant  of sanction in terms of Section 197 of  the Code. This Court  

observed as under:

“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 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  

3 (2006) 1 SCC 294 4 JT 2009 (13) SC 180

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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.”

This  Court  then  noticed  the  opinion  of  the  High  Court  which  was  

recorded as follows :

“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.”

While affirming the above opinion of the High Court, this Court held in  

paragraphs 22 and 23 of the Report as under :

“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  

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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.”

12.  It is true that the Government in the matter of grant or  

refusal to grant sanction exercises statutory power and that would not  

mean that power once exercised cannot be exercised again or at a  

subsequent stage in the absence of express power of review in no  

circumstance  whatsoever.   The  power  of  review,  however,  is  not  

unbridled or unrestricted.  It seems to us  sound principle to follow  

that once the statutory power under Section 19 of the 1988  Act or  

Section 197 of the Code has been exercised by the Government or  

the competent authority, as the case may be,  it is not permissible for  

the sanctioning authority to review or reconsider the matter on the  

same materials again.  It is so because unrestricted power of review  

may  not  bring  finality  to  such  exercise  and  on  change  of  the  

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Government or change of the person authorised to exercise power of  

sanction, the matter concerning sanction may be reopened by such  

authority  for the reasons best known to it and a different order may  

be passed. The opinion on the same materials, thus, may keep on  

changing and there may not be any end to such statutory exercise. In  

our opinion, a change of opinion per se on the same materials cannot  

be a ground for reviewing or reconsidering the earlier order refusing  

to grant sanction.  However, in a case where fresh materials have  

been collected by the investigating agency subsequent to the earlier  

order and placed before the sanctioning authority and on that basis,  

the matter is reconsidered by the sanctioning authority and in light of  

the fresh materials an opinion is formed that sanction to prosecute  

the public servant may be granted, there may not be any impediment  

to adopt such course.   

13. Insofar as the present case is concerned, it is not even  

the case of the appellant that fresh materials were collected by the  

investigating agency and placed before the sanctioning authority for  

reconsideration and/or for review of the earlier order refusing to grant  

sanction.   As a matter of fact, from the perusal of the subsequent  

order dated March 15, 2008  it is clear that on the  same materials,  

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the  sanctioning  authority  has  changed  its  opinion  and  ordered  

sanction to prosecute the respondent which, in our opinion, is clearly  

impermissible.

14. By  way  of  foot-note,  we  may  observe  that  the  

investigating agency might have had legitimate grievance about the  

order dated November 27, 2007 refusing to grant sanction, and if that  

were  so and no fresh materials  were necessary,  it  ought  to  have  

challenged the order  of  the sanctioning authority but  that  was not  

done.  The power of the sanctioning authority being not of continuing  

character  could  have  been  exercised  only  once  on  the  same  

materials.  

15.  There is no merit in this appeal and it is dismissed.  

  …………………….J.            (Aftab Alam)

    ………………….. J.        (R.M. Lodha)  

NEW DELHI, DECEMBER   9, 2010

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