Collector Cannot Cyclostyle Anti-Corruption Bureau’s Draft To Sanction Prosecution, Must Apply Independent Mind: Rajasthan HC
It must be paid singular attention by all the esteemed readers that while ruling on the key point pertaining to the grant of sanction for prosecution, the Division Bench of the Rajasthan High Court at Jodhpur comprising of Hon’ble Mr Justice Shree Chandrashekhar and Hon’ble Ms Justice Rekha Borana in a most learned, laudable, landmark, logical and latest judgment titled Harish Chandra Bunkar Balai vs Board of Revenue & Ors in D.B. Spl. Appl. Writ No. 707/2023 and cited in Neutral Citation No.: [2024:RJ-JD:43289-DB] and so also in 2024 LiveLaw (Raj) 349 that was pronounced as recently as on 18.10.2024 minced just no words to state in no uncertain terms most unequivocally that the grant of sanction for prosecution is not a mere formality and that a sanctioning authority is obligated to discharge its duty after having full knowledge of the material facts of the case. It is imperative that the sanctioning authority must definitely pay heed to what has been held in this leading case by the Division Bench of the Rajasthan High Court.
It must be certainly also laid bare that the Division Bench was most categorical in ruling that the sanction must be observed with complete strictness, keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It must also be disclosed here that the Division Bench was hearing a special appeal that had been filed against the order of the Single Judge wherein the sanction for prosecution granted by the Collector against the appellant was affirmed. What must be taken into account is that the Division Bench was most forthright in pointing out that the order of the Collector was a verbatim copy of the draft prosecution that had been furnished by the Anti-Corruption Bureau (ACB) and his order did not reflect any ground on the basis of which it could be concluded that the sanctioning authority applied his independent mind. To put it differently, the Division Bench has definitely made it indubitably clear in this notable judgment that collector cannot cyclostyle anti-corruption bureau’s draft to sanction prosecution and must always apply independent mind before granting sanction in such cases! There can be just no denying or disputing it! Accordingly, we see that the appeal was thus very rightly allowed by the Division Bench and the order of the Collector granting the prosecution sanction verbatim as the draft document sent by ACB was set aside.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Rekha Borana for a Division Bench of the Rajasthan High Court at Jodhpur comprising of Hon’ble Mr Justice Shree Chandrashekhar and herself sets the ball in motion by first and foremost putting forth in para 1 that, “The present special appeal has been preferred against the judgment dated 24th May 2023 passed by the learned Single Judge in S.B. Civil Writ Petition No.1976 of 2015. By virtue of the writ Court’s this order, the sanction for prosecution granted vide order dated 28th January 2015 by the Collector, Banswara against the appellant stood affirmed and the writ petition preferred by the petitioner/appellant was dismissed.”
As we see, the Division Bench then specifies in para 2 of this robust judgment that, “The main plea raised on behalf of the appellant before this Court is that the sanctioning/competent authority did not apply his independent mind while granting the prosecution sanction.”
While continuing in the same vein, the Division Bench then also discloses in para 3 of this refreshing judgment that, “Learned counsel for the appellant submits that the order dated 28th January 2015 is just a verbatim copy of draft prosecution submitted by the Anti Corruption Bureau to the Collector which clearly reflects that the Collector did not apply his mind and just passed the order dated 28th January 2015 in a cyclostyled manner. In support of his submission, learned counsel relied upon the judgments of the Hon’ble Apex Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, 1997 (7) SCC 622, State of Karnataka Vs. Ameer Jan, (2007) 11 SCC 273 and State of Madhya Pradesh Vs. Pradeep Kumar Gupta, (2011) 6 SCC 389 and of this Court in Satyanarayan Verma Vs. State of Rajasthan & Ors, S.B. Civil Writ Petition No.268 of 2019 (decided on 28th July 2023) and Babu Lal Vishnoi Vs. Rajasthan Cooperative Dairy Federation Limited & Ors., S.B. Civil Writ Petition No.2072 of 2018 (decided on 19th October 2022).”
On the contrary, the Division Bench then also specifies in para 4 stating that, “Per contra, learned Additional Advocate General submitted that the learned Single Judge rightly observed that the order impugned dated 28th January 2015 was not verbatim of draft sanction and application of mind by the sanctioning/competent authority is clearly reflected in the order. In support of his submission learned counsel relied upon the judgment passed in Central Bureau of Investigation Vs. Ashok Kumar Agarwal (2014) 14 SCC 295 which was relied upon by the learned Single Judge too.”
Needless to say, the Division Bench then states in para 5 of this noteworthy judgment that, “Heard learned counsels and perused the record.”
Be it noted, the Division Bench notes in para 6 holding that, “The grant of sanction is not a mere formality and this is an obligation on the sanctioning authority to discharge its duty only after having full knowledge of the material facts of the case. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. In “Ashok Kumar Agarwal”, the Hon’ble Supreme Court observed that sanction lifts the bar for prosecution and, therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the Government servant against frivolous prosecution.”
It is worth noting that the Division Bench notes in para 7 that, “The grant of sanction is a condition precedent to the institution of the prosecution against a public servant. As per provisions of Section 19 of the Prevention of Corruption Act, 1988, 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 of the competent authority. Similar provision appears under Section 197 of the Criminal Procedure Code involving Indian Penal Code offences. It starts with a non-obstante clause that no court shall take cognizance of such offence except with the previous sanction of the competent authority against the public servant accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. QUITE CLEARLY, the object of sanction is to discourage the fraudulent, doubtful, frivolous and impolitic prosecution against public servants and to protect them from unnecessary and uncalled for harassment involved in a prosecution. It is a safeguard for the innocent public servant though not a shield for the corrupt and, therefore, while considering proposals received from the prosecution agency seeking sanction for prosecution of public servants for offences committed by them at a time when they were engaged in their official duty, the concerned sanctioning authority shall have to carefully peruse the entire relevant record and has to do complete and conscious scrutiny of the whole records so produced by the prosecution agency and independently applying his mind satisfy himself as to if facts and circumstances of the case and material evidences on record justify existence of a prima-facie case against the accused. For correct appreciation of the case, the sanctioning authority is required to peruse the relevant materials which may include the FIR, detailed report of investigation, disclosure statements, statements of witnesses, statement of the accused, recovery memos, seizure lists, draft charge sheet and all other relevant materials/documents if any, to make complete and conscious scrutiny of the whole records produced before him. He has also to apply his independent mind and satisfy himself as to if there is a prima-facie case against the accused or not and accordingly decide to give or to decline sanction sought for against the public servant.”
Do note, the Division Bench notes in para 10 that, “A bare perusal of the above draft prosecution (as placed on record of the present appeal along with additional affidavit) and the order dated 28th January 2015 makes it clear that the order granting prosecution sanction is a verbatim repetition of the draft prosecution as furnished by the ACB to the Collector, Banswara.”
It would be instructive to note that the Division Bench then specifies in para 11 stating that, “The order dated 28th January 2015 does not reflect any ground on the basis of which it can be concluded that the sanctioning authority applied his independent mind before granting the prosecution sanction. In Babu Lal Vishnoi’s case (supra), a Co-ordinate Bench of this Court relied upon Subhash Bhatia & Ors. Vs. State & Ors., S.B. Civil Writ Petition No.590 of 2010, wherein it was observed as under:
“The authority competent to remove a public servant from service is clothed with the power to grant sanction for prosecution to such public servant by the Legislature with a definite intention as that authority being having administrative and disciplinary control on the person concerned is in a position to assess and weigh the accusation on basis of intimate knowledge of the work and conduct and also having day to day knowledge of overall administrative interest of the department. The sanction for prosecution represent a deliberate decision and that requires objective satisfaction of the competent authority about a prima facie case against the person facing accusation. The authority competent while granting sanction is also required to record reasons for launching prosecution and is further required to specify its need in public interest. This important duty can be discharged only on independent application of mind to all the relevant facts on basis of which prosecution is proposed.
If any extraneous pressure is mounted on the authority competent then there shall be all chances of frivolous and malicious prosecution. To maintain the spirit of the provisions for the grant of sanction to prosecute a public servant, the authority competent is required to act independently, objectively and with an intention for not saving a culprit from prosecution but at the same time with a view to afford a reasonable protection to a public servant from unnecessary harassment and undue hardship through vexatious prosecution.
Keeping in mind, the above mentioned intention of the Legislature, Hon’ble Supreme Court in State of Karnataka Vs. Ameerjan (supra) authoritatively held that the order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. For the same reason, this Court too in the case of Kishan Lal (supra) held that the statutory power given to the authority competent is required to be exercised by the authority concerned and not by anybody else.””
While citing yet another relevant law, the Division Bench observes in para 12 that, “In Manish Mathur Vs. State of Rajasthan & Anr., S.B. Civil Writ Petition No.12684 of 2012, it was held as under:
“As already stated, in the instant matter too the sanction granted and the draft to grant sanction are ad verbatim same. The Director, Mines and Geology appears to have adopted the draft ipse dixit. Section 19 of the Act of 1988 postulates absolute authority to grant sanction for prosecution to the competent authority, as such, the competent authority is required to apply its own mind by considering all relevant facts. The competent authority may avail assistance of other persons, but in no case, any other authority can initiate the process of consideration for grant of sanction and instruct the competent authority for granting sanction. In the case in hand, the consideration for grant of sanction, as a matter of fact, was initiated by the Anti Corruption Bureau by sending a draft for granting sanction for prosecution. The Anti Corruption Bureau could have communicated all relevant facts on the basis of which prosecution sanction could have been granted, but in no case, the Bureau could have instructed for grant of prosecution sanction under a proposed and drafted document. The prosecution sanction granted in the instant matter by the Director, Mines and Geology, Udaipur under the letter dated 18.10.2012 on face depicts non-application of mind and abdication of the powers by the Anti Corruption Bureau. The same, therefore, is illegal.””
As a corollary, the Division Bench rules in para 13 that, “Applying the ratio of the above judgments to the present case, we hold that the proposed draft document for grant of prosecution sanction furnished by the Anti Corruption Bureau to the sanctioning authority cannot be upheld in terms of Manish Mathur and is therefore declared illegal.”
Resultantly, the Division Bench directs in para 14 holding that, “In view of the discussion made above and in view of the settled position of law, the present appeal deserves to be and is hereby allowed. The impugned judgment dated 24th May 2023 is hereby set aside. As a consequence, the order dated 28th January 2015 as passed by the Collector, Banswara is also quashed and set aside. However, the sanctioning/competent authority shall be at liberty to reconsider the entire matter in accordance with law for grant of sanction to prosecute the appellant under the Prevention of Corruption Act, 1988.”
Finally, the Division Bench then concludes by holding in para 15 that, “Stay petition and the pending applications, if any, also stand disposed of.”
To conclude, the bottom-line of this pragmatic judgment by the Division Bench of the Rajasthan High Court is that the Collector cannot cyclostyle anti-corruption draft to sanction prosecution. It is imperative for the Collector to apply his independent mind as held in this leading case in which relevant judgments have also been cited as mentioned hereinabove. No denying it!
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