J.B. Koshy, J.
1. Whether Secretary of the Vigilance Department can grant sanction under Section 6 of the Prevention of Corruption Act, 1947 for taking cognizance of offences against officers who are working under other departments is the question of law referred by the learned Single Judge in these appeals. In all these cases charge-sheets were issued before the introduction of the Prevention of Corruption Act, 1988 and charges were framed under the Prevention of Corruption Act, 1947(hereinafter referred to as 'the Act').
2. Section 6 of the Act reads as follows:
'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 or under Sub-section (2) or Sub-section (3A) of Section 5 of this 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;
(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;
(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.'
3. It is the contention of the appellants that the question of sanction was raised by them before the Trial Court and it was not properly considered. In view of Section 6(l)(b), Kerala State Government is the authority to grant sanction. All impugned sanction orders were issued on behalf of the Government of Kerala; but, signed by the Secretary, Vigilance Department, though employees were working in other departments.
4. The accused in C.C. Nos. 1 and 2 of 1993 (Crl. A. Nos. 243 and 244 of 1995) was employed by the Labour Department. Ext.Pl sanction order is dated 16th July 1992. It starts with the heading 'Government of Kerala'. The sanction order Ext. P12 reads as follows:
'And Whereas, the Government of Kerala, after fully and carefully examining the evidence on record in the above case and considering the same, are satisfied that the said Sri. G. Sasidharan Nair had committed offences punishable under Section 5 (2) read with Section 5(10)(c) and (d) of the Prevention of Corruption Act, 1947 (Act 2 of 1947) and Sections 409, 468 and 471 of the Indian Penal Code (Act No. 45 of 1860) for which he should be prosecuted;
Now, therefore the Government of Kerala doth hereby accord the sanction required under Clause (l)(b) of Section 6 of the Prevention of Corruption Act, 1947 (Act No. 2 of 1947) for prosecuting Sri. G. Sasidharan Nair for the offences under Section 5 (2) read with S 5(1)(c) and (d) thereof and also that required under Sub-section (l)(b) of Section 197 of the Code of Criminal Procedure, 1973 (Act No. 11 of 1973) for his prosecution under Sections 409, 468 and 471 of the Indian Penal Code, and for other offences, if any, punishable under other provisions of any law, in respect of the acts aforesaid, in a Court of competent jurisdiction.
(By order of the Governor)
(Sd/-)
C.P.NAIR,
Commissioner and Secretary to Government.'
In Ext. P65 sanction order issued in C.C. No. 10 of 1992 (Crl.A. Nos. 383 and 384 of 1995), the word 'By order of the Governor' is not appearing and it was signed by the Commissioner and Secretary to Government, Vigilance. The last portion reads as follows:
'Now, therefore, the Government of Kerala hereby accord sanction required under Section 6(l)(b) of the Prevention of Corruption Act, 1947 (Central Act 2 of 1947) and Section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) to prosecute...........................for having committed offences punishable under Section 5(2) read with 5(l)(d) of the Prevention of Corruption Act, 1947 (Central Act 2 of 1947) and Sections 109 and 120B of the Indian Penal Code(Central Act No. 45 of 1860) before a Court of competent jurisdiction.
M. MOHANKUMAR
Commissioner and Secretary to Government,
Vigilance.'
Accused No. 1 was working as Superintending Engineer in the Irrigation Department and accused No. 2 was a contractor.
5. Appellants mainly relied on the decision of the Supreme Court in Mohandas v. State of Kerala (2002 (2) KLT 251 (SC)). That was a case under the 1988 Act. We quote the entire order of the Supreme Court:
'Under Section 19 of the Act no Court can 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 Authority competent to remove the person concerned. In the case in hand, the Secretary (Vigilance) appears to have accorded sanction to prosecute. The appellant's case is that the Secretary (Vigilance) was authorised to grant sanction only on 23rd April, 1994 and there is no order of the State Government making the Secretary (Vigilance) competent to accord sanction prior to the said date. The learned Counsel appearing for the State is not in a position to refute the aforesaid contention and, in fact, is not able to produce any document which confers power on the Secretary (Vigilance) to accord sanction prior to 23rd April, 1994. The sanction in the present case being prior to the aforesaid date, the date on which the sanction appears to have been given, the concerned Authority had no jurisdiction and, therefore, there is an embargo on the court's power to take cognizance for non-compliance of Section 19 of the Act. We accordingly quash the proceeding.'
6. Review Petition filed before the Apex Court was also dismissed as can be seen from the decision reported in State of Kerala v. Mohan Das (2004 (1) KLT 402 (SC)). There, it was specifically contended that the Commissioner and Secretary, Transport Department, refused to issue order of sanction for prosecuting the petitioner and thereafter Commissioner and Secretary, Vigilance Department passed an order of sanction for prosecuting the accused. The learned Government Pleader was not able to point out any order empowering Secretary, Vigilance to grant sanction and on that ground the Review Petition was rejected. Thereafter, another Review Petition was filed and that was rejected but making it open to contest the application under Section 19(3) of the 1988 Act in other appropriate cases. It is the contention of the Public Prosecutor that the Vigilance Secretary was vested with power specifically to deal with such matters. The Rules of Business and relevant orders were not placed by the Government Pleader before the Apex Court in the Mohandas's cases (supra). Therefore, Hon'ble Apex Court had occasion to consider the effect of item No. 1 under the heading XXXII of First Schedule of the Rules of Business. Therefore, observations in Mohandas's case (supra) have to be considered and understood in the light of the observations of the Constitution Bench of the Supreme Court in paragraph 8 of Padma Sundara Rao and Ors. v. State of T.N. and Ors. ((2002) 3 SCC 533). Facts in Mohandas's cases were different. ;
7. In view of Sections (6)(l)(b) and 6(2) of the Act, State Government has authority to pass orders according sanction. Under Article 166(1) of the Constitution, all executive actions of the Government shall be expressed to be taken in the name of the Governor. Clause (2) says that any order or other instrument made and executed in the name of the Governor shall be authenticated in such manner as may be prescribed. The effect of such orders is detailed by the Apex Court in G.V. Nair v. Government of India (1962 KLT 690).
8. Rule 12 of the Rules of Business prescribed as follows:
'12. Every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.'
Rule 4 of the Rules of Business is as follows:
'4. The business of the Government shall be transacted in die Department specified in the First Schedule, and shall be classified and distributed between those departments as laid down therein.'
First Schedule, regarding distribution of the business among departments of the Secretariat, item XXXII is 'Vigilance Department'. Sub item (1) reads as follows:
'XXXII VIGILANCE DEPARTMENT
1. All cases of corruption including cases of complaints or allegations against public servants.'
A notification was published on 23rd April, 1994 amending the Rules of Business of the Government of Kerala in Part II, First Schedule. Following item under the heading 'XXXII Vigilance Department' was added as item No. 8:
'8. Issuance of orders sanctioning prosecution of a public servant under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) or and the Prevention of Corruption Act, 1988 (Central Act 49 of 1988) placing him under suspension and finalising the disciplinary proceedings against him under the relevant rules and orders in pursuance of a vigilance enquiry contemplated/ initiated against the public servant.'
It is the contention of the appellants that this was added on 23rd April, 1994 and, therefore, before 23rd April, 1994, Vigilance Department had no power to issue order on behalf of Government of Kerala granting sanction for the officers working in other departments. Only the concerned Department Secretary who is the appointing authority can accord sanction. But, such a specific power to grant sanction under the Prevention of Corruption Act against employees working in the respective departments was not seen in the items listed in the First Schedule under the various heading's detailing powers of other departments. If the contention of the accused is accepted, before 23rd April, 1994, Government of Kerala cannot exercise powers under Section 6(l)(b) and sanction can be issued only under Section 6(l)(c) of 1947 Act. Even before the addition of item No. 8 on 23rd April, 1994, Vigilance Department had power to deal with all cases of corruption including cases of complaints or allegations against public servants in view of item No. 1. Therefore, Vigilance Department can take action against all public servants, if complaints or allegations of corruption are there. Item No. 8 was introduced only to avoid doubt and specific clarification was issued. This point was considered by a Single Judge Of this Court very extensively in Harshan v. State of Kerala (1989 (1) KLT 105). In that case, identical contentions raised by the accused in this case are considered in paragraph 5 of the Judgment as follows:
'5. The first point argued was that the prosecution must fail for want of proper sanction. Ext. P22 is the order sanctioning prosecution as enjoined by Section 6 of the Prevention of Corruption Act. On behalf of the Government, it was signed by the Commissioner and Secretary (Vigilance Department) by order of the Governor. PW.9 Deputy Secretary, who was examined to prove Ext. P22, said that the files were not forwarded to Governor, but himself and the sanctioning authority (Government) perused all the relevant papers and the sanctioning authority passed the order after due satisfaction. But the appellant would say that personal satisfaction of the Governor is required. So also, according to him, the P.W.D. secretary alone is competent to sign the sanction by orders of the Governor. That is because he is an officer of the Public Works Department and the authority competent to remove him is the Government of Kerala. It was also pointed out on his behalf that Ext. P22 does not disclose proper satisfaction on the basis of materials and the materials, on which satisfaction was entered for ordering sanction, were not produced and proved before Court.'
The above question was answered by S. Padmanabhan, J. as follows in paragraph 10:
'10. Ext. P22 order itself shows that the Government examined the records in Crime No. 3 of 1983 of the Vigilance Police Station placed before me and was satisfied that it is a case fit for sanctioning prosecution. Application of the mind is further evidenced by the detailed facts relating to the offence mentioned in Ext. P22. So also, it is stated that on perusal of the papers, Government of Kerala was satisfied that the appellant committed the offences alleged. Sanction was, therefore, ordered by the Government and it was signed by the Commissioner and Secretary, Vigilance Department by order of the Governor. That is sufficient compliance of the provisions of Section 6 of the Prevention of Corruption Act.'
The sanction order in this case was also signed on behalf of the Government of Kerala.
9. The same view was taken by another Single Judge of this Court in the decision reported in Udayakumar v. State of Kerala (2001 (2) KLT 895). The amendment issued in 1994 as well as the power existed with the Vigilance Department before its introduction was also considered by M.R. Hariharan Nair, J. in that case. In paragraphs 18 and 20 it was observed as follows:
'18. The Vigilance Department comes as item 31 in the list of departments relating to the distribution of business. Under Clause( 1) it is now the duty of the Vigilance Department to deal with all cases of corruption including cases of complaints or allegations against public servants'. If it is the duty of the Vigilance Department to look after all cases of corruption against public servants it cannot be said that it had nothing to do with the grant of necessary sanction required for prosecution.'
* * * *
'20. A Government Order will hence be valid if it is signed by Secretary of any Department dealing with the subject unless his authority is barred by any general or special order. At the most what can be said is that after 23rd April, 1994 it is the duty of the Vigilance Department to deal with question of sanction.'
10. Even if it is not written that 'By order of Governor', it will still be an order passed by the State if it is passed by Secretary on behalf of the Government. In Major E. C. Barsay v. State of Bombay (AIR 1981 SC 1762), the Apex Court considered the question. The word 'By order of President of India' was not mentioned in the sanction order issued for prosecuting the officer under the 1947 Act. The last portion only stated that:
'Sd/-
M. Gopala Menon,
Deputy Secretary to the Government of India.'
The above order was held to be valid order of the Government of India. After quoting various decisions, the Apex Court also held that provisions of Article 166 is also directory and substantial compliance is enough. (See paragraphs 25 and 26 of the above Judgment.) In State of Bombay v. Purushottam Jog Naik (AIR 1952 SC 317), Bose, J. observed as follows:
'In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there.'
11. When prosecution is launched under the Prevention of Corruption Act, sanction is necessary to avoid frivolous litigation and harassment of public servants. When an accused is tried and he was found guilty from the evidence, the question of frivolous litigation will not arise. Therefore, after conviction is entered by the Court below, after considering the evidence, question of filing frivolous prosecution will never arise. This aspect was taken care of in 1988 Act by Section 19(3) of the 1988 Act reads as follows:
'19. Previous sanction necessary for prosecution.-
* * * * (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 order passed in any inquiry, trial, appeal or other proceedings.'
The Supreme Court considered the matter in respect of the convictions under the 1947 Act in Central Bureau of Investigation v. V.K. Sehgal and Anr. (1999 SCC (Crl.) 1494) and held as follows:
'18. Thus the legal position to be followed, while dealing with the appeal filed against the conviction and sentence of any offence mentioned in 1947, Act is that no such conviction and sentence shall be altered or reversed merely on the ground of absence of sanction, much less on the ground of want of competency of the authority who granted the sanction.'
The Supreme Court also observed that the provision for sanction is made as a filtering check to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offences in the discharge of their official duties. But, once the judicial filtering process is over on completion of the trial, the purposes of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellant and revisional forums as envisaged under Section 465 of the Code of Criminal Procedure. The above observation will apply in these cases also. Trial Court has found the accused guilty, taking recourse to Section 465. Cr. P.C. also. The question of sanction has only become an error or irregularity.
12. The learned counsel for the appellants cited the decision in Mansukhlal Vithaldas Chauhan v. State of Gujarat ((1997) 7 SCC 822). The Supreme Court in that case only held that the High Court cannot issue a writ of mandamus directing the concerned authority to grant sanction. An authority has to consider the matter independently. The Trial Court has observed that the Secretary, Vigilance Department has consulted the concerned Department before giving sanction. But, Government considered the matter and Secretary to Government of Kerala, Vigilance Department is competent to sign sanction order in view of the Rules of Business and orders were passed on behalf of the Government of Kerala. The decision of the Apex Court in P. K. Pradhan v. State of Sikkim (AIR 2001 SC 2547) was also pointed out by the Counsel for the accused. Apex Court in the above case held that the question of lack of sanction can be raised at any time including during trial and after judgment. But, in that case, trial was not over. Question of effect of order of sanction after conviction was not considered.
13. Another decision cited by the Counsel appearing for the appellants in Nithyanandan v. State of Kerala (1995 (2) KLT 250). There, a learned Single Judge of this Court only held that after introduction of item No. 8 with effect from 23rd April, 1994 it is very clear that Vigilance Department has got power and after the amendment this question is no more open. That will not show that before the amendment, in view of item No. 1, Part II, First Schedule, Vigilance Department was not the authority.
14. In view of the discussions above, we are of the opinion that in view of the Rules of Business, item 8 under heading XXXII of Part II, First Schedule, the sanction order issued by the Secretary, Vigilance Department, on behalf of the Government of Kerala, is proper sanction and even if there is any irregularity in view of Section 465 of the Code of Criminal Procedure and in view of the principle laid by the Supreme Court in Central Bureau of Investigation v. V.K. Sehgal and Anr. (1999 SCC (Crl.) 1494), conviction cannot be set aside merely for defective sanction. In these cases, sanction order issued on behalf of the Government of Kerala was proper also. Therefore, the referred question is answered in the affirmative and conviction cannot be set aside for want of sanction in these cases.
15. It is pointed out that in view of Section 3 of the High Court Act, a mere question of law alone cannot be referred by a Single Judge to the Division Bench and the Division Bench has no power to return the matter after answering the reference to the learned Single Judge also. Therefore, the appeals have to be decided on merit. List the appeals for final hearing on merit next month.