In Re: The Commissioner and Secretary, Assam - Court Judgment

A.M. Sapre, CJ.

1. This Public Interest Litigation (PIL) was registered pursuant to the observations made by the learned Single Judge (as his Lordship then was) in the order dated 18.6.2007 passed in W.P(C) No 2560 of 2007. It reads as under:

“On the above facts the Court is of the view that a separate and suo motu writ petition should be registered on the basis of the facts noticed above. The Education and the Finance Departments will be parties to the writ petition. They will file their responses in the matter within a period of 4(four) weeks from today. Thereafter, orders as may be considered appropriate will be passed. The suo motu action ordered to be registered by the present order will be separated from W.P.(C) No.2560/2007, which will be dealt with by the Court separately. Consequently, WP(C) No.2526/2007 will be listed in the next week and the same would no longer be treated as a part heard matter. Office is to be act accordingly.” The background facts need mention infra to appreciate the issue involved in this PIL. While hearing W.P(C)No. 2560 of 2007 filed by several teachers against the State and its authorities, it was noticed by the learned Single Judge that large-scale illegal appointments of teachers (around 752) had been made by the State officials in 1989 in Dhemaji and Lakhimpur Districts without there being any sanctioned/existing post and also without any appointment orders, much less valid appointment orders in favour of any appointee. It was also noticed that these persons (teachers) were being paid salary in fraudulent way without obtaining proper sanction/orders from the competent authority as per business rules of the State and in this process, some were not being paid salary and some were being paid less. In the meantime, some time in 1992, the services of few teachers were terminated. This led to filing of several writ petitions by terminated teachers against the State. In these writ petitions, they challenged their termination orders. Some teachers who claimed to be in service prayed for a direction that they be paid their salary, which according to them, was not being paid or was being paid less.

It was essentially with this background, the aforesaid observations were made by the learned Single Judge in the said writ petition for registration of a separate PIL (Suo Motu), after obtaining necessary orders from the Chief Justice to enable the Court to further probe into the matter and pass appropriate orders if called for in the larger public interest. This is how this case was registered as PIL(Taken Up). Since then i.e. last 7 years, this court has been passing interim orders from time to time and monitoring the progress with a view to find out as to whether any action was taken and if so, whether it was in accordance with law, so that the issues are brought to their logical end. Accordingly, an investigation was carried out and finding prima facie several irregularities alleged to had been committed in making the appointments on the post of teachers and in making payment of salaries to them by resorting to illegal means, the State of Assam lodged an FIR on 24.1.2008 with CID Police Station, Guwahati. The matter was accordingly probed on the strength of FIR, which led to CID seeking permission from the State for according sanction as required under Section 197 of Cr.P.C. read with Section 19 of the Prevention of Corruption Act ( for short called “The Act”) to start prosecution against 14 persons who were found involved in the scandal. This included four State employees – namely, Shri Joy Chandra Goswami, Shri Hemanta Kr. Sarma, Shri Mohsin Ali and Shri Balendra Kr. Das.

The competent authority then examined the issue on the basis of material available with the State with a view to find out as to whether any case was made out for grant of sanction as required under Section 197 ibid for initiation of prosecution and if so, against how many delinquent State employees? The State by order dated 7.5.2010/27.7.2010, declined to grant sanction so far as 5 employees were concerned; whereas, it granted sanction to prosecute 10 persons finding prima facie material against them and accordingly, charge sheet was filed against them (10 persons) in Case No. 02/08 under Section 120–B/420/406 IPC in competent court. Later, supplementary charge sheet against two more persons was also filed. So far as the order declining to grant sanction to prosecute 5 persons was concerned, it concluded by saying that though at this stage on the basis of material and evidence collected does not prima facie indicate any case against them but, if any fresh material is made available or/and obtained or/and discovered in any proceedings or otherwise at a later date, then the issue will again be considered in the light of fresh material so collected in accordance with law against these persons. Since in the meantime, some persons, against whom, the charge sheet was to be filed expired and hence, no action was pursued against them. It is with this back ground, now the question which arises for consideration whether this court should examine the legality and correctness of the two orders dated 7.5.2010/27.7.2010 which declined to grant sanction to prosecute 5 persons (one is dead out of 5 ) and secondly, if these orders are found to be bad in law for any reason, then whether this court has jurisdiction to issue mandamus directing the State to grant sanction to prosecute them and thirdly, if it is found that no interference in these two orders (7.5.2010/27.7.2010) are called for in these proceedings, then whether the matter can still be kept open qua these persons to be decided in appropriate proceedings in accordance with law. Indeed, the matter was argued at length on the aforesaid issues by learned Senior Counsels who appeared for 4 delinquent employees, Additional Advocate General representing the State and Amicus appointed to assist the Court.

So far as the argument of Mr. D.K. Mishra, learned Senior Counsel and Shri KH Choudhury, learned Senior Counsel, who appeared for the delinquent employees and Additional Advocate General Mr. D Saikia was concerned, they contended that since the issue is now seized of by the competent court against 10 persons (accused) where the questions are being examined as to whether any offences punishable under Section 120–B/420 IPC and Section 13 (2) read with Section 13 (1) (d) of P.C. Act are made out and hence, the purpose of this PIL (suo motu) is now practically achieved and therefore, it should be closed by issuing appropriate directions to competent court, if necessary. It was also their submissions that in the light of principle of law laid down by the Supreme Court in several decided cases cited at the bar on the issue of the grant of sanction under the twin Sections (197 of Cr.P.C./19 of P.C.Act) that it is neither possible for this court to quash the aforementioned two orders - dated 7.5.2010/27.7.2010 and nor it is possible to issue any mandamus against the State to grant sanction against these persons for their prosecution. So far as Mr. Dey, learned Amicus was concerned, he assisted the court by placing the entire case law on subject and argued contra to the argument of Mr. DK Mishra, Mr. KH Choudhury, learned Senior Counsel and Mr. D. Saikia, learned Addl. Advocate General. Large number of decisions of the Supreme Court were cited at the bar, basically, on the issue of grant of sanction required under Section 197 of Cr.P.C. and Section 19 of P.C.Act - such as - AIR 1966 SC 220, (2011) 7 SCC 167, (2009) 3 SCC 398, 1970(2) SCC 56, (2007) 1 SCC 1, (2012) 6 SCC 228, (2012) 12 SCC 72, (2013) 8 SCC 119, (2012) 3 SCC 64, (2009) 17 SCC 92, (2010) 144 SCC 527 and (1997) 7 SCC 622. In all these cases, the Supreme Court examined the object and scope of Section 197 of Cr.P.C. and Section 19 of P.C.Act as to how and in what manner the issue relating to the grant of sanction is required to be decided by the competent authorities and secondly, whether the High Court can issue a mandamus directing the State/authority to grant sanction against any particular person.

The case which takes into consideration all the issues and frequently relied upon in later years is the one reported in (1997) 7 SCC 622 Mansukhlal Vithaldas Chauhan vs State of Gujarat.

In this case, a trap against the accused (appellant), a Divisional Accountant in an irrigation project in the State was laid on the complaint of partner of a firm having official dealings with the State. The appellant was alleged to have been caught accepting bribe. The Secretary, Gujarat Vigilance Commission, wrote to the Government to grant sanction for his prosecution but the Government did not immediately grant sanction. Meanwhile, the partner of the complainant firm filed a petition under Article 226, for a direction to the State of Gujarat and others, to grant sanction for his prosecution. The High Court directed the Secretary of the Department in which the appellant was working to accord sanction under the relevant provisions of the Prevention of Corruption Act to prosecute the appellant within one month from the receipt of the writ of the Court. In view of these directions of the High Court, sanction was granted and accordingly the appellant was prosecuted and convicted under sanction 161 IPC and Section 5(2) of the Prevention of Corruption Act. He challenged his conviction on the ground that proceedings before the trial court and the High Court were vitiated because there was no valid sanction for his prosecution under Section 6 of the Prevention of Corruption Act, 1947. The Supreme Court allowed the appeal filed by accused and set aside his conviction on the ground that firstly, High Court had no jurisdiction to issue a mandamus under Article 226 directing the State to grant sanction to prosecute the appellant under Section 197 ibid and secondly, in the absence of valid sanction, his conviction was not legally sustainable. Justice Saghir Ahmad speaking for the Bench held in Paras 17, 18 and 19 as under:

“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 v. State of A.P.,(1979) 4 SCC 172) 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. 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 v. State of Punjab, AIR 1958 SC 124 and State of Bihar v. P.P. Sharma,1992 Supp(1) SCC 222)

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 genuine 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 a 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 it 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 bad for the reason that the discretion of the authority “not to Page 8 of 11

sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.” The learned Judge then in para 21 posed the question as to whether High Court can issue a writ of mandamus of this nature: “21. The question is whether the High Court could issue a mandamus of this nature and whether the order of sanction, in these circumstances, is valid.” The issue on principle of law with reference to decided cases was then discussed threadbare and then it was held that High Court cannot issue mandamus against the State and direct grant of a sanction to prosecute a particular person. This is what was held in paras 31 to 33. “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 Government 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 Harshadrai of illegal gratification which was sought to be supported by “trap” was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government 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 the 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 an action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed the 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 treated 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 circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court.” Keeping the aforesaid principle of law in mind when the same is applied to the facts of the case, then we find on perusal of the two orders dated 7.5.2010/27.7.2010 that they were passed after taking into consideration the evidence and material on record by the State (competent authority) and being reasoned orders having been passed with application of mind by the competent authority, this court does not consider it proper in its extra ordinary PIL jurisdiction under Article 226/227 of the Constitution of India to quash them. Moreover, this court cannot issue mandamus against the State and direct the State to accord sanction. It was also not the case here where State did not consider the material though on record while passing the orders or that any fresh material though collected and yet was not taken into account, while declining the sanction against these employees.

That apart, here is a case, where due to continuous monitoring by this court, the matter was investigated which led to filing of the charge sheet against 10-12 delinquent employees, who are now facing trial, in the Court of Sessions/Special Judge which has now reached to stage of evidence. In fact, with this undisputed back ground of the case coupled with the legal position summarized above, we are of the considered opinion that this Suo Motu PIL can be closed finally with a direction to the Sessions Judge/Special Judge to proceed with the trial strictly in accordance with law uninfluenced by any of the observations made by this court in this order. We also wish to make it clear that the Sessions Judge/Special Judge would be at liberty at any stage of proceedings of trial to invoke the provisions contained in Chapter XXIV of Cr. P.C. specially Section 311 and Section 319 of the Cr.P.C. against any employees (accused) including those against whom sanction was not granted if it appears to the court on the basis of the evidence brought on record in the trial that any such person/s has committed an offence and for which he could be tried with the original accused person. In such eventuality, the Sessions Court would always be justified to proceed against any such person/s in accordance with law. Such accused persons then will have no right to rely upon this order. Indeed, this power is amply available to the Sessions Court under the Cr.P.C. while trying an offence against any accused and hence, the court should always keep in mind the availability of such power while trying any criminal case. The case in question cannot be therefore an exception to this principle. Since the case is old, we direct the concern Sessions Judge/Special Judge to ensure its expeditious disposal strictly in accordance with law and conclude the trial preferably within a period of one year as an outer limit from the date of production of this order.

We place on record our appreciation for Mr. S.S. Dey, learned counsel who appeared on our request as amicus and argued the matter with fairness. It is with these directions, this PIL (Suo Motu/taken up) matter is disposed of. A copy of this order be sent by Registry to concern court immediately for ensuring compliance of directions. No cost.