STATE OF M.P. vs. ANAND MOHAN & ANR.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

State of Madhya Pradesh & Ors. … Appellants Versus Anand Mohan & Anr … Respondents J U D G M E N T Prafulla C. Pant, J. JUDGMENT This Appeal is directed against judgment and order dated 03.09.2013 passed by the High Court of Madhya Pradesh at Jabalpur whereby said Court has allowed Writ Petition No. 21246 of 2012 challenging the order of sanction for prosecution, passed by Secretary, Law and Legislative Affairs, Government of Madhya Pradesh, Bhopal. Page 1 Page 2 of 17 2. Brief facts of the case are that respondent No.1 was an Executive Engineer, and respondent No.2 was an Assistant Engineer with Bhopal Development Authority (for short

at Raksha Vihar Colony, Bhopal, for which tenders were invited on 25.07.1995, and work order was given in favour of one A.R.K. Electricals, Bhopal. The construction was completed on 25.09.1997, and ownership of the sub-station was transferred to Madhya Pradesh State Electricity Board (for short “MPSEB”). It is alleged that the respondents, in connivance with other accused, entered into a criminal conspiracy in connection with above construction work, and got prepared a forged note-sheet, pursuant to which excess JUDGMENT payment of Rs. 9,51,657/- was paid to a contractor (Ashok Johri). On this information, Economic Offences Wing (for short “EOW”) of the State Government registered Crime No. 28 of 2004 in respect of offences punishable under Sections 420, 467, 468, 471, 120B and 201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (for Short “the Act”) against the respondents and other Page 2 Page 3 of 17 accused. After investigation, the Wing sought previous sanction necessary for prosecution of the respondents from the Administrative Department of the State Government. The

examining the papers declined the sanction vide its order dated 08.03.2011. However, on completion of investigation, when charge sheet was filed against the accused before the Court of Special Judge (Prevention of Corruption Act), Bhopal, the court, vide its order dated 15.02.2012, directed that necessary sanction for the prosecution of respondents be obtained from appellant No. 2, Secretary, Department of Law and Legislative Affairs, Government of Madhya Pradesh, which is the Competent Authority. Said Authority after examining the JUDGMENT papers vide order dated 20.11.2012, (Annexure P-8) granted necessary sanction to prosecute the respondents. 3. The respondents challenged the order dated 20.11.2012, passed by present appellant No.2 before the High Court through Writ Petition No. 21246 of 2012. The High Court allowed the Writ Petition holding that appellant No. 2, i.e. Page 3 Page 4 of 17 Secretary, Department of Law and Legislative Affairs was not the Competent Authority to grant the sanction.

Department was not the Competent Authority to grant sanction for the prosecution. In this connection reference was made to the Order/Notification dated 03.02.1988 (Annexure P-1) issued by the State Government regarding amendment in the relevant rules delegating the power relating to sanction of prosecution to the Department of Law and Legislative Affairs passed by the State Government. 5. On the other hand, learned counsel for the respondents JUDGMENT contended that the Competent Authority to grant sanction for prosecution against the present respondents was appellant No. 1, Secretary, Housing and Environment of Government of Madhya Pradesh, and said authority had declined to grant the sanction vide its Order dated 08.03.2011. It is further submitted that appellant No. 2 was conferred power to grant the sanction vide circular dated 28.02.1998, as such it was Page 4 Page 5 of 17 not competent to grant sanction in respect of offence alleged to have been committed by the respondents in the year 1997.

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Page 6 Page 7 of 17 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.” { In sub-section (1) words “save as otherwise provided in the Lokpal and Lokayuktas Act, 2013” are added vide Act (1) of 2014 with effect from 16.01.2014 before clause (a) of the sub section (1) from clause (b) of sub section (1). } JUDGMENT 7. From the Section quoted above, it is clear that the sanction for prosecution in respect of the public servant employed in connection with affairs of the State, who is not removable from his office save by or with the sanction of the State Government, such Government shall be, authority to grant sanction for prosecution. It is not disputed that the previous sanction was sought by the EOW for prosecution of Page 7 Page 8 of 17 the respondents. The only issue is as to which of the department of the State was competent to grant the sanction. Order dated 03.02.1988 (Annexure P-1), published in the

(Allotment) Rules (for Short “MPWAR) were amended, reads as under: “ Madhya Pradesh Gazette (Extraordinary) Published by Authority rd No. 35, Bhopal Wednesday, 3 February, 1988 Personnel Administrative Reforms & Training Department rd Bhopal, dated 3 February, 1988 No. F A-1-1-88-49 (1)-225: In exercise of powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India the Hon’ble Governor of Madhya Pradesh makes more amendments in Madhya Pradesh Works (Allotment) Rules, namely:- JUDGMENT Amendment In the aforesaid rules: - (1) The para 4 is replaced with the following para in the policy made in the para 21 in the Schedule-in (A) Department under Law & Legislative Affairs Department, namely:- 4 (One) Criminal Procedure includes all subjects coming under Criminal Procedure Code save the probation of the Criminals, and Page 8 Page 9 of 17 (2) Sanction of prosecution under Section 6 of the Prevention of Corruption Act, 1947.

Sanction of the prosecution under Section 173 of the Criminal Procedure Code, 1973 and Section 6 of the Prevention of Corruption Act, 1947 in respect of services related to those departments. By order & in the name of the Governor of MP A.D. Mohile, Special Secretary” 8. Consequent to above amendment, Chief Minister of Madhya Pradesh vide order dated 08.02.1988 (Annexure P-2) delegated the power to grant sanction for prosecution of the public servants to the Law Secretary of Madhya Pradesh Law JUDGMENT Department. Said document is reproduced below: “ Madhya Pradesh Government Personnel, Administrative Reforms and Training Department ORDER th Bhopal, dated 8 February, 1988 According to the para (1) of Directive No.2 of Supplementary Directive Part-5 under Rule-1 of Page 9 Page 10 of 17

Sd/- Motilal Vora Chief Minister” 9. By the Order dated 21.04.1997 (Annexure P-3), it is provided that the Department of Law and Legislative Affairs shall obtain opinion of the concern Administrative Department before granting the sanction. It is further provided that in case of conflict between the two departments, the matter shall be JUDGMENT referred to Sub-Committee of the Cabinet. However, the order dated 21.04.1997 (Annexure P-3) was withdrawn vide letter dated 10.07.1997 (Annexure P-4) to the extent that in case of conflict the matter would be required to be referred to Sub-Committee of the Cabinet. Letter dated 10.07.1997 (Annexure P-4) is reads as follows: Page 10 Page 11 of 17 “ State of Madhya Pradesh General Administrative Department No.F-15(6)/96/1-10 Bhopal dated 10.07.1997

To Sub. Sanction for prosecution against the Government Employees/Officers. Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997 issued by this Department Vide reference circular of this department, the procedure for according sanction for prosecution was determined. As per order following part is deleted from the prescribed procedure in Para 2 of the said circular. “In case of conflict between the Law Department and the Administrative Department, the case shall be presented before the Sub-Committee of the Cabinet by the Administrative Department.” JUDGMENT Remaining procedure of the reference circular shall remain as it is. Please ensure action in the cases of sanction for prosecution in future accordingly. Sd/- A.V. Gwaliorkar Deputy Secretary State of MP General Administrative Department Page 11 Page 12 of 17 No.F-15(6)/96/1-10 Bhopal dated 10.07.1997 Copy to

Sd/- A.V. Gwaliorkar Deputy Secretary State of MP General Administrative Department” 10. By the Order dated 28.02.1998, the State Government further clarified that in the matters of sanction for prosecution, the papers shall be sent by the Department of Law and Legislative Affairs along the record to the Administrative Department for its opinion and the Administrative Department shall give the same within a period JUDGMENT of one month, whereafter Department of Law and Legislative Affairs shall take a decision. 11. It is not disputed that State of Madhya Pradesh Economic Offence Wing registered Crime No. 28 of 2004 in respect of offences under Sections 420, 467, 468, 471 and 120B IPC and under Section 13 (1) (d) read with Section 13 (2) Page 12 Page 13 of 17 Prevention of Corruption Act, 1988 against the respondents on the allegation that the respondents in connivance with others prepared forged note sheet, and made payment of Rs.

not disputed that when the EOW sought sanction for prosecution from Department of Housing and Environment, it declined the sanction vide order dated 08.03.2011 (Annexure P-6). Question before us is that whether the Department of Law and Legislative Affairs which granted the sanction vide its order dated 20.11.2012 (Annexure P-8) was competent to do so or not. 12. The High Court in the impugned order observed that the (EOW) did not challenge legality and validity of order dated JUDGMENT 08.03.2011, and submitted the charge sheet. It further held that since the appellant No. 2 was conferred power to grant the sanction only vide circular dated 28.02.1998, as such it was not competent to grant the sanction relating offences alleged to have been committed in the year 1997. Page 13 Page 14 of 17 13. We are unable to accept the view taken by the High Court for the reason that from annexure P-1 and annexure P-2, it is evident that the power to grant the sanction for prosecution,

Affairs, since February, 1988. The circular letter dated 28.02.1998 (Annexure P-5) does not confer any new power and it only clarifies that Department of Law and Justice is a competent authority not only in respect of investigations made by Lokayukta Organization, but also the State Economic Offences Investigation Wing. The power with the appellant No.2 to grant the sanction is, in fact, conferred by the rule as amended vide notification dated 03.02.1988 published in the Official Gazette. After such amendment in the rule whereby JUDGMENT power to grant sanction was delegated to Department of Law and Justice, it cannot said that Administrative Department had power to decline sanction as it has done vide its order dated 10.07.1997. 14. In DDA and others vs. Joginder S. Monga and 1 others discussing the situation of conflict between statutory 1 (2004) 2 SCC 297 Page 14 Page 15 of 17 rule and executive instruction, this Court has clarified as under:

15. On behalf of the respondents, reliance is placed in the case of Sanjaysinh Ramrao Chavan Vs . Dattatray 2 Gulabrao Phalke , but on going through said case law we find that in said case investigation agency itself filed closure JUDGMENT report as against the appellant Sanjaysinh Ramrao Chavan, and the same was accepted by the Magistrate, as such there was no question of sanction to be obtained from the Department concerned. In the circumstances, we find that the case of Sanjaysinh Ramrao Chavan (supra,) is of little help to the present respondents. 2 2015 (1) SCALE 457 Page 15 Page 16 of 17 16. Recently in State of Bihar and others v. Rajmangal 3 Ram , this Court has held as under: -

17. From the sanction granted by the Law Department, copy of which is annexed as Annexure P-8, it is evident that the authority has examined the material on record before granting the sanction. 18. Therefore, we are of the view that the High Court has JUDGMENT erred in law in allowing the Writ Petition filed by the respondents seeking quashing of sanction dated 20.11.2012 granted by appellant No.2, Secretary, Department of Law and Legislative Affairs, Government of Madhya Pradesh. We do not find any infirmity as to the competence of appellant No.2 to grant the sanction in the matter for the reasons discussed 3 (2014) 11 SCC 388 Page 16 Page 17 of 17 above. Accordingly, the appeal is allowed. The impugned order dated 03.09.2013, passed by the High Court, is set aside. ……………….....…………J. [Dipak Misra] .……………….……………J. New Delhi; [Prafulla C. Pant] July 09, 2015. JUDGMENT Page 17