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1997(8) Supreme 178
SUPREME COURT OF INDIA
(From Gujarat High Court)
M.K. Mukherjee & S. Saghir Ahmad, JJ.
Mansukhlal Vithaldas Chauhan -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 502 of 1993
Decided on 3-9-1997
Counsel for the Parties :
For the Appellant : U.R. Lalit, Sr. Advocate, S.C. Patel, Advocate.
For the Respondent : Y. Adhyaru and Ms. Hemantika Wahi, Advocates.
Held : Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. (Para 22)
In the performance of this duty, if the authority in whom the discretion is vested under the Statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion. (Para 23)
Further held : 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 Govt. that the firm had been black-listed once and there was demand for some amount to be paid to Govt. by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court. (Para 32)
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. (Para 33)
On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a proforma drawn up by the office. Since the correctness and validity of the sanction order was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings. (Para 34)
(ii) Indian Penal Code, 1860-Section 161-Prevention of Corruption Act, 1947-Sections 5(2) and 6-Complaint of receiving illegal gratification-Prosecution-Grant of sanction-Held invalid-Whether case to be remitted back to authority for reconsideration-Held, on fact, no-Incident being of 1983-It will be contrary to mandate of Art. 21, Constitution of India.
Held : Normally when the sanction order is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial. (Para 39)
(iii) Prevention of Corruption Act, 1947-Section 6-Sanction for prosecution of offences under Section 161 IPC & 5(2) of the Act-Grant of-Validity of-Central or State Government or the other authority has right to consider question of grant of sanction-It has also discretion to grant or not to grant sanction-Provisions in regard to sanction should be observed with complete strictness - Sanctioning authority must consider all relevant facts, material and evidence.
Held : 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 estalished by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (Para 18)
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 neces-sarily 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 sanction" was taken away and it was compelled to act mechanically to sanction the prosecution. (Para 19)
(iv) Prevention of Corruption Act, 1947-Section 6-Sub-section (2) is clarificatory in nature-This rule is a departure from normal rule under which relevant date is date of taking cognizance.
Held : Sub-section (2) of Section 6 is clarificatory in nature inasmuch as it provides that if any doubt arises whether the sanction is to be given by the Central Government or the State Government or any other authority, it shall be given by the appropriate Government or the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance. (Para 13)
(v) INTERPRETATION OF STATUTES - Words shall must or may - Interpretation of.
Held : Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words, "shall or must". But this is not conclusive as "shall and must" have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the Statute in which the "duty" has been set out. Even if the "Duty" is not set out clearly and specifically in the Statute, it may be implied as co-relative to a "Right". (Para 22)
JUDGMENT
S. Saghir Ahmad, J.-The appellant, who as Divisional Accountant, held a Class III Post, in the Medium Irrigation Project Division at Ankleshwar, Gujarat, was prosecuted for offences under Section 161 IPC and Section 5(2) of the Prevention of Corruption Act, 1947, and was ultimately convicted and sentenced to two years rigorous imprisonment and a fine of Rs. 15,000/- for the offence under Section 5(2) of the Act and another two years rigorous imprisonment for the offence under Section 161 IPC, by the trial Court, namely, Special Judge, Bharuch. This was upheld by the High Court in appeal.
2. Mr. U.R. Lalit, senior counsel appearing on behalf of the appellant has strenuously contended that the entire proceedings, namely, the proceedings before the trial Court as also the High Court are liable to be set aside as there was no valid sanction within the meaning of Section 6 of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the Act") with the consequence that the trial Court had no jurisdiction to take cognizance of these offences, much less try them. This contention is challenged by the counsel appearing on behalf of the State of Gujarat, who was contended that there was proper and valid sanction granted within the meaning of the Act and it was thereafter that the trial Court took cognizance of the offences and initiated the case which ultimately ended in the conviction of the appellant. The trial Court as also the High Court before whom the question of want of "sanction" was raised have held concurrently that there was proper sanction by the competent authority and therefore, the appellant was rightly convicted particularly as the charges were proved against him.
3. In order to appreciate the controversy as regards "sanction", we may set out the following few facts.
4. M/s. R.L. Kalathia & Company, a partnership firm of eleven partners one of whom was Mr. Harshadrai Laljibhai Kalathia, were awarded, in 1979, the contract for constructing Pignut Dam in Valia Taluka of District Bharuch at an estimated cost of Rupees eighty six lacs. The work was completed on 31st December, 1982. Excluding the payments made against running bills, there still remained a sum of Rupees eighty lacs to be paid to the contractor from whom the appellant allegedly demanded Rs. 20,000/- but Harshadrai Laljibhai Kalathia reported the matter to the Deputy Director (Anti Corruption), Shri Vaghela, who, in his turn, briefed the Police Inspector. Shri Agravat and the latter, namely, Shri Agravat arranged and laid a trap on 4.4.83. The currency notes, treated with anthracene powder, were offered to the appellant who was, allegedly, caught red-handed by the raiding party. Police Inspector Agravat examined the hands of the appellant in the light of the ultra violet lamp which indicated marks of anthracene powder on the tips, palm and fingers of the left hand as also on his right hand. Some marks of blue anthracene powder were also found on the currency notes. Inspector Agravat gave a receipt of Rs. 20,000/- to the appellant and took the currency notes in his possession. The usual Panchnama was prepared and further investigation was carried out by Shri Agravat.
5. In the meantime, the appellant submitted an application (Ex. 45) to the Home Minister on 9.3.1984 for investigation being handed over to an independant officer. The Home Minister by his order dated 13.3.1984 directed fresh investigation of the case, in pursuance of which the investigation was taken up by the Assistant Director, Shri Vaghela, who submitted a fresh report in December, 1984 against the appellant. On the receipt of this report, the Secretary, Gujarat Vigilance Commission, by his letter dated 3.1.1985, wrote to the Government to grant sanction for prosecuting the appellant as a prima facie case was made out against him after fresh investigation. The Government, however, did not immediately grant the sanction and consequently the complainant, Shr
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