1. Conviction of a public servant under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 — Challenge to the validity of prosecution sanction. (Para 1 , 2 )
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1999 Supreme(SC) 275
SUPREME COURT OF INDIA
D.P.Mohapatra : K.T.Thomas
Ram Krishan Prajapati
Versus
State Of U.P.
Case No. : 648 of 1985
Date of Decision : 3/10/99
Sanction for prosecution under Section 5(2) of the Prevention of Corruption Act, 1947, must be granted by the actual appointing authority. If a higher authority made the appointment, sanction from a lower authority is invalid, excluding the court's jurisdiction to take cognizance.
Headnote:(A) Prevention of Corruption Act, 1947 - Sections 5(1)(d), 5(2) and 6 - Sanction for prosecution - Requirement of sanction from the authority competent to remove the public servant from office - Prosecution under Section 5(1)(d) must be read with Section 5(2) - Sanction is a mandatory requirement under Section 6 for taking cognizance of an offence punishable under Section 5(2) (Paras 3, 4).
(B) Appointing Authority - Interpretation - Where a public servant is appointed by an authority higher than the one generally empowered to make such appointments, the authority that actually made the appointment is the appointing authority for the purpose of granting sanction (Paras 7, 8).
(C) Jurisdiction - Absence of valid sanction totally excludes the jurisdiction of the Special Judge to take cognizance of the offence (Para 10).
Facts of the case:
A public servant serving as a Supply Inspector was convicted under the Prevention of Corruption Act, 1947, following a successful trap operation. The prosecution was sanctioned by the District Magistrate. However, it was established that the public servant had been appointed to the post by the Commissioner, who is a higher authority than the District Magistrate.
Findings of Court:
The sanction issued by the District Magistrate is invalid as the Commissioner, being the actual appointing authority and a higher authority, was the only competent authority to accord sanction for prosecution.
Issues: Whether the sanction granted by the District Magistrate was legally valid given that the appointment to the post was made by the Commissioner.
Ratio Decidendi: For the purpose of prosecution under the Prevention of Corruption Act, 1947, the sanction must be granted by the authority competent to remove the officer from office. If the officer was appointed by a higher authority than the one typically empowered, that higher authority is the appointing authority. Lack of valid sanction strips the court of jurisdiction to take cognizance.
Result: Appeal allowed and conviction and sentence set aside.
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2. Whether sanction is required for Section 5(1)(d) and whether the District Magistrate or the Commissioner of Civil Supplies was the competent appointing authority for granting sanction. (Para 3 , 5 , 6 )
3. Section 5(1)(d) must be read with Section 5(2), requiring sanction from the authority competent to remove the employee; actual appointment by a higher authority determines competence. (Para 4 , 6 , 7 , 8 , 9 )
4. Absence of sanction from the competent appointing authority excludes the jurisdiction of the Special Court to take cognizance of an offence under the Prevention of Corruption Act. (Para 4 , 10 )
5. Appeal allowed — Impugned judgment, conviction, and sentence set aside due to lack of valid sanction. (Para 10 )
6. Is sanction required for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947?
Yes. An offence under Section 5(1)(d) must be read with Section 5(2), and Section 6 mandates that no court shall take cognizance of an offence punishable under Section 5(2) without the previous sanction of the authority competent to remove the accused from office. (Para 4 )
7. How is the competent appointing authority determined when multiple authorities may have power to appoint?
The appointing authority includes the authority empowered to make appointments to the service, grade, or post, or the authority that actually appointed the government servant. If a higher authority actually makes the appointment, that authority is the appointing authority for that individual. (Para 7 , 8 )
8. What is the legal effect of a prosecution initiated without a valid sanction from the competent authority?
The want of sanction from the competent authority totally excludes the jurisdiction of the Special Judge to take cognizance of the offence. (Para 10 )
K.T.THOMAS, J.
(1) THE appellant has been convicted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (for short "the Act") and sentenced to rigorous imprisonment for a period of one year. He filed an appeal, but the High Court dismissed the appeal by confirming the conviction and sentence. Hence, he has come up to this Court under Article 136 of the Constitution by special leave.
(2) THE appellant was the Supply Inspector in the Department of Food and Civil Supplies in the State of Uttar Pradesh. On 11-8-1977 a trap was arranged on the information furnished by PW 1, a fair price shop dealer in sugar, who told the Vigilance Authorities that the appellant was demanding Rs.200 as bribe. It is the prosecution case that the trap became successful and the marked currency notes were recovered from the left pocket of the appellant.
(3) THE main point canvassed before us is that no sanction has been accorded by the competent authority for instituting the prosecution and therefore the Special Court had no jurisdiction to take cognizance of the offence at all. Though this point was raised before the High Court it was curtly skipped off with the following observations:
"THIS is irrelevant for the present case because for trial of offence under Section 5(1)(d) of the Act, sanction is not necessary. Section 6 only prohibits commencement of trial for offence punishable under Section 161 or Section 164 or Section 165 IPC or under sub-section (2) or sub-section (3)(a) of Section 5 of the Act without sanction. The present case is under Section 5(1)(d) and hence it is immaterial to find out as to who was the appointing authority of the accused appellant."
(4) IT is conceded that the aforesaid reasoning is fallacious for there is no offence under Section 5(1)(d) unless the same is read with Section 5(2) of the Act. So the prosecution is actually for the offence under Section 5(2) read with Section 5(1)(d) of the Act. It is a requirement under Section 6 of the Act that "no court shall take cognizance of an offence punishable under subsection (2) of Section 5 of this Act, except with the previous sanction of the authority competent to remove him from his office" (words which are not material for this case have been omitted). It is conceded that the authority competent to remove him is the authority which has appointed him.
(5) LEARNED counsel for the respondent State contended that the competent appointing authority to appoint is Supply Inspector during the relevant time was the District Magistrate. In support thereof an affidavit has been filed sworn to by the Deputy Superintendent of Police, Fatehgarh District, U.P. stating that
"ACCORDING to Rule 18 of the U.P. Food and Civil Supplies (Supply Branch) Subordinate Service Rules, 1980, on the relevant time i.e. 11-8-1977 (the date of incident), the District Magistrate was the appointing authority for the post of Supply Inspectors".
(6) BUT learned counsel for the appellant contended that whatever be the position in 1977 the appellant was in fact appointed by the Commissioner of Civil Supplies and therefore the sanction should have been granted by the Commissioner. He produced a copy of the order of promotion/appointment to the post of Supply Inspector dated 19-4-1973. It clearly shows that it was the Commissioner who passed the order promoting the appellant from a cadre of Clerk to the cadre of Supply Inspector. Though a contention was raised that it does not reflect the order of appointment but only promotion. We are of the view that the promotion was only a source through which appointment to the cadre was made. If actually the appellant was appointed by the Commissioner it is a different matter that the District Magistrate also had the authority to appoint.
(7) "APPOINTING authority" is interpreted in Rule 2 of the Central Civil Services (Classification, Control and Appeal) Rules. That definition
