IMPORTANT POINT
Clarificatory orders do not confer new powers, they clarify the existing powers.

JUDGMENT

Prafulla C. Pant, J.

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.

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 “BDA”). Said authority got constructed 33/11 KV Sub-Station 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 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 accused. After investigation, the Wing sought previous sanction necessary for prosecution of the respondents from the Administrative Department of the State Government. The Administrative Department of the State Government, after 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 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. Secretary, Department of Law and Legislative Affairs was not the Competent Authority to grant the sanction.

4. Learned counsel for the appellants argued before us that the High Court has erred in law in holding that the Law 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 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 not competent to grant sanction in respect of offence alleged to have been committed by the respondents in the year 1997.

6. We have considered the rival submissions of the parties.

Section 19 (1) of the Prevention of Corruption Act requires previous sanction for prosecution of a public