1996 Supreme(Guj) 79

Gujarat High Court
Judgename :C.K.THAKKER
DURGAPRASAD P.DASH - Appellant
Versus
STATE BANK OF SAURASHTRA - Respondent
S.C.A. 6319 of 1995
Decided On : 02/19/1996

Headnote:(a) Constitution of India, 1950 - Art. 226 - Petition challenging sanction for prosecution - No cognizance taken by special Court against petitioner - Held, petitioner at this stage is premature.

       This court will not be oblivious of the fact that the petition at this stage is premature as no cognizance is taken by the Special Court against the petitioner. As and when cognizance will be taken. It will be open to the petitioner to take all the contentions Including the one which is taken before this court that no sanction could have been granted or that grant of sanction is contrary to law. While exercising extra ordinary powers, this court will indeed bear in mind this important aspect.

       [Para ]

       (b) Criminal Procedure Code, 1973 - Sec. 197 - Sanction to prosecute - Refusal - When first respondent was satisfied about lapses on the part of petitioner necessiting departmental proceedings for major penalty - Unreasonable to withhold or refuse sanction to prosecute.

       From the resolution, it is clear that the first respondent Bank itself was satisfied about (i) lapses. (ii) which were of a serious nature, (iii) they were actionable; and (iv) they were such that departmental and disciplinary proceedings were required to be initiated; (v) for imposition of major penalty. When the first respondent was satisfied that there were lapses on the part of the petitioner, which were of a serious nature; and they called for holding of departmental proceedings against the petitioner for major penalty, this was eminently a fit case to accord sanction to prosecute him. In my judgment, no reasonable man in the facts and circumstances of the case, could have refused sanction to prosecute the petitioner in the light of prima facie opinion formed by the first respondent regarding serious lapses committed by the petitioner. I, therefore, could not persuade myself inspite of valiant efforts that the action of refusal to accord sanction by the first respondent Bank was lawful, proper within four corners of law.

       [Para 15 & 18]

       (c) Administrative law - Review - Power of - Depends on nature of order passed - Principle that power to review must be conferred by statute is not applicable to decision purely of an administrative nature - An action to accord sancton to prosecute is administrative one & therefore recvisable.

       The question, therefore, is : What is nature of an order of according sanction to prosecute a person ? If it is a quasi judicial function, once the decision is taken, order is made or resolution is passed, in absence of power granted by a statute either expressly or by necessary implication, an order cannot be reviewed. If, on the other hand, the action is administrative or executive, absence of statutory provision would not deprive the authority in reviewing an earlier decision. Learned Counsel for petitioner did not contend and rightly that an action to accord sanction to prosecute is a quasi-judicial function. Obviously, such action is administrative one.

       [Para 22 & 23

       (d) Constitution of India, 1950 - Art. 226 - Jurisdiction - Where special legislation excludes - Notwithstanding such exclusion High Court can exercise power under, but the fact that a statute does not permit an aggrieved party to approach a High Court under the Act is a relevant factor - In the matter special court having jurisdiction is presided over by a sitting Judge of the High Court of Bombay appointed in consultation with Chief Justice of India - Held, It is not appropriate for the Court to exercise extraordinary power under Art. 226 at this stage.

       Even though every High Court can exercise powers under Art. 226 of the Constitution, notwithstanding the fact that a special legislation excluded jurisdiction of all courts, the fact that a statute does not permit an aggrieved party to approach a High Court under the Act is indeed a relevant factor which cannot be lost sight of. If in exercise of powers under Art. 226 of the Constitution, a High Court passes an order and enlarges accused persons on bail against an order refusing bail by the designated court, virtually the provisions of the Act would become nugatory. Ordinarily, therefore, if any person feels aggrieved by an order passed by a designated court, he has to approach the Supreme Court and except in exceptional circumstances, a High Court would not extend its jurisdiction by interfering with the order passed by a designated court by exercising extraordinary powers under Art. 226 of the Constitution. It cannot be forgotten that till to-day , on cognizance is taken against the petitioner by any court. A remedy is provided by law and it is open to the petitioner to take all contentions as and when cognizance of an offence will be taken by special court. In these circumstances, in my opinion, submission of the learned counsel for CBI is well founded that it would not be appropriate to exercise extraordinary powers under Art. 226 of the Constitution at this stage.

       [Para 48 & 49]

       (e) Constitution of India, 1950 - Art. 226 - Jurisdiction under - Can be exercised in the larger interest of justice - Looking to seriousness of allegations levelled against petitioner, the first respondent Bank accorded sanction to prosecute him - Interference at this stage would amount to denial of Justice which may not be in larger public interest.

       There is yet another reason to reject this petition. It is well settled that jurisdiction under Art. 226 of the Constitution is equitable and discretionary. Such jurisdiction can be exercised ex debitio justitie i.e. in the larger interest of justice. Even if the court is of the view that there is some irregularity in proceedings, the court may refuse equitable relief if it is satisfied that there is no miscarriage of justice. Looking to seriousness of the allegations levelled against the petitioner, the first respondent Bank has accorded sanction to prosecute him. The said action cannot be said to be improper which may result in miscarriage of justice if it is not interfered with. On the contrary, in my view, interference with such action at this stage would amount to denial of justice which may not be in larger public interest

       [Para 50]

       (f) Natural Justice - Observance of the principle - Applicability - If the Authority takes final decision in favour of a person and that decision is sought to be cancelled, superseded or revoked the observance of principles of natural Justice may arise - In the instant case no final decision was in fact taken hence question of affording opportunity to petitioner did not arise.

       Presumably the first respondent Bank was aware of this position and hence when initially it was not inclined to accord sanction. it did not pass final order to that effect. Instead, after observing that it was not a fit case in which sanction to prosecute the petitioner was required to be accorded, the matter was referred to Central Vigilance Commission for its advice alongwith requisite details. Central Vigilance Commission then considered the case, obtained report of CBI and forwarded it to the first respondent Bank, who by the second resolution, dt. June 26, 1995, accorded sanction to prosecute the petitioner. For all practical and legal purposes, therefore, it cannot be said that at initial stage, final decision was taken by the first respondent Bank which was reviewed thereafter. If an authority takes final decision in favour of a person and that decision is sought to be cancelled, superseded or revoked, in a given set of circumstances, the question of observance of the principles of natural justice may arise. In the instant case, however, no final decision could have been taken and was in fact not taken, and hence, the question of affording opportunity to the petitioner did not arise. It also cannot be said that there was abdication of function by the first respondent Bank in favour of Vigilance Commission or CBI. In fact, CBI is the authority which has initiated criminal proceedings against Harshad Mehta as well as against the petitioner for offences of serious nature and if considering the report as well as opinion of CBI, the first respondent Bank has accorded sanction to prosecute the petitioner, in my opinion, such an action cannot be said to be arbitrary, unreasonable or unlawful.

       [Para 45]

       (g) Service and Employment - Sanction to prosecute - Requirements - Only to be seen is whether there is sufficient material to accord sanction so that an accused can be dealt with in accordance with law and not whether there is sufficient evidence or enough material to show dishonest intention and participation to establish the charge or to prove the guilt - That question can be dcided only at the stage of trial.

       It is settled law that at the time of according sanction to prosecute, what is required to be seen is whether there is sufficient material to accord sanction so that an accused can be dealt with in accordance with law and not whether there is sufficient evidence or enough material to show "dishonest intention and participation" to establish the charge or to prove the guilt. That question can be decided only at the stage of trial.

       [Para 17]