1988 Supreme(MP) 476

IN THE HIGH COURT OF MADHYA PRADESH
V.D. Gyani, J.
Mohd. Umar – Applicant
Versus
State of M. P. – Respondent
Cr. R. No.8 of 1988 (I)
Decided On : 22-09-1988

Headnote:Vinirdishta Bhrasht Acharan Nivaran Adbiniyam, 1982 (M.P.) – S. 39 and 38 – sanction on proposal of Collector – not valid – defect not curable under S.38.

        Short Note

       1. This revision petition is directed against order dated 24 – 11 – 1987, passed by the IIIrd Additional Sessions Judge, Indore in Sessions Trial No. 262 of 1985, framing charge under Sections 27 and 29 of M. P. Vinirdishta Bhrasht Acharan Nivaran Adhiniyam, 1982 (hereinafter referred to as 'the Act').

       2. Shri Verma, learned counsel for the petitioner has challenged the validity of the sanction order passed by the Commissioner, Indore Division, Indore according sanction for investigation on the basis of a proposal received from the Collector of the district. Shri Khan, learned Govt. Advocate contended that the order fully complies with the requirements of law as such, does not call for any interference. It was also urged that if there be any technical defect the same can be cured in view of section 38 of the Act.

       Held: Sanction for prosecution pre – supposes a valid sanction. A grant of sanction is not idle formality, but a solemn act. It is incumbent on the prosecution to show that a valid sanction has been granted by the sanctioning authority, after it was satisfied that a case for sanction has been made out constituting the offence. Any case, constituting without proper sanction, must fail because that being manifest illegality in the prosecution. The entire proceedings are rendered, invalid and void ab initio. There is total lack of facts in the sanction order and the order must bear the stamp of validity which should be borne out from the document itself or proved by evidence. The first proviso of section 39 of the Act reads as follows : –

       "Sec. 39 Cognizance of offences – All offence under this Act shall be cognizable :

       Provided firstly that no Court shall take cognizance of, and no police officer shall register a case, inquire into or investigate an offence under this Act against any person unless directed by the State Government or such officer or authority, as it may by notification specify,"

       3. A mere reading of the first proviso would make it clear that the words "no Court shall take cognizance of......." these words are important and cannot be ignored while determining the validity of a sanction order under the Act.

       4. Shri Verma urged that the order, as it does not carry a stamp of validity so as to enable the Court to take cognizance of the •offence under the Act.

       5. The order in question, has been made by the Revenue Commissioner, Indore Division, Indore. It is based on a proposal made by Collector, Indore. The competency of the authority, passing the sanction order, has not been challenged, but what has been contended is, that it is not based on the subjective satisfaction of the authority but on a proposal received from the Collector. The order which is in Hindi reads as follows: –

       “In accordance with the report submitted by the Collector, Indore,........". It is on the basis of this report by the Collector that the impugned sanction has been accorded.

       6. This Court in State of M.P. v. Harishnnkar, (1984 JLJ page 324) has held that prosecution of private person on the basis of Collector's report is void ab initio. In the instant case, barring the difference in phraseology employed in the order, the position in its essence remains the same. It is an order for prosecution in accordance with the report submitted by the Collector and such an order has been held to be void, 1984 JLJ 324 relied on, Revision allowed.