P.C Act – All about sanction and its limitations

Two important questions of law arise for consideration in this appeal. The first question is whether an order of the Appointing Authority granting sanction for prosecution of a public servant under Section 19 of the Prevention of Corruption Act, 1988, would be rendered illegal on the ground of acting as per dictation if it consults the Central Vigilance Commission for its decision. The second question is whether the period of three months (extendable hereinafter referred to as ‘the PC Act’ by one more month for legal consultation) for the Appointing Authority to decide upon a request for sanction is mandatory or not. The further question in this context, is whether the criminal proceedings can be quashed if the decision is not taken within the mandatory period.

Issue No. 1 – Whether the order of sanction is illegal due to non-application of mind and acting as per dictation if the appointing authority, the DoPT refers and considers the opinion and advise of the CVC?

15. At the outset, we will take note of the ratio in Mansukhlal (Mansukhlal Vithaldas Chauhan v. State of Gujarat – (1997) 7 SCC 622) relied on by Shri Jethmalani. Relevant portion of the judgment holding that “if the sanctioning authority is under an obligation or compulsion to grant sanction, the order will be bad for the reason that the discretion is taken away”, is extracted hereinunder:

“18. 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 established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

19. 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 necessarily 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.”

16. The decision in Mansukhlal (supra) was rendered in the year 1997, when the legislative changes to the Code of Criminal Procedure, 1973, were not made. Further, the decision was prior to the enactment of the CVC Act and also the amendments to the PC Act. The submission of Shri Jethmalani therefore overlooks the march of law, which we have endeavoured to explain hereinunder.

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18. It is evident from the above referred formulation that the position of law and the legal regime obtained by virtue of the five legislations on the subject of corruption, operates as integrated scheme. The five legislations being the Cr.P.C, DSPE Act, PC Act, CVC Act, and Lokpal Act, must be read together to enable the authorities to sub-serve the common purpose and objectives underlying these legislations. The Central Vigilance Commission, constituted under the CVC Act is specifically entrusted with the duty and function of providing expert advice on the subject. It may be necessary for the appointing authority to call for and seek the opinion of the CVC before it takes any decision on the request for sanction for prosecution. The statutory scheme under which the appointing authority could call for, seek and consider the advice of the CVC can neither be termed as acting under dictation nor a factor which could be referred to as an irrelevant consideration. The opinion of the CVC is only advisory. It is nevertheless a valuable input in the decision-making process of the appointing authority. The final decision of the appointing authority must be of its own by application of independent mind. The issue is, therefore, answered by holding that there is no illegality in the action of the appointing authority, the DoPT, if it calls for, refers, and considers the opinion of the Central Vigilance Commission before it takes its final decision on the request for sanction for prosecuting a public servant.

Issue No: 1 – Answer (as per the case)

19. Returning to the case facts, we have examined the correspondence and the long-drawn communications between the CBI, the DoPT, and the CVC. We found that the inquiry made by the appointing authority, the DoPT, was only for soliciting further information, and particularly the opinion given by CVC is also advisory. The sanction order of the DoPT dated 24.07.2017 is an independent decision of the department that was taken based on the material before it. Under these circumstances, we are not inclined to accept the first submission made on behalf of the Appellant that the order of sanction suffers from illegality due to non-application of mind or acting under dictation.

Issue No. 2: Whether the criminal proceedings could be quashed for the delay in the issuance of the sanction order?

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21. Statutory provisions requiring sanction before prosecution either under Section 197 Cr.P.C. or under Section 97 of the PC Act also intend to serve the very same purpose of protecting a public servant. These protections are not available to other citizens because of the inherent vulnerabilities of a public servant and the need to protect them. However, the said protection is neither a shield against dereliction of duty nor an absolute immunity against corrupt practices. The limited immunity or bar is only subject to a sanction by the appointing authority.

Abnormal delay in granting sanction – Whether quash necessary?

22. Grant of sanction being an exercise of executive power, it is subject to the standard principles of judicial review such as application of independent mind; only by the competent authority, without bias, after consideration of relevant material and by eschewing irrelevant considerations. As the power to grant sanction for prosecution has legal consequences, it must naturally be exercised within a reasonable period. This principle is anyway inbuilt in our legal structure, and our Constitutional Courts review the legality and proprietary of delayed exercise of power quite frequently. In Mahendra Lal Das v. State of Bihar & Ors. [(2002) 1 SCC 149 paras. 7,8,9]and Ramanand Chaudhary v. State of Bihar & Ors. [(2002) 1 SCC 153 para. 5] this Court found it expedient to quash the criminal proceedings due to the abnormal delay in granting a sanction for prosecution.

Limitation for grant of sanction

23. Noticing that there is no legislation prescribing the period within which a decision for sanction is to be taken, this Court, in Vineet Narian (Supra), sought to fill the gap by setting a normative prescription of three months for grant of sanction.

“58. (I)(15) Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office.”

26. Yet another legislative development took place in 2018 when the Parliament, by way of an amendment to the PC Act, inserted the following provisos to Section 19 of the PC Act;

“19. Previous sanction necessary for prosecution. —

(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013] –

(a) in the case of….

(b) in the case of….

(c) in the case of….

Provided further that…..

Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.….”

27. The new proviso to Section 19 mandating that the competent authority shall endeavour to convey the decision on the proposal for sanction within a period of three months can only be read and understood as a compelling statutory obligation. We are not inclined to accept the submission of the learned ASG that this proviso is only directory in nature. In the first place, the consistent effort made by all branches of the State, the Judiciary24, the Legislative25, and the Executive26, to ensure early decision-making by the competent authority cannot be watered down by lexical interpretation of the expression endeavour in the proviso.
28. The sanctioning authority must bear in mind that public confidence in the maintenance of the Rule of Law, which is fundamental in the administration of justice, is at stake here. By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny, thereby vitiating the process of determination of the allegations against the corrupt official27. Delays in prosecuting the corrupt breeds a culture of impunity and leads to systemic resignation to the existence of corruption in public life. Such inaction is fraught with the risk of making future generations getting accustomed to corruption as a way of life. Viewed in this context, the duty to take an early decision inheres in the power vested in the appointing authority to grant or not to grant sanction.

Limitation for grant of sanction – Four months in total

29. The intention of the Parliament is evident from a combined reading of the first proviso to Section 19, which uses the expression ‘endeavour’ with the subsequent provisions. The third proviso mandates that the extended period can be granted only for one month after reasons are recorded in writing. There is no further extension. The fourth proviso, which empowers the Central Government to prescribe necessary guidelines for ensuring the mandate, may also be noted in this regard. It can thus be concluded that the Parliament intended that the process of grant of sanction must be completed within four months, which includes the extended period of one month.

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37. In conclusion, we hold that upon expiry of the three months and the additional one-month period, the aggrieved party, be it the complainant, accused or victim, would be entitled to approach the concerned writ court. They are entitled to seek appropriate remedies, including directions for action on the request for sanction and for the corrective measure on accountability that the sanctioning authority bears. This is especially crucial if the non-grant of sanction is withheld without reason, resulting in the stifling of a genuine case of corruption. Simultaneously, the CVC shall enquire into the matter in the exercise of its powers under Section 8(1)(e) and (f) and take such corrective action as it is empowered under the CVC Act.

Issue No. 2 – Answer

38. The second issue is answered by holding that the period of three months, extended by one more month for legal consultation, is mandatory. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason. The competent authority shall be Accountable for the delay and be subject to judicial review and administrative action by the CVC under Section 8(1)(f) of the CVC Act.

Party

Vijay Rajmohan Vs. State Represented By The Inspector Of Police, CBI, ACB, Chennai, Tamil Nadu  – Criminal Appeal No. _______Of 2022 Arising Out Of SLP (Crl) No. 1568 Of 2022 – October 11, 2022.

URL: https://main.sci.gov.in/supremecourt/2022/3264/3264_2022_15_1501_38812_Judgement_11-Oct-2022.pdf
Files : VijY Rajmohan vs. State 3264_2022_15_1501_38812_Judgement_11-Oct-2022