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”) - Who has to give Sanction for prosecution whether the Law Department vested with such powers - High court allowed the writ - Apex court held that it is evident that the power to grant the sanction for prosecution, already existed with the Department of Law and Legislative Affairs, since February, 1988. The circular letter dated 28.02.1998 (Annexure P-5) does not confer any new power and it only clarifies that Department of Law and Justice is a competent authority not only in respect of investigations made by Lokayukta Organization, but also the State Economic Offences Investigation Wing. The power with the appellant No.2 to grant the sanction is, in fact, conferred by the rule as amended vide notification dated 03.02.1988 published in the Official Gazette. After such amendment in the rule whereby power to grant sanction was delegated to Department of Law and Justice, it cannot said that Administrative Department had power to decline sanction as it has done vide its order dated 10.07.1997.-2015 SC MSKLAWREPORTS



 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.

Writ filed - High court allowed the writ

  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.


    From the Section quoted above,  it  is  clear  that  the  sanction  for
prosecution in respect of the public servant  employed  in  connection  with
affairs of the State, who is not removable from his office save by  or  with
the sanction of the State Government, such Government  shall  be,  authority
to grant sanction for prosecution.
 It is  not  disputed  that  the  previous
sanction was sought by the EOW for prosecution of the respondents.
The  only
issue is as to which of the department of the State was competent  to  grant
the sanction.
Apex court held that

Order dated  03.02.1988  (Annexure  P-1),  published  in  the
Official Gazette, whereby the Madhya Pradesh Works  (Allotment)  Rules  (for
Short “MPWAR) were amended, reads as under:
                           “Madhya Pradesh Gazette
                               (Extraordinary)
                           Published by Authority

                No. 35, Bhopal Wednesday, 3rd February, 1988
           Personnel Administrative Reforms & Training Department
                      Bhopal, dated 3rd February, 1988

No. F A-1-1-88-49 (1)-225: In exercise of powers conferred  by  clauses  (2)
and (3) of Article 166 of the Constitution of India the Hon’ble Governor  of
Madhya Pradesh makes more amendments in  Madhya  Pradesh  Works  (Allotment)
Rules, namely:-

                                  Amendment

In the aforesaid rules: -

(1)   The para 4 is replaced with the following para in the policy  made  in
the para 21 in the  Schedule-in  (A)  Department  under  Law  &  Legislative
Affairs Department, namely:-

4 (One) Criminal Procedure  includes  all  subjects  coming  under  Criminal
Procedure Code save the probation of the Criminals, and
(2) Sanction of prosecution under Section 6 of the Prevention of  Corruption
Act, 1947.

(2)   The following term  added  by  the  Notification  No.  2980-3632-A(1),
dated 18th November, 1983 irrespective of any serial number to which it  was
added, and which has been amended from  time  to  time  in  respect  of  the
policy made in part (A) Department under the heads of all  the  departments,
be deleted.

      Sanction  of  the  prosecution  under  Section  173  of  the  Criminal
Procedure Code, 1973 and Section 6 of  the  Prevention  of  Corruption  Act,
1947 in respect of services related to those departments.

                                By order & in the name of the Governor of MP
                                             A.D. Mohile, Special Secretary”

   Consequent to above amendment, Chief Minister of Madhya  Pradesh  vide
order dated 08.02.1988 (Annexure P-2) delegated the power to grant  sanction
for prosecution of the public  servants  to  the  Law  Secretary  of  Madhya
Pradesh Law Department. Said document is reproduced below:
                         “Madhya Pradesh Government
          Personnel, Administrative Reforms and Training Department

                                    ORDER

                                            Bhopal, dated 8th February, 1988

According to the para (1) of Directive No.2 of Supplementary Directive Part-
5 under Rule-1 of Works Rules of the Madhya Pradesh Government made  by  the
Hon’ble Governor in exercise of powers conferred by Clause (2)  and  (3)  of
Article 166 of Constitution of India, No. F A 1-1/88/49/1, pursuant  to  the
authority invested to me and superseding the order  dated  4th  November  of
the General Administrative  Department,  I  Motilal  Vora,  Chief  Minister,
hereby direct that the Secretary, Madhya Pradesh Government, Law  Department
shall dispose of the cases  related  to  the  prosecution  sanction  of  the
Government servants.

                                                                        Sd/-
                                                                Motilal Vora
                                                             Chief Minister”


    By the Order dated 21.04.1997 (Annexure P-3), it is provided that  the
Department of Law and  Legislative  Affairs  shall  obtain  opinion  of  the
concern Administrative  Department  before  granting  the  sanction.  It  is
further provided that in case of conflict between the two  departments,  the
matter shall be referred to  Sub-Committee  of  the  Cabinet.  However,  the
order dated 21.04.1997  (Annexure  P-3)  was  withdrawn  vide  letter  dated
10.07.1997 (Annexure P-4) to the extent that in case of conflict the  matter
would be required to be referred to Sub-Committee of  the  Cabinet.   Letter
dated 10.07.1997 (Annexure P-4) is reads as follows:

                          “State of Madhya Pradesh
                      General Administrative Department

No.F-15(6)/96/1-10           Bhopal dated 10.07.1997

To
      All member Secretary/Secretaries of the
      Government
      State of Madhya Pradesh
      Bhopal

Sub.  Sanction for prosecution against the Government Employees/Officers.

Ref.: Circular No. F-15(6)96/1-10 dated 21.04.1997 issued by this
Department

Vide reference circular of this  department,  the  procedure  for  according
sanction for prosecution was determined.

As per order following part is deleted  from  the  prescribed  procedure  in
Para 2 of the said circular.

“In case of conflict between  the  Law  Department  and  the  Administrative
Department, the case shall be presented  before  the  Sub-Committee  of  the
Cabinet by the Administrative Department.”

Remaining procedure of the reference circular shall remain as it is.  Please
ensure  action  in  the  cases  of  sanction  for  prosecution   in   future
accordingly.

                                                                        Sd/-
                                                             A.V. Gwaliorkar
                                                            Deputy Secretary
                                                                 State of MP
                                           General Administrative Department

No.F-15(6)/96/1-10           Bhopal dated 10.07.1997

Copy to

      Officer on Special duty, Lokayukta Office, Madhya Pradesh Bhopal for
information

                                                                        Sd/-
                                                             A.V. Gwaliorkar
                                                            Deputy Secretary
                                                                 State of MP
                                          General Administrative Department”
   By the Order dated 28.02.1998, the State Government further  clarified
that in the matters of sanction for prosecution, the papers  shall  be  sent
by the Department of Law and Legislative Affairs along  the  record  to  the
Administrative Department for its opinion and the Administrative  Department
shall give the same within a period of one month, whereafter  Department  of
Law and Legislative Affairs shall take a decision.

We are unable to accept the view taken  by  the  High  Court  for  the
reason that from annexure P-1 and annexure  P-2,  it  is  evident  that  the
power to grant the  sanction  for  prosecution,  already  existed  with  the
Department of  Law  and  Legislative  Affairs,  since  February,  1988.  
The
circular letter dated 28.02.1998 (Annexure P-5)  does  not  confer  any  new
power and it only  clarifies  that  Department  of  Law  and  Justice  is  a
competent authority not only in respect of investigations made by  Lokayukta
Organization, but also the State Economic Offences Investigation  Wing.  
The
power with the appellant No.2 to grant the sanction is, in  fact,  conferred
by the rule as amended vide notification dated 03.02.1988 published  in  the
Official Gazette.  
After such amendment in the rule whereby power  to  grant
sanction was delegated to Department of Law  and  Justice,  it  cannot  said
that Administrative Department had power to decline sanction as it has  done
vide its order dated 10.07.1997.

  From the sanction granted by the Law  Department,  copy  of  which  is
annexed as Annexure P-8, it is evident that the authority has  examined  the
material on record before granting the sanction.

  Therefore, we are of the view that the High Court has erred in law  in
allowing the Writ Petition filed by  the  respondents  seeking  quashing  of
sanction dated 20.11.2012 granted by appellant No.2,  Secretary,  Department
of Law and Legislative Affairs, Government of Madhya  Pradesh.   We  do  not
find any infirmity as to the competence  of  appellant  No.2  to  grant  the
sanction in the matter for the reasons discussed  above.   Accordingly,  the
appeal is allowed.  The impugned order dated 03.09.2013, passed by the  High
Court, is set aside.

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