'Sanctioning Authority Must Apply Mind' : Bombay HC Quashes Sanction To Prosecute Order Issued 'Mechanically'

'Sanctioning Authority Must Apply Mind' : Bombay HC Quashes Sanction To Prosecute Order Issued 'Mechanically'

Sharmeen Hakim24 Feb 2021 9:17 PM

The Bombay High Court has ruled that an order granting permission or sanction to prosecute an individual under the Prevention of Corruption Act must demonstrate that the Sanctioning Authority has applied his mind and not passed the order "mechanically".

A single bench of Justice SK Shinde held that ordinarily the Sanctioning Authority is the best person to judge, based on the investigation report placed before him, whether the government employee should or should not be prosecuted under the PC Act. A pre-requisite to provide a safe-guard to a public servant against frivolous and vexatious litigants.

"Indisputably, application of mind on the part of Sanctioning Authority is imperative and therefore, order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of Sanctioning Authority", the bench observed.

Justice Shinde cited the Supreme Court's judgement in the case of Ashok Tshering Bhutia v. State of Sikkim, which states that there should not be a hyper technical approach to test a sanction's validity, unless it results in failure of justice.

The Court was examining Section 19(3) in The Prevention of Corruption Act, 1988, which reads.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.

Justice Shinde made the observations while acquitting a senior clerk, from the Town Planning Authority, in Pune, Maharashtra, convicted for accepting a bribe of Rs. 1500. The clerk who was convicted and sentenced to two years rigorous imprisonment, in 2004, was allegedly caught red handed soon after he accepted the money from an ex-employee to submit her salary bills to the treasury.

The clerk, Anand Salvi, appealed to the High Court against his conviction on the grounds that the sanction to prosecute him signed by the Director of Town Planning, Maharashtra State, was invalid. He relied heavily on the Director's testimony during the proceedings.

The prosecution on the other hand said that there was no failure of justice, and therefore the sanction to prosecute was a valid sanction.

Justice SK Shinde observed that in Salvi's case, Sanctioning Authority plainly and simply put its signature on the draft sanction order by bringing out clerical mistakes. The Director's cross-examination showed he did not even remember or re-collect whether he had perused the investigation papers.

"It appears and in this fact situation and in consideration of the evidence, I do not hesitate to hold and conclude that the irregularity attached to the Sanction Order was not 'mere' irregularity but 'gross' in nature and failure of justice has been occasioned thereby," the court observed.

The court held that the Director's testimony and Sanctioning order revealed that on May 9, 2001, Superintendent of Police, Anti-Corruption Bureau, Pune sent the proposal to prosecute Salvi. The Director, who considered the proposal only on May 30, 2001, admitted that the draft sanction order was prepared and drafted by two other officers, independently, without his instructions. Moreover, the Director didn't remember if he had a chance to peruse the investigation papers.

The court noted that only a few grammatical changes were made. The judge compared the draft sanction order with the final one to note that the latter was merely a copy.

"Thus, upon reading the testimony of the Sanctioning Authority along with the draft Sanction and Final Sanction Order, I hold, the Sanctioning Authority did not independently apply its mind while according the sanction," the court noted.