STATE OF HIMACHAL PRADESHversusNISHANT SAREEN

                 [2010] 13 (ADDL.) S.C.R. 1200


A               STATE OF HIMACHAL PRADESH
                                 v.
                        NISHANT SAREEN
               (Criminal Appeal No. 2353 OF 2010)
                      DECEMBER 09, 2010
B
             [AFTAB ALAM AND R. M. LODHA, JJ.]

       Prevention of Corruption Act, 1988 - s. 19 - Previous
  sanction necessary for prosecution - Reviewing of order
C granting or refusing sanction to prosecute public servant on
  same materials by sanctioning authority - Permissibility of -
  Held: Not permissible - Power of the sanctioning authority
  being not of continuing character could be exercised only
  once on the same materials - On basis of the fresh materials
D collected by the investigating agency subsequent to the
  earlier order, sanctioning authority can reconsider the matter
  and form an opinion to grant sanction to prosecute the public
  servant - On facts, no fresh materials collected by the
  investigating agency and placed before the sanctioning
E authority for reconsideration and/or for review of the earlier
  order refusing to grant sanction - Thus, sanctioning authority
  not justified in changing its opinion and ordering sanction to
  prosecute the public servant on same material - Review.

       The respondent - Drug Inspector was caught red-
F handed accepting the bribe from the hospital owner. The
  respondent was arrested and remanded to judicial
  custody. The Vigilance Department sought for sanction
  under Section 19 of the Prevention of Corruption Act,
  1988 from the Government to prosecute the respondent.
G The competent authority did not find any justification in
  granting sanction to prosecute the respondent and, thus,
  refused the sanction. The Vigilance Department took up
  the matter again for grant of sanction. The competent
  authority re-considered the matter and granted sanction
H                           1200
   STATE OF HIMACHAL PRADESH v. NISHANT              1201
                 SAREEN

to prosecute the respondent. Therefore, the appellant-        A
State filed the instant appeal.

    Dismissing th~ appeal, the Court

     HELD: 1.1 The object underlying Section 19 of the
Prevention of Corruption Act, 1988 is to ensure that a B
public servant does not suffer harassment on false,
frivolous, concocted or unsubstantiated allegations. The
exercise of power under Section 19 is not an empty
formality since the Government or for that matter the
sanctioning authority is supposed to apply its mind to the C
entire material and evidence placed before it and on
examination thereof reach conclusion fairly, objectively
and consistent with public interest as to whether or not
in the facts and circumstances sanction be accorded to
prosecute the public servant. [Para 8) [1207-D-F]          D

     1.2 The Government in the matter of grant or refusal
to grant sanction exercises statutory power and that
would not mean that power once exercised cannot be
exercised again or at a subsequent stage in the absence
                                                              E
of express power of review in no circumstance
whatsoever. However, the power of review is not
unbridled or unrestricted. Once the statutory power
under Section 19 of the 1988 Act or Section 197 of the
Code of Criminal Procedure, 1973 has been exercised by
the Government or the competent authority, as the case        F
may be, it is not permissible for the sanctioning authority
to review or reconsider the matter on the same materials
again. It is so because unrestricted power of review m~y
not bring finality to such exercise and on change of. the
Government or change of the person authorised to              G
exercise power of sanction, the matter concerning
sanction may be reopened by such authority for the
reasons best known to it and a different order may be
passed. The opinion on the same materials, thus, may
keep on changing and there may not be any end to such         H
    1202 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A statutory exercise. A change of opinion per se on the
  same materials cannot be a ground for reviewing or
  reconsidering the earlier order refusing to grant sanction.
  However, in a case where fresh materials have been
  collected by the investigating agency subsequent to the
B earlier order and placed before the sanctioning authority
  and on that basis, the matter is reconsidered by the
  sanctioning authority and in the light of the fresh
  materials an opinion is formed that sanction to prosecute
  the public servant may be granted, there may not be any
C impediment to adopt such a course. [Para 12] [1210-E-H;
  1211-A-C]

       1.3 In the instant case, it is not the case of the
  appellant-State that fresh materials were collected by the
  investigating agency and placed before the sanctioning
D authority for reconsideration and/or for review of the
  earJier order refusing to grant sanction. As a matter of
  fact, from the perusal of the subsequent order, it is clear
  that on the same materials, the sanctioning authority
  changed its opinion and ordered sanction to prosecute
E the respondent which is clearly impermissible. [Para 13]
  [1211-C-E]

       1.4 The investigating agency might have had
  legitimate grievance about the order refusing to grant
F sanction, and if that were so and no fresh materials were
  necessary, it ought to have challenged the order of the
  sanctioning authority but that was not done. The power
  of the sanctioning authority being not of continuing
  character could have been exercised only once on the
G same materials. [Para 14] [1211-E-F]
       Mansukh/al Vithaldas Chauhan vs. State of Gujarat
  (1997) 7 SCC 622; Gopikant Choudhary v. State of Bihar and
  Ors.\ (2000) 9 SCC 53; Romesh Lal Jain v. Naginder Singh
  Rana & Ors. (2006) 1 SCC 294; State of Punjab and Anr. v.
H Mohammed Iqbal Bhatti JT 2009 (13) SC 180 - referred to.
   STATE OF HIMACHAL PRADESH v. NISHANT                  1203
                 SARE EN

                     Case Law Reference:                          A
    (1997) 1 sec 622            Referred to          Para 8
    c2000) 9 sec 53             Referred to          Para 9
    (2006) 1 sec 294            Referred to          Para 10
                                                                  B
    JT 2009 (13) SC 180         Referred to          Para 11

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2353 of 2010.

    From the Judgment & Order dated 4.5.2009 of the High          C
Court of Himachal Pradesh at Shimla in Cr. M.M. No. 155 of
2008.
    Naresh K. Sharma for the Appellant.
                                                                  D
    K.T.S. Tulsi, Kuber Bodh (for Niraj Gupta} for the
Respondent.

    The Judgment of the Court was delivered by

    R.M. LODHA, J. 1. Leave granted.                              E
     2. The question raised in this appeal, by special leave, is
as regards the extent of power vested in the Government in
reviewing its order granting or refusing sanction to prosecute
the public servant in terms of Section 19 of the Prevention of
                                                                 ·F
Corruption Act, 1988 (for short, 'the 1988 Act').

     3. Nishant Sareen-the respondent-was posted as Drug
Inspector, Bilaspur (Himachal Pradesh) in 2005. One, Dr.
Ramdhan Sharma, owner of Leelawati Hospital, Ghumarwin
lodged a complaint against the respondent in the Vigilance        G
Department of the State Government that the respondent had
demanded Rs. 5,000/- from him as bribe to allow him to run
the said hospital without checking by the Drug Inspector. Based
on the said complaint, a first information report (being No. 1/
                                                                  H
    1204 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A 2005) was registered under Sections 7 and 13 (2) of the 1988
  Act at Police Station AC Zone, Bilaspur. Thereafter, a raiding
  party under the supervision of Deputy Superintendent of Police,
  AC Zone, Bilaspur was constituted and a trap was laid on May
  12, 2005. The respondent is said to have been caught red-
8 handed on that day accepting the bribe from the complainant.
  The respondent was arrested and produced before the
  Additional Sessions Judge, Ghumarwin and was remanded to
  judicial custody upto May 16, 2005. The respondent was
  released on bail later on. Upon completion of investigation, the
c Vigilance Department sought for sanction under Section 19 of
  the 1988 Act from the Government to prosecute the respondent.
  It is not in dispute that the Principal Secretary (Health),
  Government of Himachal Pradesh is the competent authority
  authorized under the Rules of Business for according sanction
D in the matter.               ·

        4. The Principal Secretary (Health), on the basis of the
    material placed before her and on examination of the case,
    found no justification in granting sanction to prosecute the
    respondent. In the order dated November 27, 2007 whereby
E   sanction was refused, it was observed as under:

        ''Therefore, after thorough examination of the case taking
        all the aspects into consideration and scrutiny of the
        service records it has been concluded that Sh. Sareen in
F       the course of his duties and responsibilities and impartial
        discharge of his duties (sic). It appears that the
        complainant has registered a case which appears to be
        frivolous and has resulted in unnecessary harassment and
        hindrance in the working of the Drug Inspector. In view of
        this, there appears to be no justification for launching
G
        prosecution against Sh. Nishant Sareen, Drug Inspector
        as it appears to be a case of Personal enmity."

        5. It appears that the Vigilance Department took up the
    matter again with the Principal Secretary (Health) for grant of
H   sanction as in their opinion sufficient evidence existed to
    STATE OF HIMACHAL PRADESH v. NISHANT                     1205
           SAREEN [R. M. LODHA, J.]

prosecute the respondent.                                             A

    6. The competent authority, thus, reconsidered the matter
and granted sanction to prosecute the respondent vide its order
dated March 15, 2008. In the sanction order dated March 15,
2008, it was observed thus:
                                                                      B
     "I agree with the contention of the Vigilance Department
     that in evaluating the evidence of criminal misconduct, his
     general conduct and behaviour as perceived by his
     superiors cannot secure precedence. I have been through
     the case file and facts of the case in detail. I find that the   C
     said Drug Inspector. Sh. Nishant Sareen has been caught
     red handed, with a bribe of Rs. 5000/-. There is nothing
   · on record to show that this incident did not occur. The
     facts do not support the contention that Sh. Nishant Sareen
     was falsely implicated. In the circumstances, I am of the        D
     opinion that the prosecution sanction be granted in the
     instant case and accordingly do so."

    7. Section 19 of the 1988 Act reads as follows :

    "S. 19. Previous sanction necessary for prosecution.-             E

    (1) No court shall take cognizance of an offence punishable
    under sections 7, 10, 11, 13 and 15 alleged to have been
    committed by a public servant, exce~t with- the previous
    sanction,-                      · -----~                          F
           (a) in- the case of a person who is employed in
           connection with the affairs of the Union and is not
           removable from his office save by or with the
           sanction of the Central Government, of that
           Government;                                                G

           (b) in the case of a person who is employed in
           connection with the affairs of a State and is not
           removable from his office save by or with the
                                                                      H
    1206 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A              sanction of the State Government, of that
               Government;

               (c} in the case of any other person, of the authority
               competent to remove him from his office.
B       (2) Where for any reason whatsoever any doubt arises as
        to whether the previous sanction as required under sub-
        section (1) should be given by the Central Government or
        the State Government or any other authority, such sanction
        shall be given by that Govemment or authority which would
c       have been competent to remove the public servant from
        his office at the time when the offence was alleged to have
        been committed.

        (3) Notwithstanding anything contained in the Code of
D       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
E              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;

F              (b) no Court shall stay the proceedings under this
               Act on the ground of any error, omission or
               irregularity in the sanction granted by the authority,
               unless it is satisfied that such error, omission or
               irregularity has resulted in a failure of justice;
G              (c) no Court shall stay the proceedings under this
             . Act on any other ground and no Court shall exercise
               the powers of revision in relation to any interlocutory
               order passed in any inquiry, trial, appeal or other
               proceedings.
H
     STATE OF HIMACHAL PRADESH v. NISHANT                    1207
            SAREEN [R. M. LODHA, J.]

      (4) In determining under sub- section (3) whether the           A
      absence of, or any error, omission or irregularity in, such
      sanction has occasioned or resulted in a failure of justice
      the court shall have regard to the fact whether the objection
      could and should have been raised at any earlier stage in
      the proceedings.                                                B

      Explanation.- For the purposes of this section,-

              (a) error includes competency of the authority to
              grant sanction;
                                                                      c
              (b) a sanction required for prosecution includes
              reference to any requirement that the prosecution
              shall be at the instance of a specified authority or
              with the sanction of a specified person or any
              requirement of a similar nature."                       0
      8. The object underlying Section 19 is to ensure that a
public servant does not suffer harassment on false, frivolous,
concocted or unsubstantiated allegations. The exercise of
power under Section 19 is not an empty formality since the·
Government or for that matter the sanctioning authority is E
supposed to apply its mind to the entire material and evidence
placed before it and on examination thereof reach conclusion
fairly, objectively and consistent with public interest as to
whether or not in the facts and circumstances sanction be
accorded to prosecute the public servant. In Mansukhlal · F · ·
 Vithaldas Chauhan vs. State of Gujarat1, this Court observed,.
'Sanction is a weapon to ensure discouragement of frivolous
and vexatious prosecution and is a safeguard for the innocent
but not a shield for the guilty'. Section 19 or for that matter
Section 197 of Code of Criminal Procedure, 1973 (for short, G
'the Code') does not make any express provision regari:Jing
review or reconsideration of the matter by the sanctioning
authority once such power has been exercised.

1.   (1997) 1 sec s22.                                                H
    1208 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A         9. In Gopikant Choudhary v. State of Bihar and Ors. 2 ,
    initially the concerned Minister refused to accord sanction to
    prosecute the public servant therein and an order was passed
    to that effect. Subsequently, after retirement of the public
    servant, the matter was taken up by the Chief Minister and he
B   granted sanction for prosecution of the concerned public
    servant. The question that arose for consideration before this
    Court was the correctness of the order passed by the Chief
    Minister. This Court set aside the order of the Chief Minister
    granting sanction to prosecute the public servant, inter alia, on
c   the ground that the Chief Minister did not have any occasion
    to reconsider the matter and pass fresh order sanctioning the
    prosecution.

         10. In Romesh Lal Jain v. Naginder Singh Rana & Ors. 3 ,
    it was held by this Court that an order granting or refusing
D   sanction must be preceded by application of mind on the part
    of the appropriate authority. If the complainant or accused can
    demonstrate such an order granting or refusing sanction to be
    suffering from non-application of mind, the same may be called
    in question before the competent court of law.
E
         11. Recently, in the case of State of Punjab and Anr. v.
    Mohammed Iqbal Bhatti4, this Court had an occasion to
    consider the question whether the State has any power of
    review in the matter of grant of sanction in terms of Section 197
F   of the Code. This Court observed as under:

          "7. Although the State in the matter of grant or refusal to
          grant sanction exercises statutory jurisdiction, the same,
          however, would not mean that power once exercised
          cannot be exercised once again. For exercising its
G         jurisdiction at a subsequent stage, express power of
          review in the State may not be necessary as even such a

    2.   c20ooi 9 sec 53.
    3.   c2006J 1 sec 294.
H 4. JT 2009 (13) SC 180.
    STATE OF HIMACHAL PRADESH v. NISHANT                    1209
           SAREEN [R. M. LODHA, J.]

    power is administrative in character. It is, however, beyond      A
    any cavil that while passing an order for grant of sanction,
    serious application of mind on the part of the concerned
    authority is imperative. The legality and/or validity of the
    order granting sanction would be subject to review by the
    criminal courts. An order refusing to grant sanction may          B
    attract judicial review by the Superior Courts. Validity of
    an order of sanction would depend upon application of
    mind on the part of the authority concerned and the material
    placed before it. All such material facts and material
    evidences must be considered by it. The sanctioning               c
    authority must apply its mind on such material facts and
    evidences collected during the investigation. Even such
    application of mind does not appear from the order of
    sanction, extrinsic evidences may be placed before the
    court in that behalf. While granting sanction, the authority
                                                                      0
    cannot take into consideration an irrelevant fact nor can it
    pass an order on extraneous consideration not germane
    for passing a statutory order. It is also well settled that the
    Superior Courts cannot direct the sanctioning authority
    either to grant sanction or not to do so. The source of
    power of an authority passing an order of sanction must           E
    also be considered."

This Court then noticed the opinion of the High Court which was
recorded as follows :
                                                                      F
    "Once the Government passes the order under Section 19
    of the Act or under Section 197 of the Code of Criminal
    Procedure, declining the sanction to prosecute the
    concerned official, reviewing such an order on the basis
    of the same material, which already stood considered,
                                                                      G
    would not be appropriate or permissible."

While affirming the above opinion of the High Court, this Court
held in paragraphs 22 and 23 of the Report as under :

    "22. It was, therefore, not a case where fresh materials          H
    1210 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A       were placed before the sanctioning authority. No case,
        therefore, was made out that the sanctioning authority had
        failed to take into consideration a relevant fact or took into
        consideration an irrelevant fact. If the clarification sought
        for by the Hon'ble Minister had been supplied, as has been
B       contended before us, the same should have formed a
        ground for reconsideration of the order. It is stated before
        us that the Government sent nine letters for obtaining the
        clarifications which were not replied to."

        "23.The High Court in its judgment has clearly held, upon
c       perusing the entire records, that no fresh material was
        produced. There is also nothing to show as to why
        reconsideration became necessary. On what premise such
        a procedure was adopted is not known. Application of
        mind is also absent to show the necessity for
D       reconsideration or review of the earlier order on the basis
        of the materials placed before the sanctioning authority or
        otherwise."

       12. It is true that the Government in the matter of grant or
E refusal to grant sanction exercises statutory power and that
  would not mean that power once exercised cannot be
  exercised again or at a subsequent stage in the absence of
  express power of review in no circumstance whatsoever. The
  power of review, however, is not unbridled or unrestricted. It
F seems to us sound principle to follow that once the statutory
  power under Section 19 of the 1988 Act or Section 197 of the
  Code has been exercised by the Government or the competent
  authority, as the case may be, it is not permissible for the
  sanctioning authority to review or reconsider the matter on the
G same materials again. It is so because unrestricted power of
  review may not bring finality to such exercise and on change
  of the Government or change of the person authorised to
  exercise power of sanction, the matter concerning sanction may
  be reopened by such authority for the reasons best known to it
  and a different order may be passed. The opinion on the same
H
   STATE OF HIMACHAL PRADESH v. NISHANT                    1211
          SAREEN [R. M. LODHA, J.]

materials, thus, may keep on changing and there may not be          A
any end to such statutory exercise. In our opinion, a change of
opinion per se on the same materials cannot be a ground for
reviewing or reconsidering the earlier order refusing to grant
sanction. However, in a case where fresh materials have been
collected by the investigating agency subsequent to the earlier     B
order and placed before the sanetioning authority and on that
basis, the matter is reconsidered by the sanctioning authority
and in light of the fresh materials an opinion is formed that
sanction to prosecute the public servant may be granted, there
may not be any impediment to adopt such course.                     c
     13. Insofar as the present case is concerned, it is not even
the case of the appellant that fresh materials were collected by
the investigating agency and placed before the sanctioning
authority for reconsideration and/or for review of the earlier
order refusing to grant sanction. As a matter of fact, from the     D
perusal of the subsequent order dated March 15, 2008 it is
clear that on the same materials, the sanctioning authority has
changed its opinion and ordered sanction to prosecute the
respondent which, in our opinion, is clearly impermissible.
                                                                    E
     14. By way of foot-note, we may observe that the
investigating agency might have had legitimate grievance about
the order dated November 27, 2007 refusing to grant sanction,
and if that were so and no fresh materials were necessary, it
ought to have challenged the order of the sanctioning authority     F
but that was not done. The power of the sanctioning authority
being not of continuing character could have been exercised
only once on the same materials.

       15. There is no merit in this appeal and it is dismissed.
                                                                    G
N.J.                                         Appeal dismissed.