Gauhati High CourtXxx vs In Re :- The Commissioner & Secy & Anr on 20 March, 2014Bench:Chief Justice,A. K. GoswamiIN THE GAUHATI HIGH COURT

         (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
                        ARUNACHAL PRADESH)

                      {PRINCIPAL SEAT AT GUWAHATI}

                   PIL (taken up) 67 of 2007
In Re:

1.       The Commissioner & Secretary,
         Finance Department, Govt. of Assam

2.       The Commissioner & Secretary,
         Education Department, Govt. of Assam



                                  BEFORE
 HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE, THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE A. K. GOSWAMI

Amicus curiae                : Mr. SS Dey, Adv.

For the respondents          : Mr. DK Mishra, Sr. Adv.assisted by Mr. BD Das, Adv.Mr. KH Choudhury, Senior Adv.assisted by Sk. Muktar, Advocate
                               Mr. A.M. Bora, Advocate
                               Mr. D Saikia, Addl.AG, Assam
                               Ms. B Goyal, GA, Assam

Date of hearing              : 20.02.2014

Date of delivery of          : 20th March, 2014
Judgment


                          JUDGMENT AND ORDER

(A.M.Sapre, CJ)This Public Interest Litigation (PIL) was registered pursuant to
the observations made by the learned Single Judge (as his Lordship
then was) in the order dated 18.6.2007 passed in W.P(C) No 2560 of
2007. It reads as under:" On the above facts the Court is of the view that a
               separate and suo motu writ petition should be
               registered on the basis of the facts noticed above. ThePage 1 of 11Education and the Finance Departments will be
              parties to the writ petition. They will file their responses
              in the matter within a period of 4(four) weeks from
              today. Thereafter, orders as may be considered
              appropriate will be passed.The suo motu action ordered to be registered
              by the present order will be separated from W.P.(C)
              No.2560/2007, which will be dealt with by the Court
              separately. Consequently, WP(C) No.2526/2007 will be
              listed in the next week and the same would no longer
              be treated as a part heard matter. Office is to be act
              accordingly."The background facts need mention infra to appreciate the
issue involved in this PIL.While hearing W.P(C)No. 2560 of 2007 filed by several
teachers against the State and its authorities, it was noticed by the
learned Single Judge that large-scale illegal appointments of
teachers (around 752) had been made by the State officials in 1989
in Dhemaji and Lakhimpur Districts without there being any
sanctioned/existing post and also without any appointment orders,
much less valid appointment orders in favour of any appointee. It
was also noticed that these persons (teachers) were being paid
salary in fraudulent way without obtaining proper sanction/orders
from the competent authority as per business rules of the State and
in this process, some were not being paid salary and some were
being paid less.In the meantime, some time in 1992, the services of few
teachers were terminated. This led to filing of several writ petitions
by terminated teachers against the State. In these writ petitions,
they challenged their termination orders. Some teachers who
claimed to be in service prayed for a direction that they be paid
their salary, which according to them, was not being paid or was
being paid less.Page 2 of 11It was essentially with this background, the aforesaid
observations were made by the learned Single Judge in the said
writ petition for registration of a separate PIL (Suo Motu), after
obtaining necessary orders from the Chief Justice to enable the
Court to further probe into the matter and pass appropriate orders if
called for in the larger public interest. This is how this case was
registered as PIL(Taken Up).Since then i.e. last 7 years, this court has been passing interim
orders from time to time and monitoring the progress with a view to
find out as to whether any action was taken and if so, whether it
was in accordance with law, so that the issues are brought to their
logical end.Accordingly, an investigation was carried out and finding
prima facie several irregularities alleged to had been committed in
making the appointments on the post of teachers and in making
payment of salaries to them by resorting to illegal means, the State
of Assam lodged an FIR on 24.1.2008 with CID Police Station,
Guwahati.The matter was accordingly probed on the strength of FIR,
which led to CID seeking permission from the State for according
sanction as required underSection 197of Cr.P.C. read withSection
19of the Prevention of Corruption Act ( for short called "The Act")
to start prosecution against 14 persons who were found involved in
the scandal. This included four State employees - namely, Shri Joy
Chandra Goswami, Shri Hemanta Kr. Sarma, Shri Mohsin Ali and Shri
Balendra Kr.Das.The competent authority then examined the issue on the
basis of material available with the State with a view to find out as
to whether any case was made out for grant of sanction as
required under Section 197 ibid for initiation of prosecution and if so,
against how many delinquent State employees? The State by order
dated 7.5.2010/27.7.2010, declined to grant sanction so far as 5
employees were concerned; whereas, it granted sanction to
prosecute 10 persons finding prima facie material against them andPage 3 of 11accordingly, charge sheet was filed against them (10 persons) in
Case No. 02/08 underSection 120-B/420/406IPC in competent
court. Later, supplementary charge sheet against two more persons
was also filed.So far as the order declining to grant sanction to prosecute 5
persons was concerned, it concluded by saying that though at this
stage on the basis of material and evidence collected does not
prima facie indicate any case against them but, if any fresh
material is made available or/and obtained or/and discovered in
any proceedings or otherwise at a later date, then the issue will
again be considered in the light of fresh material so collected in
accordance with law against these persons. Since in the meantime,
some persons, against whom, the charge sheet was to be filed
expired and hence, no action was pursued against them.It is with this back ground, now the question which arises for
consideration whether this court should examine the legality and
correctness of the two orders dated 7.5.2010/27.7.2010 which
declined to grant sanction to prosecute 5 persons (one is dead out
of 5 ) and secondly, if these orders are found to be bad in law for
any reason, then whether this court has jurisdiction to issue
mandamus directing the State to grant sanction to prosecute them
and thirdly, if it is found that no interference in these two orders
(7.5.2010/27.7.2010) are called for in these proceedings, then
whether the matter can still be kept open qua these persons to be
decided in appropriate proceedings in accordance with law.Indeed, the matter was argued at length on the aforesaid
issues by learned Senior Counsels who appeared for 4 delinquent
employees, Additional Advocate General representing the State
and Amicus appointed to assist the Court.So far as the argument of Mr. D.K. Mishra, learned Senior
Counsel and Shri KH Choudhury, learned Senior Counsel, who
appeared for the delinquent employees and Additional Advocate
General Mr. D Saikia was concerned, they contended that since
the issue is      now seized of by the competent court against 10Page 4 of 11persons (accused) where the questions are being examined as to
whether any offences punishable underSection 120-B/420IPC andSection 13 (2)read withSection 13 (1) (d)of P.C. Act are made out
and hence, the purpose of this PIL (suo motu) is now practically
achieved and therefore, it should be closed by issuing appropriate
directions to competent court, if necessary. It was also their
submissions that in the light of principle of law laid down by the
Supreme Court in several decided cases cited at the bar on the
issue of the grant of sanction under the twin Sections (197 ofCr.P.C./19 of P.C.Act) that it is neither possible for this court to quash
the aforementioned two orders - dated 7.5.2010/27.7.2010 and nor
it is possible to issue any mandamus against the State to grant
sanction against these persons for their prosecution.So far as Mr. Dey, learned Amicus was concerned, he assisted
the court by placing the entire case law on subject and argued
contra to the argument of Mr. DK Mishra, Mr. KH Choudhury,
learned Senior Counsel and Mr. D. Saikia, learned Addl. Advocate
General.Large number of decisions of the Supreme Court were cited
at the bar, basically, on the issue of grant of sanction required
underSection 197of Cr.P.C. andSection 19of P.C.Act - such as -
AIR 1966 SC 220, (2011) 7 SCC 167, (2009) 3 SCC 398, 1970(2) SCC
56, (2007) 1 SCC 1, (2012) 6 SCC 228, (2012) 12 SCC 72, (2013) 8 SCC
119, (2012) 3 SCC 64, (2009) 17 SCC 92, (2010) 144 SCC 527 & (1997)
7 SCC 622.In all these cases, the Supreme Court examined the object
and scope ofSection 197of Cr.P.C. andSection 19of P.C.Act as to
how and in what manner the issue relating to the grant of sanction
is required to be decided by the competent authorities and
secondly, whether the High Court can issue a mandamus directing
the State/authority to grant sanction against any particular person ?The case which takes into consideration all the issues and
frequently relied upon in later years is the one reported in (1997) 7
SCC 622 Mansukhlal Vithaldas Chauhan vs State of Gujarat.Page 5 of 11In this case, a trap against the accused (appellant), a
Divisional Accountant in an irrigation project in the State was laid on
the complaint of partner of a firm having official dealings with the
State. The appellant was alleged to have been caught accepting
bribe. The Secretary, Gujarat Vigilance Commission, wrote to the
Government to grant sanction for his prosecution but the
Government did not immediately grant sanction. Meanwhile, the
partner of the complainant firm filed a petition underArticle 226, for
a direction to the State of Gujarat and others, to grant sanction for
his prosecution. The High Court directed the Secretary of the
Department in which the appellant was working to accord sanction
under the relevant provisions of thePrevention of Corruption Actto
prosecute the appellant within one month from the receipt of the
writ of the Court. In view of these directions of the High Court,
sanction    was   granted    and    accordingly     the   appellant was
prosecuted and convicted under sanction 161IPCandSection 5(2)of the Prevention of Corruption Act. He challenged his conviction
on the ground that proceedings before the trial court and the High
Court were vitiated because there was no valid sanction for his
prosecution underSection 6of the Prevention of Corruption Act,
1947.The Supreme Court allowed the appeal filed by accused and
set aside his conviction on the ground that firstly, High Court had no
jurisdiction to issue a mandamus underArticle 226directing the
State to grant sanction to prosecute the appellant under Section
197 ibid and secondly, in the absence of valid sanction, his
conviction was not legally sustainable.Justice Saghir Ahmad speaking for the Bench held in Paras
17, 18 and 19 as under:"17. Sanction lifts the bar for prosecution. The grant of
             sanction is not an idle formality or an acrimonious
             exercise but a solemn and sacrosanct act, which
             affords protection to government servants against
             frivolous prosecutions. (SeeMohd. Iqbal Ahmed v.
             State of A.P.,(1979) 4 SCC 172) Sanction is a weaponPage 6 of 11to ensure discouragement of frivolous and vexatious
prosecution and is a safeguard for the innocent but
not a shield for the guilty.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. (See alsoJaswant Singh v. State
of Punjab, AIR 1958 SC 124 and State of Bihar v. P.P.
Sharma,1992 Supp(1) SCC 222)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 toPage 7 of 11sanction" was taken away and it was compelled to act
            mechanically to sanction the prosecution."The learned Judge then in para 21 posed the question as to
whether High Court can issue a writ of mandamus of this nature:"21. The question is whether the High Court could issue
            a mandamus of this nature and whether the order of
            sanction, in these circumstances, is valid."The issue on principle of law with reference to decided cases
was then discussed threadbare and then it was held that High
Court cannot issue mandamus against the State and direct grant of
a sanction to prosecute a particular person. This is what was held in
paras 31 to 33."31. In the background of the above principles, let us
            now scrutinise the judgment of the Gujarat High Court
            which, let us say here and now, could only direct the
            Government for expeditious disposal of the matter of
            sanction.32. By issuing a direction to the Secretary to grant
            sanction, the High Court closed all other alternatives to
            the Secretary and compelled him to proceed only in
            one direction and to act only in one way, namely, to
            sanction    the   prosecution   of   the   appellant.   The
            Secretary was not allowed to consider whether it
            would be feasible to prosecute the appellant; whether
            the complaint of Harshadrai of illegal gratification
            which was sought to be supported by "trap" was false
            and whether the prosecution would be vexatious
            particularly as it was in the knowledge of the
            Government that the firm had been blacklisted once
            and there was demand for some amount to be paid to
            the Government by the firm in connection with this
            contract. The discretion not to sanction the prosecution
            was thus taken away by the High Court.Page 8 of 1133. The High Court put the Secretary in a piquant
            situation.While the Actgave him the discretion to
            sanction or not to sanction the prosecution of the
            appellant, the judgment gave him no choice except
            to sanction the prosecution as any other decision
            would have exposed him to an action in contempt for
            not obeying the mandamus issued by the High Court.
            The High Court assumed the role of the sanctioning
            authority, considered the whole matter, formed an
            opinion that it was a fit case in which sanction should
            be granted and because it itself could not grant
            sanction underSection 6of the Act, it directed the
            Secretary to sanction the prosecution so that the
            sanction order may be treated to be an order passed
            by the Secretary and not that of the High Court. This is
            a classic case where a brand name is changed to
            give a new colour to the package without changing
            the contents thereof. In these circumstances, the
            sanction order cannot but be held to be wholly
            erroneous having been passed mechanically at the
            instance of the High Court."Keeping the aforesaid principle of law in mind when the
same is applied to the facts of the case, then we find on perusal of
the two orders dated 7.5.2010/27.7.2010 that they were passed after
taking into consideration the evidence and material on record by
the State (competent authority) and being reasoned orders having
been passed with application of mind by the competent authority,
this court does not consider it proper in its extra ordinary PIL
jurisdiction under Article 226/227 of the Constitution of India to
quash them. Moreover, this court cannot issue mandamus against
the State and direct the State to accord sanction. It was also not
the case here where State did not consider the material though on
record while passing the orders or that any fresh material though
collected and yet was not taken into account, while declining the
sanction against these employees.Page 9 of 11That apart, here is a case, where due to continuous
monitoring by this court, the matter was investigated which led to
filing of the charge sheet against 10-12 delinquent employees, who
are now facing trial, in the Court of Sessions/Special Judge which
has now reached to stage of evidence.In fact, with this undisputed back ground of the case coupled
with the legal position summarized above, we are of the considered
opinion that this Suo Motu PIL can be closed finally with a direction
to the Sessions Judge/Special Judge to proceed with the trial strictly
in accordance with law uninfluenced by any of the observations
made by this court in this order.We also wish to make it clear that the Sessions Judge/Special
Judge would be at liberty at any stage of proceedings of trial to
invoke the provisions contained in Chapter XXIV of Cr. P.C. specially
Section 311 andSection 319of the Cr.P.C. against any employees
(accused) including those against whom sanction was not granted
if it appears to the court on the basis of the evidence brought on
record in the trial that any such person/s has committed an offence
and for which he could be tried with the original accused person. In
such eventuality, the Sessions Court would always be justified to
proceed against any such person/s in accordance with law. Such
accused persons then will have no right to rely upon this order.Indeed, this power is amply available to the Sessions Court
under theCr.P.C. while trying an offence against any accused and
hence, the court should always keep in mind the availability of such
power while trying any criminal case. The case in question cannot
be therefore an exception to this principle.Since the case is old, we direct the concern Sessions
Judge/Special Judge to ensure its expeditious disposal strictly in
accordance with law and conclude the trial preferably within a
period of one year as an outer limit from the date of production of
this order.Page 10 of 11We place on record our appreciation for Mr. S.S. Dey, learned
counsel who appeared on our request as amicus and argued the
matter with fairness.It is with these directions, this PIL (Suo Motu/taken up) matter is
disposed of.A copy of this order be sent by Registry to concern court
immediately for ensuring compliance of directions.No cost.JUDGE                                    CHIEF JUSTICE




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