No fresh sanction for prosecution on same material: SC

No fresh sanction for prosecution on same material: SC

The sanction for prosecution once denied against a government official for corrupt practices cannot be reviewed on the same set of material, the Supreme Court has ruled. 

A bench of Justices Aftab Alam and R M Lodha in a judgement said that once sanction has been denied for prosecuting the official, the sanctioning authority cannot change its opinion and grant a fresh sanction on the same set of material.

The apex court said any fresh sanction can be obtained or given only if the investigating agency has placed fresh set of material in support of the plea for prosecution.

The bench passed the ruling while dismissing an appeal of the Himachal Pradesh government that even though sanction required under Section 19 of the Prevention of Corruption Act (PCA) and 197 CrPC was denied initially, it can be reviewed at the discretion of the sanctioning authority.

In this case, the vigilance department sought prosecution of a drug inspector, Nishant Sareen, allegedly caught red-handed accepting a bribe of Rs 5,000.

By an order dated 27^th November 2007, the sanctioning authority -- Principal Secretary Health, refused sanction.

However, the authority on a fresh plea by the vigilance department reconsidered the request and granted sanction on 15^th March 2008.

The High Court quashed the sanction order on the ground that it was invalid, following which the state appealed in the apex court.

Dismissing the government's plea, the apex court said, "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 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," Justice Lodha said writing the judgement.

The bench said it was true that government in the grant or refusal of sanction exercises statutory power.

"But 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 seems to us sound principle to follow that once statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by Government or competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again," the bench said.

This was because, it said, with the change of government, the opinion of the sanctioning authority may keep changing.

"It is so because unrestricted power of review may not bring finality to such exercise and on change of 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 apex court said the opinion on the same materials may keep on changing, and there may not be any end to such statutory exercise.

"However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of 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," the bench said.

"Insofar as the present case is concerned, it is not even the case of the appellant (government) 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 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," the bench added.