GoI draws chief secretaries’ attention to Supreme Court guidelines regarding sanction for prosecution

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Supreme Court of IndiaNew Delhi: The Department of personnel and Training of Government of India has written to all State Chief Secretaries and Union territory Administration drawing attention to a Supreme Court Judgement of 2013 wherein the apex court has issued guidelines and observed that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction for prosecution under the prevention of Corruption Act, 1988 only after having full knowledge of the material facts of the case.

The Supreme Court, in response to Criminal Appeal no.1838 of 2013 in the matter of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal has categorically observed that grant of sanction is not a mere formality. The Government of India letter to State chief secretaries draws particular attention to para 8 of the Supreme Court judgement.

The Supreme Court Judgment says:

There is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. Sanction lifts the bar for prosecution.
Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.

The Government of India letter to chief secretaries of all Stats especially draws notice to para 8 of the judgement, where the Supreme Court has issued guidelines that need to followed with complete strictness by the competent authorities while considering grant of sanction.

The guidelines are:

(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses,
recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority mayrefuse sanction.

(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the
sanction is sought.

(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the
sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

The judgement came after the supreme Court preferred an appeal against the impugned judgement and order passed by High Court of Delhi on October 3, 2007 allowing criminal writ petition 589/2007, setting aside the order of 2007 passed by the court of Special judge , CBI, by which and where under the Special judge rejected the application of the respondent questioning the sanction granted by the competent authority under Section 19 of PCA, 1988, observing that the issue could be examined during trial.

In the case in point, the apex court preferred appeal against the impugned judgement and order passed by High Court of Delhi on October 3, 2007 crimunal writ petition 589/2007, setting aside the order of July 28, 2007 passed by the court of Special judge , CBI, by which the Sepcial judge rejected the application of the respondent questioning the sanction granted by the competent authoirity under Section 19 of Prevention of Corruption Act, 1988, observing that the issue could be examined during trial.

In view of this, Th apex court observe: “we are of the considered opinion that the peculiar facts and circumstances of the case do not warrant any interference and the appeal is dismissed. However, before parting with the case, we clarify that the trial court will proceed without being influenced by any observation made hereinabove as we have considered the facts of the case only to decide this appeal. In the facts and circumstances of the case, as the matter
remained pending before the court for a long time, we request the learned Special Judge to proceed with the matter from the stage when the stay operated and conclude the same at the earliest.

CBI had registered a preliminary inquiry against Ashok Kumar Aggarwal for disproportionate assets to the tune of Rs.8,38,456 on September 17, 1999. After conclusion of the preliminary inquiry, a regular case was registered on December 7, 1999 as FIR No. S19/E0006/99 in respect of assets to disproportionate to the known sources of income to the tune of Rs.40,42,23,478.

During the course of investigation, it came to light that disproportionate assets were to the tune of Rs.12,04,46,936, which was 7615.45 times of his known sources of income. It further surfaced that the respondent was involved in money laundering; and for channelising his allegedly ill-gotten wealth, had established a number of companies wherein his family members were the founding directors.

The CBI sent a letter to the Ministry of Finance dated on May 24, 2002 for accord of sanction for prosecution of the accused. This was accompanied by the Superintendent of Police’s report of 163 pages containing a detailed gist of the relevant statements and documents including the information on income tax returns. The Central Vigilance Commission after examining the case advised the Ministry of Finance to grant sanction for prosecution.

The Investigating Officer visited the Directorate of Income Tax (Vigilance) in September 2002 and placed necessary documents for the perusal of the Additional Director, Income Tax (Vigilance) who was seized of the matter pertaining to the sanction for prosecution of the accused officer. The Finance Minister accorded sanction on November 2, 2002 and the sanction order was issued on November 26, 2002 with the signature of the Under Secretary (V&L), Ministry of Finance.

A charge sheet was filed by the CBI before the Court of Special Judge on December 5, 2002 and the court took cognizance and issued summon to the accused on January 10, 2003, who challenged the validity of the sanction by filing an application on May 1, 2003 and a similar application was again filed on September 12, 2005. The Special Judge CBI court heard these applications
and dismissed them on July 28, 2007, holding that it was not the appropriate stage to decide as to whether sanction granted by the competent authority was invalid.

After this the officer facing prosecution filed a Revision Application under Sections 397, 401 read with 482 of Code of Criminal Procedure, 1973 for setting aside the order of the Special Judge. The petition was contested by the CBI. However, the High Court gave an order setting aside the order of the Special Judge and remanded the case to record a finding on the question of any failure of justice in according sanction and to examine the sanctioning authority, as a witness even at pre-charge stage (if it deemed fit).

The Supreme Court, in response to the appeal by the CBI against the High Court order has observed in its judgement that “Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage.”

The apex court also observed: “We do not find any force in the submission made by (Ram) Jethmalani, learned senior counsel that as the matter is about one and a half decade old and the respondent has already suffered because of protracted legal proceedings at various stages before different forums,it is warranted that prosecution against him be closed altogether. This Court has consistently held that no latitude can be given in the matter of corruption.