[S.19 Prevention Of Corruption Act] CVC Can Use Supervisory Powers To Ensure Sanctioning Authority Doesn't Refuse Permission To Prosecute Accused: MP High Court

Madhya Pradesh High Court has held that the Central Vigilance Commission (CVC) must ensure that the sanctioning authority won't let the guilty walk away scot-free by wrongfully refusing permission for prosecution.

The Division Bench comprising Justices Sheel Nagu and Vijay Saraf, also clarified that a refusal for prosecution by sanctioning authority based on a separate inquiry conducted through field functionaries is bad in the eyes of law.

It held that the order of refusal to sanction prosecution if derived from such an inquiry, can only be regarded as one based on 'extraneous material'. Such extraneous inquiry that does not involve the investigating agency is prohibited, the court observed.

“It is a little surprising that the sanctioning authority turned a Nelson's eye towards the glaring fact of petitioner having been trapped accepting bribe leading to a prima facie case of commission of offences punishable under the P.C. Act. With this allegation supported by prima facie material, the sanctioning authority was duty-bound to grant sanction…”, the bench sitting at Jabalpur opined on referring to Section 19 of the Prevention of Corruption Act, 1988.

The court noted that the sanctioning authority's refusal to grant prosecution sanction against Shashikant Mishra, Branch Manager (Central Bank of India), can only be attributed to i) a failure to understand the legal provisions, or ii) an intention to favour the accused.

It was submitted that the petitioner was aggrieved by the criminal prosecution before Special Judge (CBI), Jabalpur for offences under Sections 7, 13 (2) r/w 13(1)(b) of the Prevention of Corruption Act, 1988. It was alleged that Mr Mishra demanded and accepted Rs 10,000/- as a bribe for considering the application made by the complainant's brother to start a kiosk of the Central Bank of India at Kachar Gram.

The petitioner contended that the third order that granted sanction was invalid on the face of two previous refusals based on the 'same material' by the sanctioning authority.

Advisory Role Of CVC In Matters Of Sanction Brought Up By Appointing Authorities

The division bench observed that the Central Vigilance Commission has been given the power to ensure that sanctioning authority does not stray away from the mechanism under Section 19 of PC Act regarding erring public servants.

It noted that this concept draws its strength from CVC Guidelines dated 23.06.2006. In this office order, the standard procedure to be followed in instances of dissonance between the Anti-Corruption Bureau and Central Government Authorities in matters of sanctioning prosecution has been given in detail, the Court observed.

“…CVC guidelines which are binding on all the department of Central Government and Government instrumentalities, including Bank and Insurance Company etc. and according to the guidelines issued by CVC time to time, if the sanctioning authority is not in consonance with the opinion of investigating agency, the sanctioning authority cannot straightway refuse the sanction and the sanctioning authority is under obligation to forward the matter to CVC through CVO…”, the court underscored

Two Previous Refusals To Sanction Prosecution Not Relevant

The court pointed out that copies of the 'refusal orders' cited by the petitioners were not currently available. It held that the sanctioning authority itself had submitted that the refusals were only informed to the CVC of the Bank. When there is uncertainty about whether these two alleged refusal orders were forwarded to the investigating CBI, it cannot be rightly said that the alleged refusals were final decisions of refusal to grant sanction, the court observed.

More importantly, as per the letter dated 17.01.2024 available on record, the Central Vigilance Officer of the Bank has only made an intimation to CBI about the inability of the Sanctioning authority to accord sanction, as a result of which, the issue was forwarded to CVC that plays a supervisory role.

“…Until and unless the refusal is communicated to the investigating agency, the inability to grant sanction may be treated as internal comments or opinion. It is not a case wherein clinching evidence is available on record that on earlier occasions the refusal of sanction was communicated to investigating agency and the investigating agency based on same material once again reagitated the matter before concerning department”, the bench quoted from G. N. Singh vs. State of M.P. & Ors. (2017).

Citing the above reasons, the court refused to interfere with the sanction order issued on CVC's advice. The court, however, granted the petitioner liberty to question the impugned sanction order during the course of trial.

Senior Advocate Anil Khare a/w Advocate Priyank Agrawal represented the petitioner. Advocate Vikram Singh appeared for the respondent.

Case Title: Shashikant Mishra v. Union of India Through CBI (ACB) Jabalpur

Case No: Misc. Criminal Case No. 49651 of 2023

Citation: 2024 LiveLaw (MP) 33

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