VIJAY RAJMOHAN versus STATE REPRESENTED BY THE INSPECTOR OF POLICE, CBI, ACB, CHENNAI, TAMIL NADU on 11 October 2022

1. Leave Granted.

2. Two important questions of law arise for consideration in thisappeal. The first question is whether an order of the Appointing Authoritygranting sanction for prosecution of a public servant under Section 19 ofH

Athe Prevention of Corruption Act, 1988[1], would be rendered illegal onthe ground of acting as per dictation if it consults the Central VigilanceCommission for its decision. The second question is whether the periodof three months (extendable by one more month for legal consultation[2])for the Appointing Authority to decide upon a request for sanction ismandatory or not. The further question in this context, is whether theBcriminal proceedings can be quashed if the decision is not taken withinthe mandatory period.

Facts leading to the filing of this Appeal

3. The Appellant challenges the order of the High Court ofCJudicature at Madras[3] allowing a criminal revision petition filed by theState against an order of the Trial Court[4], discharging the Appellant onthe ground that the order of sanction under Section 19 of the PC Act, isvitiated due to non-application of mind by the sanctioning authority.

Facts

4. The Appellant is an official of the Central Secretarial Service,DGovernment of India. During the period between 01.01.2005 to31.10.2012, when his official postings were in New Delhi and Bangalore,he is alleged to have acquired assets that were disproportionate to hisknown sources of income. As of 31.12.2012, he and his relatives werefound to be in possession of disproportionate assets to the tune of Rs.79,17,593/-. An FIR came to be registered on 20.11.2012 by the CentralEBureau of Investigation[5] against the Appellant, his father, and his motherunder Section 109 of the Indian Penal Code, 18606, read with Sections13(1)(e) and 13(2) of the PC Act.

5. On 08.09.2015, the CBI completed investigation and soughtsanction from the appointing authority, the Department of Personnel andFTraining[7], for prosecuting the Appellant. As the questions arising forconsideration relate to the manner and the time taken for granting sanctionfor prosecution, the relevant facts will have to be mentioned in detail.They are as follows.

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1 hereinafter referred to as ‘the PC Act’.

2 As per the 2018 Amendment through the 2nd Proviso to Section 19(1) of the PC Act.

3 Criminal Revision Petition No. 349 of 2019 dated 06.01.2022.

4 Criminal Misc. Petition No. 3908 of 2018 in C.C. No. 3 of 2018 dated 13.12.2018.

5 hereinafter referred to as ‘the CBI’.\

6 hereinafter referred to as ‘the IPC’.

H7 hereinafter referred to as ‘the DoPT’.

6. About two months after receiving the proposal for sanction, on26.11.2015, the DoPT examined the facts of the case and sought 23clarifications from the CBI. A month after that, i.e., on 15.12.2015, theCBI gave clarifications on the same questions. Upon reviewing theclarifications, the DoPT believed that there were many errors in theinvestigation conducted by the CBI, and therefore sought the opinion ofthe Central Vigilance Commission[8]on 07.01.2016.

7. CVC followed it up and sought clarification from CBI on18.03.2016, i.e., two and a half months after the opinion of the CVC.After examining the clarifications tendered by the CBI, the CVC believedthat this to be a strong case for grant of sanction subject to the CBIconducting a re-investigation on certain aspects of the case. This opinionwas communicated to the DoPT on 01.06.2016.

8. Since the communication dated 01.06.2016 was unclear, theDoPT vide letter dated 26.08.2016 sought to know whether the CVCrecommended the grant of sanction or whether the CVC had advisedthe CBI to re-investigate. A month later, on 20.09.2016, CVC clarifiedto the DoPT that the CBI should re-investigate the matter and come upwith its revised findings. Accordingly, the DoPT informed CVC on05.10.2016 that it will treat the proposal for sanction for prosecution ofthe Appellant as closed until the re- investigation is completed and a newproposal is received from CBI. By this time, thirteen months had passedsince the request for sanction was made.

9. Meanwhile, on 27.09.2016, CBI submitted a revised explanationto the seven questions posed by the CVC. Satisfied with the same, theCVC advised DoPT on 25.11.2016 to grant sanction. Responding to theproposal, DoPT, by its letter dated 16.12.2016, sought to know if theCBI had completed the re- investigation, to which the CVC respondedon 09.02.2017, stating that it was satisfied with the proposal of the CBI.Finally, on 24.07.2017, DoPT granted sanction for prosecution. Thus, theproposal requesting the sanction for prosecution made by the CBI on08.09.2015 was given by the sanctioning authority on 24.07.2017, afterabout one year and ten months.

Before the Trial Court:

Before the Trial Court:

10. The Appellant filed a discharge application under Section 227 ofthe Cr.P.C. before the Principal Special Judge for CBI. This application8 hereinafter referred to as ‘the CVC’.

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Awas filed on the ground that the sanction order was passed withoutapplication of mind. The Trial Court by its order dated 13.12.2018, allowedthe application and discharged the Appellant. The reason for allowingthe application for discharge was that the DoPT failed to apply its mindand merely relied on the advice tendered by the CVC.

BBefore the High Court:

11. Against the above-referred order of the Principal Special Judgefor CBI, the State filed a Criminal Revision Petition under Section 397of the Cr.P.C., which was allowed by the High Court of Judicature atMadras. The High Court held that under Section 8(1)(g) of the CentralCVigilance Commission Act, 2003[9], one of the functions of the CVC is totender advice to the Central Government on the matter of grant ofsanction. Thus, it was opined that the advice of CVC could not be treatedas irrelevant material. The High Court also held that the DoPT, in additionto the advice of the CVC, had taken into account all the relevant materialand had independently applied its mind before granting sanction toDprosecute the Appellant. It is this order of the High Court which isimpugned before us.

Submissions of learned counsels:

12.1 Shri Mahesh Jethmalani learned Senior Counsel, and ShriEP.V. Yogeswaran, AOR, appearing on behalf of the Appellant, made twosubmissions. Firstly, Shri Jethmalani submitted that the grant of sanctionby DoPT dated 24.07.2017 is without application of an independent mind.He argued that the sanction for prosecution was hit by non-applicationof mind as DoPT had acted on dictation by the CVC, and for thispurpose, the said sanction order must be set aside. In support of thisFsubmission, he relied on the decision of this Court in MansukhlalVithaldas Chauhan v. State of Gujarat[10].

12.2 The second submission of Shri Jethmalani is about the delayin granting the sanction for prosecution. While the CBI requested forsanction on 18.09.2015, the order of sanction came to be passed onG24.07.2017, after almost two years. According to Shri Jethmalani, thisdelay is fatal, the consequence being that the proceedings against theAppellant must be quashed. For this purpose, he relied on the decision ofthis Court in Vineet Narain & Ors. v. Union of India & Anr.[11] followed 9 hereinafter referred to as ‘the CVC Act’.

10 (1997) 7 SCC 622H11 (1998) 1 SCC 226

by Subramanian Swamy v. Manmohan Singh & Anr.[12] as per whichthis Court has set an outer limit of three months for granting sanction.

13.1 Shri S.V. Raju, learned Additional Solicitor General for Indiawould submit that the DoPT, while granting sanction for prosecution,merely called for and considered the report of the CVC and had, in factapplied its independent mind. He took us through the correspondencebetween the CBI, CVC, and DoPT to make his point good.

13.2 Replying to the second submission made by Shri Jethmalani,the learned ASG submits that this issue was never raised at any point.For that matter, even the Special Leave Petition does not contain anyground to this effect. However, as the Court heard submissions on theground of delay, he clarified that the time period is merely directory andnot mandatory. He would further submit that, as per the above referreddecisions of this Court, the consequence of non-grant of sanction withinthree months would only be deemed sanction, rather than quashing thecriminal proceedings.

14. Having heard the parties in detail, we formulate two issuesfor our consideration. While the first issue pertains to whether the orderof sanction is illegal due to non-application of mind by the DoPT foracting as per dictation of CVC, the second issue pertains to whether thecriminal proceedings could be quashed for the delay of about two yearsin the issuance of the sanction order. We will answer both issues.

Re: Issue No. 1 - Whether the order of sanction is illegaldue to non-application of mind and acting as per dictation if theappointing authority, the DoPT refers and considers the opinion andadvise of the CVC?

15. At the outset, we will take note of the ratio in Mansukhlal(supra) relied on by Shri Jethmalani. Relevant portion of the judgmentholding that “if the sanctioning authority is under an obligation orcompulsion to grant sanction, the order will be bad for the reasonthat the discretion is taken away”, is extracted hereinunder:

“18. The validity of the sanction would, therefore, dependupon the material placed before the sanctioning authority andthe fact that all the relevant facts, material and evidence havebeen considered by the sanctioning authority. Considerationimplies application of mind. The order of sanction must ex 12 (2012) 3 SCC 64

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Afacie disclose that the sanctioning authority had consideredthe evidence and other material placed before it. This fact canalso be established by extrinsic evidence by placing therelevant files before the Court to show that all relevant factswere considered by the sanctioning authority.

B19. Since the validity of “sanction” depends on theapplicability of mind by the sanctioning authority to the factsof the case as also the material and evidence collected duringinvestigation, it necessarily follows that the sanctioningauthority has to apply its own independent mind for thegeneration of genuine satisfaction whether prosecution hasCto be sanctioned or not. The mind of the sanctioning authorityshould not be under pressure from any quarter nor shouldany external force be acting upon it to take a decision oneway or the other. Since the discretion to grant or not to grantsanction vests absolutely in the sanctioning authority, itsDdiscretion should be shown to have not been affected by anyextraneous consideration. Ifitisshownthatthesanctioningauthority was unable to apply its independent mindforanyreasonwhatsoeverorwasunder an obligation or compulsionor constraint to grant the sanction, the order will be bad forthe reason thatthediscretionoftheauthority“notto sanction”Ewas taken away and it was compelled toactmechanicallytosanctiontheprosecution.”

16. The decision in Mansukhlal (supra) was rendered in the year1997, when the legislative changes to the Code of Criminal Procedure,1973[13], were not made. Further, the decision was prior to the enactmentFof the CVC Act and also the amendments to the PC Act. The submissionof Shri Jethmalani therefore overlooks the march of law, which we haveendeavoured to explain hereinunder.

17. Sanction for prosecution of an employee of the Union underthe PC Act would involve invocation of specific provisions of the Cr.P.C.,Gthe Delhi Special Police Establishment Act, 1946[14], the PC Act, and theCVC Act, all of which constitute a unified scheme. The legal regime thatencompasses the above-referred statutes for matters concerningpreliminary inquiry, investigation, sanction, and prosecution are wellintegrated and can be recounted as under:

13 hereinafter referred to as ‘the Cr.P.C.’.H14 hereinafter referred to as ‘the DSPE Act’.

I. Section 197 of the Cr.P.C. provides a mandatory requirement ofsanction for the prosecution of judges, magistrates, and publicservants. While interpreting this provision, this Court has identifiedtwo principles, which are that, (a) there must be relevant materialplaced before the sanctioning authority before it takes a decision;and (b) the decision of the sanctioning authority must itself indicatethat it had applied its mind before granting sanction[15]. It is in thiscontext that the judgment of this Court in Mansukhlal (supra)must be understood [Section 197, Cr.P.C.].

II. Section 19 of the PC Act also provides for a requirement ofsanction before prosecution. The requirement of law for havingrelevant material placed before the sanctioning authority, as wellas the independent application of mind by the said authority, applieswith equal vigour to sanction under the PC Act[16] [Section 19, PCAct].

III. For the purpose of assisting the sanctioning authority in arrivingat a decision, the Government, through a 1997 resolution, constituteda body under the Ministry of Home Affairs referred to as theCVC. An Independent Review Committee (IRC), constituted bythe Government of India, also suggested conferring statutory statusto the CVC. This recommendation became compelling after thedecision of this Court in Vineet Narain (supra). These directionsresulted in the promulgation of three ordinances for giving statutorystatus to the CVC, and eventually, in 2003, the Parliament enactedthe CVC Act.

IV. The preamble to the CVC Act states that the Commission isconstituted to inquire or cause inquiries to be conducted intooffences alleged to have been committed under the Prevention of Corruption Act, 1988. Section 8 of the CVC Act evidences15 State of Punjab & Anr. v. Mohd. Iqbal Bhatti, (2009) 17 SCC 92; Romesh Lal Jain v.Naginder Singh Rana & Ors, (2006) 1 SCC 294.

16 State (Anti-Corruption Branch) v. R.C. Anand (Dr.), (2004) 4 SCC 615; C.S.Krishnamurthy v. State of Karnataka, (2005) 4 SCC 81; State of Karnataka v. Ameerjan,(2007) 11 SCC 273; CBI v. Ashok Kumar Aggarwal, (2014) 14 SCC 295. In fact inVivek Batra v. Union of India this Court has held that:-”12 the opinion of the CVC,which was reaffirmed and ultimately prevailed in according the sanction, cannot besaid to be irrelevant for the reason that clause (g) of Section 8(1) of the CentralVigilance Commission Act, 2003 provides that it is one of the functions of the CVC totender advice to the Central Government on such matters as may be referred to it by theGovernment.”

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the interplay of powers and duties of the three agencies, being thesanctioning authority (Union Government), the prosecutingagency (the CBI), and the advisory body (the CVC), all subservingthe same public interest of ensuring integrity in governance. Thefollowing provisions evidence the same.

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BV. The CVC shall exercise superintendence over CBI in relationto the investigation of offences under the PC Act [Section 8(1)(a),CVC Act.]. The CVC shall also give directions to CBI in thedischarge of its functions under Section 4(1) of the DSPE Act[Section 8(1)(b), CVC Act].

CVI. The CVC shall inquire on a reference made to it by the CentralGovernment (DoPT) about an alleged offence committed by apublic servant under the PC Act [Section 8(1)(c), CVC Act]. TheCVC shall also inquire into any complaint against a public servantalleged to have committed an offence under the PC Act [Section8(1)(d), CVC Act].D

VII. The CVC shall review the progress of the investigation bythe CBI for offences under the PC Act [Section 8(1)(e), CVCAct].

VIII. The CVC shall tender advice to the Central GovernmentEon such matters as may be referred to it [Section 8(1)(g), CVCAct].

IX. The CVC shall exercise limited superintendence over vigilanceadministration of various Ministries of the Central Government[Section 8(1)(h), CVC Act].

FX. The Lokpal and Lokayuktas Act, 2013[17], enacted to subservethe same purpose of maintaining integrity concerning certain publicfunctionaries, makes further amendments to the four statutes wehave dealt with hereinabove, further integrating them with eachother. The Lokpal Act amended Section 8 and also insertedSections 8A and 8B to the CVC Act [Section 8A and 8B CVCGAct].

XI. After a preliminary inquiry relating to corruption of publicservants belonging to Group C or Group D, if the CVC comes toa prima facie opinion of violation of conduct rules relating to H17 hereinafter referred to as ‘the Lokpal Act’.

corruption under the PC Act, the CVC shall (a) direct the CBI toinvestigate, or (b) initiate disciplinary proceedings; or (c) closethese proceedings and proceed under the Lokpal Act [Section8A(1), CVC Act]. If the CVC decides to direct an agency(including the CBI) to investigate, it can direct an expeditiousinvestigation within a time frame, and the CBI shall submit aninvestigation report to the CVC within that timeframe [Sections8B (1) and 8B (2), CVC Act]. On consideration of the report,the CVC may decide to (a) file a chargesheet or closure report;or (b) initiate departmental proceedings [Section 8B (3), CVCAct].

XII. In furtherance of a decision to direct prosecution, CVCexercises its powers under Section 8 to review the progress ofapplications pending with competent authorities for sanctionof prosecution under the PC Act. [Section 8(1)(f), CVC Act]

XIII. The appropriate Government or the competent authority isobligated, under the 2018 amendment to the PC Act, to endeavourto convey the decision on the proposal for sanction within threemonths with an extended period of one more month when legalconsultation is required. For this purpose, guidelines may beprescribed. The CVC has, in fact, issued necessary guidelines infurtherance of this duty. [Proviso to Section 19(1) of PC Act]

18. It is evident from the above referred formulation that theposition of law and the legal regime obtained by virtue of the fivelegislations on the subject of corruption, operates as integrated scheme.The five legislations being the Cr.P.C, DSPE Act, PC Act, CVC Act,and Lokpal Act, must be read together to enable the authorities to sub-serve the common purpose and objectives underlying these legislations.The Central Vigilance Commission, constituted under the CVC Act isspecifically entrusted with the duty and function of providing expert adviceon the subject. It may be necessary for the appointing authority to callfor and seek the opinion of the CVC before it takes any decision on therequest for sanction for prosecution. The statutory scheme under whichthe appointing authority could call for, seek and consider the advice ofthe CVC can neither be termed as acting under dictation nor a factorwhich could be referred to as an irrelevant consideration. The opinionof the CVC is only advisory. It is nevertheless a valuable input in thedecision-making process of the appointing authority. The final decision A

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Aof the appointing authority must be of its own by application ofindependent mind. The issue is, therefore, answered by holding that thereis no illegality in the action of the appointing authority, the DoPT, if itcalls for, refers, and considers the opinion of the Central VigilanceCommission before it takes its final decision on the request for sanctionfor prosecuting a public servant.B

19. Returning to the case facts, we have examined thecorrespondence and the long-drawn communications between the CBI,the DoPT, and the CVC. We found that the inquiry made by the appointingauthority, the DoPT, was only for soliciting further information, andparticularly the opinion given by CVC is also advisory. The sanctionCorder of the DoPT dated 24.07.2017 is an independent decision of thedepartment that was taken based on the material before it. Under thesecircumstances, we are not inclined to accept the first submission madeon behalf of the Appellant that the order of sanction suffers from illegalitydue to non-application of mind or acting under dictation.

DRe: Issue No. 2: Whether the criminal proceedings could bequashed for the delay in the issuance of the sanction order?

20. The public policy behind providing immunity from prosecutionwithout the sanction of the State is to insulate the public servant againstharassment and malicious prosecution. It is for this very reason thatEgood faith clauses[18] are incorporated in statutes extending protectionserves the State with courage, confidence, and conviction. It is apt torecall the speech of the then Home Minister, Shri Sardar Vallabhbhai 18 For example, Section 74 of Indian Forest Act, 1927 or Section 88 of the Food SafetyFand Standards Act, 2006 provide as under: - Section 74. Indemnity for acts done in good faith —

(1) No suit, prosecution or other legal proceedings shall lie against any publicservant for anything done in good faith or omitted to be done likewise, underthis Act or the rules or orders made thereunder.

(2) No Court shall take cognizance of any offence alleged to have been committedby a forest officer while acting or purporting to act in the discharge of hisGofficial duty except with the previous sanction of the Government of Unionterritory of Jammu and Kashmir.

Section 88. Protection of action taken in good faith- No suit, prosecution or other legal proceedings shall lie against the CentralGovernment, the State Government, the Food Authority and other bodiesconstituted under this Act or any officer of the Central Government, the StateGovernment or any member, officer or other employee of such Authority andH

VIJAY RAJMOHAN v. STATE REPRESENTED BY THE INSPECTOR OFPOLICE, CBI, ACB, CHENNAI, TAMIL NADU [PAMIDIGHANTAM SRINARASIMHA, J.]

Patel, during the Constituent Assembly Debates[19], also referred to byH.M. Seervai in his commentary on the Constitution while dealing withthe Services under the State[20]:

“To-day, my Secretary can write a note opposed to my views.I have given that freedom to all my secretaries. I have toldthem ‘If you do not give your honest opinion for fear that itwill displease your Minister, please then you had better go. Iwill bring another Secretary.’ I will never be displeased overa frank expression of opinion. (C.A.D. Vol.10, P.51).”

21. Statutory provisions requiring sanction before prosecution eitherunder Section 197 Cr.P.C. or under Section 97 of the PC Act also intendto serve the very same purpose of protecting a public servant. Theseprotections are not available to other citizens because of the inherentvulnerabilities of a public servant and the need to protect them. However,the said protection is neither a shield against dereliction of duty nor anabsolute immunity against corrupt practices. The limited immunity or baris only subject to a sanction by the appointing authority.

22. Grant of sanction being an exercise of executive power, it issubject to the standard principles of judicial review such as application ofindependent mind; only by the competent authority, without bias, afterconsideration of relevant material and by eschewing irrelevantconsiderations. As the power to grant sanction for prosecution has legalconsequences, it must naturally be exercised within a reasonable period.This principle is anyway inbuilt in our legal structure, and our ConstitutionalCourts review the legality and proprietary of delayed exercise of powerquite frequently. In Mahendra Lal Das v. State of Bihar & Ors.[21] and bodies or any other officer acting under this 60 Act for anything which is ingood faith done or intended to be done under this Act or the rules or regulationsmade thereunder.

19 Constituent Assembly Debates, Volume No. 10, Page 51

20 H.M. Seervai, Constitutional Law of India, 4th Edition, Volume 3, pg. 298721 (2002) 1 SCC 149

“7. In case s of corruption the amount involved is not material but speedyjustice is the mandate of the Constitution being in the interests of the accused aswell as that of the society. Cases relating to corruption are to be dealt withswiftly, promptly and without delay........

8. This Court in Ramanand Chaudhary v. State of Bihar quashed the investigationagainst the accused on account of not granting the sanction for more than 13years. The facts of the present case are almost identical. No useful purposewould be served to put the appellant at trial at this belated stage.

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ARamanand Chaudhary v. State of Bihar & Ors.[22] this Court found itexpedient to quash the criminal proceedings due to the abnormal delayin granting a sanction for prosecution.

23. Noticing that there is no legislation prescribing the period withinwhich a decision for sanction is to be taken, this Court, in Vineet NarianB(Supra), sought to fill the gap by setting a normative prescription ofthree months for grant of sanction.

“58. (I)(15) Time-limit of three months for grant of sanctionfor prosecution must be strictly adhered to. However, additionaltime of one month may be allowed where consultation isCrequired with the Attorney General (AG) or any other lawofficer in the AG’s office.”

24. Legislative reforms for expeditious grant of sanction forprosecution started with the enactment of the CVC Act, whereunderParliament has expressly empowered the CVC under Section 8(1)(f) ofDthe CVC Act to review the progress of applications for sanction[23].

25. While exercising the powers under Section 8(1)(f), the CVChas been issuing guidelines and instructions to various departments forexpeditious disposal of requests for sanction. Despite these legislativechanges and administrative guidelines, delay in granting sanctionsEcontinued. In Subramanian Swamy’s case, this Court suggested that

9. Keeping in view the peculiar facts and circumstances of the case, we areinclined to quash the proceedings against the appellant as permitting furtherprosecution would be a travesty of justice and a mere ritual or formality so faras the prosecution agency is concerned, and unnecessary burden as regards thecourts.”

22 (2002) 1 SCC 153F“5. It is not necessary to go into the legal points raised by Mr. Jain as we are inclined toquash the prosecution against the appellant in the peculiar facts and circumstances ofthis case. After the raid no action was taken by the prosecution for six years. ThePublic Prosecutor consistently opined that no criminal case was made out against theappellant. The Commissioner on independent consideration refused to grant the sanctionbut later on at the asking of the DIG (Vigilance) he changed his view. The Prosecutionagainst the appellant is pending for over a period of thirteen years and it would be aGtravesty of justice to permit the prosecution at this stage which would mean that theappellant would suffer the trial/appeal for another decade. In view of the facts andcircumstances of this case we quash the prosecution pending against the appellant........’’23 “Section 8: Functions and Powers of the Central Vigilance Commission-(1) The Functions and powers of the Commission shall be to –

(f) review the progress of applications pending with the competent authorities forHsanction of prosecution under the Prevention of Corruption Act, 1988.”

VIJAY RAJMOHAN v. STATE REPRESENTED BY THE INSPECTOR OFPOLICE, CBI, ACB, CHENNAI, TAMIL NADU [PAMIDIGHANTAM SRINARASIMHA, J.]

Parliament may consider prescribing clear time limits for the grant ofsanction and to provide for a deemed sanction by the end of the periodif no decision is taken.

“81. In my view, Parliament should consider the constitutionalimperative of Article 14 enshrining the Rule of Law wherein“due process of law” has been read into by introducing atime-limit in Section 19 of the PC Act, 1988 for its working ina reasonable manner. Parliament may, in my opinion, considerthe following guidelines:

(a) All proposals for sanction placed before any sanctioningauthority empowered to grant sanction for prosecution of apublic servant under Section 19 of the PC Act must be decidedwithin a period of three months of the receipt of the proposalby the authority concerned.

(b) Where consultation is required with the Attorney Generalor the Solicitor General or the Advocate General of the State,as the case may be, and the same is not possible within thethree months mentioned in clause (a) above, an extension ofone month period may be allowed, but the request forconsultation is to be sent in writing within the three monthsmentioned in clause (a) above. A copy of the said request willbe sent to the prosecuting agency or the private complainantto intimate them about the extension of the time-limit.

(c) Attheendoftheextendedperiodoftime-limit, if no decisionistaken, sanction will be deemedtohavebeengrantedtotheproposalforprosecution, and the prosecuting agency or theprivate complainant will proceed to file the charge-sheet/complaint in the court to commence prosecution within 15days of the expiry of the aforementioned time-limit.”

26. Yet another legislative development took place in 2018 whenthe Parliament, by way of an amendment to the PC Act, inserted thefollowing provisos to Section 19 of the PC Act; “19. Previous sanction necessary for prosecution. —

(1) No court shall take cognizance of an offence punishableunder sections 7, 11, 13 and 15 alleged to have been committedby a public servant, except with the previous sanction [save A

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as otherwise provided in the Lokpal and Lokayuktas Act,2013]- A

(a) in the case of....

(b) in the case of....

(c) in the case of....

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Provided further that.....

Provided also that the appropriate Government or any competentauthority shall, after the receipt of the proposal requiring sanctionfor prosecution of a public servant under this sub-section, endeavourto convey the decision on such proposal within a period of threeCmonths from the date of its receipt:

Provided also that in case where, for the purpose of grant ofsanction for prosecution, legal consultation is required, suchperiod may, for the reasons to be recorded in writing, beextended by a further period of one month:

Provided also that the Central Government may, for the purposeof sanction for prosecution of a public servant, prescribe suchguidelines as it considers necessary.….”

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27. The new proviso to Section 19 mandating that the competentauthority shall endeavour to convey the decision on the proposal forEsanction within a period of three months can only be read and understoodas a compelling statutory obligation. We are not inclined to accept thesubmission of the learned ASG that this proviso is only directory in nature.In the first place, the consistent effort made by all branches of the State,the Judiciary[24], the Legislative[25], and the Executive[26], to ensure earlydecision-making by the competent authority cannot be watered down byFlexical interpretation of the expression endeavour in the proviso.

28. The sanctioning authority must bear in mind that publicconfidence in the maintenance of the Rule of Law, which is fundamentalin the administration of justice, is at stake here. By causing delay inconsidering the request for sanction, the sanctioning authority stultifiesGjudicial scrutiny, thereby vitiating the process of determination of the 24 Commencing from the concerns expressed in Vineet Narain case in 1998, followed bythe decision in Subramanian Swamy.

25 The passing of the CVC Act in 2003, and the Lokpal and Lokayuktas Act amendingthe provision of PC Act and CVC Act and also the 2018 amendments to the PC Act.

H26 The various instructions issued by the CVC from time to time from 2003.

allegations against the corrupt official[27]. Delays in prosecuting the corruptbreeds a culture of impunity and leads to systemic resignation to theexistence of corruption in public life. Such inaction is fraught with therisk of making future generations getting accustomed to corruption as away of life. Viewed in this context, the duty to take an early decisioninheres in the power vested in the appointing authority to grant or not togrant sanction. In fact, the statement of object and reasons for the2018 amendment of Section 19 clearly explain the purpose as under: - “2(i) …Further, in the light of a recent judgment of theSupreme Court, the question of amending section 19 of theAct to lay down clear criteria and procedure for sanction ofprosecution, including the stage at which sanction can besought, timelines within which order has to be passed, wasalso examined by the Central Government and it is proposedto incorporate appropriate provisions in section 19 of theAct.”[28]

29. The intention of the Parliament is evident from a combinedreading of the first proviso to Section 19, which uses the expression‘endeavour’ with the subsequent provisions. The third proviso mandatesthat the extended period can be granted only for one month after reasonsare recorded in writing. There is no further extension. The fourth proviso,which empowers the Central Government to prescribe necessaryguidelines for ensuring the mandate, may also be noted in this regard. Itcan thus be concluded that the Parliament intended that the process ofgrant of sanction must be completed within four months, which includesthe extended period of one month.

30. If it is mandatory for the sanctioning authority to decide in atime-bound manner, the consequence of non-compliance with themandatory period must be examined. This is a critical question havingno easy answer. In Subramanian Swamy, this Court suggested thatParliament may consider providing deemed sanction if a decision is nottaken within the prescribed period. The Appellant herein contends thevery opposite that the criminal proceedings must be quashed if the decisionis not taken within the prescribed period.

27 Supra- Subramanian Swamy

28 Bill No. LIII of 2013, GOI (Ex.) Part II Sec 2 No. 31 dated 19.8.2013 (amendmentimplemented in the year 2018)

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A31. In the first place, non-compliance with a mandatory periodcannot and should not automatically lead to the quashing of criminalproceedings because the prosecution of a public servant for corruptionhas an element of public interest having a direct bearing on the rule oflaw[29]. This is also a non-sequitur. It must also be kept in mind that thecomplainant or victim has no other remedy available for judicial redressalBif the criminal proceedings stand automatically quashed. At the sametime, a decision to grant deemed sanction may cause prejudice to therights of the accused as there would also be non-application of mind insuch cases.

32. It is in between these competing interests that the Court mustCmaintain the delicate balance. While arriving at this balance, the Courtmust keep in mind the duty cast on the competent authority to grantsanction within the stipulated period of time. There must be aconsequence of dereliction of duty to giving sanction within the timespecified. The way forward is to make the appointing authorityDaccountable for the delay in the grant of sanction.33. Accountability in itself is an essential principle of administrativelaw. Judicial review of administrative action will be effective andmeaningful by ensuring accountability of the officer or authority in charge.

34. The principle of accountability is considered as a cornerstoneof the human rights framework. It is a crucial feature that must governEthe relationship between “duty bearers” in authority and “right holders”affected by their actions. Accountability of institutions is also one of thedevelopment goals adopted by the United Nations in 2015[30] and is alsorecognized as one of the six principles of the Citizens Charter Movement[31].

29 Subramanian Swamy v. Manmohan Singh and Anr, (2012) 3 SCC 64F76. The sanctioning authority must bear in mind that what is at stake is thepublic confidence in the maintenance of the Rule of Law which is fundamentalin the administration of justice. Delay in granting such sanction has spoilt manyvalid prosecutions and is adversely viewed in public mind that in the name ofconsidering a prayer for sanction, a protection is given to a corrupt publicofficial as a quid pro quo for services rendered by the public official in the pastor may be in the future and the sanctioning authority and the corrupt officialswere or are partners in the same misdeeds…….G77. By causing delay in considering the request for sanction, the sanctioningauthority stultifies judicial scrutiny and determination of the allegations againstcorrupt official and thus the legitimacy of the judicial institutions is eroded. It,thus, deprives a citizen of his legitimate and fundamental right to get justice bysetting the criminal law in motion and thereby frustrates his right to accessjudicial remedy which is a constitutionally protected right…….

30 United Nations General Assembly Resolution 70/1 dated 25th September, 2015H31 Citizens Charter adopted by the Government in the ‘Conference of Chief Ministersof various States and Union Territories’ held in May 1997 in New Delhi, available fromhttps://goicharters.nic.in/public/website/home.

35. Accountability has three essential constituent dimensions. (i)responsibility, (ii) answerability and (iii) enforceability. Responsibilityrequires the identification of duties and performance obligations ofindividuals in authority and with authorities. Answerability requiresreasoned decision-making so that those affected by their decisions,including the public, are aware of the same. Enforceability requiresappropriate corrective and remedial action against lack of responsibilityand accountability to be taken[32]. Accountability has a corrective function,making it possible to address individual or collective grievances. It enablesaction against officials or institutions for dereliction of duty. It also has apreventive function that helps to identify the procedure or policy whichhas become non-functional and to improve upon it.

36. Accountability, as a principle of administrative law, whenapplied to the issue that we are dealing with, translates in this manner.Responsibility for grant of sanction for prosecution of a public servantunder Section 19 of the PC Act is always vested in the appointing authority.Identification of appointing authority is always clear and straightforward.The 2018 amendment specifically obligates the appointing authority toconvey the decision within three months and to provide for the reasonsto be recorded in writing for the extended period of one month. Thisamendment, in fact, evidences legislative incorporation of answerability,the second constituent of accountability. For enforceability, Parliamenthas expressly empowered the Central Vigilance Commission underSection 8(1)(f) of the CVC Act to review the progress of the applicationspending with the competent authorities, and this function must take withinits sweep the power to deal with the consequences of failure of thecompetent authority to comply with its statutory duty. This power andresponsibility of CVC is clear from the provisions of the statute anddecipherable from functions entrusted to it.

37. In conclusion, we hold that upon expiry of the three monthsand the additional one-month period, the aggrieved party, be it thecomplainant, accused or victim, would be entitled to approach theconcerned writ court. They are entitled to seek appropriate remedies,including directions for action on the request for sanction and for thecorrective measure on accountability that the sanctioning authority bears.

32 See: Office of United Nations High Commissioner for Human Rights, Who will beAccountable? Human Rights and the Post-2015 Development Agenda, available fromhttp://www.ohchr.org/Documents/Publications/WhoWillBeAccountable.pdf AB

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AThis is especially crucial if the non- grant of sanction is withheld withoutreason, resulting in the stifling of a genuine case of corruption.Simultaneously, the CVC shall enquire into the matter in the exercise ofits powers under Section 8(1)(e) and (f) and take such corrective actionas it is empowered under the CVC Act.B38. The second issue is answered by holding that the period of B38. The second issue is answered by holding that the period ofthree months, extended by one more month for legal consultation, ismandatory. The consequence of non-compliance with this mandatoryrequirement shall not be quashing of the criminal proceeding for thatvery reason. The competent authority shall be Accountable for the delayand be subject to judicial review and administrative action by the CVCCunder Section 8(1)(f) of the CVC Act.

39. Returning to the facts of the present case, we have noticedthat the CBI made the application for sanction for prosecution on08.09.2015, and the same was granted on 24.07.2017, i.e., after oneyear and ten months. As the Appellant did not question the legality of theDdelay either before the Trial or the High Court but chose to confine thechallenge only to the appointing authority acting under the dictation ofthe CVC, there was no occasion for CBI to respond to the submissionof delay. The submission was raised for the first time before this Court.Though the learned ASG submitted that this plea should not be permittedEto be raised, without standing on a technicality, we would have proceededto examine the matter if the necessary material were on record of thecase. As there is no material placed on record to examine theaccountability of the appointing authority for not deciding the request forsanction within time, we leave it to the Appellant to seek appropriateremedy based on principles that we have laid down hereinabove.F

40. For the reasons stated above, we dismiss the Criminal Appealarising out of SLP (Crl) No.1568 of 2022 arising out of the Judgment ofthe High Court of Madras in Criminal Revision Petition No. 349 of 2019dated 06.01.2022. We permit the petitioner to raise and seek suchremedies as are permissible in law on the basis of principles laid downGby us.

41. The parties shall bear their own costs.

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Divya Pandey and Anurag Bhaskar(Assisted by : Shivani Pundir, LCRA)