------------------- Petitioner challenges Ext.P22, an order passed by the Government reviewing the sanction granted in terms of Ext.P1 to prosecute the 5th respondent.
2. The sanction to prosecute was given by the Government invoking under Sec.197 of Cr.P.C. Proceeding on that basis the private complaint filed by the petitioner was committed to Additional Sessions Court-I, Thriuvananthapuram as SC No. 68/10 which is pending consideration. In the meantime, the petitioner had also filed a suit as OS No.299/99 seeking compensation for the alleged wrongful act of the 5th respondent. The suit was dismissed against which the petitioner had preferred an appeal as RFA No. 274/11, which is pending before this Court.
3. In the meantime, 5th respondent seems to have submitted a representation, Ext.P4 to the Government based on the findings in the civil suit. The Government re-
considered the entire matter of sanction and issued Ext.P22 order revoking the sanction originally granted in terms of Ext.P1. This action of the Government is challenged inter alia contending that there is no power available with the Government to revoke the sanction granted to prosecute the 5th respondent especially when the court has already taken cognizance of the case.
4. Counter affidavit is filed by the 5th respondent contending that the findings of the civil court clearly indicates that the documents relied upon by the petitioner were false and to be cancelled. Therefore, the entire factual circumstances relied upon by the petitioner while filing the complaint was the out come of forgery and fabrication of documents. Since, such matter came to the notice of the 5th respondent during trial of the civil suit, the entire matter was placed before the Government and the Government in exercise of its general power under Section 197 has revoked the sanction in terms of Ext.P1. According to 5th respondent, the Government has the power to see that a person who is not liable to be prosecuted is not harassed and there is no point in the 5th respondent undergoing a trial for the last several years altogether.
5. The State Government has filed counter affidavit supporting the stand taken by them in Ext.P22.
6. The learned Senior Counsel for the petitioner relied upon the judgment of Andhra Pradesh High Court in M.Veeraiah Chowdary v. The State of Andhra Pradesh & others [CDJ 2003 APHC 200] wherein a similar situation has arisen and Andhra Pradesh High Court formed an opinion and once sanction has been granted pursuant to which the court has taken cognizance of the case, it is not open for the sanctioning authority to revoke the same. It is argued that an identical situation had arisen in the present case.
7. The learned counsel for the 5th respondent relied on State of Himachal Pradesh v. Nishant Sareen, [2010(14)SCC 527]. Reference is made to paragraphs 12, 13 and 14 of the judgment which reads as under:
“12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and 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 a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the 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. It is so because unrestricted power of review may not bring finality to such exercise and on change of the 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 opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.
13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the 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 a course.
14. Insofar as the present case is concerned, it is not even the case of the appellant 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 15.03.2008 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.”
8. Section 197 of Cr.P.C reads as under:
“ Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -
(a) in the case of a person who is empoyed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government, provided xxxxxxx (omitted)
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply o such class or category of the members of the Forces charged with the maintenance of public order, as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “ Central Government” occuring therein, the expression “State Government” were substituted. (3A)[Notwithstanding anything contained in sub-section(3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause(1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government]. (3B)[Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause(1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held”.
9. There is no specific provision available under Sec.197 to revoke sanction already granted. The contention of the 5th respondent and the State is based on judgment of the Supreme Court in Nishant Sareen's case (supra) wherein, the Supreme Court has formed an opinion that the grant or refusal to grant sanction exercising the statutory power does not mean that the power to exercise cannot be exercised again or at a subsequent stage in the absence of express power. But it is relevant to note that the factual situation in Nishant Sareen's case (supra) is totally different. That was a case in which the sanctioning authority refused to grant sanction at the initial stage. Thereafter alleging that a certain additional materials were available fresh sanction was given. The judgment came to be passed under the said factual circumstances. That is not the situation here. In this case based on the materials produced by the petitioner sanction to prosecute was given by the first respondent and thereafter the court has taken cognizance of the matter. The situation as envisaged in the judgment in M.Veeraiah Chowdary's case (supra) squarely applies. In the said circumstances, despite the vehement arguments of the learned counsel for the 5th respondent that he should not be prosecuted unnecessarily especially in view of the findings of the civil court, I do not think that, in absence of any specific provision enabling the sanctioning authority to revoke the sanction when the court has already taken cognizance of the case, Ext.P22 is apparently bad in law and is liable to be set aside. It is not in doubt that the petitioner has always a right to challenge the sanction order during trial. Hence, the 5th respondent's right to challenge Ext.P1 on any ground is kept open.
In the result, this writ petition is allowed, Ext.P22 is hereby quashed.
Sd/- A.M.SHAFFIQUE, JUDGE lsn