M R. Hariharan Nair, J.
1. The revision petitioners in these 26 cases are all accused in the connected cases pending trial before the Enquiry Commissioner and Special Judge, Kozhikode. Of these, 12 revisions are by a contractor and 14 are filed by Engineers. An FIR was filed against them on 30-9-1985 reporting that the latter, while working as Engineers of various rank for works in the Attappady Valley Irrigation Project, Agali, during the period from 24-7-1978 to 9-11-1981, they committed criminal misconduct by abusing their official positions in the matter implementing a criminal conspiracy with the contractors aforementioned by placing four supply orders dated 17-11-80, 18-12-80, 19-2-81 and 3-2-81 for 95 numbers of 200mm Sluice valves in favour of M/s. Indira Engineering Corporation, Coimbatore, of which one of the accused is the Managing Partner causing loss of crores of rupees to the Government exchequer. After investigation, 13 charge sheets were filed on 10-3-1989 alleging the offences under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 as also Sections. 109 and 120-B of the Indian Penal Code. On 17-7-89, the Court framed charges against the accused in the different cases. On 10-4-1996, the petitioners filed the applications before the Court in the respective cases requesting that further proceedings in the case might be stopped and the accused might be acquitted as the sanction required for their prosecution was not validly obtained. They pointed out that the sanction order relied on by the prosecution which was issued with the signature of one M. Mohankumar, Commissioner and Secretary, Vigilance Department, on 28-1-1989 was defective for very many reasons. The Court, however, did not accept the contention and found that there was no sufficient ground for dropping the further proceedings. It is challenging these orders that the appellants have come up before this Court.
2. The arguments advanced by the different counsel appearing in these cases were more or less similar and they can be summarised as follows :
(1) As per a single order, sanction should not have been granted for prosecuting as many as 16 persons. With regard to the facts of each case, separate orders of sanction was required.
(2) In view of the requirements in Artical 166 of the Constitution of India, sanction order should have been issued by "order of the Governor". The sanction order produced does not purport to be one issued under the orders of the Governor; but purports to be issued in the individual capacity of one M. Mohankumar, Commissioner and Secretary, Vigilance Department.
(3) As on the date of grant of sanction, namely, 28-1-89, the Prevention of Corruption Act, 1988 has come into vogue and the Prevention of Corruption Act, 1947 stood repealed. In spite of this the sanction order purport to grant sanction invoking power under the repealed Act which in fact was extinct and for that reason the orders are bad.
(4) Sanction can be validly given only by the appointing authority. The petitioiners were all employees of the Irrigation Department and hence the required sanction could have been passed only by the Irrigation Department or by the Home Department which was to deal with criminal prosecutions. The appellants, being not the employees of the Vigilance Department, the Commissioner and Secretary of that Department had no competence to grant sanction.
(5) Under the Rules of Business applicable to the Government of Kerala, the Secretary to Government, Vigilance Department, was granted authority to grant such sanctions only as per S.R.O. 482/94 notifying G.O. (Ms) No. 169/94/GAD dated 23-4-1994. The orders of sanction in the present case were issued by the Secretary more than 5 years before the Notification empowering him was issued.
(6) The sanction order produced in the case does not reveal due application of rnind by the signatory to the same. Otherwise, sanction would not have been given to prosecute even retired and dead persons. The sanctioning authority has also failed to produce before Court the relevant documents indicating due application of mind.
(7) The continuance of the prosecution proceedings affects the fundamental rights of the appellants guaranteed under Article 21 of the Constitution. Such continuance more than 15 years after the filing of the FIR in this case amounts to undue harassment being belated and there is no justification for continuing the same.
3. According to Mr. M.M. Mathew, the learned Additional Director General of Prosecutions, the sanction order has been validly given. The investigation of the case was being done by the Vigilance Department and the proper authority to deal with the sanction, in the circumstances, was the Vigilance Department itself. Merely because a Notification specifically empowering the Vigilance Department in the matter was issued only on 23-4-1994 that does not mean that until then the Secretary of that Department was incompetent to grant sanction representing the Government. He also pointed out that the prosecution has to be governed by the Act which was in force at the time of occurrence and continued prosecution of the accused is rendered possible by virtue of the specific saving clause in Section 30 of the new Prevention of Corruption Act, 1988. The sanction was granted after due application of mind which can be established before Court by producing the relevant files and by oral evidence of the author of the sanction at the time of evidence and it is too early now to state that the sanction was invalid. Further 12 of these revisions are filed by the contractor by name Udayakumar for whose prosecution no sanction at all was required. He has no locus standi to challenge the sanction or to file revisions and hence R.Ps. 755, 779, 784, 785, 789, 790, 791, 792, 793, 794, 795 and 802 of 1996 have to fail. Likewise, R.Ps. 838, 839, 847, 848, 874, 875 and 878 of 1996 were all filed by the Engineers who had retired before cognizance was taken in these cases in 1989. Actually sanction was required only to prosecute the petitioners in R.Ps. 752, 788, 834, 835, 836 and 804 of 1996. Valid sanction is there in those cases. It is also their contention that the petitioners in these cases were all links in one and the same chain and the offences alleged against them being one and the same there was no defect in granting a common sanction order.
4. On the arguments advanced by the learned counsel for the appellants, the point that arise for decision is :
Whether the orders of sanction granted in this case can be found defective at this stage?
5. The point : As on the dates of occurrence involved in these cases it was the P.C. Act of 1947 that was applicable with regard to allegations of corruption alleged against the Engineers arrayed as accused herein while as on the date of framing charges it was the P.C. Act of 1988. Section 6(1) of the 1947 Act and Section 19 of the new Act provide that no Court should take cognizance of an offence under the relevant Section of the Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from service or the Government.
6. I find considerable merit in the contention of the respondent - State that the offences involved in all these cases being similar and part of an alleged larger conspiracy, passing of a common sanction order is justified. No authority has been placed before me to show that sanction order should always be separate in respect of each accused or for each case. The contention of the learned Additional D.G.P. that no sanction is required for prosecuting the contractor - Udayakumar or the Engineers who had retired before 1989 when cognizance was taken in these cases is also found acceptable. This narrows down the consideration of the question of sanction in respect of R.Ps. 752, 788, 804, 834, 835 and 836 of 1996 alone. In other words the question is whether the sanction to prosecute involved in those cases are valid.
7. Even if the Engineers concerned could have been removed from service only by their Head of Department there cannot be any bar to the Government itself deciding to issue of sanction for prosecution in so far as the Government is a superior authority vis-a-vis the Head of Department. But then Article 166(1) of the Constitution provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. It would have been appropriate therefore that the impugned order specifically mentioned the fact that it was issued by the order of the Governor. It is not so done. However, this does not appear to be a material defect which would invalidate the sanction. No authority has been placed before me to show that the absence of such a mention would render the sanction void. In the circumstances, the sanction granted in the case cannot be held to be invalid for this reason.
8. The sanction impugned in these cases was granted on 28-1-89 which was after the commencement of the Prevention of Corruption Act, 1988. What is mentioned in the relevant sanction order is that the sanction to prosecute the accused is given for the offence, inter alia, under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 as required under Section 6(1)(b) of the Prevention of Corruption Act, 1947. There is no reference to the Prevention of Corruption Act, 1988 which was in force as on the date of sanction in the particular order. Nevertheless, I do not think that this is a defect.
9. Article 20 of the Constitution provides that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commisison of the offence. The alleged date of occurrence in this case being before the commencement of the Prevention of Corruption Act, 1988, the accused could have been prosecuted only for the offence under the P.C. Act, 1947.
10. Section 30(1) of the P.C. Act, 1988 states that the Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act, 1952 are thereby repealed. Section 30(2) further provides as follows :
30(2) Notwithstanding such repeal; but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or on pursuance of the corresponding provision of this Act.
By virtue of this provision the prosecution initiated against the appellants at the time when the P.C. Act, 1947 was in force can very well be continued under the new Act.
11. The effect of repeal of an Act is dealt with in Section 6 of the General Clauses Act, 1897 as follows :
6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect, any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any penalty, forfeiture or punishment may be Imposed as if the repealing Act or Regulation had not been passed.
12. It is clear therefore that the repeal of the old Act does not affect the investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment which was possible under the old Act. By virtue of this provision, the State is at liberty to continue investigations and legal proceedings to ensure that the punishment possible under the old Act is imposed as if the new Act of 1988 had not been passed.
13. An argument was advanced by Mr. V. Giri appearing for some of the petitioners that the impact of the saving provision mentioned above is only that any sanction granted before the commencement of the 1988 Act could have been rendered valid to continue the prosecution proceeding and not that any power was left with the Government to grant sanction for prosecution under the old Act even after the commencement of the new Act. As already mentioned, under Section 6 of the General Clauses Act, investigation and legal proceedings possible under the old Act can be continued effectively under the new Act also. If for maintaining such legal proceeding, grant of sanction is required as it happens in the present cases, that of course would come within the sweep of Section 6(e) of the General Clauses Act and hence I am of the view that the Government had power to grant sanction for prosecution under the old Act even after the new Act had come into force.
14. The defence contention that the petitioners being present or erstwhile employees of the Irrigation Department, it was only the Irrigation Department or the Home Department which was in charge of prosecution that could have granted sanction for prosecution may now be considered.
15. The decision in State of Haryana v. P.C. Wadhwa, AIR 1987 SC 1201 was relied on by the petitioners on the above aspect. That was a case where a confidential report was written by the Home Secretary instead of by Inspector-General of Police. It was held that the immediate superior to the Inspector-General of Police is the Minister-in-charge of the Police Department and that the only authority who could be specifically empowered as the reporting authority in regard to the Inspector-General of Police under Clause (e) of Rule 2 of the All India Services (Confidential Rolls) Rules is the Minister-in-charge and that though he may be assisted by the Home Secretary, the confidential report relating to the performances of the Inspector-General of Police has to be written by the Minister-in-charge and not by the Secretary. The said finding was with reference to the specific provision in the Rules concerned which was involved there and it has no application to a case where on behalf of the Government which is the proper authority an order is issued by a Secretary to Government.
16. In the Rules of Business framed by the Government of Kerala under Article. 166(3) of the Constitution, Irrigation Department comes as Item No. 16 and the Administration of Irrigation Act and Rules comes within the purview of this Department. Likewise, the Home Department has to deal with the administration of law and order as also crime investigation and prosecution including appeals, revision and withdrawal of prosecution. Rule 4 provides that business of the Government shall be transacted in the Department specified in the First Schedule to the Rules and shall be classified and distributed between those departments as laid down therein.
17. It is argued that grant of sanction actually forms part of the prosecution proceedings which comes under Clause 4 aforementioned relating to Home Department and that in any event the sanction should not have been given by the Vigilance Department which has nothing to do with the administration of the Irrigation Department.
18. The Vigilance Department comes as item 31 in the list of departments relating to the distribution of business. Under clause (1) it is now the duty of the Vigilance Department to deal with "all cases of corruption including cases of complaints or allegations against public servants. If it is the duty of the Vigilance Department to look after all cases of corruption against public servants it cannot be said that it had nothing to do with the grant of necessary sanction required for prosecution.
19. Government has issued S.R.O. 482/ 94 notifying G.O.(Ms) No. 169/94/GAD dated 23-4-1994 amending the Rules of Business and empowering the Vigilance Department to deal with the cases of issuance of orders sanctioning prosecution of public servants under the Code of Criminal Procedure, 1973 and the Prevention of Corruption Act, 1988. The Explanatory Note to the said Notification states that as on 23-4-1994 there were no specific Government Orders authorising the Commisssioner and Secretary (Vigilance) to issue orders of suspension or sanction for prosecution against the public servants in cases investigated by the Vigilance Department under the provisions of the Prevention of Corruption Act etc., and that the Government have decided that this power should be given specifically to the Commissioner and Secretary (Vigilance) and the Rules of Business might be amended suitably. In view of the specific statements aforementioned, it can be seen that until 23-4-1994 the Vigilance Department was not specifically granted authority to deal with the sanctions relating to prosecution. The question then is whether even without such specific authority files relating to sanction could have been dealt with by that department and sanction order issued therefrom. I am of the view that the answer is in the negative. Rule 12 of the Rules of Business of the Government of Kerala provides as follows :
12. Every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such officer as may be specifically empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.
20. A Government Order will hence be valid if it is signed by Secretary of any Department dealing with the subject unless his authority is barred by any general or special order. At the most what can be said is that after 23-4-1994 it is the duty of the Vigilance Department to deal with question of sanction.
21. Validity of a sanction is a matter which can more appropriately be dealt with after the trial is concluded. The reason is that even if prima facie defects may be evident before trial, it can be cured by the prosecution by letting in evidence aliunde. The Secretary concerned can produce the file concerned before Court at that stage and explain the circumstances in which the file was dealt with in his department and the circumstances in which the final order emerged. The question whether due application of mind was there; matters that were taken into account in coming to the particular decision; how and why names of retired and expired persons found a place in the sanction order etc., are all matters which can be spoken to by the Secretary concerned while he is in the box. That stage has not yet been reached. It is presumably for this reason that Section 19(3) has been newly incorporated in the P.C. Act of 1988 which reads as follows :
x x x x x x x x x x x x
19(3). Notwithstanding anything contained in the Code of Criminal Procedure,
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmaton or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unles in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and order passed in any inquiry, trial, appeal or other proceedings.
22. In view of the above provisions, this Court will not be justified in interfering with the trial proceedings unless failure of justice would result otherwise. I fail to understand how failure of justice would result in the matter of trial of persons involved in an alleged conspiracy in consequence of which huge amounts of public money reached the pocket of a supplier. Such being the position, I am of the view that there is absolutely no justification to upset the trial proceedings at this stage. As things stand now the sanction order or the impugned order of the trial Court cannot be interfered with. The revisions are hence without merit.
23. Leaving it open for the defence to raise the present contentions at the stage of final arguments on culmination of the trial (examination of witnesses and proof of documents) and making it clear that nothing contained in this order or in the impugned order of the trial Court would stand in the way of independent consideration of the aspect of validity of sanction and connected matters at the final arguments of the case, these revisions are dismissed. The trial Court is directed to give priority to these cases considering its age and to pronounce final judgment in the cases at the earliest; preferably within a period of one year.