K.J. Vaidya, J.
1. This is quite an extraordinary case depicting the story of "Diya or Toofan" where the "burning torch of the "Rule of Law" to quite some large extent has been caught surrounded by the stormy cyclonic winds of gross misconduct, indiscipline and abuse of power demonstrating the "Rule of utter Lawlessness" by some top Government officials dangerously, blowing across the public administration violating, nay rooting out the law at their sweet will, whims and caprice suiting to their selfish exigencies and expendiencies helping out the accused releasing them from the clutches of law !! Now, taking into consideration the startling fact that in some serious cases wherein after the sanction was granted, the corruption cases against some influential public servants came to be withdrawn at the instance of the Home Department in the name of State, leaves no manner of doubt that to the said extent the torch of "Rule of Law" stands extinguished in the State of Gujarat!! This is simply unbelievable yet when brought to the notice, on seeing it one has got to believe it !! It is under these demoralizing circumstances that this Court, as a Constitutional Functionary, has been constrained and called upon to decide the points raised hereunder to save, protect "Law", the "Rule of Law" and ultimately thereby "Democracy", for which our hundreds and thousands of our forefathers had laid down their precious lives at the alter of independence struggle to win freedom !! Unfortunately, when one come across the case like the present one (as stated hereunder), quite unnerving, and the disgusting question may also arise to many in the country as to whether there is a "Democracy" or "Bureaucracy" which is ultimately ruling the country or both in their ugly forms ? In form "Democracy" and in substance haunted by some unscrupulous politicians and the members of "bureaucracy" !! In appearance law, otherwise lawlessness !! Dr. Jakyl and Mr. Hyde !! We hope that whatever has been brought on the record is a tip only and not the lip of the iceberg !! As said by SOLON Laws are like spider's webs; if some poor weak creature come up against them, it is caught; but a bigger one can break through and get away. " In such a darkest; hour of the crisis of integrity in the public administration, throwing the "Rule of Law" to the winds, if we also remain passive spectator, that may,in the first instance strengthen the belief that "Law governs the poor and weak and the rich and influentials govern the law". Small talati or clerk or peon taking bribe of Rs. 10/- or so can be prosecuted and tried, and big shots can be saved and protected, and in the second instanced be the dooms day for the law and constitution for which we as a constitutional functionaries have taken oath to uphold and protect the same without fear or favour at any cost. Having come to know this shocking, shameful state of affairs not to nip this in a bud, it will spoil and destroy the culture of "Rule of Law" and "Democracy" which we as a High Court are bound to take care of, else it may leave behind the guilty feelings of accomplice of and along with the law breakers. With this background of unpleasant scenerio, we are afraid to quite some extent that the unavoidable observations made on the pages of this judgment are more or less on the verge of vote of no confidence against the concerned officers of the State, involved in an episode of playing foul with law ! All these unavoidable observations naturally arises out of the uncontroverted shocking facts-situation undermining the "Rule of Law" placed before us by the petitioner no less an authority than the Director, Anti-Corruption Bureau, Gujarat State, that the six most important questions of quite great public importance and of far reaching consequence that arise for our consideration in this matter are as under:
Firstly, whether the State Government by constituting a "Vigilance Commission" under some Resolution, can invest it with some special powers over-riding or super-imposing itself upon the statutory functionary exercising its powers and discharging duty under the provisions of the Prevention of Corruption Act, 1988 (for short "Corruption Act") ? This controversial question arises in the context of the express statutory provisions pertaining to the special powers to investigate the cases, filing of the complaint, obtaining necessary sanction to prosecute, filing chargesheet and raising the statutory presumption of offence of corruption against the accused etc. etc. under the various provisions of the Corruption Act vis-a-vis sub-para (vi) & (vii) of para-4 of the Vigilance Manual? In substance, whether the Vigilance Commission has any statutory authority to dabble in the matter which expressly lies within the strict domain of the Corruption Act and its statutory functionaries thereunder by making some inroads in disguise and name of some gubernatorial directions ? In other words, whether sub-clause (vi) of para 4 of the Vigilance Manual is ultra-vires to the provisions of Corruption Act-more particularly Section 19 of the said Act?
Secondly, whetherand when once the proposal to grant sanction under Section 19 of the Corruption Act is forwarded by the Investigating Agency to the competent authorities then to delay the same in passing appropriate order beyond the period of two months amounts to the lack of devotion of duty on his part in absence of just and proper explanation?
Thirdly, whether and when once the sanction is duly granted by the competent authority under Section 19 of the Act, the Vigilance Commission and/or for that purpose the State Government has any power to direct the sanctioning authority either to reconsider granting of sanction, or in any other way directing it to forward final report, unnecessarily delaying the further proceedings by way of filing chargesheet before the Court and/ or withdraw the prosecution cases?
Fourthly, whether circular dated 13-6-1986 issued by the State Government revoking the earlier Circular dated 31-5-1985 putting fetters on the statutory powers of the Investigating Agency under Section 17 of the Corruption Act is ultra vires ?
Fifthly, whether and when in the fact-situation like the present one if any law-abiding conscientious public servant in discharge of his duties supplies relevant facts to the Court pursuant to the orders of the court also further ventilating serious grievances against the Vigilance Commission and some patently illegal directions given by the Home Department withdrawing the sanction granted by the sanctioning authority and also as a result withdraws the prosecution against the accused, in substance committing contrageous acts defiling the "Rule of Law", undermining the Constitution and for that purpose tries to uphold the overall integrity of the law and Rule of Law, and ultimate accountability to the Parliament and brings, to the notice of the court certain facts not palatable to higher-ups in the Government does he in the first instance commits any umbrage against the Government ? Further still, whether merely because he is part and parcel of the Government set-up, is he supposed to be the mute, helpless spectator hopelessly witnessing the "Rule of Law" being clouded and trounced with all affronts on the legislative provisions and in the second instance in such a situation, what is the duty of the court to save, protect him from the disgrace flung at him and the consequences of victimization that may follow as apprehended? Sixthly, in the light of the aforesaid five questions Nos. 1, 2 and 3, if it is ultimately found that the concerned High Officer in the Government or for that purpose even the sanctioning authority has misconducted himself in disregarding the mandate of the law, and the case law as decided by High Court and/or the Apex Court than what is required to be done at the earliest to deter and forestall the alleged malpractice or misconduct in future to save "Law" "Rule of Law" and ultimately the "Democracy"?
2. FEW RELEVANT FACTS : To briefly refresh the background of this case, which has incidentally bubbled-up the aforesaid six questions it may be stated that one Mansoorbhai M. Damor, Head Constable of 'Ranakpur Check-post was trapped in a corruption case on the basis of the complaint filed by one Nathabhai Lambabhai for demanding bribe of Rs. 1000/- and ultimately on agreeing to accept Rs. 800/- wherein he came to be tried by the learned Special Judge, Panchmahals at Godhra, for the alleged offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act"), and at the end of trial, on the complainant and Panch witnesses turning hostile, he came to be acquitted by the judgment and order dated 26-4-1995. This order of acquittal came to be challenged before this Court by the State of Gujarat by filing acquittal appeal, being Criminal No. 803/95. (out of which the present Misc. Criminal Application arises). While hearing the State appeal and ultimately recording the order of conviction and sentence against accused for the alleged offences, we noticed two dangerous cleavages sufficient enough to sink the prosecution case resulting into the serious miscarriage of justice and accordingly in overall interests of justice to save the situation as far as practicable we deemed it just and proper to issue some directions and standing guidelines which we ultimately gave in para 25,26,26( 1) and 27 of the said judgment, which now stands reported in 1996 (37) Guj LR 620 and (1996) 2 Guj LH 782. The substance of the three paras 25,26 and 26( 1) are to the effect that there were .: (1) delay in disposal of the corruption cases; and (2) Panch witnesses turning hostile, backstabbing the prosecution case. Now the delay in disposal of the cases was found mainly because of two factors viz. firstly, the sanctioning authority was not granting the sanction within the reasonable time to.be precise rather was unnecessarily consuming more and more time; and secondly, the special Courts were not giving the deserving priority to try and dispose of the corruption cases, at the earliest. Bearing in mind these disturbing maladies, this Court, in the first instance, directed the office to number it as Misc. Criminal Application and issue notices to the complainant and Panch witness who did not support the prosecution, calling upon them to show cause as to why they should not be prosecuted for the alleged offences punishable under Sections 191, 194 of IPC. This was accordingly numbered as Misc. Criminal Application No. 3205/96 which now stands disposed of by our judgment and order dated 29-8-1996. In the second instance, we directed the learned Special Judge to decide the corruption cases at the earliest; bearing in mind the huge burden of amount of subsistence allowance to be paid to the accused on the public exchequer; in the third instance, with a view to shorten the delay, at the level of the sanctioning authority, we also directed Director, ACB to deal with the 'pathetic situation' quite adequately and firmly.In the fourth instance, we accordingly in para 26.3 of the judgment directed the Registrar (1) to bring out views in paras 25 and 25.1 to the notice of the Hon'bie C.J. for passing the appropriate orders and direction to the subordinate Court for expeditious trial, (2) to forward a copy of the said judgment (o the (i) Chief Secretary, Government of Gujarai, Gandhinagar; (ii) Secretary, Legal Department, Gandhinagar, and (iii) Director, Anti-Corruption Bureau, Ahmedabad inviting their attention in particular to paras 25 and 25.1 for information and necessary action with a further direction to report back (1) in all how many cases of suspension were pending before the Court (Civil, Criminal, Labour Court and Supreme Court) and also by way of departmental proceedings before the respective departments? (ii) What total amount of yearly suspension amount is paid to the suspended employees, (iii) what indeed was the plan of the Government to save public money drained out through subsistence allowance on or before 31st October, 1996. Whatever we have briefly summed-up above, stands now already reported in detail in the case of State of Gujarat v. ML M. Damor (1996 (37) 3 Guj LR 620) (supra) giving clear and crystallized picture regarding the background of the points raised in the petition and accordingly rely ing upon the same, we do not deem it necessary to reproduce the same here in extenso.
3. In response to the above directions, Mr. K.V. Joseph, Director, Anti-Corruption Bureau by his letter dated 20-1-1997 informed this Court that despite the directions given to the concerned sanctioning authorities and pursuant thereto further reminders also sent, the sanctions were still pending since quite long time. He had also annexed along with the said letter, chart, wherein in as many as 66 cases under the Corruption Act, the sanction was still shown pending as up to 31-12-1996!
3.1 On 27- 1-1997, the office placed the said letter before us. On reading the contents of the same, since the sanctioning authorities under Section 19 of the Corruption Act were prima facie found to be not discharging their duty properly and also further were not paying any heed to the judgment of this Court rendered in the case of State of Gujarat v. M.M. Damor (1996 (37) 3 Guj LR 620) (supra) despite the repeated reminders sent to them by the petitioner, taking serious exception to all these defiance of law, in the overall interest of justice, we directed the office to treat the said letter of Mr. K.V. Joseph as Misc. Criminal Application, passing the following order :
The office has placed before us a letter dated 20-1 -1997 addressed to the Registrar of this Court by Mr, K.V. Joseph, Director, Anti-Corruption Bureau, Gujarat State, Ahmedabad, making a grievance that despite the direction given to the sanctioning authorities by this Court in a judgment delivered in Criminal Appeal No. 803/95 (State of Gujarat v. Mansoorbhai Motibhai Damor) as per the latest position available with his office, the concerned sanctioning authorities have not so far granted the sanction in as many as 66 cases under the Prevention of Corruption Act against the accused. In support of this, Mr. Joseph has also annexed the list of those pending cases awaiting necessary sanction. Not only that, but from the Annexure, it also further appears that sanction is delayed because some of the cases are pending before the Vigilance Commission for opinion. Now, prima facie, having regard to Section 19 of the Prevention of Corruption Act, 1988, the only sanctioning authorities are those which are enlisted in the said provision and accordingly under no circumstances the Vigilance Commission can super-impose for its opinion usurping the statutory power of the competent authority. Except the Legislature, no authority has any power to add, amend Section 19 of the said Act by bringing in any other body, in the instant case the Vigilance Commission, for giving opinion in the matter. This prima facie is contrary to law.
2. In above view of the matter, the office is directed to treat this letter as a Misc. Criminal Application, making Mr. K.V. Joseph as the petitioner and the State of Gujarat as opponent. Notice to be issued to the State of Gujarat making it returnable on 31-1-1997. Mr. U.A. Trivedi, the learned APP waives service of the notice. It is made clear that this matter will be heard on the returnable date only and no further time will be grantgd. 'The office is also further directed to prepare complete set of Misc. Criminal Application and immediately hand over a copy of the same to Mr. U.A. Trivedi, learned APP. Mr. K.V. Joseph, Director of ACB Gujarat State, Ahmedabad, is directed to remain personally present in this Court at 11-00 a.m. on 31-1-1997.
3. The office shall fax message the order of this Court to the Secretary, Legal Department, today only.
4. It is under the above circumstances that the present Misc. Criminal Application arises out of our own judgment, and at our instance, wherein Mr. Joseph has been instrumental only in bringing to our notice certain patent irregularities illegalities by virtue of which and wherein it was simply impossible for him to expedite thecharge-sheet before the court. Further, it is under this background only that the most important questions as raised in para 1 of this judgment, has arisen for our consideration to clarify and draw the line of demarcation between the statutory powers under the Corruption Act, on the one hand and certain paras of the Resolution in Vigilance Manual on the other, which are merely administrative in nature. If this is just not done, not only the Director, ACB and his other associate statutory functionaries under the Corruption Act, we apprehend, shall always remain under the shadow, clutches and dictate of the Home Department and 'Vigilance Commission' but they will also be under the thumb of some extraordinary influential vested interests in the Government defying the enforcement of law under the Corruption Act where the investigating agency has already collected material prima-facie constituting the offence for the accused to be tried by the competent Court. Further, accordingly, if this allegation of clouding and devouring powers of the statutory functionaries under the Corruption Act is not taken proper care at this stage and clarified right here and now only the effect of our judgment in Case of the State of Gujarat v. M.M. Damor (1996 (37) 3 Guj LR 620) (supra) (because of our own inaction when things are clearly brought to the notice of the Court) would lose all its credibility, impact and significance despite the specific directions given therein. In this regard, the pronouncement of the Supreme Court in the case of Indian Council for Enviro-Legal Action v. Union of India, reported in (1996) 5 SCC 281, being quite pertinent is reproduced as under :
26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages law lessness and adoption of means which cannot or ought not to be tolerated in any civilised society. Law should not only be meant for the law abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary.... When a law is enacted containing some provisions which prohibit certain type of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively orpassively condoned for personal gain, will be encouraged which will in turn lead to a lawless society....
4.1 Over and above the aforesaid decision, Supreme Court has also in case of Union of India through Secretary v. Rahul Rasgotra, reported in (1994) 1 JT (SC) 441 has made the pertinent observation with regard to taking drastic steps to arrest further decadence. It is under these constraint of Supreme Court mandate, in order to protect the system of 'Rule of Law' from being eclipsed and ultimately eroded by some irresponsible, law offending high officers and the competent authority under Section 19 of the Corruption Act, and in particular to save, protect and enhance the respect and honour of the law enacted by the Parliament, we have been constrained to treat the aforesaid letter of Mr. Joseph as Misc. Criminal Application. In our opinion a person committing an offence under the particular Act is no doubt an offender but the law enforcing Government officer back stabbing the object and spirit of the legislation is far more dangerous and worst offender to be ever pardoned ! This is how the present Misc. Criminal Application arises out of our own judgment rendered in the case of State of Gujarat v. M.M. Damor (1996 (37) 3 Guj LR 620) (supra).
5. In response to our above order/direction dated 27-1-1997, Mr. K.V. Joseph, Director, ACB, State of Gujarat appeared before this Court in person on 31-1-1997. For the respondent-State, Mr. S.N. Shelat, learned Additional Advocate General with Mr. U.A. Trivedi, the learned APP appeared. Both the petitioner and Mr. Shelat after making some general submissions on the jurisdiction and powers of the Vigilance Commission, requested the Court to adjourn the hearing of the case up to 3-2-1997, with a view to enable them to file detailed affidavits and make fullfledged final submissions. Time was accordingly granted.
6. Thereafter, on the next date, i.e. 3-2-1997, to substantiate what was stated by him in his letter dated 20-1-1997 Mr. Joseph and the Home Secretary, Mr. Bhanujan have filed their respective affidavits. However, with a view to meet with some further contentions raised in affidavit of Mr. Joseph, Mr. Shelat, prayed for some more time up to 5-2-1997. This was also granted. When this matter was called out on 5-2-1997, once again on Mr. Shelat, requesting further time, we passed the following order :
On 3rd February, 1997, at the request of the learned Addl. Advocate General, Mr. S.N. Shelat, the hearing was adjourned to today for enabling the Government to file an appropriate affidavit-in-reply. Today, the learned Additional Advocate General has expressed his inability to tender the affidavit-in-reply, as he was required to collect material and take instructions from Secretaries of various departments of the State Government. In this view of the matter, we arc inclined to give time up to 7th February, 1997. But, according to the learned Addl. Advocate General, that would be little insufficient and therefore time up to 10th February, 1997 be given and on that day, no further time would be asked for. Accordingly, the matter is adjourned to 10th February, 1997. If the affidavit-in-reply is ready, then a copy of the same b'e served upon Mr. Amit Panchal appearing for the petitioner of Mr. K.V. Joseph, at the earliest. We make it clear that the matter will be positively proceeded with on that day.
7. Heard Mr. Amit Panchal, the learned Advocate for the petitioner and Mr. S.N. Shelat, the learned Additional Advocate General for the State and the Vigilance Commission. At this stage, it is required to be pointed out that though the time was taken for taking instructions from the Secretaries of various departments no separate affidavits have been filed by the concerned Secretaries! Both Mr. Panchal and Mr. Shelat then have carefully taken us through their respective affidavits filed in this matter, and on the basis of the contention raised therein only, they have advanced their respective arguments which are accordingly dealt with at appropriate place in the following paragraphs.
8. When the matter was called out on 10-2-1997, at the very outset, Mr. Shelat has raised the following preliminary objections:
8.1 Firstly, the petitioner being Director, ACB, and accordingly, the part and parcel of the Government set up, he should have desisted from raising, voicing the inter-departmental disputes before the Court placing the relevant material by annexing a chart regarding delay in granting of sanction, annexed to his letter dated 20-1-1997 addressed to the Registrar of this Court and thereafter certain other annexures annexed along with the affidavits. Thereafter, Mr. Shelat further submitted that this is hardly a case where by nature of public interest litigation, this matter can be taken in this proceedings. Mr. Shelat further submitted that whatever inter-departmental grievances have been voiced by the petitioner, they are such which can be settled, negotiating sitting across the table by the concerned head of the departments, and for that purpose, there is no need for this Court to exercise extraordinary jurisdiction giving some directions to the State Government by raking up certain contentions which is purely in the administrative nature. Mr. Shelat submitted that no public interest was involved in this petition where by raking up the inter-departmental grievances. In fact, according to Mr. Shelat, the petitioner by voicing the interdepartmental problems has not served the Government or the public interest. Mr. Shelat further submitted that there is no fundamental or legal right of the petitioner infringed so as to make grievances before this Court against the alleged short comings of the Government. Further, according to Mr. Shelat, the Director of ACB i.e. the petitioner being a part and parcel of the Government set up, he ought not to have challenged the Government Resolutions contained in the Vigilance Manual. According to Mr. Shelat, Government constantly monitors the prosecution cases and by repeated DO letters to the concerned Departments directs them to expedite the matters.
8.1-A Now broadly and ordinarily, Mr. Shelat is quite right that in matter of administrative disputes, grievances inter se between two departments are required to be settled through meetings, negotiating sitting across the table, and accordingly under no circumstances, they are expected to be placed before the Court, nor the Court has any business to intervene, because this unnecessarily leads to the lack of discipline in the Government departments. This Court as a statutory functionary can never intend much less dream Or imagine even of permitting such things happening ultimately at the cost of the overall public interest! But unfortunately that is precisely not the case here. Here no doubt the ACB is a part and parcel, of the Government set up like the Vigilance Commission and the Home Department, but then the grievance voiced by the Director ACB in the first place is at the instance of the Court's direction in the judgment rendered in the case of State of Gujarat v. M.M. Damor (1996 (37) 3 Guj LR620) (supra);and secondly, it is quite extraordinary viz. deliberate attempt on the part of the high officers to defuse and back stab the law enacted by the Parliament wherein accused booked under the Corruption Act, after the investigation by the statutory functionaries, is either let off at the pretrial stage and or the trials indefinitely delayed by delaying the sanction and that too by the competent authorities and Home Department of Gujarat! This letting down.of the law and letting off of the accused by the law enforcing agency and that too at the level of the Secretary. Home Department, cannot be said to be mere interdepartmental disputes for the Court to be ignored! To hoodwink such an extraordinary .defusal of law on the part of the higher ups is too serious a thing to be taken lightly when the attention of the High Court, a constitutional functionary is specifically drawn towards it. In this regard, day in and day out, we do hear the prosecution witness turning round, not supporting the prosecution and declared hostile, and as a result the accused and the crime committed by him going unpunished, but it is simply unthinkable, that the keeper of the law and law enforcing agency also becomes 'the turn-coats' turning hostile to the enforcement of law letting off the accused without even tried by the Court. Such gross misconduct by the Government officers would unfailingly encourage crimes and corruption in the, society at the instance of the public servants who are supposed to prevent it which we as a constitutional functionaries having come to know this, cannot countenance without taking a stricter view, of the, matter. What indeed one is to think of those concerned authorities who protect and save corrupt officers by disregarding the material collected during the course of investigation, making out a case against them under the. Corruption Act! Such type of officers to say the least prima .facie, are not suitable and competent to carry the mantle of high responsibility to run the Government, rather they are fatal disease in the body administration. If we arc unable to see this, then we are worse than being blind. true to the answer given by Hellen Keller when asked 'what is worse than being blind? To have eyes and yet not to see ! was the answer." In this view of the matter, under the clever pretext and/or cover of two departments being part and parcel of the Government set up, on such vital issues like delay in granting sanction and/or withdrawal of the same and for that purpose withdrawal of prosecution cases against the accused cannot be said to be mere interdepartmental dispute. In a way, this can as well amount to the contempt of the Court also, obstructing the course of justice by preventing the material collected by the Investigating Agency duly sanctioned from being placed before and tried by the competent Court. When in number of cases under the Corruption Act on the one hand issuance of circular by the Government and thereafter on the other hand reminders by the Director, ACB if the competent authority does not pass appropriate order of sanction within two months time and/or thereafter even if sanction is granted, but is withdrawn and in some cases, even charge-sheet to be withdrawn regarding which the petitioner has drawn attention of the concerned department, no blame can be placed at the door of the petitioner-Director of Anti-Corruption Bureau. The wilful default in enforcement of law when that crisis of character and integrity is the issue, that can never be equaled with mere simplicitor departmental disputes, as no body has indeed any right to back-stab, defuse and not to enforce the law enacted by the Parliament. Further still, no shelter to screen illegal or unconstitutional act on the part of any public servant can be permitted in the name of 'Rules of Business' of the Government. May be by virtue of 'Rules of Business.' any Head of the Department of the officers at the respective stages in ordinary lawful routinal matters, ordinarily, .would, be bound to uphold and carry out the commands and orders of the higher ups and for that purpose even that of the Minister, but in cases of sonic patent, unconstitutional and persistent breaches of law, passing palpably wrong and illegal orders or not passing proper orders according to law within the time, setting at naught the investigation of the case by withdrawing the cases is something which cannot be permitted because in the given case if ultimately it is the Ministers who has passed the order, he having also taken oath to act according to law and Constitution and authorised to pass illegal, unconstitutional orders contrary to the oath he has taken. In this view of the matter. 'Rules of Business' are good as far as they are not in direct conflict with the law and Constitution and properly respects the same. But moment the respect for law and Constitution comes to an end. the authority of concerned and for that purpose the duly of officers also comes to an end. The 'Rules of Business' cannot provide shelter to the illegal and unconstitutional acts of howsoever high a person may be. as he is not and cannot be above law and the Constitution! If this is permitted, it would simply amount to putting the clock of law back and the justice denied thereby, denying the promise of the Constitution. Once the investigating Agency springs into action under the Corruption Act, completes the investigation asks for the sanction and thereafter files the charge-sheet Government has indeed no authority to question it in any manner whatsoever. The ultimate and only authority to accept or reject the material collected by the Investigating Agency is the Court and none else. Thus, having regard to the special facts and circumstances of the case, this submission of Mr. Shelat has indeed no substance. In fact, as to how and under what circumstances the petitioner was required to write a letter dated 20-1-1997, which came to be ultimately treated as Misc. Criminal Application, is elaborately stated above in paras 2, 3, 3(1) and 4 of this judgment and accordingly, nothing further is required to be restated. Further more, indeed there cannot be any better and furtherclarification than the letter dated 30-1-1997 of Mr. Joseph addressed to Shri Bhanujan, Secretary, Home, depicting the dismal state of affairs in the matter of running administration under the Corruption Act. Accordingly, we hereunder reproduce the same in extenso speaking for itself :
D.O. No. Reader/Pend-Pros. Sanct/
Office of the Inspector General of
Police and Director, Anti-Corruption
K.V. Joseph Bureau, Gujarat State DIRECTOR 17, Dafnala Ahmedabad-380- 003
Date : January 30, 1997
Dear Shri Bhanujan,
Please refer to your telephone with me on 29-1-1997 taking umbrage at the action of the Director, ACB for writing to the Registrar, Gujarat High Court about the pending cases and about the non-sanctioning of the prosecution permission with reference to this office letter No. Reader/ Pending Prosecution Sanction/176/97, dated 20-1-1997. The whole crux of your allegations against the Director is that I being a part of the Government. 1 am not authorities to write to the Registrar. Gujarat High Court directly and this has put the Government into an embarrassing situation. You have also questioned me whether I am aware of the fact that the Director ACB is part of the Govt. or not. I had tried to explain to you that the letter in question had gone from this office in consequence of a judgment of a Division Bench of Gujarat High Court, headed by Justice K.J. Vidya. You have stated that the judgment has come subsequently to my letter and that my letter to the Registrar is prior to this judgment.
2. I have to clarify the matter in toto in this respect in order to keep the record straight. Justice K.J. Vaidya and D.G. Karia, a Division Bench of Gujarat High Court gave a judgment dated 5-7-96 wherein the Justices have made the following observations on pages 68 and 69. "The concerned sanctioning authority from the date of the receipt of papers shall grant sanction within two months failing which he would be liable for the contempt proceedings of this Court in absence of reasonable explanation. It will also be a duty of the trial Court to see that if it come across any belated granting of sanction and thereafter filing of the chargesheet, appropriate observations are made against the concerned officials by forwarding a copy of his judgment and order at the highest to Secretary level". "The Registrar is also directed to forward a copy of this judgment to the (1) Chief Secretary, Government of Gujarat, (2) Secretary, legal Department, Gandhinagar, and (3) Director, Anti Corruption Bureau, Shahibag, Ahmedabad, inviting their attention in particular to para 25 and 25(1) of this judgment for information and necessary action, with a direction to report back. On page 68 of the judgment it is clearly mentioned. "If round about three months if the chargesheet is not filed.. Director General, Anti. Corruption Bureau should call for the necessary explanation and take appropriate departmental action against the concern Investigating Officer and also must request the concerned departmental head to grant sanction immediately. The concerned sanctioning authority from the date of the receipt of papers shall grant sanction within two months failing which he would be liable for the contempt proceedings of this Court in absence of reasonable explanation." On page 69 the. Court has observed that "The Director, Anti-Corruption Bureau is expected to control this pathetic situation.
3. Pusuant to the directions given in this judgment by the Hon. High Court, the Director, ACB who is duty bound to obey the orders of the highest judicial authority in the State i.e. the Hon. High Court of Gujarat and as per the directions given in the judgment, it was mandatory and obligatory for rne to comply with these orders and therefore I had written to the concerned competent authorities to accord sanction vide this office letters dated 16-10-96 and 4-12-96 inviting their attention to the specific directions given in the judgment by quoting the relevant extract of the judgment that they will be liable for contempt proceedings in the Court of law and also that, in case the prosecution sanction is not forthcoming in time, this office will be forced to report the matter to the Hon. High Court. These letters were addressed to (1) Secretary, Health and Family Welfare, (2) ACS Revenue Department, (3) ACS Education Deptt. (4) Secretary, Panchayat and Gram Grih Nirman, (5) Secretary, Legal Department, (6) Secretary, Roads and Buildings Department, (7) Addl. CS Agriculture, Cooperation and Rural Deptt. (8) ACS Home Deptt. In spite of these letters to them, many of the concerned authorities did not take adequate notice and since sanctions were not forthcoming from the concerned departments and as I was directed by the Hon. High Court to bring to the notice of the Registrar, the cases pending prosecution lor want of sanction. I had sent a letter to the Registrar vide No. Reader/Pending Prosecution Sanction/ 2385/96. dated 29-10-96 enclosing the details of the cases in which prosecution sanction was pending followed by another letter to the Registrar dated 20-1-97. Copies of the letter have been endorsed to Chief Secretary and Addl. Chief Secretary, Home Department for information and necessary action in connection with High Court Criminal Appeal No. 803/95 dated 5-7-1996.
4. Forthe purpose of record, I have to state that prior to the judgment of Justice K.J. Vaidya and Justice D.G. Karia, I had written to the then Principal Secretary, Home Department, vide letter No. Reader/Pending Prosecution Sanction/432/ 96, dated 14-3-1996 apprising him of the situation regarding pending cases of prosecution sanction and also requesting him to bring this to the notice of the concerned authorities. After this, a meeting was called by the Chief Secretary on 14-5-96 to discuss this situation where all concerned Secretaries were present and after that I have written a letter again to Principal Secretary, Home Department, vide this office letter No. Reader/ Pending Prosecution Sanction/1102/96, dated 7-6-96. The Chief Secretary again called a meeting on 19-6-96 where again this matter was discussed and as per the discussion, again a letter was written to Principal Secretary, Home Department vide No. Reader/Pending Prosecution Sanction/ 1617/96 dated 31-8-96 giving all details of the pendency of the cases and requesting him again to take up the matter with the concerned departments to accord prosecution sanction at the earliest. Thus, it is clear from record that I have not entered into any correspondence with the Registrar of the Hon. High Court in the matter prior to the judgment, as alleged by you.
5. Out of 66 cases pending as shown in the High Court reference, only in 10 cases sanction for prosecution has come. In 49 cases, orders for prosecution sanction are yet to be received of which the year-wise figures are as follows :-
6. We have already brought to the notice of the Govt. and the concerned departments the urgency of the matter of according prosecution sanction. This was done because allegations were forthcoming that interested parties were trying to stall the prosecution sanction by not allowing the competent authority to accord sanction and thereby defeating the very purpose of justice. The classic example is that of Dr. Sutharia, who was involved in Ahmedabad City ACB PS Cr. No. 20-95. We had written 14 letters to the Govt. and the Health Secretary to accord sanction for prosecution. In spite of all these letters, no action was taken by the concerned department. The other example is that of Shri Kharadi, the Sabarmati Jail Superintendent against whom the Jail conspiracy and other misdeeds are pending. After repeated attempts the Govt. accorded sanction on which we chargesheeted the case. Subsequently, the Government vide their letterNo. JLM/6495/7164, dated 26-12-1996 withdrew the prosecution sanction. In the Legal Department, Shri B.N. Trivedi was involved in corruption case registered vide Ahmedabad City ACB PS Cr. No. 24-95. More than one year has passed but Govt. is.yet to accord prosecution sanction. Same is the case in Ahmedabad Rural ACB PS CR No. 4/96, in which S/Shri Panjiwani and 3 others of Home-Department were involved. Prosecution sanction in this case is yet to come from the Home Department, Details of other cases are already within the knowledge of the Govt. and the Departments concerned.
7. Therefore, what I have written to the Registrar, Gujarat High Court is regarding the pending cases as directed by the Hon. High Court and I have complied with the orders of the Hon. High Court. Needless to reiterate that the competent authorities are expected to discharge their constitutional and statutory duty as laid down in the law which they did not perform.
(Emphasis supplied by the Court)
Shri K.V. Bhanujan,
Addl. Chief Secretary,
Copy W.Cs to :
The Chief Secretary, Govt. of Gujarat, GAD, Sachivalaya, Gandhinagar, for information.
Home Secretary Mr. Bhanujan, in his reply affidavit dated 9-2-1997 in para 2 has tried to salvage the situation by stating therein that
It causes me great pains to read the contents of the letter addressed to me by the petitioner herein. I was served with a copy of the order dated 27th January, 1997 and the letter addressed by the petitioner to the Registrar of the High Court. was surprised to read the contents of the said letter. The High Court had passed self-contained order in respect of grant of sanction and there was no necessity for the petitioner as the Director of Anti-Corruption Bureau, to address letter to the Registrar about the non-grant of sanction in respect of 66 cases pending before the competent authorities. I had read the judgment of this Hon'bie High Court and the directions contained therein. There was no direction to Shri K.V. Joseph for which he was required to address letter to the Registrar of the High Court. Shri Joseph had occasion to see me personally prior to 20th of January, 1997. He was present in two meetings arranged for discussion of budegetory proposals. He had never mentioned about any grievance that he had in respect of the contents of the letter dated 20th January, 1997, on the basis of which the Hon'bie Court had issued suo motu notice. The petitioner is a part of the set up of the Government. He is the Director of an Agency which is investigating into the corruption cases. I, therefore, telephoned to him as to why, before writing such a letter to the High Court, he had not taken up and brought to my notice or to the notice of the Chief Secretary, about the non-implementation of the directive of the High Court. There is no question, of taking umbrage as alleged by the deponent. I most respectfully submit that I am duty bound to discuss with him about the contents of the letter addressed to the Registrar of the High Court as the Additional Chief Secretary, Department of Home Affairs. Any grievance that he had, could have been taken up with the Chief Secretary. There was no intention to pull him up. I most respectfully further submit that as Director of Anti-Corruption Bureau, he is also responsible to the Government and that it is expected of all the Departmental ' heads to sort out the grievance if any, in respect of any governmental action, at the Government level. The entire approach of the petitioner that he alone is the crusader for the administration of the investigating agency is uncalled for. Each one of the, Competent authority is discharging his own duties.
To say the least, we are not impressed by the defence taken up by Home Secretary in above reply affidavit because the letter dated 30-1-1997 of Mr. Joseph is quite clear.
Under the circumstances high lighted above, it is quite illegal and unjust to charge Mr. Joseph as having made an application to the Court exposing inter-departmental issues. We quite agree, endorse arid uphold the grievance voiced in petition and accordingly, the allegation made against him stands rejected. On the contrary, Mr. Joseph also deserves due compliments from us as but for his law abiding and bold attitude bringing illegalities and irregularities to the notice of this Court, public at large would have perhaps ever remained totally in dark and none could have known as to what was going on in four walls of Chambers and behind the iron curtain in secretariat. In.this view of the matter, while complimenting Mr. Joseph. Director. anti-Corruption Bureau, we also further direct and enjon upon him and ail concerned higher ups sitting in Secretariat, imposing upon them positive duty and accountability, in future that whenever there is a delay in granting sanction, or after granting the same it is withdrawn or in case after the filing of the chargesheet. even the cases are withdrawn at the instance of the Government, may be in a given case, at the instance of some politicians, we do not know, but it shall at oncg.be.the duty of the Chief Secretary and/or other concerned Additional Chief Secretaries to report this to this Court, failing which the Court may be constrained to take a serious view and consequent action against the concerned officer for disregarding action against the of this Court in matter of abusing, defusing law enacted by the Parliament. We shall not allow anybody to humiliate and back-stab the law enacted by the Parliament illegally letting-off the accused of the hook and clutches of law. we make it further clear that the defence of having acted or passed any order by virtue of the binding effect of "Rule of Business" would not be available to them. No rules of business can ask subordinate to do or act in any manner against the law and constitution. Further when ordinarily the orders arc passed in strict confidentility in chambers and action taken pursuant thereto, no body outside the Government would ever know or if knows then so soon to challenge the same to save the law and rule, of law before the Court. Accordingly, it is in view of this constraint also rules of business cannot be permitted to provide umbrella to illegal unconstitutional things.
In fact, when a public servant while discharging his duty persuant to the direction of the High Court furnishes certain information which picturizcs the true, but ugly state of affairs, placing the Government in little uncomfortable position, instead of giving him part and putting the house in order how indeed an exception or umbrage can be taken against the law-abiding officer and that too by the Secretary Home? What offence indeed Mr. Joseph has committed? To be upright, sincere, law-abiding, transparent, fearlessly discharging the duty as a public servant with all sense of responsibility and accountability arc these virtues considered to be offence in the public administration? Is there any "prevention of honesty, integrity, sincerity Act" by virtue of which the public servants like the petitioner ean be taken umbrage and prevented from discharging his lawful duties? Can we say any public servant inviting attention of the Court and that too when the High Court in its judgment had directed him to control the pathetic situation in matter of efficiently enforcing the Corruption Act, is an act of impropriety or misconduct? Law once enacted is required to be enforced. It is not meant for simple window dressing ! No person on the earth and for that purpose, with due respect even Prime Minister or President can act contrary to the law of the land and the Constitution ! In our opinion way in which Home Secretary has taken an indiscreet stand against the petitioner Mr.Joseph, it only means that any public servant discharging a lawful duty can be brow-beaten and interferred with and asked notto do the legal things and that too to cover up patent wrongs and illegalities of even going to the extent of defusing the Act enacted by the Parliament opening the shutters of law letting the accused to go scot free out of it!! This prima facie clearly amounts to serious dercliction of duty obstructing the other public servant in discharge of his lawful public functions which is clearly an offence punishable under Section 186 of the IPC. This is too serious a thing and that too at the level of the Home Secretary.
8.2 Secondly, according to Mr. Shelat,here is a case wherein the Central Government has also constituted a Vigilance Commission wherein most of the provisions contained in Central Government Resolutions are the same or pari rnateria with that contained in Vigilance Manual of the Gujarat State. In this view of the matter, since the question involved is of quite wide importance affecting the provisions of the Central Vigilance Commission also, a notice deserves to be issued to the Central Government in order that this Court have full assistance. We are not the least impressed by this submissions of Mr. Shelat. In this regard, we arc more than prima facie satisfied that since the directions contained in the "Vigilance Manual" (Gujarat State) are manifestly clear and accordingly ex facie ultra vires, being in direct conflict with the relevant provisions of the Corruption Act, there is indeed no necessity at all to call for some further assistance by issuing a notice to the Central Government. Not only that but the various resolutions contained in vigilance Manual by no stretch of imagination can be equated with that of the provisions of Corruption Act, where while deciding/holding any provisions ultra-vires the learned Attorney General is required to be heard. In this view of the matter, we disallow this request of Mr. Shelat. Further, when the learned Additional Advocate General is appearing, there is indeed no reason for us to feel diffident that we will not get necessary assistance from him so as to call in aid assistance from learned ounsel appearing for the Central Government.
8.3 Thirdly, it was submitted by Mr. Shelat that to quite some great extent grievance voiced before us by the Director, anti-Corruption Bureau stands redressed. Giving the details about the same Mr. Shelat on 10-2-1997 submitted that out of 66 cases in which the sanction was awaited, now there remained only 25 cases pending, three related to private school managements, one had been stayed by the High Court and the rest had been sent to the concerned authority for the sanction for prosecution. Thereafter, pending CAV judgment. Mr. Shelat on 27-2-1997 further submitted that of late now only ten cases were pending awaiting sanction. We quite appreciate Government in deep slumber waking up and activating itself in discharging the statutory duty when we played the role of an alarm clock!! We wish the same spirit and speed will continue even in future, giving no cause of concern either to the Directorate of ACB and/or this Court also in matter of delay in granting sanction. Mr. Shelat has further assured this Court that the Government proposes to clear up rest of the cases pending awaiting sanctions within a period of four weeks. We once again quite appreciate this gesture of Government quite true to the saying better late than never". We believe that it must be only the learned Addl. AG Mr. S.N. Shelat who quite fairly, firmly and objectively must have advised and impressed upon the Government not to be caught on the wrong foot and to do the right thing in right earnest to respect and serve the law and "Rule of Law" giving no unnecessary cause for concern and anxiety to anybody in particular this Court. The very fact that after initiation of this suo motu petition out of 66 delayed cases awaiting sanction, now only 10 cases are required to be cleared, clearly prima facie justify the apprehension that somebody was playing foul uptill now in the matter of granting of sanction leading to the pathetic situation, otherwise why should they have gathered dust all these time and accordingly but for Mr. Joseph this speedying up granting of sanctions would not have been possible. This circumstance standing by itself more than justifies Mr. Joseph in yentilating grivance against the patent inaction on the part of certain competent authorities (incompetent!!) sitting tight over the proposal ultimately delaying the sanction!! For this Mr. Joseph deserves ail compliments.
8.4 Fourthly, according to Mr, Shelat, the petitioner has unnecessarily gone far beyond his initial grievance of the "delay in granting sanction to prosecute" by projecting and adding to it the list of further grievances in affidavit filed by him before this Court. According to Mr. Shelat, the petitioner in his letter dated 20-1-1997 has voiced grievances centering around delay only in according sanction by the competent authority in the cases enumerated in the chart annexed with the said letter. However, quite surprisingly, the petitioner in his affidavit in support of the said letter has enlarged the scope of the matter labouring under the impression that he was competent to initiate the writ proceedings. In this regard, Mr. Shelat has invited the attention of this Court to the relevant para of affidavit filed by the petitioner, wherein he has incorporated something more viz. withdrawal of the sanction, withdrawal of cases, not providing adequate staff, issuing some circular putting fetters upon the statutory powers of the Investigating Agency to investigate, etc. Now in this regard, first of all, we make it clear that it is not the petitioner who has expanded the scope of the petition. Infact, the further points raised by the petitioner are the species of genus namely the Secretary Home, sanctioning authority and the Vigilance Commissioner arbitrarily exercising powers overriding the statutory provisions under Sections 7, 13, 17 and 19 of the Act, delaying granting sanction, withdrawing sanction under some external influence defusing and rendering nugatory the entire Corruption Act. It was under these circumstances that we feel that as constitutional functionaries, if we right now and here do not take the necessary care of the things pointed out by the petitioner, which are not controverted at all before us then in that case, we are failing in our duty as the constitutional functionaries. Whether it is a question of widening the scope or not, but then the point is that whatever has been specifically alleged and pointed out to us by the petitioner in his affidavit, a copy of which was -served upon the State Government, is simply, outrageous and scandallous and except taking the broad non-committal technical objection that it is widening the scope, the State Government has not the least controverted the same despite the fair opportunity made available to file counter reply justifying or denying the same. On such crucial. vital allegations no reply by the responsible officers like secretary. Home and all concerned speak volumes about the involvement in defenceless case digging the grave of 'Rule of Law'! Further still, whatever petitioner Mr. Joseph has pointed out, he has no personal stake in it. and accordingly, when the Court directed him to control the pathetic situation of delays in prosecution cases, he has incidentally rightly further pointed out some of the important factors namely the paucity of staff and other factors delaying the prosecution, withdrawing cases contrary to the provisions of law, etc, etc, going to the roots of successul implementation and enforcement of the Corruption Act. To clear his position regarding his limitations to control the pathetic situation it was quite natural and obvious for petitioner Mr. Joseph to place before this Court certain tale-telling facts, showing the administrative difficulties he was facing because of the lack of co-operation on vital issues like giving him some additional staff to discharge his duty efficiently. In this view of the matter, it cannot be said that petitioner has attempted to widen the scope of this petition. In any case when such vital cancerous, infirmities are brought to the notice of the Court, shaking the very foundation of "Rule of Law" and further when to controvert it, the Secretary-Home had enough and enough of opportunity to deny or justify the same, even at the fag end when arguments were over and the judgment was kept CAV and yet maintaining diplomatic silence over such explosive issue, if he still chooses to keep mum it is quite reasonable to hold that State had indeed no answer to the same otherwise there was no reason for the State not to open its mouth and controvert the serious allegations of the abuse of power. In such cases of vital public importance, affecting the "Rule of Law" none can ever be permitted to take blind convenient shelter not denying the allegation under the pretext of some technicality.
8.5. Inadequate Staff to Efficiently Enforce Corruption Act: Regarding this grievance some statistics are given in affidavit by Mr. Joseph indicating that the staff made available to the ACB is far too inadequate to meet with the situation created by rampant and challenging increasing rate of corruption cases in the State which ultimately not only defeat the object of the Act but goes further to frustrate and questions the very existence of the Corruption Act in absence of adequate staff. Some figures are shown, wherein there is a substantial increase in the course of two decades by providing police personnel to other department. This undoubtedly is too serious an administrative problem, which the ACB is required to take up in the right earnest with the Home Department and at this stage, this Court is not immediately inclined to pass any order against the Government to do the needful in the matter. At the same time, the grievance voiced by the petitionerbeing quite serious affecting the efficient enforcement of Corruption Act, and accordingly, it cannot be dismissed summarily without much needed observations. Accordingly, we direct the Government to give its utmost anxious thought to consider the request made by the Director, ACB and do the needful at the earliest so that he can ultimately uphold and efficiently enforce the special Act viz., Corruption Act to eradictate corruption which has engulfed the entire country. The Government will have to consider on this aspect very seriously and sympathetically. If the grievance in this regard is not redressed to the satisfaction of Director of ACB, it will be open to him to seek direction against the Government because it is ultimately he who is expected to vigorously uphold and enforce the Corruption Law. In this view of the matter, at this stage, we only strongly recommend the Government to actively consider the proposal sent to Government by the petitioner in overall interest of Corruption Act and people for whom it came to be enacted. We hope and trust and accordingly it would be quite advisable for the Government to take a decision on ACB proposal by supplying additional staff at the earliest if not possible by fully complying, then at least, stagewise, gradually complying in the first instance 10% to 20% and thereafter every year further 10% to 20% till the requirement is fully complied with. If this is not done, the Parliament enacting the Special Act to eradicate corruption in the country loses all its importance and significance rather to some extent the inaction of the State renders the particular statute partly nugatory. Accordingly, we only point out the gravity of situation voiced by the petitioner and request the State Government to do the needful in the matter at the earliest.
9. Now, in order to appreciate and answer the crux of the problem involved and the questions raised above at the top of judgment, it is indeed necessary first of all to have a look at the relevant provisions contained in "Vigilance Manual" and the Sections 13, 17 and 19 of the Corruption Act upon which both Mr. Panchal and Mr. Shelat for making good their respective points have laid heavy emphasis in their own light and way, which stands reproduced hereunder.
9.1. Paragraph No. 1 is the Preamble of Resolution No. SVC- 1064-G, issued by General Administration Department, dated 17-4-1964, reads as under:
GOVERNMENT OF GUJARAT GENERAL ADMINISTRATION
Resolution No. SVC-1064-G
17th April, 1964.
Pursuant to the recommendations of the Committee on Prevention of Corruption, presided over by Shri K. Santhanam the Government of India has appointed a Central Vigilance Commission for the purpose of prevention of corruption and the maintenance of integrity in the services. The Government of Gujarat has considered the question of appointing a Vigilance Commission for the State of Gujarat in furtherance of its policy to root out corruption and it is hereby pleased to constitute a State Vigilance Commission on the same broad lines as the Central Vigilance Commission and for the same puropses as set out in the following paragraphs.
Para-2 of the said Resolution pertains to the Constitution of the State Vigilance Commission. Para-3 pertains to the appointment of the Vigilance Commission his salary and other terms and conditions of his services. Para-4 pertains to the jurisdiction and powers of the Commission. This being the subject matter of controversy, and accordingly, interpretation the same for the sake of immediate convenience and reference and reproduced in extenso hereunder.
4. Jurisdiction and power of the Commission :- The Commission shall have jurisdiction and powers in respect of the matters to which the executive power of the State Government extends :
(i) to undertake any enquiry into any transaction in which a public servant is suspected or alleged to have acted for an improper purpose or in a corrupt manner.
(ii) to cause an enquiry or investigation to be made into-
(a) any complaint that a public servant has exercised or refrained from exercising his powers for improper or corrupt purposes;
(b) any complaint of corruption, lack of integrity or other kinds of malpractices, or such misconduct or misdemeanour as is likely to involve corruption or lack of integrity on the part of a public servant including a member of an All India Service for the time being serving in connection with the affairs of the State of Gujarat;
(iii) to call for reports, returns and statements from all Secretariat Departments/Departments/ Panchayat/Statutory Corporations so as to enable it to exercise general check and supervision over the vigilance and anti-corruption work therein;
(iv) to take under its direct control such complaints information of cases as it may consider necessary for further action, which may be either -
(a) to ask the Anti Corruption Bureau to register a regular case and investigate it, or;
(b) to instruct the complaint, information on case for enquiry either to the Anti Corruption Bureau, or to the Secretariat Department, Panchayat or Statutory Corporation, as the case may be, concerned;
(v) in case referred to in paragraph (iv)(b) above, the report of the inquiry will be forwarded to the Commission so that on a consideration of the report and other relevant records, it may advise the concerned Secretariat Department, Panchayat or Corporation as to the further action to be taken.
(vi) The Anti Corruption Bureau will forward to the Home and Civil Supplies Department through the Vigilance Commission the final report in all cases investigated by the Bureau in which it considers that a prosecution should be launched provided that sanction for such prosecution is required under any law to be issued in the name of the Governor and the Bureau will simultaneously send a copy to the Secretariat Department, Panchayat or Statutory Corporation concerned for any remarks which it may wish to forward to the Commission.
(vii)(a) the Commission will advise the Home and Civil Supplies Department, after examining the case and considering any comments so received, whether or not prosecution should be sanctioned; orders will thereafter be issued by the General Administration Department in whom the power to accord such sanction will be vested.
(b) in case where an autohrity other than the Government is competent to sanction prosecution and it does not propose to accord the sanction sought for by the Anti Corruption Bureau, the case will be reported to the Vigilance Commission and the authority will take further action after considering the Commission's advice;
(viii) the Commission will have the power to require that the oral inquiry in any departmental proceedings relating to allegations involving or likely to involve corruption or lack of integrity should be entrusted to one of the Special Officers for departmental enquiries, but will not do so in petty cases; one or more such Special Officers will be attached to the Vigilance Commission for this work.
(ix) to (xiv) xx xx xx
Para-5 pertains to the Staff, Para-6 pertains to the responsiblity of Vigilance Commission, and Para-7 pertains to the false complaint.
9.2. Section 7 - Public servant taking gratification other than the legal remuneration in - respect of an official act.
Section 13 - Criminal misconduct by a public servant:-
(1) A public servant is said to commit the offence of criminal misconduct
(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for him or for any other person any gratification other than legal regumeration as a motive of reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
Section 17 : Investigation into cases under the Act: Persons authorised to investigate :-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank -
(a) in the case of Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan area of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan areas notified as such under Sub-Section (1) of Section 8 of the Code of Criminal Procedure, 1973, of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a Police Officer of equivalent rank,
shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefor without a warrant.
Provided that if a Police Officer not below the rank of an Inspector of Police is authorised by the State Government if? this behalf by General or special order, he may also investigate any such offence without the order of a metropolitan magistrate or a magistrate of the First Class as the case may be, or make arrest therefor without a warrant.
Provided further that an offence referred to in cluse (e) of Sub-Section (1) of Section 13 shall not be investigated without the order of a Police Officer not below the rank of a Superintendent of Police.
Sanction for prosecution and other miscellaneous provisions:-
Section 19 Previous sanction necessary for prosecution -
(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by apublic servant except with the previous sanction -
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government;
(c) in the case of any other person of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-Section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974);
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under SubSection (1) unless 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 no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under Sub-Section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation:- For the purposes of this section,
(a) Error includes competency of the authority to grant sanction;
(b) A sanction required for prosecution includes Reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
10. Mr. Panchal first of all taking serious exception to the way in which some officers of Home Department were acting in discharge of their duties interferring with the powers/duties of the statutory functionaries under the Corruption Act submitted that the resolutions and circulars, and in particular Sub-Paras (vi)and (vii)(a) contained in the Vigilance Manual were ex facie ultra vires on the ground of being in direct conflict with the relevant provisions contained in Sections 7, 13, 17 and 19 of the Corruption Act. Making good this submission, Mr. Panchal has invited our attention to relevant para-4 of the said Vigilance Manual and Sections 7, 13, 17 and 19 of the Corruption Act. As against this, Mr. Shelat submitted that unnecessary much ado about nothing is made by the petitioner against the provisions contained in the Vigilance Manual which are meant only for playing the complimentary role to rootout corruption along with the statutory functionaries under the Corruption Act. According to Mr. Shelat, the Vigilance Commission came into existence in the year 1963 by virtue of the report submitted by the Committee headed by K. Santhnam. Mr. Shelat further submitted that the function of the State Vigilance Commission is purely of an advisory nature. The Vigilance Commission after going through the material placed before it, makes recommendation regarding the case and the competent authority is free to take its own independent decision in the matter of according the sanction. Mr. Shelat further submitted that the competent authority is not bound by the recommendation made by the Vigilance Commission. Mr. Shelat further submitted that if the Government in its advisory capacity assists the sanctioning authority, there is indeed nothing wrong in it by virtue of which it can be said that it was making inroads on the statutory powers of the competent authority under Section. 19 to accord sanction. This submission of Mr. Shelat is far from convincing. In fact, it cannot be disputed that whatever has been resolved by the State Government in various paras of Vigilance Manual are merely Administrative instructions having no force of law and accordingly it cannot be equated with the statutory provisions contained by way of various sections in the Corruption Act. Once this indisputable fundamental distinction between the two is known, there is indeed no difficulty in holding that Administrative instructions cannot assume or arrogate itself to override the statutory provisions even under the mask or diplomatic pretext of 'Advising' the statutory functionary. In order to claim the role of playing big-brother in self assumed Advisory capacity, there must be specific provisions in the Corruption Act itself which is not there. Further, apart this, where indeed is the question of acting in a capacity as Advisory Board to the sanctioning authority, when there is no provision in the Act itself to the said effect? There must be some such provision of Advisory Board as we always find in Preventive Detention Laws. When it was clarified like this, stand of Mr. Shelat was that since there was no express bar in Corruption Act itself, vigilance commission was quite empowered to act in its advisory capacity. This is indeed quite novel but undoubtedly erroneous and far fetched submission! To permit Mr. Shelat taking shelter under the point that when there is no express bar, prohibition in the Act, vigilance commission or for that purpose any authority can act in advisory capacity as it likes, it would crash open the flood gate for the executive to arbitrarily enter the statutory field, jurisdiction setting at naught the statutory objectives as has been found to have been done in the instant case. Rather, the just and correct way to interprete the situation, provision is whether the person exercising powers has its express source in some legal provision. No authority can exercise any power unless it is so empowered under the law. In other words, the power and jurisdiction flows from the statute and rules made thereunder, and not from the head or the wishes of any authority and accordingly it cannot be assumed, presumed and arrogated in a way one likes and done in the instant case. With due respect, the President, Prime Minister, Governor, Chief Minister, etc. etc. howsoever highly placed they are, but once it comes to exercise of particular statutory or the Constitutional power, only that authority can exercise that power who is so specifically authorized, empowered. Accordingly, the submission of Mr. Shelat apart being far from convincing is on the contrary militating against the very principles of the 'Rule of Law' and object and spirit of the Corruption Act and accordingly, is not acceptable. Further, the distinguishing feature is, no authority howsoever high including the Minister, can impose upon the independent statutory functionaries his wishes, whims, caprice to take advice and then in that light indirectly influence them to grant or not to grant or withdraw sanction and/or the prosecution against the accused. This amounts to clear dictation whether you lable it as an 'advice' or 'guidance' which is clearly impermissible! When any statutory functionary supposed to exercise its powers on subjective satisfaction on the basis of the material available on the record, no one indeed has any right or power to influence and thereby dictate him in contravention of the express provisions, which in the instant case is Section. 19 of the Corruption Act in the name, guise rather clever disguise of 'advising'. Further the Vigilance Commission was to advice the competent authority on what? on the point of granting sanction? This is not necessary at all in the trap and other cases because the facts are too simpliciter calling for any interference by way of advice of the Vigilance Commission in a case instituted upon a complaint registered by the Investigating Agency under the Corruption Act. Further, by virtue of Section. 19. of the Act, certain authorities as indicated in clauses (a), (b) and (c) are vested with the powers to grant sanction. Now these authorities are highly placed, experienced senior officers. Not only that but the sanction is always granted on the basis of the aneged facts constituting the offence. In corruption cases, what indeed can be those material facts? In the first instance, the victim of corruption when bribe money is demanded from him. First of all he goes to PI ACB office and lodges the complaint. On the basis of the same, after recording the same in writing. In the second instance, the services of the panch witnesses are requisitioned. They are introduced to the complainant and posted with the information of alleged demand of bribe by the concerned public servant. Thereafter, in the third instance, the trap is arranged where the currency notes are smeared either with an anthracene powder or the philophthelin powder. In the forth instance, after examining the muddamal currency notes, etc., in the light of ultra violet lamp and drawing the first part of the panchanama, the raiding party proceeds to the place where the accused was to accept the alleged bribe money, in the fifth instance, thereafter, the PI, ACB and one panch gets down at some nearby place and lies in wait, waiting for the pre-arranged signal to come from the complainant. In the sixth instance, thereafter. on receiving the signal, PI, ACB and the panch swoops into action. In the seventh instance, PI, ACB introduces himself, catches hold of accused, searches his pocket, file, drawer of the table or the cupboard as the case may be and examines his hands, palms, pockets in the light of ultra violet lamp, seizes the muddamal notes, etc., tallies its members with that noted down in the first part of panchanama, and draws the second part of the panchnama. In the eighth instance, thereafter, relevant papers containing FIR panchanama and draft sanction of the case is forwarded to the sanctioning authority to pass appropriate order regarding sanction. All these facts standing by themselves are too simple and clear enough to indicate that prima facie offence of corruption under the relevant section is already made out. In this view of the matter, where is the need for the State or the Vigilance Commission to advice to the sanctioning authority in trap cases? Further still, whenever the question about granting sanction arises, competent authority, who is quite a senior and the experienced officer, takes into consideration what are the requisites of the valid sanction and accordingly when papers are placed before him for granting the sanction, he always inquires and satisfies himself as to whether the same is duly complied with or not viz., (1) Whether the relevant material constituting the alleged offence was placed before him? (2) the impact of non-production of the relevant material (3) sanctioning authority applies its mind before according the sanction. Not only that but with a view to shorten the delay a copy of the draft sanction is also sent to the sanctioning authority. In case if some material is missing or some further information is needed, he knows his job and accordingly, it is always open to the sanctioning authority to call for it from the Investigating Agenoy which in turn shall supply it without losing any time. These are the things which the sanctioning authority has got to bear in mind before according sanction. In this view of the matter, not even remotely any opinion or advice of the Vigilance Commission or for that purpose of any other authority is at all even otherwise necessary in cases wherein accused is booked/ involved under the Corruption Act to take decision as to whether the sanction to prosecute should be granted or not! Despite such specific express provision under Section. 19 of the Corrupation Act quite suprizingly by virtue of para -1 (Vi),and (vii) of the Vigilance Manual, the government appears to be insisting upon the ACB to forward the final report to Home and Civil Supplies Department. This is not only absurd, but rather it is clearly an attempt to undermine and subjugate the Corruption Act and the statutory functionaries discharging their duties thereunder. This is nothing but indirectly blocking the statute to play its free legitimate role of investigating the cases, granting the sanction, filing the complaint and ultimately chargesheeting the accused to stand trial before the court, and thereby ultimately obstructing the course of justice before the Court. When the statute itself has not thought it fit to seek from or impose upon opinion of any authorities, in the instant case the Vigilance Commission, and further when the power to grant sanction in an unambiguous terms have been specifically vested in the competent authority under Section 19 of the Corruption Act, from where indeed the Government has carved out its powers to control the ACB working under the statutory provisions under the Corruption Act? This subtle trespass is too dangerous a tendency and the most deplorable and unpardonable practice on the part of Vigilance Commission attempting, overpowering the statutory functionary under the Corruption Act! Further, when a legislature in its wisdom has named the authority which is competent to grant the sanction, there is noquestion or need of any advisory board coming to the aid of such competent authority. For the purpose of that case, the competent authority is exercising the powers of the Government on behalf of the Government. Thus, sanction is not only entirely and exclusively a matter of the subjective satisfaction of the sanctioning authority but it is absolute. In case of Dharam Sarup v. State, reported in AIR 1953 All 37 at page 40 :(1953 Cri LJ 192 at p. 195) it is held as under :-
The satisfaction of the sanctioning authority is entirely subjective. He is the judge of the materials that should be placed before him for enabling him to accord the sanction. If the fact placed before him are not sufficient tp enable him to exercise his discretion properly, he will ask for more particulars but it is for him and him alone to determine the matter. The Courts are concerned only with one matter - to find whether sanction for the particular prosecution was in fact accorded by the proper authority. If the record show's that the sanction was in fact accorded and the sanction was in respect of the particular transaction which is the subject matter of the charge against the accused, the requirements of the law are fully satisfied.... The discretion to sanction prosecution under Section. 6 is vested solely in the sanctioning authority and is absolute. Its exercise cannot be questioned in the Court of Law.
Over and above the aforesaid decision, there is yet one more decision rendered in the case of Veeraswamy v. Union of India, reported in (1991) 3 SCC 655 which has taken a view that "once the material placed before the competent authority makes out the offence, the authority is bound to accord the sanction". In other words, once the sanctioning authority finds material sufficient prima facie constituting the alleged offence, it is not supposed to wait or take advice of anybody in the said regard. Whatever has been observed above stands further duly fortified by no less a Champion of 'Rule of law' than Lord Denning, who in case of R.v. Metropolitan Police Commissioner, reported in (1968) 1 All ER 763, has observed as under:-
...I have no hesitation, however in holding that like every constable on the land, he should be and is independent of the executive. He is not subject to the orders of the Secretary of the State.... I hold it to be the duty of the Commissioner of Police, as it is of every Chief Constable, to enforce the law of the land. He must take steps so as to post his men that crimes may be detected, and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted and-if need be, bring the prosecution or see that it is brought but in all these things he is not the servant of any one save of the law itself. No Minister of the Crown can tell him that he must, or must not keep observation on this place or that or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone....
In fact, the aforesaid observations of Lord Denning pertains to and are in matter of the ordinary discretion of concerned officer. Accordingly, when it comes to the exercise of specific statutory power, the said observations of Lord Denning are applicable with all the more rigour and force without any exception.
In aforesaid view of the matter, it is clear that no authority for that purpose even the Vigilance authority in the matter of granting sanction, as discretion to grant sanction is exclusively and absolutely vested in the sanctioning authority. We are governed by 'Rule of Law' i.e. whatever is required to be done, that can be done in the manner and way prescribed under the law and only by the particular authority so entrusted with that particularly with duty. No person or authority howsoever high he may be, has any discretion or privilege to impose himself and carry out its wishes or orders unless it is backed by the statute. This being the ultimate position, the State Government has indeed no business to have any backdoor-entry overriding the statutory functionaries and accordingly anything done to the contrary by framing rules or passing the resolution, orders, withdrawing sanctions, cases filed before the Court, etc. etc. are ex facie ultra vires of the Act, redundant, non est and nullity to the said extent.
10.1. Mr. Shelat not giving up the point of the Vigilance Commission's right to advise the competent authorities under the Corruption Act, has invited our attention to the relevant observations made by Sir William Wade in his book "Administrative Law" wherein in Chapter 11 "Retention of Discretion" under the para Permissible Guidance it has been observed as under:-
Permissible guidance :
Clearly these rules ought not to be carried to the length of preventing one Government department from consulting another, or of preventing Government agencies from acting in accordance with Government policy. There must always be a difference between seeking advice and then genuinely exercising one's own discretion, on the one hand, and on the other hand, acting obediently or automatically under some one else's advice or directions. A licensing authority for instance, may quite properly take account of Government policy in its decisions, provided that it genuinely decides each case itself. A boarderline case divided opinions in the High Court of Australia where the majority held that the Director General of Civil Aviation might refuse import licences for aircraft following the Government's policy of not allowing new operators to enter the inter-state air freight business.
10.2. Now, as against the above, Mr. Panchal from the very book on "Administrative Law" has invited the attention of this Court to the following paragraph, under the head Powers of Wrong Hands :-
Clearly akin to delegation, and scarecely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without there consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them. In this class might be included the case of the Cinema Licencing Authority which by requiring films to be approved by the British Board of Film Censors, was held to have surrounded its power or control and also the case of the Police Complaints Boards which acted as if it were bound by a decision of the Director of Public Prosecutions when only required to "have regard" to it. This doctrine has even been applied to voting by local councillors. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise, the minister of Housing and Local Government made it a rule to refuse planning permission for gravel working on top class agricultural land whenever the application was opposed by the Minister of Agriculture. The Court held that this was to put the decesive power into the hands of the wrong minister and that a decision so taken must be quashed. Similarly, the Court invalidated a reinstatement order made under wartime labour regulations by a national service officer who was empowered to direct reinstatement of workers dismissed for misconduct. For the officer was acting under directions from the minister whereas he was a statutory authority in his own right and should have exercised his personal discretion. The minister's directions were merely that there should be reinstatement wherever the appeal board was unanimous. But in fact the minister had no power to lay down any such rule, however reasonable. A decision of the Home Secretary a prisoner should serve a term of at least 20 years was quashed because he acted as a rubber stamp, on the advice of the judge or of the parole board without making his own decision. Even where there is a right of appeal to a minister and it may seem sensible to take account of his practice, it has been held that this must not be adopted uncritically, but this was a case where the Act specifically required a local authority to follow certain rules, which did not extend to the departmental practice which they followed wrongly.
Clear cut cases of unlawful dictation have occurred in other jurisdictions where ministers have attempted to interfere for political reasons. In one, the Prime Minister of Quebec gave instructions for the cancellation of a liquor license where the license was supporting an unpopular section of the community, in other, an Indian minister was alleged to have procured the taking over by the state of businesses belonging to his political opponents. If the minister's intervention is in fact the effective clause, and if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bare faith or abuse of power.
10.3. Now closely reading the respective paragraphs cited by Mr. Shelat and Mr. Panchal, in the background of the facts and circumstances of the case, it is quite clear that observations made in para relied upon by Mr. Panchal directly covers, consolidates and supports the view that we are taking and accordingly the submissions of Mr. Shelat has got to be rejected.
10.4. The submission of Mr, Shelat that the Vigilance Commission was acting only in a 'limited advisory capacity' and that its advice is not binding to the sanctioning authority and the Investigating Agency was free to prosecute the accused, stands self-condemned as it appears from (i) Annexures-D, which pertains to cases in which the Vigilance Commission or the concerned Departments of the Government retracted from their original decision; (ii) Annexure-E pertains to the cases in which permission for open inquiry in the matter of serious corruption cases was not granted by the Government; and (iii) Annexure-F dated 13-6-1983 pertains to directing the ACB that before conducting the inquiry into the applications alleging corruption of senior officers or entrusting the case to the ACB, orders of the Government should be obtained! To briefly state acase or two, vide Annexure-Done H.V. Chauhan, T.D.O. who was trapped for demanding the bribe and was prima facie found to be guilty and for this purpose the ACB sent proposal through the Vigilance Commission which initially recommended the Departmental Inquiry, subsequently upon reconsideration, modified the same and recommended the filing of the matter. Similarly, in yet another case R.V. Mistry, Mamlatdar-Bharuch was caught taking bribe. On search of his house cash amount of Rs. 20,000/-, and Saving Certificates of Rs. 73,6007- and a VCR costing Rs. 13,0007- were found, which could not be accounted for. In this regard, the ACB sent its report to the Vigilance Commission recommending action against him for violating the conduct rules. However, for the reasons best known, Vigilance Commission recommended filing of the matter vide letter dated 6-1-1995. Similarly, there are several other cases also narrated in annexure-D wherein in spite of grave allegations, things are just hoodwinked and no actions have been taken against the concerned delinquent. In this view of the matter, not only the double standard of saying something before the Court and acting quite contrary is something unacceptable, but the Annexure "E" & "F" also being in conflict with the powers of the Statutory authority under the Corruption Act, they deserve to be declared ultra vires and accordingly are declared so.
10.5. Jurisdiction and Powers of the Commission under para4 of the Vigilance Manual analysed From bare reading of para 4(vi), it transpires that what the Director, ACB is directed is to forward a final report in all cases investigated by it in which it considers that prosecution should be launched wherein sanction is required to be issued in the name of the Governor, save and except the cases where in the sanction is under Sub-Section (c) of Section. 19 of the Corruption Act, is to be granted by the competent authority. Why? This clearly goes to show that so far as the sanction given by other competent authorities under the Act is concerned, Sub-Para (vi) of para-4 does not insist upon the ACB to forward the final report. There the ACB is given free-hand to proceed with the cases as warranted under the Corruption Act. Then what remains is only those cases wherein the sanction is required to be issued in the name of the Governor meaning thereby in respect of cases of Top-class officers the blue eyed boys of Government. For the sake of argument, viewing from this angle also, the Resolution does empower the Vigilance Commission to direct ACB to forward a final report in cases investigated by the Bureau in which the prosecution is required to be launched after obtaining the sanction. But then the question still remains as to whether even in cases A herein sanction is required to be issued in the name of the Governor, the Vigilance Commission can be said to have any right overriding the powers of the statutory functionary viz., Governor, because in such cases if in other cases, ACB can straightway forward papers for sanction to the authority competent to grant the sanction, then in that case, in the instant case also, it can also straightway forward the case papers for sanction to the Governor and it is for the Secretariat of the Governor which has to do the needful by placing the same before the Governor.
10.6. Similarly, in such cases under the Corruption Act also once the competent authority has been vested with the special power of sanction, with all wisdom at the command of the Legislature, then it is none of the business of any of the authority to make inroads by asking the ACB to forward the final report before the sanction is granted. Yes, a case cannot be ruled out where in a given case wherein despite definite allegation where the sanction was must and accordingly required to be granted and still the same was not granted then in that case, if ACB brings it to the . notice of the Vigilance Commission, that despite tell-tale day light clear facts, the sanctioning authority was delaying or not granting or the Government had withdrawn the sanction then that would certainly stand on altogether different footing. Here in such cases, the Vigilance Commission has to play quite positive and the effective role to take appropriate action against the concerned sanctioning authority who has acted illegally because this clearly falls within the purview of the Vigilance Manual. Likewise, paras 4 (vi); 4(vii)(a) also makes serious inroads on the powers of the statutory functionary viz., competent authority under Section. 19(i)(c) of the Act. In this view of the matter any attempt on the part of the Vigilance Commission under the guise of acting under advising capacity to foist its authority upon the statutory functionaries under the Corruption Act amounts to clear inroad and violation of the provisions contained in Sections. 13, 17 and 19 of the Corruption Act.
10.7. Mr. Shelat further submitted that the Director, ACB who is a petitioner before this Court is a part and parcel of the Government setup likewise the Vigilance Commissioner, who is also a part of the Government and both are complementary to each other and therefore, there was no need for the petitioner to adopt challenging pasture by rushing to this Court! Now this submission is not correct. For example, the corruption of public servant can come on surface in two ways. In the first place, when the victim of corruption approaches the PI ACB and files a complaint, as a result of which the Investigating Agency under the Corruption Act springs into action viz. arranges the trap, etc., and ultimately forwards the papers under Section. 19 of the Corruption Act for obtaining the sanction, wherein on getting the same, accused is chargesheeted to stand trial before the Special Court. The other way the corruption comes on the surface is when some grievance is voiced against some public servant by way of letter or application from any citizen or through MLA or MP or the concerned Minister and is brought to the notice of the Vigilance Commission which in its turn empowered under para-4 of the Vigilance Manual forwards the papers to the Director ACB to make the investigation, etc. etc. Now in such cases, once the investigation starts and ultimately the accused is caught red-handed or in any other cases of corruption under other provisions of the Corruption Act making out a prima facie case, requiring necessary sanction to prosecute, then in that case, the function of the Vigilance Commission comes to an end at that stage only. Thus far and no further. It is so because since the Vigilance Commission has no statutory basis and power to investigate the'corruption cases, register complaint, file chargesheet, etc., in very nature of things, it has to depend upon ACB and accordingly is always required to forward the informant or the complaint to ACB to do the needful legal formalities. It cannot expect thereafter that the IA to once again return/forward the papers/final report because whatever was required to be done to eradicate the corruption on its part was rightly done by the Vigilance Commission, by entrusting the matter to the ACB to do needful. Its administrative duty having come to an end there ' and then only, thereafter, it had no lien or power accordingly to say or advice anything to ACB in matter of prosecution of the accused. Mere forwarding of the papers to the IA under the Act does not necessarily mean that by virtue of that vis-a-vis it was also empowered to control the sanction and prosecute accused indirectly to say in the advisory capacity. In this view of the matter, though the Director, ACB is a part and parcel of the Government but if some hurdles are placed contrary to the statutory provisions under the Corruption Act, then there is indeed nothing wrong if he points out the said questionable hurdles to be cleared up by Court, which may ultimately assist him in honestly discharging his duty taking due care of corruption cases in the pathetic situation! Else what was the way out for him? To see corruption law trounched before his eyes and doing nothing?
11. It was next submitted by Mr. Shelat that when the Investigating Agency forwards the papers to the Vigilance Commission it does not prejudice the investigation of the ease. Now the question is not of the investigation being prejudicially affected or not, what is to be seen ultimately is whether the procedure suggested by Vigilance Commission is in accordance with law, namely with the provisions contained in the Corruption Act. Accordingly, if the law prohibits it, then there is the end of matter.
12. It was next contended by Mr. Shelat that the most affected/prejudiced party is the concerned accused in the present case who are not before the court to answer the material questions raised in this petition affecting their ultimate rights also! According to Mr. Shelat, this question cannot be decided at the instance of the Director ACB and that too at the back of the accused without hearing him/them. We firstly, make it clear that we are not, deciding this point at the instance of the Director. ACB. but we are deciding it. keeping in mind the underlying object of the Corruption Act, serious challenge to the "Rule of law" and our correspondingduty as a Constitutional functionary to protect "law" enacted by the Parliament and the "Rule of Law". Secondly, in our opinion there is no question of accused being prejudiced because the accused has no right whatsoever to address this Court where the impugned order, direction, resolution is non est.'nullity being void ab initio. No order on merit was passed against the accused while delaying or withdrawing sanction or ultimately in a given case, withdrawing the case from the Court, where he having obtained some right was entitled to be heard before deciding the same. The accused certainly cannot be a party in granting sanction or withdrawing the sanction to prosecute. He cannot be permitted to indirectly hold brieif on behalf of the offending public servant piaying foul with his powers of the statutory functionaries under the Corruption Act. Right of natural justice is a matter of wise discretion judicial pragmatism of the court and not a straight-jacket formula or a mechanical formality wherein in each and every case irrespective of any necessity, accused are entitled to be heard. Now everything having come on the surface because of the directions given by this court in our decision rendered in the case of State of Gujarat v. M.M. Damor (1996 (37) 3 Guj LR 620) (supra) it is not the petitioner rather it is the overall public cause of the maintenance of "Rule of Law" in the State before us and that ACB is in picture incidentally only.
12.1. Finally, in support of various contentions raised above, Mr. Shelat has relied upon several authorities. We have carefully gone through the same. In our opinion, since the facts-situation visa-vis legal position of the present case and the cases cited at the Bar by Mr. Shelat, except some out of context and stray observations, have there being indeed no bearing whatsoever to support the point raised by him, and accordingly, we do not deem it necessary to either to refer to and to discuss the same in this judgment!
12.2. In view of the aforesaid discussion, sub-paras (vi)and (vii)(a) of the Vigilance Manual being in direct conflict overriding statutory powers under Sections. 7, 13, 17 and 19 of the Corruption Act, they are hereby declared to be ultra vires.
13. Whether all resolutions in the Gujarat State Vigilance Manual are ultra vires? Clarification :-
No. Whatever objections we have regarding the functioning of the Vigilance Commissioner pursuant to the various paragraphs stated in Vigilance Manual are regarding the attempted powers overriding the statutory functionaries under the Corruption Act which stands ultra vires by this judgment. No statutory powers can be transgressed in the name of "Advisory opinion" or in any other name. But at the sametime, we make it clear that we do not dispute at all the advisability of absolute necessity and accordingly the existence of the Vigilance Commission to eradicate the corruption menace in the State. Such a Commission is absolutely necessary, over and above and in aid and assisting the statutory functionaries under the Corruption Act. In fact, we quite see the need and the importance of the Vigilance Commission and its powers to control rampant corruption in various Departments of the State. What ACB does, it discharges duties of investigation and prosecuting the accused before the court under the Corruption Act. The ACB discharges its duty on the basis of the complaint filed regarding the allegations of bribe against the public servant. Therefore in cases other than the complaint filed before PI ACB i .e. when something comes to the notice of the Vigilance Commission, it is equally the duty of the Vigilance Commission to avail of the provisions of the Corruption Act by asking the ACB to register the complaint, investigate the case and take it to the logical end making accused face the trial before the Court. Once the Vigilance Commission refers the matter to the Investigating Agency under the Corruption Act, its power to that extent automatically comes to an end. Thereafter it is not expected to have any lien or right to ask the Investigating Agency which is a statutory body to report back and take its advice whether the sanction should be given, accused should be chargesheeted or not, etc. etc. That does not fall within its domain. Rather it directly falls within the domain of the statutory functionary under the Corruption Act, which cannot be usurped under any pretext or circumstances, except to the limited extent when the sanctioning authority was found playing foul with his duty and the Director ACB bringing the same to the notice of Vigilance Commissioner. Its no defence and accordingly open to "cleverly submit" that the sanctioning authority was not bound by the advice of the Vigilance Commission, and therefore, giving of advice cannot be said to be in conflict with Section. 19 of the Corruption Act and therefore ultra vires! If the sanctioning authority was not: ultimately bound to aecept advice of the Vigilance Commission where indeed was the need foridle formal ity of advising ? In our opinion, under some clever disguise to give advice to the sanctioning authority, attempts are made to influence the sanctioning authoi itics. This subtle, diplomatic attempt of backdoor entry rendering provisions in Section. 19 of the Corruption Act nugatory is to say the least is quite despicable, accordingly, deserves to be struck down immediately.
14. Sanction-. Delay in Granting -Withdrawal. Etc.
Thereafter, Mr. Panchal has raised following contentions exposing the patent irregularities, illegalitie. committed in the first instance by the Sanctioning Authority, and thereafter, the Home Department questioning the very existence of the 'Rule of Law', by ordering withdrawal of cases under the Corruption Act.
14.1 Delay in according sanction :- It was next contended by Mr. Panchal that there were delays and even gross delays in some cases in passing appropriate orders granting or not granting sanctions. In support of this, Mr. Panchal has referred to and relied upon the chart annexure "A" annexed with the letter dated 20-1-1997 and the annexure "B" annexed with the affidavit of petitioner wherein number of cases have been enlisted showing pending for want of sanction. The most objectionable part of it being in some of the cases despite the repeated reminders sent to the concerned competent authorities, they have not responded at all ! Of course after this petition, caught mapping, the concerned competent authorities have quite speeded up granting the sanction as already referred above in this judgment only under apprehending contempt proceedings against them that may be taken up by this Court! These are the type of Officers manning our public administration and that too under the elected popular government !! As a matter of fact at no stage the grievance of the petitioner regarding the delay in granting sanction has been disputed by Mr. Shelat. Not only that but no justification has even been put forward explaining the delay in question. Quite surprisingly and shockingly too, there are cases of years 1984, 1988 and thereafter also there are cases wherein the sanctions not only have been delayed but even by now they are pending, hearing of this matter !! We simply fail to understand as to how, why and under what circumstances appropriate orders regarding granting sanction were not passed by the competent authority under the Act within the reasonable time? In this regard Government has repeatedly right from the year 1965, periodically issued circulars after circulars to avoid delay in granting the sanction with a view to ultimately avoid the prosecution case being prejudiced and lost, but unfortunately, it appears to have fallen on deaf ears !! We accordingly, by this judgment hereby direct all the competent authorities under Section 19 of the Corruption Act to strictly comply with firstly the circulars issued by the Government to: avoid delay and pass appropriate order for sanction within two months, and secondly to comply with the direction given by this Court in a decision rendered in case of State of Gujarat v. M.M. Damor (1996 (37) 3 Guj LR 620) (Supra) failing which, they shall be held liable for the departmental: action and also for contempt of Court proceedings and the resultant punishment. We also thirdly further direct that while forwarding the draft memo of the sanction, the Director ACB and or the Investigating Officer shall bring it to the notice of the concerned competent authyorities the possible departmental and contempt procecdings for their wilful default in not complying with the directions just given above. Futher, this contention of Mr. Panchal stands to some extent dealt with in para 8.3 of this judgment. However, it is still further required to be observed here that the competent authority appears to have been quite sluggish, irresponsible in discharge of its duty under the Corruption Act, which not only demonstrates lack of devotion but the clear defiance to act in not expeditiously complying with the government circulars to grant sanction within the period of two months, and secondly, as directed by us had indeed Mr. Joseph not drawn the attention of this Court, in many cases sanction perhaps would not have been granted in near future !! Be it a case under the Corruption Act, and/or for that purpose any other Acts, where without the necessary sanction to prosecute, the Court cannot take cognizance of an offence, it shall be the duty of the Sanctioning Authority to expeditiously consider the same and pass appropriate orders.
15. Directions & Warning to the sanctioning authorities :-
The picture projected by the petitioner in his Annexure-A chart annexed to his letter dated 20-1-1997 regarding gross delay in granting sanction is little unfortunate and shocking. However, for whatever reasons, the fact remains that the sanction papers appear to have gathered dust on the table of the sanctioning authority. We also quite see the difficulties of the sanctioning authority, where in a given case, because of some timidity and inferiority complex, he has to helplessly withstand and then succumb to some extraneous pressures to delay and or not to grant the requisite sanction to prosecute particular accused and if granted ultimately made to withdraw the same! This pitiable plight is quite understandable but certainly not pardonable !! This can neither be permitted to be justified nor absolve nor can exempt the sanctioning authority from his ultimate responsibility and consequential liability, if he fails to discharge the statutory functions/duties under the Corruption Act !! In this regard the' sanctioning authority must always and invariably remember that they are the creatures of the statute and are expected to respect and serve the law which has created, empowered and bestowed the honour giving them the statutory identity and existence as statutory functionaries. Accordingly the sanctioning authority is bound to know and understand one most important thing by heart that it is a statutory functionary first. The Parliament has vested important discretion to grant or not to grant sanction under the Corruption Act in him only. None other howsover high he may be. has any right, power to dictate and influcence him !! He accordingly is accountable to the Parliament, to the cause of people first and not to any higher ups sitting in the Secretariat, including the Vigilance Commission (except for the limited purpose where it has been pointed out by the Director. ACB or the Investigating Officer that despite the fact that investigation papers constitute an offence under the Corruption Act, with ulterior motive sanction was not granted by the concerned Statutory authority or for that purpose, even the Minister), and accordingly, we hope and trust, and further, direct that henceforth whenever sanctioning authority feels any extraneous pressure, embarassment. he without any fear or favour shall discharge his duty according to the voice of his conscience and mandate of law. towards the object underlying the Corruption Act as boldly and fearlessly as Mr. Joseph has done and discharged his duty in the present case. The sanctioning authority is not supposed to be chicken hearted, perturbed, embarassed, suppressed and succumb to some extraneous illegal and unjust pressures with their respective statutory powers from any higher up and accordingly posed to firm and resolute like a rock has to take bold and idependent decision, however unpalatable that may be to "that those concerned" in the government with a spirit of 'come what may'. Not to respect and serve the law where the positi ve duty obligation is cast upon it to act lawfully under the Act, and succumbing to the dictates of superior officers itself is the corruption of worst type than other forms of corruptions enumerated in the Corruption Act which in turn undoubtedly amounts to grave 'misconduct' liable to departrnentaily proceedings with the consequential punishment. Accondingly. in future whenever such things happens, that is to say the sanctioning authority, delay, deny, withdraw granting of sanction quite contrary to the material available on the record, it shall be the duty of the Director ACB or for that the Investigating Officer to bring it to the notice of the Vigilance Commission the remissness on the part of the said sanctioning authority and in case if no action is taken by the Vigilance Commission within one month, then to bring it to the notice of this Court illegal acts of commission or omission by the concerned public servant. In case if here the Director. ACB also commits any default by disregarding the direction of this Court, then he too, to that extent, shall stand accountable liable in the first instance to contempt proceedings for wilfully disregarding the direction of this Court in this judgment as well as in the second instance the departmental actions under the relevant service rules. We as a Constitutional functionary are supposed to protect the law, system of rule of law under the Constitution, and we feel there appears to be no other better way to control quite arbitrary, irrational, discriminatory, executive powers violating law, unless we adopt firm and uncompromising attitude on the point of vital public interest where some of the High Officers in Government under one pretext or the other try to trifle, play and thereby interfere and back-stab the legislature and legislation both. Ordinarily, when a person commits an offence, the relevant law and for that purpose law enforcing agency takes appropriate action by prosecuting him before the Court. For this, there is a substantive and procedural law. But the question is when law enforcing agency itself acts illegally and manipulates in a manner unbecoming of any public servant discharing public duty, benefitting the accused how to control them and their illegal action ? Who shall control it ? The answer is Courts. For this purpose, in the first instance when the subordinate Court comes across some such cases where the public servants have acted illegaly then by making appropriate observations against the concerned officer by sending the copy of the judgment to the concerned Head of the department and in other cases like the present one, when it comes to us, there as a constitutional functionaries not only the copy of the judgment is required to be sent to the Chief Secretary to the Government for appropriate action, but some guidelines also must be provided to see that some such things do not happen in future by declaring impugned action orders, circulars, resolutions illegal and ultra vires. If this is not done, the concerned officer who played foul with the 'Rule of Law' will escape with all impurity destroying the fabric of 'Rule of Law'.
Thus, not to discharge the statutory duty and ' that too under the Corruption Act is a serious dereliction of duty, gross-misconduct and the corruption worst than any corruption cases enumerated under the Corruption Act. Even taking unduly long time to pass appropriate order regarding the sanction after the receipt of the investigation papers in total defiance of various circulars instructing to grant sanction within two months, is also a manifest lack of devotion to duty liable to be punished under the relevant service Act and rules made thereunder. This is over and above the contempt proceedings that this Court may institute as contemplated in the case of the State of Gujarat v. M.M.Damor, (1996 (37) 3 Guj LR 620) (Supra). In the instant case, at this stage, with a view to have one more opportunity to put the house in order and improve, we are staying our hands in not issuing the contempt notice against all these competent authorities who have in most indiscreet and defiant manner delayed the sanction but then having given direction in State of Gujarat v. M.M.Damor (Supra) and further this second notice in this judgment if the competent uthorities henceforth will still persist in defiance of law, not only the necessary notice against them for wilful disregard of directions of this Court would be issued but even apology may not of be of any help to them !! It is indeed not possible to tolerate the non-sense of deliberate let down of law by the law enforcing agency !! This is too serious and aggravated form of offence against law itself !! None can be permitted to slap and then say sorry !! All concerned with the proceedings under the Corruption Act are accordingly directed to take a serious notice of this.
It is simply stunning and unbelievable that in a corruption case, one sanction is pending since the year 1988 i.e.. for last eight years !! The concerned officer in this particular case is certainly accountable and accordingly the departmental action shall have to be taken, to be terminated within a period of six months, bringing it to the notice of this Court as to what has been done and ultimate result of the same. This we are directing with a view to see that the concerned officer do not take either Corruption Act or the directions given by the High Court lightly and for granted and for that purpose the other public servants may also take a lesson that to play with the provisions of law and directions of the Court is to play with the live electric wire which permits of no mistake !! Over and above this, if the High Court thinks it proper, such an officer will not be free from the contempt proceedings.moment it comes to the notice that the directions of this Court have been flouted and thrown to the dust-bin.
16. Within What Period "Ordinarily" Sanction under Section 19 of the Corruption Act to be Granted ?
According to Mr. Shelat, Section 19 nowhere stipulates that the sanction should be granted within a particular period and therefore the sanctioning authority cannot be made 'time-bound' to be directed to grant sanction within two months only. According to Mr. Shelat, it should, be within a reasonable period of time. Now the answer to this question is very simple. There are as many as 4 to 5 circulars issued by none other than the Government itself, wherein taking serious notice of the delay in granting sanction by the competent authority, they have been repeatedly directed to strictly comply with the circulars and grant sanction within the period of two months. This is quite rightly done because, in corruption (trap) cases, there are hardly 3 to 4 witnesses to be examined and the record is also very small, which hardly requires any more time to go through, and on seeing the papers, appropriate orders could be passed on the very or next day of the receipt of paper from the ACB Office. May be. in a given case, the concerned sanctioning authority is over burdened with other important works but then in that case urgency of criminal prosecution and trial is required to be given top most priority to clear the necessary orders of sanction to prosecute. Such an important statutory duty, the sanctioning authority can never be permitted to forget. With a view to guard against some such eventuality in delay in passing the appropriate orders granting sanction in earlier paragraph we have already directed the office of the ACB to do following two things. Firstly, at the top of the forwarding letter requesting grant of sanction to prosecute the accused under Section 19 of the Corruption Act, the attention of the competent authorities be specifically invited to various circulars directing him to grant sanction at the earliest in any case within the period of two months, and secondly to the consequences of (i) the contempt proceeding against him as directed by this Court in case of the State of Gujarat v. M.M.Damor (1996 (37) 3 Guj LR 620) (Supra) and (ii) the departmental action for lack of devotion to duty under the relevant service Act and Rules for not granting sanction within two months. We know we are here doing little rule making rather legislative business, a calculated trespass and accordingly, here some hyper sensitive technocract not having overall vision may disapproving the same allege little trespassing by this Court in the forbidden legislative field !! May be right in his limited myopic way!! But here we would be requesting Mr, Technocract to behold for a while appreciating the situation as to what constraints the constitutinal functionaries like us to commit the alleged trespass in. rule, making arena ! To be frank enough, it is done under some severe constraints of our duty as the constitutional functionaries under the emergency, because if this is just not done the whole sanctity of law enacted by the Parliament would stand outraged and lost nobody running to rescue it!! Till such time the legislature finds out the way to regulate and control some inefficient. public servants diluting and rendering law, and accordingly, bridges the gap in-between the two divided ends viz.. on the one hand enforcement of law and on the ptherhand backing out the law, by enacting some law, we cannot permit before our own eyes the "Rule of Law" becoming victim of the gap-trap in 'absence of necessary bridge, falling down deep into the water of lawlessness lost to injustice !! To give one more striking illustration, if needed, if for whatever reason because of some vehicle dashing, gate crashing flinging railway crossing wide open, if no immediate steps are taken to find out alternative to supply or repair crossing in time and in the meantime, number of speeding vehicles colliding with passing trains resulting into major accidents not be avoided under the circumstances can any one remain passive and unconcerned 'saying' nothing could be done on their part as it was the 'function' of the Railway authorities to do the needful to repair the crossing !! This stand is simply absurd and irresponsible. Somebody has got to immediately, intervene to prevent accidents. Similarly, this is what we intend to do by giving time bound directions to concerned authorities ti11 the time legislature comes out with appropriate measures, how to meet with the situation showinga way. In this view of the matter, the alleged trespassing in the legislative field is not at all interfering with the exclusive right of the Legislature to legislate but it is rather an act performed by the High Court a constitutional functionary to protect the dignity, honour and respect for the law enacted by the Legislature itself which was helpless at this stage to protect it itself except the High Court or an Apex Court intervene and do the most needful in time.
16.1 Back to the point of delay in granting sanction, infact, if after forwarding the papers for obtaining sanction, the appropriate order is not received within 15 days, on the 16th day and thereafter every week office of ACB must send reminders to the concerned sanctioning authorities. If sanction does not come at the end of the month, the Investigating Officer should contact the concerned competent authority and personally hand deliver the reminder and request him when should he come or send his subordinate officer to collect the order regarding sanction. If this is also not responded well, then the Director ACB should report it to the Vigilance Commission, inaction on the part of the sanctioning authority. This is absolutely necessary for quite obvious reasons.
17. Further, every case paper, wherein some urgent important orders are to be obtained, that can never be left to unconcerned peons. In fact, all such important cases must be dealt with by the responsible officer, knowing the importance and urgency of the matter right from the grass-root and should go personally from table to table to get it cleared up at the earliest. This is unquestionably necessary because neither the file nor the peon carrying papers from table to table has any movement direction, vision, .voice, sense of urgency and the personal involvement of its own, it is only because of such routinal, impersonal movement of files, perhaps in many cases admist the stock piles of other files particular file gets lost, ultimately urgent orders getting delayed and even denied!! Once again, it is perhaps because of this peon-file culture procedure only, in detention matters wherein the representation is made, file containing it is placed somewhere and on going under heaps of other files, and as a result, not immediately attended to resulting into quashing of the detention orders. Further, it is true that no time is prescribed under Section 19 of the Act as to when the sanction should be granted, however, Government by issuing various Circulars has prescribed period of two months within which the sanction should be granted. As a matter of fact, even the period of two months is more. But in any way we take it that if the sanction is given within the prescribed period of two months then in a given case that cannot be said to be an inordinate or gross delay on the part of the sanctioning authority, though it could have granted earlier. Mr. Shelat is right that the reasonable period varies from case to case. But at the same time, as stated above, in the cases where a person is found accepting bribe money, is a case where even period of 15 days is also much more than the reasonable time. In cases other than the trap cases of corruption also, under no circumstances it requires more than two months. At this stage, Mr. Shelat voiced an apprehension that if the prosecution is beyond two months, then it may fail vitiating the prosecution. That cannot be. There is no such law. The prosecution can never suffer on the said count of delay. But certainly the competent authority which has delayed passing the order granting or not granting is accountable for his misconduct under All India Service Act, 1951 and Rules made thereunder and liable to be departrnentally proceeded with because he was indirectly delayed the trial, which many a times prejudices the prosecution case where witnesses because of passage of time loses their memory, and as a result they commit some honest mistakes "proving fatal resulting into unjust acquittals. Accordingly, avoidable delays at the level of the sanctioning authority, manifestly demonstrates lack of integrity and devotion to duty expected from him.
18. Circulars- Departmental instructions Non-compliance Remedy -Suggested Duty of the Secretary. Home to strictly enforce circulars instructing competent authorities not to delay the appropriate order regarding granting sanction within two months else departmental proceedings.
For delay in passing appropriate orders of sanction and consequential delay in filing the chargesheet, the concern which we had an occasion to voice in our judgment in the case of State of Gujarat v. M.M.Darnor, (1996 (37) 3 Guj LR 620) (supra) already stands voiced and reflected in the Circulars issued by the Government. The first amongst the same was Circular No. ACB-2565-3981-H, dated 18-11-1965, Sachivalaya, Ahmedabad. In susbtance, in the said Circular it is stated that- "It is brought to the notice of the Government that in the cases sent by the ACB for granting sanction, in some cases delays are taking place. The trap cases under the Corruption Act are clear than other cases. Further in such cases after the commission of the alleged offence, if the cases are not submitted in the Court for quite long time, then in that case, there is all possibility of the Panchas not supporting the prosecution; there is all possibility of the cases failing before the Court. Under the circumstances, it is decided that whenever a proposal for granting the sanction are forwarded to the concerned Department of the Sachivalaya, and when it comes to the concerned-competent authority, it should grant the same at the earliest and/or in other cases latest within two months. ' Not only that but with a view to facilitate the competent authority to grant the sanction immediately, the ACB is also directed to forward alongwith proposal to grant sanction, a rough and ready draft of the sanction. It is further directed in the said circular that after obtaining the sanction the chargesheet be filed within one month." It appears that despite this circular containing quite clear instructions, since it came to the notice of the Government that they were not strictly complied with, the Government was constrained to issue another circular No. LRV-3268-78-H, Sachivalaya, Ahmedabd, dated 10-1-1968, repeating whatever was instructed in the aforesaid first circular. It further appears that even the second circulars failing to bring about the desired impact upon the sanctioning authority, a third circular bearing No. ACB-1075-2877-H, dated 27-10-1995 and thereafter fourth circular bearing No. ACB-1076-GOI-1586-H, dated 8-7-1976, came to be issued once again inviting the attention of the concerned competent authority to the previous two circulars to avoid delay in communicating sanction for prosecution. Further specifically observing that "it has come to the notice of the Government that in spite of the clear instructions issued, delay still occur in granting such sanctions resulting in serious damage to the proper presentation of such cases in the Courts. This matter had been recently discussed at the Joint Conference of the Central Bureau of Investigation and State Anti Corruption officers and in accepting the recommendations of the Conference, it is impressed upon the Heads of Departments etc., that the sanction in all such eases should be given or refused within a maximum period of two months positively''.
The Home Department, Government of Gujarat, was once again further constrained to issue fifth Circular No. LRV-2080-1560-H, dated 10-10-1980 repeating the very same grievance of delay in according sanctions and very same instructions issued in above four circulars impressing upon the concerned authorities to avoid delay in granting sanction.
The Home Department, Government of Gujarat, by its further sixth Circular No. LRV-1084-132-H, Sachivalaya, Gandhinagar, dated 24-2-1984 issued one more circular inviting the attention of the concerned authorities to the previous circulars referred to above with a view to enable the prosecution to file the chargesheet within three months.
From the aforesaid circulars after circulars, it appears that the instructions given therein had went on falling on the deaf years of the concerned authorities for whatever reasons, or what ought we do not know the circulars are not even looked at! It also further appears from the Chart Annexure-A annexed alongwith the letter dated 20-1-1997 written by the petitioner Mr. Joseph that in utter defiance of the Government circulars the sanctioning authorities had shown patent lack of devotion to the duty. This is unquestionably punishable under the relevant Civil Service Act and Rules made thereunder.If any public servant in the capacity of Head of the Department when called upon to scrupulously obey and carry out the instructions issued by the Government in its circular in the instant case to grant the sanction, and yet ignores the same, that by itself is too serious a thing to be lightly countenanced, and the Government, if it is really a Government worth name, to be effective, must immediately direct and call for the explanation and take appropriate action against the concerned delinquent officers depending upon the facts of the case. The Government which lacks this discipline, determination and will to enforce law in its true spirit, can never give any administration apart the better administration. Now what constitutes Government ? Of course those Ministers assisted by top brass officers and other subordinate officers which holds rein in name andon behalf of the Governor. Accordingly, unless the top officers have some morals. respect for the law and law abiding character, they cannot have any courage of conviction to enforce discipline with subordinates to enforce law. In a given case. sometimes the just defence may be available to the concerned officers, that under the 'Rules of Business' they had no other alternatives but to succumb to orders, directions of some Ministers. Now here the Secretaries of IAS category are expected to know fully well that the Ministers in their turn have taken oath to uphold and protect the law and Constitution without fear and or favour and accordingly sometimes inadvertently even when they commit any honest, bona fide mistakes and thereby intends or directs any action or the order to be passed which is ex-facie illegal and unconstitutional then it is the boundant duty of the concerned Secretary to point out the same not merely orally, but in writing. If this is not done the protection under the umbrella of 'Rule of Business' could not be availed of. Anyway, this being the first gross detection of cases of delay in not granting sanction, within the time stipulated by various circulars of the Government, we would not like to persecute those officers by issuing Contempt notice who for whatever reasons may be under some pressure not able to take decision, however they arc required to be departmentally proceeded with. This is one part of the story and remedy to enforce the law to show that the Government in true sense and spirit exists. But so far as this Court is concerned, once we have directed the sanctioning authority to grant sanction within two months (State of Gujarat v. M.M. Damor (1996 (.37) 3 Guj LR 620) (supra) and if it is found to be not given, henceforth, he shall surely remain accountable to this Court and in a given case moment it is brought to the notice of the High Court, liable for contempt of the Court. Here also we are not issuing any notice for the contempt, but once again hold out a warning that whatever has been done should stop now and here only and the concerned officer in future may not dare, brave so to defy the orders of the High Court save and except at the cost of facing the consequences of the contempt proceedings, thanking himself only. We just remind that many a time illegal, unconstitutional acts committed by the concerned public servant may not come to the knowledge of the Court or people immediately but then whenever it will come out that betrayal on the part of the concerned public servant shall have to face the consequence even after the retirement. Law and Courts will not spaare him !! This is just to inform all the concerned so that they discharge their duty according to law and the Constitution.
19. Duty of the Home Secretary :- The Secretary, Home, when he issues the circulars on behalf of the Government, he docs so to ultimately strictly enforce the law. Accordingly, in order to have the sanctity and impact of the same he is also duty bound to see that if the instructions given in the circulars and/or directions given by the High Court and the Apex Court are not complied with by the concerned public servant, within the stipulated period stated therein, then the departmental actions as warranted in the relevant Civil Services Rules are immediately taken against him. If the Secretary. Home Department, does not take the necessary action against the concerned subordinate officers defying important instructions in the circulars, then to that extent, he is also playing foul demonstrating lack of integrity and devotion to the duly, equally liable to be department tally proceeded with under the relevant service Act and rules and it shall be the duty of the Chief Secretary to see that the concerned Home Secretary is kept within the bounds and is immediately departmentally proceeded with. Whenever Government issues the circulars, it is not just issuing the same for fun, it issues the circulars by way of buisness i.e.. whatever instructions are issued, are required to be carried out to the logical end wilh due efficiency, in true letter and spirit. The Home Department is the most important department in Government set3-up directly concerned with the enforcement of law and maintaining law and order in the society, within the frame work of the Constitution and the 'Rule of Law'. Accordingly, Secretary, Home carries wilh him most important duty of maintaining the law and order. This can never be achieved unless each and every cell in the department itself is law abiding, self-disciplined and strictly enforcing the law. Now when a question comes up of the strict enforcement of law when Secretary, home is unable to implement and enforce circulars through other government servant, what good this department is going to deliver to the people !! The way in which the aforesaid circulars after circulars came to be issued without any resultant effect, just reminds us of a that monotonous story Mummy telling a story to her child - "One sparrow came took the grain in its bill and flew away...one sparrow came, took the grain in bill and flew away...one sparrow came, took the grain and flew away...on and on, and...on" and the story ending yet not ending at all ! But thereafter what happened mum? was quite an inquisitive intelligent questions from the tender child but mummy did not or could not tell her child nor child understood and ultimately tired and lost into the sleep still next night when mamma went on repeating story of sparrow coming and taking away the grain !! Here in case of various circular also, ditto story !! In circulars after circulars the same thing is repeated viz., it has come to the notice of the Government that Corruption cases the proposal to grant sanction to prosecute are grossly delayed, and therefore, the same be given within two months !! If right from the first circular issued in the year 1965, situation was not improving and yet right upto the' year 1984, mechanically only mere circulars are issued, it means Government is not serious in enforcing Corruption Act in the State, else for breach of instructions given in circular, the Government would have taken strong deterrent action . against the concerned sanctioning authorities who were wilfully disobeying the same !! This is something unexpected of the highly paid responsible officer manning the public administrations in the Government, Home Department not caring the least whether the circulars issued are respected or not which are always passed for strict and proper enforcement of laws ultimately in the public interest. To issue the circular and not to monitor the same whether it has been strictly implemented bringing about the desired effect and if the same was not brought about, the appropriate action taken against the concerned public servant defying the circulars is just like firing a shot with a toy gun or with empty cartrideges wasting precious public time and money. The way in which the circulars after circulars came to.be issued demonstrates in.what way the Home Department and the concerned Head of the Department were functioning ! as if to issue the circular was sort of sport and pass-time for the officers who were not interested in seeing whether the circulars issued by him were respected or not. We believe that the Home Secretary is required to be proud of his post. He is holding the privileged position of enforcing the law and maintaining the law and order in the State. He is de-facto State, to the said extent exercising the powers of Government, a State in himself, and when he fails' in his duty, the society suffers and there cannot be any greatest shame on his part than to fail in discharge of such vital duty in the public interest. Once the circular is issued, it has got to be responded and effectively implemented by the subordinate departments. Not only that but it is equally the duty of the Head of the Department to sec that if the circulars are not responded or respected in right earnest and the right spirit, they are strictly dealt with according to service Rules. Finding the dismal state of affairs in implementing the instructions in circulars issued by the concerned officers of the Government, and the Government in the present case, Home Department also instead of taking appropriate action against the concerned deliquent officers going on issuing cirulcars after circulars, demonstrates either the Government functions on mechanical level, or lacks will to run the administration or there is no Government or for the concerned Officer post of Secretary, Home is only the status post and he has to do nothing for. To have elections, giving right to people to have its own representative democratic Government is not 'be all and end all' as long as quite defiant, lawless bureucracy, playing no less a role than of alien Government (in given cases) sabotaging the 'law' and 'rule of law' is not kept under strict control. Every five years, this poor country is spending lacs and crores of rupees on elections to have our elected representatives to run the Government. But with even few anti-law, anti-justice attitude of some bureaucrats, it can to quite great extent if not controlled, would be wasting thousands and crores of rupees peoples' money in election. The Officer, howsoever high he may be, but if is found not to be self-disciplined discharing his duty is required to be weeded out immediately, with a view to see that some such things as in the present case do not happen in future. In matter of circulars issued by other head of departments, the Chief Secretary shall constitute special Cell under his own supervision entrusting the effective implementation of circular issued by the Government. In case if any body is found not enforcing, calling for explanation and take departmental action as warranted under the relevant rules. This is the only way to spur-up the initiative and shake off the lethargy of the sanctioning authority to enforce the circular expeditiously with desired objects. Not to enforce important circular means government exists on waste paper-basket. This we are constrained to observe on the basis of totally impersonal, mechanical attitude and approach of the Secretary of Government in issuing circulars after circulars without any will and capacity on its part to enforce the same to run the public adrainistration. What constrains us to make the congent observations in the matter of circulars is. despite the circulats after circulars repeated for about six tiiTies.it has failed to carry any effect upon the Sanctioning Authority and the Government, as if unconcerned, has done nothing to strictly implement. The Chief Secretary is accordingly directed to constitute the Special Cell under his personal supervision, _as stated above. The compliance of this direction be intimated to this Court on or before 15th April, 1997.
20.Withdrawal of Prosecution:-In this regard, our attention was drawn to Annexure K-page-151, wherein after sanction came to be granted by the competent authority it came to be subsequently revoked more particularly quite surprisingly where the Vigilance Commission also was good enough to recommend prosecution !! This is simply preposterous and unthinkable? Who runs the Government Who defies law What Ministers are doing who has taken oath to protect and uphold the law and the Constitution and discharge the duty without favour or fear!! What leaders of opposition are doing What the members of the Legislative Assembly are doing when unlawfully sanctions and therafter criminal cases are withdrawn We have to take it that the Ministers, MLAs, etc. were kept in dark, otherwise the people's elected representatives as they are, will not do anything or be a party to any illegal, unconstitutional acts !!! This we are saying so because in the instant case the Secretary, Home, has not voiced any grievance against the concerned Ministers saying that it was at the instance of the particular Minister that he has issued illegal orders.
Annexure-K indeed makes quite a shocking reading. The cases wherein the competent authority had granted sanction wherein even the Vigilance Commission had nodded its head for the prosecution and still with the stroke of pen, the same came to the withdrawn by the Government!! At whose instance ? Under what authority of law? What answer the Vigilance Commissioner has to give against deifying, by passing his opinion? Why he has not proposed any action against the concerned person-officer? If the Vigilance Commission came into existence for the purposes of eradicating corruption it was his duty to challenge before the Court the order where he had given opinion to prosecute yet the same was overridden and side-lined. Whosoever has done it has undoubtedly acted illegally and unconstitutionally. We at the Cost of repetition .may clarify at this stage also that though there are specific allegations regarding withdrawal of the sanction and criminal cases in the affidavit filed by the petitioner, and yet despite the fair opportunity made available and further made clear that at this stage only the matter will be fully heard and finally disposed of. the Government has not chosen to reply justifying or controverting the same. In this view of the matter, when the petitioner who is no less a responsible officer like Director. ACB when he alleges something on oath, with all sense of responsibility, there is. indeed no reason for us to disbelieve him when the same is not found to be denied except taking the timid and technical evasive defence that the petitioner cannot widen the scope of his grievance beyond the letter dated 20-1-1997. which came to be treated as a Misc. Criminal application, in our opinion. These are the matters of vital public importance going to the root, shaking the very foundation of the 'Rule of Law' and accordingly, it was the duty of the Government to boldly come out if at all it had any valid defence instead of taking clay feeted technical defence which goes to show that Government has no defence, no face to show. Rather, it would be quite reasonable.to infer that since the Secretary. Home, had no answer to various allegations made by the petitioner Mr. Joseph, if he admits or denies trying to justify the stand of Government, then by admitting or denying the allegations he would have been further befaccd with embarrassing consequential explanation and thereafter action from this Court. With a view to avoid this dilema, neither here nor there, the technical objection has been raised simplying saying 'petitioner has tried to enlarge and widen the scope of the allegations in the letter dated 20-1-1997'. In such cases true to the record with it, the State or Home Secretary has either to admit or deny and dispute the allegations. Nothing more was required on the point to make submissions before the Court and yet the face-saving is attempted by the respondent on the spacious plea of the petitioner widening the scope of his letter dated 20-1 -1997. This is absurd and irresponsible !! This sitting on the fence attitude is not the correct way of the Government, democratic Government functioning. The Home Secretary when found in inconvenient corner may take such stand, but the Stale Government should have remained objective without identifying itself with the persona! cause of Home Secretary. The transparency, accountability, sincerity, honesty and the integrity are 'Panchsheel' - 5 virtues on which the peoples elected representative Government is supposed to work. This is certainly not a bipartite litigation where each one of the party tries to out smart other with right or wrong tenciful and technical pleadings. Here is the Government where it. is the party, which is supposed to be just. honest and fair keeping...nothing.upsleeves' against the public interest keeping the Court in dark on material particulars taking side of the concerned officers who were booked under the Corruption Act and let off by other set of the Government officers of the Home Department who have positively played foul with the Corruption Act, Under such circumstances, the State should have remained objective, not the least should have identified itself with acts of omission and/or commission amounting to gross misconduct committed by the concerned Secretary ! The defaulting Secretaries cannot he permitted to hide their identity as wrong doer, taking shelter under State umbrella. In such cases of serious allegations of dcrelection of duty by the concerned Government Officer, he should have his own separate advocate to defend leaving the learned Advocate General appearing for the State to have an objective and impartial stand.
21. It appears that tor whatever reasons the concerned officer who has misconducted himself in defy ing the statutory provisions by withdrawing cases in clear violation of the Corruption Act deserves to be unquestionably prosecuted and also departmentally proceeded with. When as_a result of the investigation a case is registered against any persoaand the law has started taking its due course leading towards the trial, any attempt even to interfere and abort the same and that too by the keepers of the law law enforcing agency, the same is clearly an aggravated form of the crime, unpardonable. As stated somewhere above, this is clearly an offence under Section 186 of the Indian Penal Code which pertains to 'obstructing public servant in discharge of functions.' That shall be the subsequent thing, but before that we hereby direct that the fact of the concerned officers have misconducted themselves, shall be kept in their confidential file to be taken into consideration as hurdle while considering their future promotions and other service benefits. The compliance of this direction to be reported back to this Court (Coram : K.J. Vaidya & D.G. Karia, JJ.) on or before 30th April, 1997. Not only that but all the illegal orders passed by the concerned officers on behalf of the Government stands hereby illegal and inoperative and the, Director-ACB is directed to proceed in those, matters according to law at the earliest.
21.1 We believe that in such gross cases if the offenders are let off without any punishment, the public administration will never be cleaned-up and accordingly further as long as the public administration manned by the big officers is not clearned, it will go on denying the fruits of independence and the rights guaranteed under the Constitution to the people. While deciding anything on such vital points, strict enforcement of the 'Rule of Law' and taking care of the public grievance, the Government is required to bear in mind, that under no circumstances, the Secretary can take shelter under the plea that by virtue of 'Rules of Business' he had, no alternative but to succumb to the orders.of the Minister by passing the impugned orders. If in; does so. he will do so only at his own costs, risk and peril. The reason is none can ever be permitted to do illegal and unconstitutional acts and then taking convenient shelter under the defence that they did so as they had no alternative but to so abide by virtue of 'Rule of Business'. No 'Rules of Business' can ever direct and bind any officer to succumb to illegal and unconstitutional orders. In fact, in any case, whenever illegal and unconstitutional orders are directed to be passed by any superior public servants, he should be clear and forthright enough in unquestionable terms pointing out even pointing out to the Ministers (in a given case) that the proposed recomrncndations/directions to pass order and or consequential action persuant thereto was illegal and unconstitutional. This should invariably reflect in the not ings in the contemporaneous record. If this is not done, then to that extent the concerned officer who is found to be responsible for his acts of omission or commission of the Government, he should personally be made liable for the same even after his retirement. This we are constrained to observe and hold because -to quote Supreme Court in one of its judgments rendered in case of D.K. Basu v. State of West Bengal reported in (1997) 1SCC 416 :11997 AIR SCW 233) (Para-22).
If functionaries of the Government become law-breaker,itis bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law into himself thereby leading to enarchism. No civilised nation can permit that to happen !!
This pertinent observation though made in different fact-situation, are nonetheless applicable to the circumstances of the case where statutory functionaries are found to be law-breakes. It is further required to be noted here that 'Any kind of crime is the revolt against the Society'.
22. Withdrawal of sanction chargesheet. etc.
Thereafter, Mr. Panchal cited the cases wherein the sanction was not granted, despite the repealed reminders sent to the concerned competent authorities and those other cases wherein though sanctions were granted, but the State Government ultimately by its various orders have withdrawn the prosecution against the accused publ ie servants. Not only that, but even after filing of the chargesheet, the Home Department withdrew the prosecution against some public servants. For this Mr. Panchal has invited our attention to the Annexure, which is annexed with the further affidavit of the petitioner. The said Annexure reads as under:
CASES IN WHICH CONTROVERSIAL DECISION TAKEN IN SOME CASES DEPSITE GROSS ALLEGATIONS AND THE MATERIAL AVAILABLE IN SUPPORT OF THE SAME. ACCUSED MERELY DL RECTED TO BE DEPARTMENTALLY DEALT WITH INSTEAD CRIMINAL PROSECUTION & IN SOME CASES NO ACTION EVEN
1. In Ahmedabad City ACB Police Station Cr. No. 4/93 a case was registered against accused Shri S.G. Rathod, PSI and Sim H.K. Sharrna, PI in connection with a bribe of Rs. 10,000/- on 31 3-1993. A request for granting sanction for prosecution was sent by the 10 on 26-8-1993. The VC recommended prosecution to the DG and IGP, GS, Gujarat Slate, vide its letter dated 21-1-1994. Sanction to prosecute was received on 13-10-1994 subsequently for some reason.
In the meantime. Shri H.K. Sharma moved the Hon'ble High Court. Ahmedabad for staying the chargesheet against him (Spl. C.A. 198/96) which was rejected. Shri Sharma then went in appleal before the Division bench (LPA 1181/96) where also his plea was rejected. Subsequently, the Bureau chargeshected him on 28-1-1997. However, in the meantime, in a letter to the DG and IGP GS.'the Home Department withdrew the prosecution against Shri H.K. Sharma and Shri S.G. Rathod.
2. In Mehsana ACB P. Stn. Cr. No. 7/92 Shri R.M. Solanki, PI Visnagarand Shri Dashrathlal Hargovandas Patel (private citizen) were accused in connection with a bribe of Rs. 10,000/- on 10-11-92. The VC agreed with the recommendation of the 10, the Assistant Director and the Bureau and recommended prosecution to the DG and IGP Gujarat State. The DG and IGP accorded sanction to prosecute Shri Solanki represented to the Government against this and also obtained a stay from the Hon'ble High Court (SCA No. 1895/93 dated 10-12-93). Even when the Hon'ble High Court was yet to pass the final orders and the matter was subjudice. the Home Department vide its letter No. LRV/2393-863- H, dated 17-1-97 addressed to the DG & IGP decided to forgo both prosecution and .Departmental Enquiry against Shri-Solanki. The Government handed over the investigation of this case to the Special IGP G'nagar Range on 8-10-93. Subsequently the investigation was handed over to CID (Crime) which submitted its report to the Government on 19-8-94. On the basis of this report, the Government by its letter dated 18-10,-95 wrote to the VC that the demand, or .acceptance, of money by Shri Solanki were not proved and therefore requested the VC to reconsider its decision of 30-4-93. The VC rejected the recommendation of the Government by its letter dated 1-7-96.
3. In Ahmedabad City ACB P. Stn. Cr. No. I7/ 93 Shri Pradip Navnitlal Shah was accused of accepting a bribe of Rs.12,000/-. On the Bureau's request, sanction for prosecution was given by the Vice President and Administrative Co-ordinator, Gujarat State, Industrial Department Co-operation by its letter dated 14-8-96. Subsequently, chargesheet was submitted on 1-10-96. After this, the Home Department vide its letter dated 31-12-1996 withdrew the prosecution and decided to take departmental action. But since the chargesheet had already been submitted, no action was required to be done by the Bureau. The Home Department vide its letter dated 13-1-97 directed the District Magistrate to take steps to withdraw prosecution. The reason accorded for this action was that the complainant had turned hostile as was evident from the affidavit that he had filed and hence the decision.
4. In Bhavnagar ACB Police Stn. Cr. No. 7/93 Shri Manjibhai Patolia was accused of accepting a bribe of Rs, 5000/- on 26-8-93. The Bureau sent its request for sanction to prosecute through the VC to the Chief Engineer, GEB. The VC recommended the sanction to prosecute. The Chief Engineer (Distribution), GEB accorded sanction to prosecute on 6-7-95 and chargesheet was submitted on 20-9-95. However the Energy & Petrochemicals Department by its letter dated 6-9-95 directed the GEB to withdraw prosecution and launch departmental proceedings instead. The GEB informed about this by its letter dated 8-9-95.
5. In Ahmedabad City ACBP. Stn. Cr. No. 20/95 the accused include former Special IGP Shri Kanu Pillai, Jetha Bharvad beside dangerous criminals like Javedkhan, Usmangani, Noormahmad Merchant, Yusuf Lalap, Rouf. In this case itself, the jail Superintendent, Limbabhai Vajabhai Kharadi was chargesheeted on 25-10-96 after receiving sanction to prosecute from the competent authority. While the case is pending before the Court, the sanction to prosecute was cancelled on 26-12-96 with respect to Shri Kharadi. This case is of a very sensitive nature and despite this, no reason has been forwarded as to why the sanction to prosecute was cancelled.
There are instances when the opinion of the Bureau have been overruled without any application of mind or by resorting to methods which circumvent the conclusion arrived at by the Bureau.
6. In Mehsana Police Stn. Cr. No. 13/96 Dashrathlal Manilal Patel, Inspector (Weights and Measures) and Shri Madhusudan Maneklal Soni, Manual Assistant were caught in a trap accepting a bribe of Rs. 5000/-. Since sufficient evidence was there sanction for prosecution was asked for from the controller. Sanction was not given for prosecution and he informed that the Government had decided to proceed departmentally in the matter vide his letter dated 29-1-97.
7. In Ahmedabad (Rural) ACB P. Stn. Cr. No. 7/90 Shri Chinubhai S. Bhavsar, Lineman and Shri V.B. Shah, Dy. Engineer, GEB Gandhinagar, were acccused of accepting a bribe of Rs. 11OO/-. A request to sanction prosecution was sent to the Secretary (Adm) GEB through the VC on, 27-3-91. The VC recommended the prosecution after studying the evidence on 18-4-91 and sent the case papers to the Secretary (Adm) GEB. Permission to prosecute was not given and GEB through its letter dated 24-12-91 informed the Bureau that the details of the case had appeared in the newspapers 'Sandesh' and 'The Times of India' on 5-8-90 and 7-8-90 respectively and that the Board had asked the Superintending Engineer, Sabarmati Circle to enquire into the whole affair and report. The Superintending Engineer, Sabannati, had submitted his report to the Chief Engineer (Distribution) on 5-11 -90. A copy of the report was sent to the Bureau. In the letter the Bureau was also informed that the Chief Engineer (Distribution) had looked into both the enquiry report of the Superintending Engineer and the case papers of the Bureau and had come to the conclusion that he did not find it necessary to sanction prosecution against Shri V.B. Shah.
8. In Ahmedabad (Rural) ACB P. Stn. Cr. No. 14/95 a case of bribe was registered against Shri Surendrakumar Gokaldas Aaida and Shri B.N. Trivedi, Jt. Secretary, Legal Department on 21-10-95. A request for sanction to prosecute was sent to the Secretary, Legal Department through the VC on 29-3-96. While the sanction for prosecuting Shri Vaidya was received on 4-7-96 and chargesheet submitted on 23-10-96, no decision with respect to Shri Trivedi has been taken till today.
23. All the cases enlisted above creates grave doubt about the credibility of the Government administration which it appears do not believe in "Rule of Law" and think the concerned illegal decision taking officer/s is higher than law !! How indeed in a case wherein PSI S.G. Rathod and P.I.H.K. Sharma who were alleged to have taken bribe of Rs. 10,000/- were granted sanction to prosecute, where even the 'Vigilance Commission' had recommended prosecution to the DG & IGP Gujarat State and when challenged the filing of the chargesheet before the High Court it was not only rejected but his LPA against the said order also came to be rejected by the Division bench and yet the Home Department withdrew the prosecution against the said two police officers!! How indeed yet in other gross cases of corruption accepting bribe amount the prosecution can be withdrawn and instead only departmental inquiries came to be recommended? How indeed a case could be withdrawn on the ground that the complainant was not to support the prosecution? The reason is there are cases and cases where even despite the complainant and panchas not supporting the prosecution, accused are convicted on the basis of the evidence of police officers. It is ultimately for the Court to decide and not the Government whether there is sufficient evidence to convict accused or not !! How indeed as it happened in case of Mr. R.M. Solanki, Secretary-Home could dare address letter to DG and IGP to forgo both prosecution and departmental enquiry? How indeed - on what basis government handed over the investigation of the case to Spl. IGP, Gandhinagar then to CID (Crimes) which surprisingly submitted report regarding the demand or acceptance of money by Mr. Solanki were not proved, etc. etc. usurping the jurisdiction of the Court?. In our opinion there cannot be any case of the gross, greater defiance of 'Law' 'utter lawlessness'. Volte face and shameless irresponsibility on the part of the concerned officers of the Government then the cases highlighted above. THIS SORT OF PRACTICE IS NOT ONLY GROSSLY ILLEGAL AND CANNOT TOLERATED, BUT REQUIRES TO BE STRONGLY DEPRECATED, and accordingly, stern, deterrent action needs to be taken against the concern deliquents! To continue and promote any officer involved in back stabbing the Corruption Act and the prosecution thereunder will be against the public interest and 'Rule of Law. The Government shall bear in mind this not to be once again answerable to the Court.
In this regard, Mr. Shelat submitted that some of the cases were subjudiced and in other cases without hearing accused against whom the sanction have been withdrawn this Court should not touch the issue and give any findings. Looking at. the point raised by Mr. Shelat, mechanically and purely technically, it does give appearance of some susbtance but when closely examined it is quite illusory and not worth even, attractive soap bubble !! When Corruption Act nowhere provides for either withdrawal of sanction or withdrawal of the prosecution - any order subsequently withdrawing sanction to prosecute or the chargesheet being ex-facie illegal and unconstitutional and accordingly is clear and absolute nullity and non est. When there is no provision in the Act itself, on what basis indeed, the Government can interfere with the due process of law that rising of the statutory right of the Investigating Agency and the sanctioning authority under the Corruption Act frustrating the statute, obstruction its due course to be tried by the Court? This miscarriage of justice is simply
unthinkable/unimaginable and unpardonable !! In this view of the matter, since illegal withdrawal of sanction to prosecute of chargesheet and therbyultimately the case before the Court does not vest any right in accused, there is no question of hearing him !! The withdrawal of sanction, chargesheet etc., are purely at procedural, level where accused has indeed no right to say anything at that stage. This aspect, that is to say withdrawal of sanction to prosecute or the case in which sanction is granted but. wherein ultimately the cases are withdrawn are not the cases decided on merit vesting any right in the accused to be heard. Apart this, the principle of Audi Alteram partem in other words the principles of natural justice cannot be stretched to such an unreasonable and absurd extent where in name of natural justice, the accused could be permitted to hold brief on behalf of the most dishonest, unscrupulous public servant who are sabotaging the law has brought about miscarriage of justice !! The authorities sitting in the Government helping corrupt officials against the provisions of the Corruption Act deserves to be prosecuted !! There cannot be any greater corrupt Government than the one which shields and saves corrupt officers booked by the Investigating Agency on the full material available It is simply inscrutable why the Government should be interested in siding with the, criminal in helping him ? Any bargain ? Any consideration? Many such questions obviously arise, why attempts are made to cover up corruption cases. Does this not amount to abetment to corruption ? Indeed, such corruption is the worst than any other corruption, where keeper of law law enforcing agency instead of helping law to prosecute them. releases them from the clutches of law !! In none of the cases pointed out by Mr. Joseph the government had either guts or courage to justify or dispute, the specific allegation of corruption by officers named except alleging that the petitioner had widened the scope. In this view of the matter, the State cannot be permitted to take shelter behind the cause and right of accused where its own top officers are prima facie guilty of tempering with the prosecution case and Court proceedings accountable.
24. Whether Circular dated 13-6-1986 which revoked the earlier circular dated 31-5-1985 is ultra vires It was next vehemently contended by Mr. Panchal that the act ion of the Government in issuing Government circular dated 13-6-1986 at Annexure-H by virtue of which its previous circular at Jurisdiction & Powers, dated 31-5-1985 came to be revoked is ex-facic arbitrary and illegal on the ground that the Government Resolutions, Circulars, and other instructions cannot override the statutory provisions under the Corruption Act, nor can they be issued in contravention of the statutory provisions. Making good this contention, Mr. Panchal has taken us through both the circulars dated 31-5-1985 (Annexure-G) and dated 13-6-1986 (Annexure-H). Now it appears that by issuing Circular dated 31 -5-1985, the Government had resolved that in case it was found that a cognizable offence was detected in the preliminary inquiry entrusted to the ACB by the Vigilance Commission and the Departments of the Sachivalaya, then the Investigating Officer should register the offence at once, conduct the investigation and send the interim report to the Vigilance Commission simultaneously. (Note : Underline (sentence) requirement also amounts of an inroad on powers of the statutory functionary under the Corruption Act and accordingly to that extent ultra vires)!! It further appears as stipulated in the said circular, that if during the preliminary inquiry it was found that any criminal act regarding corruption was detected, then the ACB was not required to obtain prior permission from the Vigilance Commission. Now it is indeed quite clear that there is no provision in Section 17 of the Corruption Act for permission of, or routing the papers through the Vigilance Commission. In fact, Section 17 of the Corruption Act is mandatory mandating the Investigating Agency to investigate the case. As against this, if the Investigating Agency does not investigate, arrest and search then it is acting contrary to the provisions of law. Further it clearly appears that in the circular dated 13-6-1986, even the provisions with regard to registering the offence and conducting the investigation in the event of a criminal act regarding corruption being detected after preliminary inquiry has been done away with and the procedure as required and prescribed in the Government Resolution dated 17-4-1964 and circulars dated 15-4-1966, is required to be followed. In our opinion, this is ex facie overriding and in blatant disregard of the provisions of the Corruption Act. This is simply tracherous on the part of executive committing the extra-ordinary breach of trust of Parliament where it was expected to enforce the law with all sincerity of purpose. According to Mr. Shelat, Government has the overall control over the investigation. When the statutory functionary, is not exercising powers vested in it or was likely to abuse the power, then in such cases, the Government must see that the concerned officers do not go beyond the statute. Therefore, according to Mr. Shelat, the GR should be taken into consideration and the Court should not strike down the GR at the instance of the petitioner. We are quite conscious of the fact that the GR cannot be considered or cancelled at the request of Mr. Joseph but at the sametime, when the Court finds it on the face of it ultra vires, it is duty of the court to declare the same as ultra vires and the same is accordingly declared ultra-vires. The reason is as a Constitutional functionary, we owe a duty to protect the law enacted by the Parliament and if we are not doing that, we will be failing in our duty, having taken oath under the Constitution.
25. Mr. Panchal thereafter further contended that the letter dated 20-12-1965 issued by the Government of Gujarat discriminates All India Services Officers and Class-I public servants qua Class-II, Class-III and Class-IV public servants. Mr. Panchal has contended that in cases of All India Services Officers and Class-I public servants, by letter dated 20-12-1965, prior permission of the State Government is required to be taken for initiating an inquiry, for having committed offences under the Corruption Act, whereas no such permission is required in the cases of Class-II, Class-Ill and Class-IV public servants. According to Mr. Panchal, this is outright discrimination in terms and is violative of Article 14 of the Constitution of India. We quite agree. In fact, unless an inquiry is made and a prima-facie case is made out after the inquiry, it would not be possible for the Investigating Agency to comply with the provision of Section 17, which makes it mandatory for the Investigating Officer to investigate as required in the said section. In this regard, we would like to refer to some useful observations made in paras 47 and 48 by the Supreme Court in its judgment rendered in the case of State of Bihar v. P.P. Sharma, reported in AIR 1991 SC 1260: (1991 Cri LJ 1438) which reads as under:
47. The Investigating Officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. entails with acquittal. The duty of the Investigating Officer therefore is to ascertain facts, to extract truth from half-truth or grabbled version, connecting the chain of events. Investigation is a tardy and tcndious process. Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive force. Often crimes arc committed in secrecy with dexterity and at high places. The Investigating Officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation, he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Laborious hard work and attention to the details, ability to sort out. through mountainous information, recognized behavioural patterns and above all to co-ordinate the efforts of different people associated with various elements of the crime and the case are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation.
48. From this perspective, the function of the judiciary in the course of investigation by the police should be complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth viz. the proof of the commission of the crime. Often individual liberty of a witness or an accused person is involved and inconvenience is inescapable and unavoidable. The Investigating Officer would conduct in depth investigation to discover truth while keeping in view the individual liberty with due observance of law. At the same time, he has a duty to enforce criminal law as an integral process. No criminal justice system deserves respect if its wheels are turned by "ignorance. It is never his business to fabricate the evidence to connect the suspect with the commission of the crime. Trustworthiness of the police is the primary insurance. Reputation for investigative competence individual honesty of the investigator is necessary to enthuse public confidence. Total support of the public is also necessary.
It is also worthwhile to refer to the decision of the Supreme Court in the case of State of Uttar Pradesh v. Bhagwant Kishore Joshi, reported in AIR 1964 SC 221: (1964 (1) Cri LJ 140), wherein Justice Madholkar, while concurring with the majority view, has in paragraph 18 described the procedure for investigation. The above referred view has been reiterated by the Supreme Court in the case of State of Haryana v. Ch. Bhajanlal reported in (1990) 4 JT (SC) 650 (at page 676): (1992 Cri LJ 527 at p. 547-48). There are yet two more judgments of the Supreme Court on which reliance is placed by Mr. Panchal these are rendered in the case of Union of India v. Sushil Kumar Modi reported in (1997) 1 JT (SC) 679 : (1997 AIR SCW 69), and in the case of Vineet Narayan v. Union of India (1996) 1 JT (SC) 708 : (AIR 1996 SC 3386), and writ petition (civil) No. 6407 95 Anukul Chandra Pradhan v. Union of India (1986) 9 JT (SC) 546, and in particular, to the observations made therein that
...It has to be borne in mind that the purpose of these proceedings is essentially to ensure performance of statutory duty by the Government agencies in accordance with law for the proper implementation of the rule of law. To achieve the object, a fair, honest and expeditious investigation into every reasonable accusation against each and every person reasonably suspected of involvement in the alleged offences, has to be made strictly in accordance with law.
Mr. Panchal has also drawn our attention to the observations in the case of Vineet Narain's case (AIR 1996 SC 3386) (supra), wherein in para 3 it has been held as under :
3. The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this court to ensure that all Government agencies entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law be you ever so high, the law is above you. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of the person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.
(Emphasis supplied by this Court).
26. Bearing in mind the aforesaid discussion in the light of various Supreme Court decisions, to ensure that the officers of ACB perform their statutory duties quite in conformity with the provisions contained in the Corruption Act, we exercising our inherent powers direct ACB to follow the law laid down by Parliament disregarding in the first instance, all the circulars issued by the Government clipping its wings or putting fetters upon its statutory powers, and in the second instance cases withdrawn by the Government which are in conflict with the provisions of the Corruption Act, and proceed ahead according to law as if no orders of withdrawal are passed.
27. The duty of High Court as a Constitutional Functionary The startting facts which alarm all sensible and civilized concerned wherein the law enforcing agency which is expected to respect, stand-by, enforce and uphold the mandate of law, when is found to be illegally twisting the hands of statutory functionaries discharging their lawful duty, in the process ultimately back-stabbing the Legislature by passing some convenient illegal circulars, resolutions and orders withdrawing cases from the court holding parallel inquiry and on the basis of the same nullifying the investigation, sanction etc. etc., as found in the instant case, in substance making serious inroads, abridging the statutory powers and duties of the functionaries under the Corruption Act, sabotaging the same granting pardon rather pretrial discharge to the accused booked under the Corruption Act, is simply too shocking and disturbing raising the most material question as to what indeed needs to be done, and accordingly can be done to slop this onslought of rot in the public administration, and should be done at once, to immediately arrest this fast developing cancerous, illegal and unauthorized modus operandi of sabotaging the law by none else than high Government Officers shamelessly putting the "Law" and "Rule of law" in their pockets ! Quite surprisingly, taking umbrage against the law abiding, enforcing Director, ACB !! But for the judgment of this court in case of the State of Gujarat v. M.M. Damor, (1996 (37) 3 Guj LR 620) (supra) and pursuant to the same, ultimate quick back response by Mr. Joseph, the Director, ACB, what was passing within the four corners and behind the iron curtain of the secretariat would not have perhaps seen the light of the day, to come to the notice of this court and through it to the people of State !! Thus, the instant case raises the curtain and unveils the mask behind it of the most ugly face of the public administration wherein person accused of corruption have been tried to be screened under one pretext or the other ridiculing the law and the ACB, Gujarat State Under the circumstances, the question that arises is Is any officer or for that purpose minister howsoever high he is is above Law Of course No. In this view of the matter, we strongly feel that some devise is required to be found out by virtue of which in the first instance, the back-stabbing of the Legislature can be controlled and stopped; and in the second instance, the gross misconduct of the big officers could be exposed and booked under some criminal law, departmentally proceeded with to save the system of 'Rule of Law' being eroded in the country. This takes us accordingly to our last and the most important question raised at the top as to what is the duty of the High Court as constitutional functionary when it finds that the sanctioning authority or for that purpose even the highest officer in the Government has misconducted himself in sidelining and disregarding the mandate of law, the case law as pronounced by the High Court and/or the apex court, to save, protect the "Law", "Rule of Law" and ultimately "democracy" from the alleged mal-practices and misconduct in future. ln this regard we are firmly of the opinion that it can never be disputed that the. High Court Judges being the constitutional functionaries, they are and the law enacted by the Parliament and to take all possible steps to protect them from the infringement of the same, disrespecting, dishonoring the same. If the "Law" and "Rule of Law" are not protected, and permitted to be trounced having so brought to our notice, it means that we do not want a civilized culture, and once the civilized culture is lost, the net result would be chaos, disorder and anarchy, where might would be right and there would be a "Rule of Jungle" ney the "Rule of some dishonest politicians and corrupt bureaucrats" replacing the "Rule of Law". Under the circumstances, if we as a Constitutional functionaries allow the lawlessness of the type in the present case, committed by concerned higher ups in the Government, it means in other words we ourselves signing death warrant of our own powers nay the Constitution! Let there be no mistake in understanding that the Constitutional powers of the High Court and Rule of Law is nvariably and instrincally one and the same either both coexist or face co-destruction. In fact, for this purpose, the first duty of ours is to give direction with a view to see that some such things do not happen in future to the greatest prejudice of the relevant "law" and the "Rule of Law". Thereafter whenever the concerned public servants are found violating, disrespecting the law enacted by the Legislature in defiance of the "Rule of Law", rather disregarding the law itself wholly, then there is one Act known as "All India Services Act, 1951", under which departmental action should be taken against them. For this purpose, there are certain Rules such as (1) All India Services (Conduct) Rules, 1968 (for short "Rules of 1968"); and (2) All India Services (Discipline and Appeal) Rules, 1969 (for short "Rules of 1969") which can take care of the situation and accordingly, it shall be the duty in the first place of the Vigilance Commissioner, and in the sccond placc of the Chief Secretary to see that these statutory provisions are strictly honoured and complied with to be enforced. Rule 3 of the Rules of 1968 is very important, which reads as under :
Section 3: General (1) Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service.
(2) Every member of the Service shall take all possible steps to ensure integrity of and devotion to duty by all Government servants for the time being under his control and authority.
(2-A) Every member of the service shall in the discharge of his duties act in a courteous manner and shall not adopt dilatory tactics in his dealings with the publicc or otherwise.
(3) No member of the service shall in the performance of his official duties or in exercise of powers conferred on him act otherwise than in his own best judgment to be true and correct xcept when he is acting under the direction of his official superiors.
(I) A member of the service who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of sub-rule (1);
(II) Nothing in clause (i) of sub-rule (3) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution powers and responsibility.
This Conduct Rules of 1968 clearly brings within its fold the misconduct like the one committed in the present case. Once this misconduct and the lack of devotion of duty is prima facie established, the State is bound to turn to the Rules of 1969, wherein Rule 3 in the first instance provides for suspension and Rule 6 thereof provides for penalties which are minor penalties and major penalties. Depending upon the gravity and seriousness of the offence, minor and major penalties can be awarded. What we find here in the instant case is not only the lack of devotion, integrity and misconduct on the part of the concerned public servants, rather to put it positively and more emphatically, it is back stabbing and violating the "Law of Land" enacted by the Parliament, gross act of indiscipline which is far more serious and aggravated form of gross misconduct. Todelay or not to grant or to withdraw the sanction and withdraw the cases duly sanctioned clearly falls within the purview of the major penalties, and accordingly the appropriate orders are required to be passed against the concerned officers. This we hereby specifically bring to the notice of the Governor, Chief Minister, all the Ministers. Chief Secretary and Vigilance earliest on or before 31st May 1997 and report the compliance of the same to this Court. We make it clear that if such similar misconduct is either reported afresh or otherwise comes to the notice of the court and the Government does not take appropriate actions then the authority responsible directed to take action, shall stand answerable to the High Court for which the court may pass appropriate orders at the relevant time. For this purpose, if the Chief Secretary is in need of any material as to who are those concerned officers. he shall collect the necessary information from the petitioner Copy of this judgment, directions given to the Chief Secretary and the ultimate orders passed by the Chief Secretary against the concerned officer shall be kept in the confidential file of the concerned officers including the Home Secretary, and the compliance of the same be intimated to this court. This we deem it absolutely necessary otherwise, there is indeed no other guarantee in the first place to deter higher officers playing foul with "Law" and "Rule of Law" and in the second place, deter other higher ups possessing similar modus operandi to play foul with "Law" and "Rule of Law". Over and above the departmental action the concerned deliquent should also be prosecuted under Sections 186 and 120-B of the I.P. Code. The Director, ACB shall see to it that appropriate action as directed above are taken by the Government against the concerned officer and report back to this Court the action taken by the Government.
28. Duty of the other Constitutional Functionaries
In fact, it is equally the duty of the other constitutional functionaries as well like the Governor, Chief Minister and also other Ministers to look into the files of the subordinate officers, when informed, to find out whether any officer is trying to sabotage the statute by forestalling the sanction or withdrawing the sanction already granted under Section 19 of the Corruption Act or in any cases withdrawing cases from the Court. In particular, Chief Minister and Home Minister cannot be permitted to plead ignorance about the gross abuse of power and illegal orders and action of subordinate officers in this regard.
29. Duty of the Vigilance Commission : In fact it is also the duty of the Vigilance Commission to find out the defaults committed by the concerned competent authority back-stabbing the statute like the one in the instant case and to act accordingly including pointing out to the Government to take departmental proceedings against the concerned officers. For the reasons as already stated above, to protect, save and screen the accused under the Corruption Act is far more and serious corruption where he can be joined as a conspirator alongwith main accused applying Section 120-B of the I.P. Code. Cases wherein according to the Vigilance Commission on basis of the material before it, particular person was required to be prosecuted under the Corruption law, then in that case, no officer of the Government howsoever high he is he can be permitted to delay or apply brake to the prosecution by not granting sanction or withdrawing the case. This is perhaps the only and effective way to eradicate the cancerous tendency to abuse, ridicule law of the land and the corruption and this is perhaps the reason why by virtue of report of Santhnam Committee, the Vigilance Commission came into existence to maintain vigilance on the departmental heads. Not to act in the spirit and manner suggested by this Court can also amount to misconduct on the part of both the Vigilance Commissioner and the Director, Anti-Corruption Bureau and or for that purpose any other officers who tries to save accused booked under the Corruption Act. In this regard, whenever such defaults are noticed, it is equally the duty of the Director, ACB to bring it to the notice of the Vigilance Commission, and the Vigilance Commission also in its turn if it fails to do the needful to protect the Corruption Act, that also can amount to misconduct on his part also. We hope and trust that all Government Officers as expected will rise to the occasion like the one Mr. Joseph, Director of ACB has done in the instant case to keep the torch of "Rule of Law" lighted.
30. Duty of the Director. ACB : - The petitioner Mr. Joseph and for that purpose any other Director, ACB successor in his office in future, shall carefully study this judgment and on the basis of same directions given herein above, prepare "ACB Departmental Manual" within the frame work of Corruption Act, as to show way to the members of the department how effectively and efficiently Corruption Act should be implemented. This Manual shall contain in the first part Prevention of Corruption Act, 1988, in the second part, it shall contain all Circulars, Notifications, issued, in the third part, it shall contain all material guidelines given on the pages of this judgment including the duty of Director, ACB to approach court in cases wherein "Rule of Law" is violated by some illegal orders like the one passed in the instant case and in the fourth part, instructions the Raiding Officers and the public prosecutors conducting the cases in the Court. This shall be done within four weeks from the date of receipt of this judgment, supplying two copies of the same for our perusal.
31. In view of the aforesaid discussion, it is indeed clear that the Government Resolutions, Circulars, other instructions and orders can not override the statutory provisions under the Corruption Act, nor can they be issued in contravention of the statutory provisions. There is no manner of doubt that the ACB is under a duty cast upon it by the said Act, to expeditiously investigate into every aspect against each and every person reasonably suspected of the involvement in offences, more particularly under Sections 7 & 13 of the Corruption Act and therefore the investigation has to be made by the ACB in accordance with the provisions of the said Act, without being in any manner influenced by the position and status of the person, accused of an offence, and also keeping in mind the observations by Lord Denning, as referred to hereinabove and also keeping in mind the basic tenet of the rule of law "Be you ever so high, the law is above you". We are in complete agreement with Mr. Panchal that there is no requirement in Section 17 for taking prior approval of the State Government or of the vigilance commission for investigation/ inquiry. Under Section 19 of the Corruption Act, it is only the competent authority which could accord sanction and the Vigilance Commission has indeed no business to intermeddle with the statutory powers of the competent authority under the clever disguise of 'Advice'. Further the Government circulars at Annexure-G, and Annexure-H, being quite opposed to the provisions of the said Act, are therefore quashed and set aside and whatever fetters are placed on statutory powers of the Investigating agency to investigate the case is hereby declared ultra vires and stand removed. The investigating agency is expected to respect and observe the mandate of law only and not any orders that may be indiscreetly passed which have no backing of law.
32. Answers to the Questions Raised at the Top : -
32.1 Qua question No. 1, it is declared that to the extent para-4 of the Vigilance Manual is in direct conflict with the statutory provisions viz. Sections 7, 13, 17 and 19 of the Corruption Act, the same stands ultra-vires, and accordingly, null and void. We also hold that the Vigilance Commission or for that purpose, the Government has indeed no business whatsoever to interfere with the power of the statutory functionaries even in self styled advisory capacity. We make it further clear that so far as the jurisdiction and powers of the Vigilance Commission is concerned, keeping aside the statutory powers under the Act, with which it is in conflict, rest of the powers are saved, that is to say, when on complaint, private rwise. the grievance is voiced before it regarding corruption against the public servant the Vigilance Commission shall do the needful as provided in para-4 by taking all necessary steps by calling for records from various departments, forwarding the same to the ACB to investigate the case file complaint, obtain sanction and thereafter filing the chargesheet. But once having gone to the extent of forwarding the papers to the ACB, thereafter there is no question of Vigilance Commission retaining its right to receive back papers insisting upon the ACB to forward the same. The rest of the things to be done strictly lies within the statutory powers of the Investigating Agency acting under the Corruption Act. If prima facie offence under the Corruption Act is detected, the investigating agency shall do the needful by obtaining necessary sanction from competent authority, filing the chargesheet, sending the acused for trial before the Special Court, etc. etc. for this it is not expected to take-advice or nod from the Vigilance Commission.
32.2 Qua question No. 2, once the proposal to grant sanction under Section 19 of the Corruption Act is forwarded by the Investigating Agency to the competent authorities then to delay the same in passing appropriate order beyond the period of two months amounts to lack of devotion to duty on his part in absence of just and proper explanation for which he is liable to not only departmentally proceeded with, but also for the contempt of this Court for disregarding the direction given by this Court in case of State of Gujarat v. M.M. Damor(1996 (37) 3 Guj LR620) (supra).
32.3 Qua question No. 3, it is declared that once the sanction is duly accorded by the competent authority under Section 19 of the Act, neither the Vigilance Commission nor for that purpose any other department of the State Government has any right, power whatsoever to direct the sanctioning authority eitherto reconsider or withdraw or in any other way ultimately directing it to withdraw the prosecution from the Court, Once the sanction is granted, and if for whatever reasons it is invalid because the requisites of the valid sanction are not satisfied or are suffering from patent vice of non-application of mind in other words facts alleged did not constitute any offence, then it is for the accused to satisfy the court and get it declared invalid if it is ultimately found to be so. After the commencement of the investigation under the Corruption Act and in the process after obtaining sanction to prosecute, filing chargesheet before the Court, Government has no powers to question sanction and chargesheeting the accused, except accused challenging the same before the Court and getting judicial verdict on the point, if permitted. The reason is there is no such provision in the Corruption Act where by virtue of which sanction can be delayed, withdrawn, even cases withdrawn from the Court and at the same time the accused is also not rendered remediless because he can raise several points including validity of sanction before the Court on the ground of non-application of mind, viz. facts alleged in the complaint did not constitute any offence under the Corruption Act, etc. etc.. We hold that the competent authority once having accorded the sanction, he has no business to withdraw the same as it is contrary to the law. It is also declared that regarding withdrawal of the prosecution, that also is beyond the power of the State Government, howsoever high the authority is. Once the appropriate authority grants the sanction, then necessary course which has to be followed is filing of the chargesheet and thereafter things has to be left to the Court to hear and decide the case as expeditiously as possible bearing in mind our observations and directions given in the case of State of Gujarat v. M.M. Damore, (1996 (37) Guj LR 620) (supra). Once.the charsheet is filed, there is no question whatsoever of the Government to reconsider the things by entrusting the matter to other body to inquire afresh with a view to reconsider their earlier stand. Any such step to order inquiry by the government in a case duly investigated by the Investigating Agency amounts to doubting the very honesty and integrity of the said Investigating Agency under the Corruption Act. It is not open to the State to interfere with the investigating agency acting under the provisions of the Corruption Act. Withdrawal of cases under Corruption Act and/or directing further inquiry about the sanction already granted by the competent authority is questioning the bona fide and the integrity of the investigating agency working under the Corruption Act is abuse of power. This is nothing else and nothing less than the direct affront on the statutory provisions enacted by the Parliament. This is absolutely against the "Rule of Law". In a given gross case where serious allegations are made against the concerned Investing Agency and some material collected then even no final decision shall be taken by the Government unless getting declaration from the Court that the Investigation carried out by the investigating agency was illegal, mala fide and colourable exercise of power.
32.4 Qua question No. 4, the circular dated 13-6-1986 issued by the State Government revoking the earlier Circular dated 31-5-1985 putting fetters on the statutory powers of the Investigating Agency under Section 17 of the Corruption Act is ultra vires and are accordingly quashed and set-aside.
32.5 Qua question No. 5 - the charge levelled against by the Government that though Mr. Joseph, Director, ACB is a part and parcel of the Government and accordingly he had no business to confront the Government, we hold that this charge is absolutely unfounded. If the right thinking, conscientious, law-abiding, responsible public servant discharges his public duty by going to the court, more particularly at the instance of this court's observation, directions to protect the "Law" and "Rule of Law" by pointing out to the Court gross irregularities and illegalities committed by higher ups, it can never be said that he has committed any wrong. In fact had Mr. Joseph not brought to our notice the patent illegalities in matter of delay in granting sanctions (despite reminder) and withdrawal of cases wherein sanction was already granted in the matter of corruption cases, then Mr. Joseph would have been held liable and answerable to this Court for not discharging his public duty seeing before his own eyes "Rule of Law" stripped nacked. What Mr. Joseph has done is he has ultimately tried to uphold the overall integrity and respect of "Law" and "Rule of Law" and responded to the Court's directions to lake care of the pathetic condition in the matter of granting and withdrawal of the sanction by the Government and the competent authority. He was not supposed to be a mute helpless spectator, dancing at the wrong tunes of the Home Department, at the cost of "Rule of Law" thrown to the winds, ignoring altogether the anxiety of the Parliament which came out by enacting a special Act, like Corruption Act to eradicate the corruption which has kept the country miles away from enjoying the fruits of independence and promises of the Constitution. Not only that, but by enacting therein a special deeming fiction viz., the statutory presumption against the accused till he proves himself to be innocent. In such type of cases when a public servant goes to the Court, the Court is bound to protect him from all possible victimizations and ot only that but he deserves a pat and appreciation to medal his honesty, efficiency and clean administration. Whatever Mr. Joseph has done in the present case is he has discharged the duty in which the State, the public or the community at large has an interest. Its the foremost duty of every citizen to protect law, Constitution and Rule of Law and the public servant - the law enforcing agency altogether owes much more to uphold the same by approaching the Court in the event of their flagrant violations !! We very much expect the State also to appreciate the bold stand of petitioner Mr. Joseph without identifying itself with the stand taken by Secretary. Home, and give him full and free hand to proceed ahead with all corruption cases regarding which the reference is made in this judgment and other cases also without clipping his wings in any manner making him quite helpless, placing him in uncomfortable corner and an embarrassing position. The Chief Secretary shall take care of this observation of the Court
32.6 Qua question No. 6, it is hereby held that if it is ultimately found that the concerned High Officer in the Government or for that purpose even the sanctioning authority has misconducted himself in disregarding the mandate of the law, and the case law as decided by High Court and/or the Apex Court then in that case he shall be liable, in the first instance, to be departmentally dealt with under the provisions of All India Services Act, 1951 and the various rules made thereunder namely, Ail India Services (Conduct) Rules, 1968 and All India Services (Discipline & Appeals) Rules, 1969, in the second instance, also liable for the criminal prosecution under Section 186 and 120-B of IPC, and in the third instance, liable to contempt proceeding; as observed by us in the case of State of Gujarat v. M.M. Damore, (1996 (37) 3 Guj LR 620) (supra). We make it clear that so far as the delay in granting sanction, except in case of 1988, we give only warning and do not propose any contempt proceedings against them. BUT THEN, so far as the withdrawal of prosecution is concerned, concern officers who are involved in the process of illegal withdrawal, the State for that purpose through the Chief Secretary, shall take immediate necessary departmental and criminal proceedings against them within five weeks from the pronouncement of this judgment. Both the Chief Secretary and Director, ACB Mr. Joseph shall inform the Court regarding the compliance of this direction on or before 5th May, 1997. It shall be the duty of the Director, ACB to see that the mandate given, by the Court is duly complied with at the earliest and in the event of non-compliance to report back to this Court, placing full details about the default committed by the concerned higher-ups. Any inaction in this regards by the Director, ACB shall be liable to explanation and the Contempt proceedings by this Court.
33. While parting, it is necessary to observe that looking to the diametrically opposed stand taken by the petitioner Mr. Joseph on the one hand and the Home Secretary, on the other hand, in very nature of things the possibility can not be ruled out of some personality clash. May be, may not be. But as a sequel to this petition; which was positively at the instance of the Court, nothing should happen and should disturb the cordial relations between the Home Department and the Directorate of ACB and that Mr. Joseph shall have a full term efficiently further discharging his lawful duty without feeling of his wings being clipped by the Home Department prejudicially affecting otherwise smooth and efficient running of the ACB Administration putting him in embarrassing situation, in otherwords overall public interest involved. It is therefore in the public interest directed that Mr. Joseph be continued as Director, ACB till he completes his normal tenure of three years in ACB, and it is further directed that his concurrence as Director ACB is obtained before effecting transfer of any of the officers subordinate to him, in and out of the ACB Directorate. It is hardly required to be mentioned even that the State is always and undoubtedly interested in smooth, better-best running of the Public Administrtion, wherein the laws enacted by the Parliament and the Legislative Assembly are strictly enforced and accordingly it goes without saying that it shall take due care of the observations made and directions given on the pages of this judgment. Looking to the nature of Resolutions/circulars/ orders passed making serious in-roads on the statutory powers of the sanctioning authority and investigating agency under the Corruption Act and for that purpose the powers of the Director. ACB, which is a painful prick and a thorn in flash of "Rule of Law" we hope that henceforth no such Circulars/ Resolutions/Orders, etc. etc. would be passed which may have ultimate unnecessary effect of clipping the wings of the Director ACB discharging his lawful duties. Despite these instructions if any such illegal circulars/ resolutions/order etc. are passed and taking actions pursuant thereto affecting the lawful discretion of the Director, ACB, then not only the Director, ACB would be at liberty to bring it to the notice of this Court which can be taken proper care-of and corrected, but it shall also be his duty to point out the mischief done at whose instance naming the concern public servant, aimed at frustrating and sidelining the "Rule of Law". Taking into consideration the facts and circumstances of the case, as far as dealing of Home Department with the Directorate of ACB is concerned, the Chief. Secretary shall see to it that either the Home Secretary is changed or he himself or other Additional Chief Secretaries deal with the same.
34. People's Right to Information :-
The transperancy. social orientation and public accountability in the Government administration is the peoples' precious right to information : With a view to see that concerned public servant takes a prompt decision in corruption matters, and for that purpose in any other matter of the public importance, the list of those black-sheep who delay and sometimes withdraw the sanction and even withdraw the Corruption cases form the Court shall be not only placed on the Floor of the Legislative Assembly immediately on its next meeting but the copy of it shall also be circulated in the first instance to all the Members of Legislative Assembly and the Parliament and in the second instance, to all Editors of the press for being published as news item in the prominent daily newspapers. This shall have to be done otherwise there is indeed no guarantee, safety, no way to screen and watch the secret chamber, under-table illegal actions/orders passed by some of the thoroughly hopeless public servants who are sin and burden on the public exchequer. There is no question of any privilege or confidentiality involved in complying this direction. This has got to be done with a view to see that the public administration is kept clean, transparent, honest, efficient and accountable, visible enough to be seen by the public at large so that in a given case, there is no custodial death of "Law" and "Rule of Law" in chamber of higher-ups and in case if it unfortunately happens anybody who wants to take account of the same for follow up necessary legal action, he knows what is going on inside and do whatever he wants to save the situation. Citizens Tax payers are the pay masters of the public servants, and accordingly, they have an unquestionable right to better, efficient administration and also a right to question corrupt. inefficient and dishonest officers from the Government. For fulfilment of this precious right, they are entitled to information and for this, there is indeed no other way than to call them to diret the Government to place them on the floor of Assembly. This is how the sagacious saying viz., 'Eternal Vigilance is the price of democracy' can be meaningfully and effectively implemented to be lived worthily to save democracy in other words the "Rule of Law". We are constrained to give this prescription from the experience we have in the instant case. Had indeed Mr. Joseph not been bold enough to expose behind the certain prima-facie criminalities, the same would have jiist remained unexposed with all impunities to the greatest disadvantage to the 'Rule of Law" and "just and fair public administration.
35. Further still, taking into consideration the corruption virus gripping many parts of the country, with an overall view to vouch-safe, and protect' the further of 'Democracy' - Rule of Law" and 'the Rights and privileges of the citizens promised in the Constitution' from being by chance even victimized and destroyed on the grounds of much alleged nexus and conspiracy between some handful of unscrupulous power hungry or honest but simpleton politicians and some timid and gutsless or corrupt bureaucrats and the criminals, we feel that much exploited myth of "Rule of Business" often abused and taken convenient shelter needs to be atonce clarified by drawing the power-line 'Laxman Rekha' between lawful and unlawful exercise of powers. We are indeed sure that no right thinking, honest, law abiding straightforward conscientious bureaucrats, and for that purpose, even public service oriented, committed to constitution and Justice, politicians, elected representatives of the people, will ever have any objection to the just and general observations made in the overall public interest and guidelines given hereinabove on the pages of this judgment in the interest of the "Rule of Law" & "Justice.
36. In the result, this Misc. Criminal Application is allowed in the light of the directions and guidelines given in this judgment.
36.1 COST : It may not be out of place to mention here that these proceedings have arisen out of the letter dated 20-1 -1997 addressed by Mr. Joseph to the Registrar of this Court. The said letter has been treated as Misc. Criminal Application treating Mr. Joseph as the petitioner. Mr. Joseph was directed to assist the Court and he has appeared through his learned advocate Mr. Amit Panchal. While appearing before us Mr. Joseph has produced relevant record pertaining to this matter, and must have incurred expenses by way of advocate fees and other incidental expenses. In this view of the matter, Mr. Joseph deserves to be awarded costs, and the cost is quantified at Rs. 10,000/-. The State Government is accordingly directed to award the cost of Rs.10,000/- to Mr. Joseph on or before 1 -5-1997.
36.2 Taking into consideration extremely serious allegations where in the Home Department illegally withdrew several cases under the Corruption Act from being tried by the Court, specifically mentioned above, we hereby direct the Director, Central Bureau of Investigation, New Delhi to thoroughly investigate all these cases and others that may be pointed out by Mr. Joseph through the senior most responsible officer, unearthing the grass root causes for the same and connecting the personalities, howsoever high they may be prima facie involved in the said cases, perusing the contemporaneous records lying in the Offices of the Home Department, Vigilance Commission and the Directorate of Anti-Corruption Bureau or wherever it is and going to the logical end. The Director, CBI shall also submit report of this investigation to be placed before this Court (Coram : K.J. Vaidya & D.G. Karia, JJ.) on or before 15th June, 1997. The concerned officer shall remain present on that day.
37. The Registrar is directed to immediately forward a copy of this judgment to (i) The Prime Minister of India, New Delhi : (ii) The Chief Minister of Gujarat State, Gandhinagar, (iii) Chairperson, Law Commission, New Delhi; (iv) Chief Secretary to the Government of Gujarat. Gandhinagar; (v) The Secretary Legal Department, Government of Gujarat, Gandhinagar with a direction to Immediately circulate copy of this judgment and order to all the IPS & IAS Officers of the State; reporting back compliance of the same on or before 5th May, 1997; (vi) Director, Anti-Corruption Bureau; and (v) Director of Central Bureau of Investigation, New Delhi. For this purpose, a copy shall atonce be delivered to senior most officer of the CBI stationed at Ahmedabad, with a direction to forward the same to the Director, CBI at New Delhi.
38. At this stage, Mr. Shelat requested this Court to stay the execution and implementation of this judgment, as the State Government desires to challenge the same in the Supreme Court. It is indeed a right of the State Government to challenge our order in the Supreme Court. We have nothing to say in this regard but at the sametime, it is indeed not possible to accede to the request of Mr. Shelat as ex facie this is not that case where the respondent is entitled to have any say. In the instant case, the petition was filed at our instance (i.e. letter dated 20-1-1997 addressed by Mr. Joseph was treated as Misc. criminal Application) with a view to protect 'Rule of Law'. The ACB is also part and parcel of the State Government. What the petitioner Mr. Joseph has done, is he has discharged public duty as an officer of the State. In this view of the matter, we do not see any valid reason to stay the directions and orders passed in this judgment. Further still, if the State challenges this judgment before the Supreme Court, then in that case, in the interests of justice. Mr. Joseph, who in fact has discharged public duty, deserves to be permitted to contest the same before the Supreme Court. Going to the Supreme Court, obviously, means spending huge amount by way of engaging counsel and other incidental expenses. Having regard to the peculiar facts and circumstances of the case, the State shall give ail the necessary facilities and financial assistance to Mr. Joseph to put up his case before the Supreme Court at New Delhi.
39. The office is directed to give a certified copy of this judgment free of costs to both Mr. Joseph as well as the respondents herein today only.