1. When prior sanction is a condition precedent for instituting any legal proceeding, whether the direction issued to take action against the Accused would itself amount to sanction to prosecute? If not, whether the prosecution can be permitted to continue, in the absence of any sanction for prosecution, are the issues arising for consideration.
2. The Petitioner is the Accused facing trial in respect of the offence under Section 6 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (hereinafter will be referred as ‘Emblem Act’). The organization under the name ‘Bureau of Parliamentary Work’, which gave an impression that the said organization enjoys the patronage of Government.
3. The Accused filed an Application before the Trial Court under Section 251, Cr.P.C, praying for discharge.
4. In the Petition, it was stated that no sanction was obtained for the prosecution as contemplated under the Emblem Act and therefore, he must be discharged. The Petition was dismissed on the ground that the direction issued by the Senior Economic Adviser for Government of India to the Chief Secretary of Government of Tamil Nadu to investigate the matter and to take action, would amount to sanction. This Order is under challenge in this Revision Petition.
5. Under Section 6 of the Emblems and Names (Prevention of Improper Use) Act, 1950, no prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any Officer authorized in this behalf by General or Special Order of the Central Government. Therefore, in order to maintain prosecution, it must be shown that sanction to prosecute was obtained from the Central Government or from any Officer authorized by the Central Government.
5.1 It is the contention of the Accused that it is only the Secretary, Department of Consumer Affairs, New Delhi, is the Competent Authority to grant sanction and not the Senior Economic Adviser, Ministry of Consumer Affairs. Even assuming that the Senior Economic Adviser is the Sanctioning Authority, the Order issued directing the Government of Tamil Nadu to take action would not amount to sanction to prosecute is the second contention.
5.2 The records produced on the side of the Accused, procured using the provisions of Right to Information Act, go to show positively that it is only the Secretary, Department of Consumer Affairs, New Delhi, who has been designated to issue sanction for prosecution and that the Senior Economic Adviser, Ministry of Consumer Affairs, is not the Sanctioning Authority. Therefore, it is clear that sanction for prosecution has not been given by the Competent Authority.
6. The next question is whether the alleged communication issued by Senior Economic Adviser to Government of India would amount to sanction. The communication issued by the Senior Economic Adviser is only a direction to take action and not a sanction to prosecute. Therefore, the contention that this communication itself would amount to grant of sanction is not correct. When the Senior Economic Adviser is not competent to issue sanction, the proceedings issued by him is not valid.
7. The learned Counsel for the Revision Petitioner relied upon the following two decisions, in order to support the proposition that the prosecution initiated without sanction is void and the Court has no jurisdiction to proceed with the matter:
1. Nagaraj v. State of Mysore, AIR 1964 SC 269:
“18. The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it i.e whether the Court should discharge the Accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal Order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of Section 132 of the Code then he is at liberty to reject the Complaint holding that it is barred by that Section. We consider this to be the right Order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the Accused. In fact no such order can be passed. If Section 132 applies, the Compliant could not have been instituted without the sanction of the Government and the proceedings on a Complaint so instituted would be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the Complaint is rejected.”
2. General Officer Commanding v. CBI, 2012 (3) MLJ (Cr.) 380:
“The provision of Section 7 of the Armed Forces Act, 1990 prohibits institution of legal proceeding against any Army personnel without prior sanction of the Central Government and charge-sheet cannot be instituted without prior sanction of the Central Government as prior sanction is a condition precedent before institution of any legal proceeding.”
8. These two decisions clearly show that when obtaining sanction is a pre-condition to institute prosecution, the prosecution is not maintainable in the absence of sanction. In this case also, it is not proved that sanction has been obtained for prosecution. Hence, the order of the lower Court refusing to discharge the Accused is set aside.
9. In the result, the Criminal Revision Case is allowed. The proceedings against the Accused are dropped. Consequently, connected M.P No. 1 of 2012 is closed.