MANSUKHLAL VITHALDAS CHAUHAN versus STATE OF GUJARAT

Citation: [1997] SUPP. 3 S.C.R. 705 · Decided: 03-09-1997 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

MANSUKHLAL VITHALDAS CHAUHAN 
A 
v. 
STATE OF GUJARAT 
SEPTEMBER 3, 1997 
B 
[M.K. MUKHERJEE AND S. SAGHIR AHMED, JJ.) 
Prevention of Corporation Act, 1947-Ss. 5(2 ), 6-Sanct!on for prosecu-
tio!Hndependent application of mind by sanctioning authority based on 
material and evidence collected during investigation necessary-The section C 
while prohibiting Courts from taking cognizance gives discretion to the con-
cerned Govt./authority for sanctioning prosecution-Mandamus directing the 
concerned authority to grant sanction takes away the discretion of the authority 
and robs the appellant of a right to a fair trial-Order void ab initio-However, 
matter not remitted for reconsideration due to lapse of time-Scheme of the 
Statue guides in deciding whether the duty under the Statute is mandatory or D 
directory-Indian Penal Code-Sections 21(12), 161 & S. 197. 
M/s. K, a contracting firm reported to the concerned authority that 
the Appellant was demanding Rs. 20,000. A trap was then laid by treating 
currency notes with anthrancene powder. Later the appellant was ex-
E 
amined and it was found that he had powder traces on his hands and also 
on the currency notes given to him. So further investigation was carried 
out, The Appellant made an application to the Home Minister to hand over 
the investigation to an independent officer which was accepted. The fresh 
report also found the Appellant guilty and so the Secretary, Vigilance 
Commission, Gujarat, wrote to the Government to grant sanction for 
prosecution of the appellant. Since the sanction was delayed, M/s. K filed 
F 
a Writ Petition in the High Court to diretct the Govt. to sanction prosecu-
tion of the Appellant. The High Court made the Secretary of the depart-
ment a party and directed him to sanction prosecution within one month 
from the date of the order. Based on this order of the High Court, sanction G 
was given and the appellant was prosecuted. 
The Appellant submitted, before this Court, inter alia, that there was 
no application of mind by the concerned authority while granting the 
sanction for prosecution. 
705 
H 
706 
SUPREME C~URTREPORTS [1997] SUPP. 3 S.C.R. 
A 
Allowing the Appeal, this Court 
Held : 1. By issuing a direction to the Secretary to grant sanction, 
the High Court closed all other alternatives to the Secretary and compelled 
him to proceed only in one direction and to act only in one way, namely, 
B to sanction the prosecution of the appellant. The secretary was not allowed 
to consider whether it would be feasible to prosecute the appellant; whether 
the complaint of illegal gratification which was sought to be supported by 
'trap' was false and whether the prosecution would be vexatio'us particular-
ly as it was in the knowledge of the Goyt. that the firm had been black-listed 
once and there was demand for some ar•10nnt to be paid by the firm in 
C connection with t.his contract. The discretion not to sanction the prosecu-
tion was taken away by the High Court. The High Court assumed the role 
of the sanctioning authority, considered the whole matter, formed an 
opinion that it was a fit case in which sanction should be granted and 
because it itself could not grant sanction under sectio_n 6 of the Act, it 
D directed the Secretary to sanction the prosecution so that the sanction 
order may be treated to be an order passed by the Secretary and not that 
of the High Court. This is a classic case where a Brand name is changed 
to give a new colour to the package without changing the contents thereof. 
In these circumstances, the sanction order cannot but be held to be wholly 
erroneous having been passed mechanically at the instance of the High 
E 
Court. [720-G-H, 721-A-D] 
The Vice Chancellor, Utkal University and Ors. v. S.K Ghosh and Ors., 
[1954) SCR 883 = AIR (1954) SC 217; Tata Cellular v. Union of India, 
AIR (1996) SC 11 = [1994) 6 SCC 651; Sterling Computers Ltd. v. M/s. M 
p & N Publications Ltd. and Ors., AIR (1996) SC 51 = [1993) 1 SCR 81 = 
[1993) 1 SCC 445 and U.P. Financial Corporation v. M/s. Gem Cap (India) 
Pvt. Ltd. and Ors., AIR (1993) SC 1435 = [1993) 2 SCR 149 = [1993) 2 
sec 299, relied on. 
2. Mandamus which is a discretionary remedy under Article 226 of 
G the Constitution is requested to be issued, inter alia, to compel perfor· 
mance of public duties which may be administrative, ministerial or 
statutory in nature. Statutory duty may be either directory or mandatory." 
Statutory duties, if they are int

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