Madras High Court
Selvaraja vs The State Rep By Its, on 23 July, 2026
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.28172 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.07.2026
PRONOUNCED ON : 23.07.2026
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.28172 of 2024
and Crl.M.P.Nos.15664 & 15659 of 2024
P.Selvaraja
S/o. A.Ponnusamy,
No.213/8, Bhuvaneshwari Nagar,
Dharapuram Road,
Unjavelampatti PO,
Pollachi, Coimbatore. ... Petitioner
Vs.
1. The State
Rep. By the Inspector of Police,
Vigilance and Anti-corruption,
Coimbatore District.
(Crime No.08 of 2021)
2. C.Sivaji
S/o.Chinnasamy,
Thalavapalayam Primary Agriculture
Co-operative Credit Society,
Thondamuthur, Anaimalai Taluk,
Coimbatore District. ... Respondents
Prayer: Criminal Original Petition filed under Section 528 of Bharatiya
Nagarik Suraksha Sanhita, 2023, to call for records pertaining to the final
report dated 08.03.2024 in Special C.C.3 of 2024 pending on the file fo
the learned Special Judge, Special Court, dated 08.03.2024 for cases
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under the Prevention of Corruption Act and to quash the same by
allowing this Criminal Petition.
For Petitioner : Mr.Abdukumar Rajarathinam,
Senior Counsel
For Mr.Akhil ahmed Akbar Ali
For Respondents
For R1 : Mr.R.Ganesh Kumar
Counsel for Government of Tamilnadu
(Crl.Side)
ORDER
This petition has been filed to quash proceedings in
Spl.C.C.No.3 of 2024 on the file of the learned Special Judge, Special
Court for the cases under the Prevention of Corruption Act, Coimbatore,
thereby taken cognizance for the offences punishable under Sections 7(a),
7(a) r/w. 12 of Prevention of Corruption (Amendment) Act, 2018
(hereinafter referred to as “PC Act”), as against the petitioner.
Facts of the case :-
2. The case of the prosecution is that the accused and the
defacto complainant have been working in different capacities in the
same co-operative society viz., TP SPL, 25 Thalavaipalayam Primary
Agricultural Co-operative Credit Society situated in Thondamuthur,
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Anamalai Taluk, Coimbatore District. While the petitioner was theDeputy Registrar and the second accused was the Sub Registrar of the
Society, the defacto complainant was the Secretary of the credit society
which had been under the supervision of the petitioner.
3. While being so, in the year 2021, the Government of Tamil
Nadu by the G.O.Ms.No.15 and 16 Tamil Nadu Cooperative Food and
Consumer Department dated 08.02.2021, issued an order to waive off the
crop loans availed by the farmers from the co-operative society. Pursuant
to the same, 275 beneficiaries were identified by the defacto complainant
and in the course of verification, an excess amount of Rs.8,00,000/- was
found to be disbursed to 17 farmers without complying with the
procedure. When the issue was raised, the complainant approached the
Joint Registrar of Cooperative Societies to resolve the issue and the Joint
Registrar authorized the sanction of waiver to 17 farmers on 14.02.2021.
4. Thereafter, on 15.02.2021, the petitioner called the defacto
complainant and asked him to meet him in the office along with the list of
approved loans. When the defacto complainant met the petitioner and
appraised him about the issue and informed that the same was resolved
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by the Joint Registrar of cooperative societies, the petitioner threatenedthe defacto complainant stating that he is the one who is authorized to
resolve the discrepancy and also demanded illegal gratification for not
preparing adverse report against the defacto complainant to the higher
officials.
5. Once again, the petitioner contacted the defacto complainant
and directed him to meet him along with the files relating to the17
farmers. Accordingly, on 16.02.2021, the defacto complainant met the
petitioner while he was leaving the office along withthe second accused.
Therefore, the defacto complainant was directed to meet him the next day
at about 10.00 a.m. Accordingly, on 18.02.2021, the defacto complainant
went to the office of the petitioner at 11 am., and met the second accused,
who told the defacto complainant that the petitioner is the competent
person to resolve the issue. Thereafter, the second accused informed the
defacto complainant that the petitioner demanded a sum of Rs.1,25,000/-
for not taking any action against the defacto complainant. Though the
defacto complainant attempted to call the petitioner, he could not make it
and on the next day i.e., on 19.02.2021 at about 9.30 p.m., the second
accused called the defacto complainant and demanded the bribe and
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directed the defacto complainant to prepare the report and to meet the
second accused at Vanjiyapuram Pririvu at 10.00 a.m., on 19.02.2021.
6. Thereafter, the second accused contacted the defacto
complainant and informed that the petitioner asked the defacto
complainant to bring the files of 17 farmers, since the defacto
complainant failed to comply with the demand. When the defacto
complainant met the petitioner, he was informed that the enquiry will be
held against the defacto complainant by appointing the second accused as
Enquiry Officer. Even thereafter, the second accused once again
compelled the defacto complainant to comply with the demand. However,
the defacto complainant was not willing to comply with the demand and
lodged the complaint alleging that the accused are demanding illegal
gratification for not initiating any enquiry against the defacto complainant
under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983.
7. On receipt of the complaint, the first respondent registered
the FIR in Crime No.8 of 2021 for the offences punishable under Section
7(a) r/w Section 12 of the PC Act. Thereafter, the trap laying officer had
set up a trap andthe defacto complainant met the second accused and had
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given the tainted amount to the second accused in the presence of shadow
witnesses at about 7.00 p.m., on 19.02.2021. Thereafter, the accused were
arrested and remanded to judicial custody. After completion of
investigation, the first respondent filed final report and the same has been
taken cognizance by the Trial Court in Spl.C.C.No.03 of 2024.
Challenging the same, the petitioner filed the present petition.
Submissions of the counsel appearing for the petitioner: –
8. The learned Senior Counsel appearing for the petitioner
submits that even according to the case of the prosecution, the petitioner
did not receive any bribe amount and it was only the second accused who
received the bribe amount. The prosecution failed to prove the alleged
demand and as such the entire proceedings cannot be sustained and is
liable to be quashed. The present complaint is nothing but a counter blast
to the enquiry initiated under Section 81 of the Tamil Nadu Co-operative
Act, as against the defacto complainant for the illegality committed by
him for the sanction of excess loan amount to 17 farmers.
8.1. He further submits that the appointing and removing
authority of the petitioner is the government of Tamil Nadu viz., the
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Governor of Tamil Nadu. But, the sanction was notaccorded by the
Governor of Tamil Nadu, under Section 19(1)(b) of the PC Act. The order
of sanction was signed by the Secretary to the Government. The
prosecution recorded the statement of the person who signed the sanction
order under Section 161(3) of Cr.P.C. On perusal of the statement, he had
stated that he is the competent authority to remove the petitioner and
thathe had perused all the documents and had applied his mind while
according the said sanction. He had further stated that on verification of
documents, he was satisfied that the petitioner should be prosecuted in a
Court of law for the offence punishable under Section 7(a) of the PC Act.
Hence, he himself had accorded sanction to prosecute the petitioner
before the Court of Law.
8.2. He also contended that as per the order of sanction dated
18.07.2023, the entire records were perused and it was stated thatthere are
substantial materials very much available to prosecute the petitioner and
on satisfaction with the reasons, the Governor of Tamil Nadu had
accorded sanction to prosecute the petitioner for the offence punishable
under Section 19 of the PC Act. Though it may seem like the Governor of
Tamil Nadu himself had accorded sanction, the Secretary to Government
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had signed the said sanction order. In the usual course of business of
Government, all the government orders passed by the Governor of Tamil
Nadu is signed by the Secretary to the concerned department on behalf of
the Governor of Tamil Nadu. But such a signatory cannot be construed as
the competent authority to appoint or remove the petitionerfrom his post.
But the respondent recorded the statement of the Secretary who signed
the sanction order and as stated previously, the Secretary had spoken as if
he himself had accorded sanction against the accused. Therefore, the
order of sanction itself was not accorded in accordance with law as
contemplated under Section 19(1)(b) of the PC Act. Once the order of
sanction is found not to be accorded in accordance with law, the entire
proceedings subsequent to the order of sanction is vitiated and as such the
entire proceedings is liable to be quashed.
8.3. In support of his contention, he relied upon the judgment of
the Hon’ble Supreme Court of India reported in (2013) 3 SCC 1 in the
case of State of Gujarat &anr., Vs. Justice R.A.Mehta (Retired) &ors.,
which held as follows :-
“41. Thus, where the Governor acts as the Head of the
State, except in relation to areas which are earmarked under
the Constitution as giving discretion to the Governor, the
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exercise of power by him must only be upon the aid and
advice of the Council of Ministers, for the reason that the
Governor being the custodian of all executive and other
powers under various provisions of the Constitution is
required to exercise his formal constitutional powers only
upon and in accordance with the aid and advice of his
Council of Ministers. He is, therefore, bound to act under the
Rules of Business framed under Article 166(3) of the
Constitution. (Vide Pu Myllai Hlychho v. State of Mizoram.)……………………
49. The exceptions carved out in the main clause of
Article 163(1), permit the legislature to entrust certain
functions to the Governor to be performed by him, either in
his discretion, or in consultation with other authorities,
independent of the Council of Ministers. The meaning of the
words “by or under” is well settled. The expression “by an
Act”, would mean by virtue of a provision directly enacted in
the statute in question and that which is conceivable from its
express language or by necessary implication therefrom. The
words “under the Act”, would in such context, signify that
which may not directly be found in the statute itself, but
which is conferred by virtue of powers enabling such
action(s) e.g. by way of laws framed by a subordinate law-
making authority competent to do so under the parent Act.
(Vide Indramani Pyarelal Gupta v. W.R. Natu.)”
Hence, he prayed to allow the present Criminal Original Petition.
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Submissions of the Counsel appearing for the respondent:-
9. The first respondent filed a counter and the learned
Government Counsel appearing for the first respondent submits that the
petitioner is the competent authority to order an enquiry under Section 81
of the Tamil Nadu Co-operative Societies Act. In order to avoid the said
enquiry, the petitioner demanded illegal gratification from the defacto
complainant and directed him to bring the loan waiver list to his office.
Therefore, the demand was clearly proved by the prosecution. Further,
the petitioner directed the defacto complainant to hand over the entire
waiver list to the second accused. Pursuant to the said demand, the trap
was laid and both the accused were caught red-handed.
9.1. Insofar as the order of sanction is concerned, the Governor
of Tamil Nadu, who is the competent authority to accord sanction to
prosecute the petitioner, perused all the documents and accorded sanction
to prosecute the petitioner for the offence punishable under Section 7(a)
of the PC Act. The said sanction order of the Governor was signed by the
Secretary to the Government. Therefore, the signing authority’s statement
was recorded under Section 161(3) of Cr.P.C., in which he had stated that
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he had perused the entire files and that he was satisfied with the materials
available on records to prosecute the petitioner and accorded sanction. It
is only prudent to assume that he had given the said statement on behalf
of the Governor and it doesn’t mean that the signing authority himself
had accorded the said sanction. That apart, it is only a statement recorded
under Section 161(3) of Cr.P.C., and it doesn’t vitiate the very sanction
order which was accorded by the Governor of Tamil Nadu. Further, the
grounds raised by the petitioner can only be dealt with by the Trial Court
by letting in evidence during the trial. Hence, he prayed for dismissal of
the Writ Petition.
10. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
Issues involved in this case:-
11. At this junction, this Court finds it imperative to frame the
following issues pursuant to deciding the case on hand:-
(i) Whether on record, there exist prima facie materials to attract
the offences under Section 7(a) of the PC Act against the petitioner?
(ii) Whether the sanction order accorded to prosecute the accused
is valid in the eye of law?
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Issue No.1 :-
12. There are totally two accused in which the petitioner is
arrayed as the first accused. The petitioner, while he was working as the
Deputy Registrar of Co-operative Societies, was the competent officer to
initiate the enquiry under Section 81 of the Tamil Nadu Co-operative
Societies Act, against his subordinates, in accordance with G.O.
(2D)No.109 Co-operation, Food and Consumer Protection Department
dated 31.08.2005. The second accused was working as Co-operative Sub
Registrar/Field Officer. Therefore, the first and second accused are the
public servants under the definition of Section 2(c) of the PC Act. The
defacto complainant was working as Secretary in TP SPL, 25
Thalavaipalayam Primary Agricultural Cooperative Credit Society, under
the administrative control of the petitioner.
13. While being so, the government passed an order to waive off
the agricultural crop loans of the farmers vide G.O.Ms.15 Co-operation,
Food and Consumer Protection Department, dated 08.02.2021. On the
strength of the government order, 275 eligible farmers of the defacto
complainant’s society were enlisted by the defacto complainant to avail
the benefit of waiver of agricultural credit loans and the same was also
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approved by the Administrative Committee. Subsequently, the list
prepared by the defacto complainant was verified and it was reported that
an excessive loan amount was disbursed to 17 loanees in contrary to the
existing procedures to the tune of Rs.8,00,000/-. When the defacto
complainant chose to submit his explanation to the Joint Registrar of
Cooperative Societies, the petitioner objected the defacto complainant
with ulterior motive, to initiate further enquiry. While being so, on
14.02.2021, the issue was settled by the Joint Registrar of Cooperative
Societies, as per the circular issued by the Registrar of Cooperative
Societies by its proceedings dated 25.10.2017, thereby included 17
farmers in the list of beneficiaries to avail the benefit of waiver of the
agricultural credit loans.
14. Further on 15.02.2021, the petitioner contacted the defacto
complainant over his phone and enquired about the readiness of loan
waiver list and directed him to bring the same to his office. The defacto
complainant submitted the list of beneficiaries to the petitioner and on
verification of loan waiver beneficiaries list, the petitioner enquired about
the issue which was already settled by the Joint Registrar of Cooperative
Department. Though the defacto complainant explained that the issue was
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already settled by the Joint Registrar of Cooperative Societies, the
petitioner proclaimed that the issue was not settled and he is the
competent authority to settle the issue. Further the petitioner demanded
undue advantage without quoting the quantum for not sending the report
to the higher officials.
15. Once again, on 16.02.2021, the petitioner called the defacto
complainant to bring the loan waiver list to his office. Though the defacto
complainant went to his office and waited till evening, he met the
petitioner only at 7.30 p.m., that too while he was leaving the office along
with the second accused. Thereafter, the second accused informed to the
defacto complainant that the matter was entrusted to him by the petitioner
and insisted the defacto complainant to handover the file to him.
Accordingly, the defacto complainant on 18.02.2021 handed over the
entire waiver list file and the second accused demanded undue advantage
of Rs.1,25,000/- for non-initiation of any enquiry proceedings as
contemplated under Section 81 of the Tamil Nadu Societies Act. On the
same day, the second accused contacted the defacto complainant and
reiterated the demand of bribe on behalf of the petitioner. As instructed by
the petitioner, the second accused received the bribe amount and as such
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the petitioner charged for the offence under Section 7(a) of the PC Act
and the second accused charged for the offence under Section 7(a) r/w 12
of the PC Act. Therefore, there are clenching materials and statement to
attract the charge under Section 7(a) of the PC Act, as against the
petitioner.
16. That apart, even till today, there is no action and enquiry
initiated by the Cooperative Department as against the defacto
complainant. Therefore, the issue with regard to excessive loan amount to
the 17 farmers was completely settled by the Joint Registrar of the
Cooperative Societies as early as on 14.02.2021 itself. After knowing the
fact very well that the issue was settled by the Joint Registrar of
Cooperative Societies, being the Deputy Registrar of the Cooperative
Societies, who is the competent to initiate the proceedings/enquiry under
Section 18 of the Tamil Nadu Cooperative Societies Act, the petitioner
made demand of illegal gratification from the defacto complainant.
Therefore, the element of mensrea is attracted in the act of the petitioner
to charge the offence under Section 7(a) of the PC Act.
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17. Further on 19.02.2021, the second accused met the petitioner
in his office room and received the information from the defacto
complainant about the presence of the bribe amount and also received the
same in the office premises after returning from the chamber of the first
accused. Further the demand and acceptance of illegal gratification can be
inferred from the circumstances even in the absence of direct evidences.
The chain of circumstances available in the case in connection with the
factum of demand and acceptance is coherent and cogent. Therefore,
there are ample evidence for proving the dishonest demand and
acceptance of undue advantage by the petitioner. Therefore, the essential
elements i.e., demand and acceptance of undue advantage is clearly
culminated in the case records. The nexus between the first and second
accused will prove their involvement in the bribe transaction.
18. The learned Senior counsel appearing for the petitioner
vehemently contended that even according to the case of the prosecution,
the petitioner did not receive any bribe amount and on his behalf the
second accused was the one who received the bribe amount. The recovery
was also made only from the second accused. Now the petitioner is
charged for offence punishable under Section 7(a) of the PC Act.
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Therefore, there is no presumption under Section 20 of the PC Act. In
support of his contention, he relied upon the judgment of the Hon’ble
Supreme Court of India reported in 2025 Live Law (SC) 273 in the case
of Dileepbhai Nanubhai Sanghani Vs. State of Gujarat &anr., which
held as follows :-
“22. The only charge is with respect to misuse of
authority which does not come under the provisions of the
Prevention of Corruption Act and none of the ingredients
regarding demand or obtaining or acceptance of bribe or
any illegal gratification has come out. The accusation
was only that the policy of the State required a tender
process to be adopted but the Minister had sanctioned the
grant of fishing rights on an upset price, which is alleged
to be misuse of authority especially since the Policy can
be deviated from, only on orders of the Chief Minister or
the Cabinet as per the policy document and the Rules of
Business framed. The investigation report, as we
observed, speaks only of an allegation of misuse of
authority, without any allegation of demand and
acceptance of bribe as against the appellant. The
presumption under Section 20 of the Act is that, if there is
a demand and acceptance of bribe, then there is a
presumption that it is to dishonestly carry out some
activity by a public servant, for which, first, proof will
have to be offered of the demand and acceptance. It is not
otherwise that, if there is a misuse of authority then there
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is always a presumption of a demand and acceptance of
bribe, resulting in a valid allegation of corruption.”The above judgment is not applicable to the case on hand for the simple
reason that there are clenching evidences very much available to prove
that the petitioner demanded illegal gratification for not initiating any
enquiry/proceedings under Section 81 of the Tamil Nadu Cooperative
Societies Act, as against the defacto complainant. Hence, the first issue is
cogently answered in favour of the prosecution.
Issue No.2:-
19. The learned Senior Counsel appearing for the accused
contended that, the Courts are forbidden from taking cognizance of any
offence punishable under Sections 7, 10, 11, 13 and 15 against a public
servant except with a previous sanction of the competent authority. In
support of the same, he relied upon the judgment of the Hon’ble Supreme
Court of India in “Nanjappa v. State of Karnataka [(2015) 14 SCC
186]”, the relevant paragraphs of the judgment are extracted hereunder:
“10. A plain reading of Section 19(1)
(supra) leaves no manner of doubt that the same is
couched in mandatory terms and forbids courts from
taking cognizance of any offence punishable under
Sections 7, 10, 11, 13 and 15 against public servants
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except with the previous sanction of the competent
authority enumerated in clauses (a), (b) and (c) to sub-
section (1) of Section 19. The provision contained in sub-
section (1) would operate in absolute terms but for the
presence of sub-section (3) to Section 19 to which we
shall presently turn. But before we do so, we wish to
emphasise that the language employed in sub-section (1)
of Section 19 admits of no equivocation and operates as a
complete and absolute bar to any court taking
cognizance of any offence punishable under Sections
7, 10, 11, 13 and 15 of the Act against a public servant
except with the previous sanction of the competent
authority.
………
18. The above line of reasoning was followed by
this Court in State of Goa vs. Babu Thomas (2005) 8 SCC
130, where this Court while dealing with a case
under Section 19 of the Prevention of Corruption Act,
1988 held that absence of a valid sanction under Section
19(1) went to the very root of the prosecution case having
regard to the fact that the said provision prohibits any
Court from taking cognizance of any offence punishable
under Sections 7, 10, 13 and 15 against the public
servant, except with the previous sanction granted by the
competent authority in terms of clauses (a), (b) and (c)
to Section 19(1). This Court was in that case dealing with
a sanction order issued by an authority who was not
competent to do so as is also the position in the case at
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hand.
……..
20. What is important is that, not only was the
grant of a valid sanction held to be essential for taking
cognizance by the Court, but the question about the
validity of any such order, according to this Court, could
be raised at the stage of final arguments after the trial or
even at the appellate stage.”
In view of the above, this Court accepts the contention of the petitioner’s
counsel that the sanction order accorded by a non-competent authority
would result in the nullity of the trial or legal proceedings against the
accused and that the validity of a sanction order shall be questioned at the
very inception or even at the appellate stage and there is no quarrel over
the said argument.
20. However, it was vehemently contended by the learned
Senior Counsel for the petitioner that in the case on hand, the sanctioning
authority had no competence to accord sanction to prosecute the accused.
He stated that the Secretary to the Government had signed the sanction
order on behalf of the Governor which is an order executed by the State
Government. It was further stated that where the Governor acts as the
Head of the State, except in relation to areas which are earmarked under
the Constitution as giving discretion to the Governor, the exercise of
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power by him, must only be upon the aid and advice of the Council of
Ministers, for the reason that the Governor, being the custodian of all
executive and other powers under various provisions of the Constitution,
is required to exercise his formal Constitutional powers, only upon, and
in accordance with, the aid and advice of his Council of Ministers. He is,
therefore, bound to act under the Rules of Business framed under Art. 166
(3) of the Constitution. In support of the said contention, the learned
senior counsel relied upon the judgment of the Hon’ble Supreme Court of
India in the case of State of Gujarat v. R.A. Mehta reported in (2013) 3
SCC 1.
21. At this juncture, it is relevant to refer to the Tamil Nadu
Government Business Rules and Secretariat Instructuions, 1978,
wherein, Rules 7, 11 and 12(1) are relevant and are extracted hereunder:
“7. the Council shall be collectively responsible for
all executive orders issued in the name of the Governor in
accordance with these rules, whether such orders are
authorized by an individual minister on a matter
appertaining to his portfolio or as the result of discussion
at a meeting of the council or otherwise.
….
11. All orders or instruments made or executed by
or on behalf of the Government of the State shall be
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expressed to be made or executed in the name of the
Governor.
12.(1). Every order or instrument of the
Government of the State shall be signed either by the
Chief Secretary, a Secretary, a Special Secretary and
Additional Secretary, a Joint Secretary, a Deputy
Secretary or an Under Secretary to the Government of
the State or such other officer as may be specially
empowered in that behalf in the manner specified below
and such signature shall be deemed to be the proper
authentication of such order or instrument.
“By order and in the name of the Governor of Tamil
Nadu
(signature)
Name and designation of the officer authorized to sign”.
22. It was his contention that, the Secretary to the Government,
who had signed the sanction order, in his 161(3) statement, had stated that
he had perused all the documents and that he had gotten necessary
clarification and had accorded sanction to prosecutethe accused under
Section 19(1)(b) of the PC Act and the same is invalid as these statements
would mean that he had not acted on behalf of the Governor rather it
would mean that he had acted in his personal capacity.
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23. Proceeding on the said statement, it was further contended
that the Governor neither has discretionary power nor can he delegate
such powers to a subordinate authority in the matter of granting sanction
and is constitutionally bound to act only on the aid and advice of the
Council of Ministers under Article 163 of the Constitution. Therefore,
according to the appellant, the sanction order is rendered non est in law.
The above stated contention advanced by the Learned Senior Counsel
does not merit acceptance.
24. It is an admitted fact that the accused herein was an
employee of the State and comes under Section 19(1)(b) of the PC Act.
As per Section 19(1)(b) of the PC Act, a person who is or was an
employee of the State at the time of commission of the alleged offence
shall not be removed from his office without the sanction of the
Government of the concerned State. According to Article 166 of the
Indian Constitution and the Corresponding Tamil Nadu Business Rules,
all executive actions of the Government of a State shall be expressed to
be taken in the name of the Governor. On a keen perusal of both the
provisions, i.e, Article 166 of the Indian Constitution and Section 19(1)
(b) of the PC Act, it can be seen that there is no explicit mention that the
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Governor himself has to accord a sanction or that the Secretary to the
Government is not a competent authority to accord such a sanction. What
is mandatory is that all the executive actions shall be expressed to be
taken in the name of Governor.
25. Article 166(2) of the Constitution of India states that Orders
and other instruments made and executed in the name of the Governor
shall be authenticated in such manner as may be specified in rules to be
made by the Governor, and the validity of an order or instrument which is
so authenticated shall not be called in question on the ground that it is not
an order or instrument made or executed by the Governor.
26. On perusal of the sanction order, it can be clearly seen that
the order was accorded only in the name of or by the Governor and it was
duly authenticated as provided under the Tamil Nadu Business Rules
wherein the Secretary to the Government had signed the same. It is well
settled that under Articles 154, 163 and 166 of the Constitution of India,
executive actions of the State are taken in the name of the Governor,
while the actual exercise of executive functions is carried out through
officers duly authorized under the Rules of Business framed under Article
166(3) of the Constitution of India.
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27. The Governor is the constitutional head of the State and
ordinarily acts on the aid and advice of the Council of Ministers.
Consequently, an order authenticated and issued by the Secretary to
Government in accordance with the above stated constitutional scheme is,
in the eye of law, an act of the State Government. The Secretary only acts
as an authorized functionary of the Government and such an action as
indicated by the Constitution of India under Article 166(2) shall not be
called in question on the ground that it is not an order or instrument made
or executed by the Governor.
28. Even if such a constitutional or statutory interpretation is
false, the validity of a sanction cannot be determined merely by an
isolated statement made during the course of investigation by the signing
authority i.e., the Secretary to the Government herein, particularly when
the sanction order itself unequivocally discloses that it was issued by the
Governor in exercise of the powers vested under Article 166(1) and
Section 19(1)(b) of the PC Act. The statement of the Secretary under
Section 161 Cr.P.C. cannot override, alter or diminish the legal effect of
an official order issued in accordance with law.
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29. Even assuming that the Secretary, while giving his statement
under Section 161 Cr.P.C., loosely described the grant of sanction as one
accorded by him personally, such an expression cannot be read divorced
from the constitutional and statutory framework governing governmental
action. A witness’s understanding or description of the legal character of
an official act cannot determine its validity. What is of relevance is
whether the sanction emanated from the competent authority through the
prescribed legal procedure and whether the order bears the necessary
authentication as required under Article 166 of the Constitution and the
applicable Rules of Business.
30. The argument that the Governor himself could not have
exercised discretion in granting sanction also does not advance the
appellant’s case. The sanction order nowhere suggests that it was the
Governor acting in his individual discretion. On the contrary, the order is
an executive action of the State Government issued in the name of the
Governor and authenticated by the Secretary in accordance with the
constitutional mandate. Such executive action carries the presumption of
regularity, and in the absence of cogent evidence demonstrating any
constitutional or statutory infraction in the decision-making process, the
Court cannot invalidate the sanction on speculative assumptions.
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31. It is equally settled that the validity of a sanction is to be
tested on the touchstone of competence of the authority and due
application of mind to the materials placed before it. The appellant has
not demonstrated that the Secretary to the Government lacks competence
or that the sanction was granted mechanically without consideration of
the relevant records. The entire challenge rests solely upon an isolated
statement of the Secretary made during investigation, which is wholly
insufficient to invalidate an otherwise valid sanction order. This Court
finds no infirmity in the sanction order and the contention that the
sanction is null and void on the ground that it was allegedly accorded by
the Secretary not on behalf of the Governor, or that it offends the
constitutional scheme governing the exercise of executive power by the
Governor, is devoid of merit and is, therefore, rejected.
32. In this regard, it is relevant to rely upon the judgment of the
Hon’ble Supreme Court of India in the case of “Shivendar kumar v.
State of Maharashta [(2001) 9 SCC 303]” wherein it was held as
follows:
“As noted earlier, Section 6(1)(b) is applicable in the
present case. The said provision does not specify any
particular officer as the competent authority to grant
sanction. It only states that the State Government, without
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whose sanction the delinquent officer cannot be removed
from office/post, is the competent authority to pass the order
of sanction. From the Sanction Order, which is available on
the record, it is clear that the Secretary, Medical Education
Department passed/signed the order of sanction of
prosecution against the appellant on behalf of the Governor.
It is not the case of the appellant that the Secretary had no
authority to act on behalf of the State Government. It follows
that the order of sanction in the present case was passed by
the Secretary of the Medical Education Department with the
authority of the Governor of the State Government. No
material on record has been brought to our notice to show
that the Governor had issued any order authorising an
officer other than the Secretary of the Department to pass
order of sanction in the case. If that was the case, then the
appellant should have produced the order or at least raised
the contention that an Officer other than the Secretary had
been authorised for that purpose. No such material appears
to have been produced. When the Secretary was being
examined in support of the Sanction Order passed by him
such question was also put to him. Reliance is placed on a
sentence in his deposition that he is not the authority to
remove the appellant. This statement, without further
material, cannot from the basis of the contention that the
Secretary, Medical Education Department was not
competent to pass the order of sanction on behalf of the State
Government. The Government functions through its officers.
The Secretary is the Head of the Department and the
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Principal Officer representing the State Government in the
concerned Department. Unless specific material is produced
to show that some other officer was competent to deal with
the matter of sanction of prosecution against the appellant it
can be reasonably assumed that the Secretary of the
Department is the competent authority to pass the order of
sanction. The object of Section 6 or for that matter Section
197 of the Criminal Procedure Code, which is a pari materia
provision, is that there should be no unnecessary harassment
of a public servant; the idea is to save the public servant
from the harassment which may be caused to him if each and
every aggrieved or disgruntled person is allowed to institute
a criminal complaint against him. The protection is not
intended to be an absolute and unqualified Immunity against
criminal prosecution. In a case where it is seen that a
Sanction Order has been passed by an authority who is
competent under the law to represent the State Government,
the burden is heavy on the party who challenges the
authority of such order to show that the authority competent
to pass the order of sanction is somebody else and not the
officer who has passed the Sanction Order in question.”
33. Section 6 of the old Act corresponds to Section 19 of the
new Act, and even in Section 19, the provision does not specify any
particular officer as the competent authority to grant sanction. It only
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states that the State Government, without whose sanction the delinquent
officer cannot be removed from office. Therefore, in this case, the
Secretary of the government had accorded the sanction order on behalf of
the Governor. Further, as stated above, the intention of the provision is to
save innocent public servant from unwanted legal proceeding and the
same shall not be misunderstood as an absolute and unqualified immunity
against criminal prosecution. However, on perusal of the materials
available on record, this court finds a prima facie case against the accused
and the Secretary to the Government, being a competent authority, had
gone into the same and had signed the sanctioning order on behalf of the
Governor and this Court finds no infirmity in the sanction order and
deems the action of the sanctioning authority competent and fit.
Accordingly, the second issue is also answered in favour of the
prosecution.
34. Further, it is relevant to rely upon the judgments of the
Hon’ble Supreme Court of India in the judgment reported in 2019 (4)
SCC 351 in the case of Devendra Prasad Singh Vs. State of Bihar
&Anr., (Crl.A.No.579 of 2019 dated 02.04.2019) while dealing with the
petition to quash the entire criminal proceedings held that the High
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Courts have no jurisdiction to appreciate the statement of the witnesses
and record a finding that there were inconsistencies in their statements
and therefore, there was no prima facie case made out as against the
accused. It could be done only by the trial Court while deciding the issues
on the merits or/and by the Appellate Court while deciding the appeal
arising out of the final order that the charge sheet has been laid on the
basis of the inconsistency statement under 180 of the Bharatiya Nagarik
Suraksha Sanhita, 2023.
35. Further, the Hon’ble Supreme Court of India in the judgment
reported in 2019 (10) SCC 686in the case of Central Bureau of
Investigation Vs. Arvind Khanna, (Crl.A.No.1572 of 2019 dated
17.10.2019) held that the High Courts cannot record the findings on the
disputed facts. The defence of the accused is to be tested after
appreciation of evidence by the trial Court during the trial. Therefore, this
Court has no power to consider the disputed facts under Section 528 of
the Bharatiya Nagarik Suraksha Sanhita, 2023.
36. The Hon’ble Supreme Court of India in another judgment
dated 02.12.2019 passed in Crl.A.No.1817 of 2019 in the case of
M.Jayanthi Vs. K.R.Meenakshi&anr, held that while considering the
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petition for quashment of complaint or charge sheet, the Court should not
embark upon an enquiry into the validity of the evidence available. All
that the Court should see is as to whether there are allegations in the
complaint which form the basis for the ingredients that constitute certain
offences complained of. Further, the Court can also see whether the
preconditions requisite for taking cognizance have been complied with or
not and whether the allegations contained in the complaint, even if
accepted in entirety, would not constitute the offence alleged. Whether
the accused will be able to prove the allegations in a manner known to
law would arise only at a later stage i.e., during trial.
37. Further this Court cannot observe at this stage as to whether
the initiation of criminal proceeding itself is malicious or not. The same is
required to be considered at the conclusion of the trial. Therefore, the
grounds raised by the petitioner to quash the final report/charge sheet
cannot be entertained. Therefore, this Court is not inclined to quash the
proceedings in Spl.C.C.No.3 of 2024 on the file of the learned Special
Judge, Special Court for the cases under the Prevention of Corruption
Act, Coimbatore.
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38. Accordingly, the Criminal Original Petition stands
dismissed. Consequently, connected miscellaneous petitions are also
closed.
23.07.2026
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
rts
To
1. The Special Judge,
Special Court for the cases under
the Prevention of Corruption Act,
Coimbatore.
2.The Inspector of Police,
Vigilance and Anti-corruption,
Coimbatore District.
3. The Public Prosecutor,
Madras High Court,
Chennai.
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G.K.ILANTHIRAIYAN. J,
rts
Order in
Crl.O.P.No.28172 of 2024
and Crl.M.P.Nos.15664 & 15659 of 2024
23.07.2026
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