Whether sanction for prosecution of public servant is vitiated if different authorities have given different opinion before final decision?

In Sethi Auto Service Station and another v. Delhi
Development Authority and others (2009) 1 SCC 180
, this Court observed as
under: -
“14. It is trite to state that notings in a
departmental file do not have the sanction of law to
be an effective order. A noting by an officer is an
expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use
and consideration of the other officials of the
department and for the benefit of the final
decision-making authority. Needless to add that
internal notings are not meant for outside exposure.
Notings in the file culminate into an executable
order, affecting the rights of the parties, only when
it reaches the final decision-making authority in the
department, gets his approval and the final order is
communicated to the person concerned.”
10. In view of the law laid down by this Court, as above, we
are of the opinion that the sanction cannot be held invalid only
for the reason that in the administrative notings different
authorities have opined differently before the competent
authority took the decision in the matter. It is not a case
where the Finance Minister was not the competent authority

to grant the sanction. What is required under Section 19 of
the Prevention of Corruption Act, 1988 is that for taking the
cognizance of an offence, punishable under Sections 7, 10, 11,
13 and 15 of the Act committed by the public servant, is
necessary by the Central Government or the State
Government, as the case may be, and in the case of a public
servant, who is neither employed in connection with affairs of
the Union or the State, from the authority competent to
remove him. Sub-section (2) of Section 19 of the Act provides
that 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 authority, such sanction shall be given by
that Government or authority which could have been
competent to remove the public servant from his office at the
time when the offence was alleged to have been committed.
Sub-section (3) of Section 19 of the Prevention of Corruption
Act, 1988 provides as under: -
“(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 sub-section (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.”
11. Having gone through the copy of note-sheets relating to
sanction in question placed before us as part of rejoinder
affidavit, it is evident that there had been proper application of
mind on the part of the competent authority before the
sanction was accorded. Our perusal of the said record does
not indicate that any decision was taken by the competent
authority, at any point of time, not to grant sanction so as to
give the decision to grant sanction the colour of a review of any
such earlier order, as has been contended before us. The
opinion of CVC, which was reaffirmed and ultimately prevailed
in according the sanction, cannot be said to be irrelevant for
the reason that clause (g) of Section 8 of the Central Vigilance
Commission Act, 2003 provides that it is one of the functions
of the CVC to tender advice to the Central Government on
such matters as may be referred to it by the Government.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2491 OF 2014
Vivek Batra 
V
Union of India and others 
Dated:October 18, 2016.
Citation: (2017) 1 SCC 69

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Whether any rights can be claimed on the basis of internal file notings?

It is trite to state that notings in a departmental file do not have
the sanction of law to be an effective order. A noting by an officer is an
expression of his viewpoint on the subject. It is no more than an opinion
by an officer for internal use and consideration of the other officials of
the department and for the benefit of the final decision-making authority.
Needless to add that internal notings are not meant for outside exposure.
Notings in the file culminate into an executable order, affecting the rights
of the parties, only when it reaches the final decision-making authority in
the department; gets his approval and the final order is communicated to
the person concerned.
15. In Bachhittar Singh v. The State of Punjab AIR 1963 SC 395, a
Constitution Bench of this Court had the occasion to consider the effect
of an order passed by a Minister on a file, which order was not
communicated to the person concerned. Referring to the Article 166(1) of
the Constitution, the Court held that order of the Minister could not
amount to an order by the State Government unless it was expressed in
the name of the Rajpramukh, as required by the said Article and was then
communicated to the party concerned. The court observed that business
of State is a complicated one and has necessarily to be conducted through
the agency of a large number of officials and authorities. Before an action
is taken by the authority concerned in the name of the Rajpramukh,
which formality is a constitutional necessity, nothing done would amount
to an order creating rights or casting liabilities to third parties. It is
possible, observed the Court, that after expressing one opinion about a
particular matter at a particular stage a Minister or the Council of
Ministers may express quite a different opinion which may be opposed to
the earlier opinion. In such cases, which of the two opinions can be
regarded as the "order" of the State Government? It was held that opinion
becomes a decision of the Government only when it is communicated to
the person concerned.
16. To the like effect are the observations of this Court
in Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and
Anr. 2003 (3) SCR 409, wherein it was said that a right created under an
order of a statutory authority must be communicated to the person
concerned so as to confer an enforceable right.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7607 OF 2005
SECURITIES & EXCHANGE BOARD OF INDIA 
V
M/s. PREBON YAMANE (I) LTD.
Dated:November 03, 2015.
Citation:(2015) 16 SCC89

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