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whereby the High Court has, while reversing an order of acquittal passed by the Trial Court, convicted the appellant under Sections 7 and 13 read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo imprisonment for a period of six months under Section 7 and a period of one year under Section 13 besides fine and sentence of imprisonment in default of payment of the same. The Trial Court further held that the sanction for prosecution of the appellant had not been granted by the competent authority and was, therefore, not in accordance with Section 19 of the P.C. Act. Relying upon the deposition of PW-4 examined at the trial, the Trial Court held that the Chief Officer, Zilla Panchayat was the only competent authority to grant sanction for prosecution in terms of Section 113 of the Panchayat Raj Act. The prosecution case against the appellant was on those findings rejected by the Trial Court and the appellant acquitted. “19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public 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, of that 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,- (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. (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.” We may also, at the outset, extract Section 465 of the Cr.P.C. which is a cognate provision dealing with the effect of any error, omission or irregularity in the grant of sanction on the prosecution. Section 465 Cr.P.C. runs thus: “465. Finding or sentence when reversible by reason of error, omission or irregularity. (1) Subject to the provisions hereinbefore contained, on finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” 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 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. A similar bar to taking of cognizance was contained in Section 6 of the Prevention of Corruption Act, 1947 which was as under: “"6. (1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under sub-section (2) of section 5 of this Act, alleged to have been committed by a public 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 the] Central 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............, [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 whether the previous sanction as required under sub-section (1) should be given by the Central or 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." The High Court has not, in our opinion, correctly appreciated the legal position regarding the need for sanction or the effect of its invalidity. It has simply glossed over the subject, by holding that the question should have been raised at an earlier stage. High Court did not, it appears, realise that the issue was not being raised before it for the first time but had been successfully urged before the trial Court. The next question then is whether we should, while allowing this appeal, set aside the order passed by the High Court and permit the launch of a fresh prosecution against the appellant, at this distant point of time. The incident in question occurred on 24th March, 1998. The appellant was, at that point of time, around 38 years old. The appellant is today a senior citizen. Putting the clock back at this stage when the prosecution witnesses themselves may not be available, will in our opinion, serve no purpose. That apart, the trial Court had, even upon appreciation of the evidence, although it was not required to do so, given its finding on the validity of the sanction, and had held that the prosecution case was doubtful, rejecting the prosecution story. It will, therefore, serve no purpose to resume the proceedings over and again. We do not, at any rate, see any compelling reason for directing a fresh trial at this distant point of time in a case of this nature involving a bribe of Rs.500/-, for which the appellant has already suffered the ignominy of a trial, conviction and a jail term no matter for a short while. We, accordingly, allow this appeal and set aside the order passed by the High Court.

 


                                                         REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.1867 OF 2012


Nanjappa                                          …Appellant

Vs.
State of Karnataka                                …Respondent








                               J U D G M E N T
T.S. THAKUR, J.
1.    This appeal arises out of a judgment and  order  dated  9th  February,
2012 passed by the High Court of Karnataka at  Bangalore  whereby  the  High
Court has, while reversing an order of acquittal passed by the Trial  Court,
convicted the appellant under Sections 7 and 13 read with Section  13(2)  of
the Prevention  of  Corruption  Act,  1988  and  sentenced  him  to  undergo
imprisonment for a period of six months under Section 7 and a period of  one
year under Section 13 besides fine and sentence of imprisonment  in  default
of payment of the same. The facts giving rise to the filing  of  the  appeal
may be summarised as under:
2.    The appellant was working as a Bill Collector in  Sabbanakruppe  Grama
Panchayath, in S.R. Patna Taluk of the State of Karnataka.  The  prosecution
case is that the  complainant  who  was  examined  at  the  trial  as  PW-1,
appeared before the Lokayukta  Police  to  allege  that  the  appellant  had
demanded a bribe of Rs.500/- from him for issue  of  a  copy  of  a  certain
resolution  dated  13th  March,  1998  passed  by  the  Sabbanakruppe  Grama
Panchayath. Since the complainant was unwilling to pay the bribe amount,  he
prayed for action against the appellant. The  Lokayukta  Police  appears  to
have secured panch witnesses, prepared an entrustment memo and  handed  over
the intended bribe amount to the complainant after applying  phenolphthalein
powder to the currency notes for being paid to the  appellant  upon  demand.
The prosecution case is that the bribe amount was demanded by the  appellant
and paid to him by the complainant whereupon the raiding party on  a  signal
given by the complainant arrived at the spot and recovered the  said  amount
from his possession.  The  appellant’s  hands  were  got  washed  in  sodium
carbonate solution which turned pink,  clearly  suggesting  that  the  bribe
money  had  been  handled  by  the   appellant.   On   completion   of   the
investigation, the  police  filed  charge-sheet  before  the  jurisdictional
court where the prosecution examined as many as 5 witnesses  in  support  of
its case. The appellant  did  not,  however,  adduce  any  evidence  in  his
defence. The  Trial  Court  eventually  came  to  the  conclusion  that  the
prosecution had failed to prove the charges  framed  against  the  appellant
and accordingly acquitted him of the same. The Trial  Court  held  that  the
prosecution had failed to prove that the  appellant  had  any  role  in  the
passing of the resolution by the members of the Panchayat,  a  copy  whereof
was demanded by the complainant. The Trial Court  further  held  that  there
was no material to  suggest  that  the  Sabbanakruppe  Grama  Panchayat  had
joined hands with the appellant in converting the road running in  front  of
the complainant’s house into sites  for  allotment  to  third  parties.  The
Trial Court found that the property purchased by  the  complainant  did  not
actually show a road on the northern side of the said  property.  The  Trial
Court, on those findings, concluded that the complainant’s accusation  about
the appellant demanding bribe  from  him  was  unreliable  and  unworthy  of
credit.  Relying upon the decision of this Court in  Kaliram  vs.  State  of
Himachal Pradesh (AIR 1973 SC 2773), the Trial Court  held  that  since  two
views were possible on the evidence adduced in the  case,  one  pointing  to
the guilt of the appellant and the other to his  innocence,  the  view  that
was favourable to the appellant had to be accepted. The Trial Court  further
held that the sanction  for  prosecution  of  the  appellant  had  not  been
granted by the competent authority and was,  therefore,  not  in  accordance
with Section 19 of the P.C.  Act.   Relying  upon  the  deposition  of  PW-4
examined at the trial, the Trial Court held that the  Chief  Officer,  Zilla
Panchayat  was  the  only  competent  authority  to   grant   sanction   for
prosecution  in  terms  of  Section  113  of  the  Panchayat  Raj  Act.  The
prosecution case against the appellant was on  those  findings  rejected  by
the Trial Court and the appellant acquitted.
3.    Aggrieved by the order of acquittal passed by  the  Trial  Court,  the
State preferred Criminal Appeal No.1260 of 2006 which, as  noticed  earlier,
has been allowed by the High Court  in  terms  of  the  judgment  and  order
impugned in this appeal. The High Court held that since the validity of  the
sanction order was not questioned at the appropriate  stage,  the  appellant
was not entitled to raise the same at the conclusion of the  trial.  On  the
merits of the case, the High Court held that the depositions of  PWs  1  and
2, who were none other than the  complainant  and  the  shadow  witness  had
sufficiently proved  that  the  appellant  had  demanded  bribe  amount  and
received the same. The  High  Court  held  that  the  discrepancies  in  the
evidence regarding the manner of giving  the  amount  were  inconsequential.
The High Court also placed reliance upon the explanation  of  the  appellant
as recorded in the trap mahazar to hold that the appellant had admitted  the
receipt of the amount, no matter he had offered an explanation according  to
which the amount  represented  “tap  charges”,  which  explanation  was  not
supported by any defence. The High Court has, on those  findings,  held  the
charges  framed  against  the  appellant  to  have  been  proved.   He   was
accordingly convicted for the  offences  punishable  under  Sections  7  and
13(1)(d)  read  with  Section  13(2)  of  the  P.C.  Act  and  sentenced  to
imprisonment for six months and one year  respectively  besides  a  fine  of
Rs.3,000/- under Section 7 and Rs.5,000/- under Section 13(1)(d)  read  with
Section 13(2) of the P.C. Act with a default sentence of one month  and  two
months respectively. The sentences were directed to run concurrently.

4.    We have heard learned counsel for the parties at considerable  length.
This appeal must, in our opinion, succeed on the short ground  that  in  the
absence of a valid previous  sanction  required  under  Section  19  of  the
Prevention of Corruption Act, the trial Court  was  not  competent  to  take
cognizance of the offence alleged against the appellant. Section 19  of  the
Prevention of Corruption Act reads as under:

“19. Previous sanction necessary for prosecution (1)  No  court  shall  take
cognizance of an offence punishable under section  7,  10,  11,  13  and  15
alleged to have  been  committed  by  a  public  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, of that 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,- (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. (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.”


5.    We may also, at the outset, extract Section 465 of the  Cr.P.C.  which
is a cognate provision dealing with the effect of  any  error,  omission  or
irregularity in the grant  of  sanction  on  the  prosecution.  Section  465
Cr.P.C. runs thus:

“465. Finding or sentence when reversible by reason of  error,  omission  or
irregularity.

(1) Subject to the provisions hereinbefore contained,  on  finding  sentence
or order passed by a Court of competent jurisdiction shall  be  reversed  or
altered by a Court of appeal, confirmation or revision  on  account  of  any
error,  omission  or  irregularity  in  the  complaint,  summons,   warrant,
proclamation, order, judgment or other proceedings before  or  during  trial
or in any inquiry or other proceedings under this Code,  or  any  error,  or
irregularity in any sanction for the prosecution unless in  the  opinion  of
that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether  any  error,  omission  or  irregularity  in  any
proceeding under this Code, or any error, or irregularity  in  any  sanction
for the prosecution has occasioned a failure of  justice,  the  Court  shall
have regard to the fact whether the objection could  and  should  have  been
raised at an earlier stage in the proceedings.”


6.    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 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. A similar bar to taking  of  cognizance
was contained in Section 6 of the Prevention of Corruption Act,  1947  which
was as under:

“"6. (1) No Court shall take  cognizance  of  an  offence  punishable  under
section 161 or section 165 of the Indian Penal  Code  or  under  sub-section
(2) of section 5 of this Act, alleged to have been  committed  by  a  public
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 the] Central 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............, [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  whether  the  previous
sanction as required under sub-section (1) should be given  by  the  Central
or 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."

7.    In Baij Nath Tripathi vs. The State of Bhopal and Anr.  (AIR  1957  SC
494), a Constitution Bench of this of Court was dealing with the case  of  a
sub-inspector of police from the then State of Bhopal,  who  was  prosecuted
by the Special Judge, Bhopal and  convicted  of  offences  punishable  under
Section 161 of the IPC and Section 5 of the Prevention  of  Corruption  Act,
1947. He was sentenced by the Trial Court to undergo nine  months’  rigorous
imprisonment on each count. In an appeal before  the  Judicial  Commissioner
against the said  conviction  and  sentence,  it  was  held  that  since  no
sanction according to  law  had  been  given  for  the  prosecution  of  the
accused, the Special Judge had no jurisdiction to  take  cognizance  of  the
case and that the trial  was  invalid  and  void  ab-initio,  hence  quashed
relegating the parties to the position as if no legal charge-sheet had  been
submitted against the appellant. The accused was then  tried  for  a  second
time before another Special Judge to which  prosecution,  the  accused  took
exception on the ground that a second trial was impermissible having  regard
to the provisions of Article 20(2) of the Constitution of India and  Section
403 of the Code of Criminal Procedure. A similar contention  was  raised  by
Sudhakar Dube, another Sub-Inspector of Police who was similarly  tried  and
prosecuted  but  the  Special  Judge  finding  the  sanction  order  to   be
incompetent had quashed the proceedings. Dube was also thereupon  sought  to
be tried for the second time which second trial was assailed by him in  writ
petition before this Court. The short question that fell  for  consideration
in the above backdrop, was whether the petitioners had been  prosecuted  and
punished within the meaning of Article 20 of the Constitution  of  India  or
tried by a Court of competent jurisdiction within  the  meaning  of  Section
403(1) of the Code of Criminal Procedure. It was  urged  on  behalf  of  the
respondent, that in case the previous trial was null and void  and  non-est,
a second trial was legally permissible. That contention  found  favour  with
the Court. Relying upon Yusofalli Mulla  vs.  The  King  AIR  1949  PC  264,
Basdeo Agarwalla vs. King Emperor AIR 1945 FC 16 and Budha Mal vs. State  of
Delhi, Criminal Appeal No.17 of 1952, it  was  held  that  the  accused  had
neither been tried by a Court of competent jurisdiction nor  was  there  any
accusation or conviction in force within  the  meaning  of  Section  403  of
Cr.P.C. to stand as a bar against their prosecution for the  same  offences.
The following passage  from  the  decision  succinctly  sums  up  the  legal
foundation for accepting the contention urged on  behalf  of  the  State  of
Bhopal:

“If no Court can take cognizance of  the  offences  in  question  without  a
legal sanction, it is obvious that no Court can be said to  be  a  Court  of
competent jurisdiction to try those offences  and  that  any  trial  in  the
absence of such sanction must be null and void,  and  the  sections  of  the
Code on which learned counsel for the  petitioners  relied  have  really  no
bearing on the matter. Section  530  of  the  Code  is  really  against  the
contention of learned counsel, for  it  states,  inter  alia,  that  if  any
Magistrate not being empowered by law to try an offender,  tries  him,  then
the proceedings shall be void. Section 529(e) is merely an exception in  the
matter of taking cognizance of an offence under s.  190,  sub-s.  (1),  cls.
(a) and (b); it has no bearing in a case where sanction is necessary and  no
sanction in accordance with law has been obtained.”


8.    In Yusofalli Mulla’s case (supra), the  Privy  Council  was  examining
whether failure to obtain sanction affected the competence of the  Court  to
try the accused.  The contention urged was  that  there  was  a  distinction
between a valid institution of  a  prosecution  on  the  one  hand  and  the
competence of the Court to  hear  and  determine  the  prosecution,  on  the
other.  Rejecting the contention that any  such  distinction  existed,  this
Court observed:

“The next contention was that the failure to obtain a sanction at  the  most
prevented the valid institution of a prosecution, but  did  not  affect  the
competency of the Court to hear and determine a prosecution  which  in  fact
was brought before it. This suggested distinction between  the  validity  of
the prosecution and the competence of the Court was pressed  strenuously  by
Mr. Page, but seems to rest on no foundation. A Court  cannot  be  competent
to hear and determine a prosecution the institution of which  is  prohibited
by law and Section 14 prohibits the institution  of  a  prosecution  in  the
absence of a proper sanction. The learned Magistrate was no doubt  competent
to decide whether he had jurisdiction to entertain the prosecution  and  for
that purpose to determine whether a valid sanction had been  given,  but  as
soon as he decided that no valid sanction had been given  the  Court  became
incompetent to proceed with the matter. Their Lordships agree with the  view
expressed by the Federal Court in Agarwalla's case A.I.R. (32) 1945 F.C.  16
that a prosecution launched without a valid sanction is a nullity.”

9.    The Federal Court had in Basdeo Agarwalla’s case  (supra),  summed  up
the legal position regarding the effect of absence  of  a  sanction  in  the
following words:

“In our view the absence  of  sanction  prior  to  the  institution  of  the
prosecution cannot be regarded as a mere technical  defect.  The  clause  in
question was obviously enacted for the purpose of  protecting  the  citizen,
and in order to give the  Provincial  Government  in  every  case  a  proper
opportunity  of  considering   whether   a   prosecution   should   in   the
circumstances of each particular case be instituted at all. Such  a  clause,
even when it may  appear  that  a  technical  offence  has  been  committed,
enables the Provincial Government, if in a  particular  case  it  so  thinks
fit, to forbid any prosecution. The sanction  is  not  intended  to  be  and
should not be an automatic formality and should not so  be  regarded  either
by police or officials. There  may  well  be  technical  offences  committed
against the provisions of such an Order as that in question,  in  which  the
Provincial  Government  might  have  excellent  reason  for  considering   a
prosecution undesirable or inexpedient.  But  this  decision  must  be  made
before a prosecution is started. A sanction after  a  prosecution  has  been
started is a very different thing. The fact that a citizen is  brought  into
Court and charged with an offence may very seriously affect  his  reputation
and a subsequent refusal of sanction to a prosecution cannot  possibly  undo
the harm which may have been done by the initiation of the first  stages  of
a prosecution. Moreover in our judgment the official by  whom  or  on  whose
advice a sanction is given or refused may well take a different view  if  he
considers the matter prior to any step being taken  to  that  which  he  may
take if he is asked to sanction a prosecution  which  has  in  fact  already
been started.”


10.   So also the decision of this Court in Budha Mal  vs.  State  of  Delhi
[Criminal Appeal No.17 of 1952 disposed of on  3/10/1952],  this  Court  had
clearly ruled that absence of a valid sanction affected  the  competence  of
the Court to try and punish the accused. This Court observed:

“We are satisfied that the learned Sessions Judge was right in the  view  he
took. Section 403 CrPC applies to cases where the acquittal order  has  been
made by a court of competent jurisdiction but it does not bar a  retrial  of
the accused in cases where such an order has been made by a court which  had
no jurisdiction to take cognizance of the case.  It  is  quite  apparent  on
this record that in the absence  of  a  valid  sanction  the  trial  of  the
appellant in the first instance was by a Magistrate who had no  jurisdiction
to try him.”


11.   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  hand.  The  second  sanction  order
issued for prosecution of the accused in that  case  was  also  held  to  be
incompetent apart from the fact that the same purported to be  retrospective
in its operation. This Court noted that on 29th March, 1995 when  cognizance
was taken by the Special Judge, there was no order  sanctioning  prosecution
with the result that the Court was incompetent to take cognizance  and  that
the error was so fundamental that it invalidated the  proceedings  conducted
by the Court. The Court accordingly upheld the  order  passed  by  the  High
Court but reserved liberty to the competent authority to issue fresh  orders
having regard to the serious allegation made against the accused.
12.   The legal position was reiterated once more by this Court in State  of
Karnataka vs. C. Nagarajaswamy (2005) 8 SCC 370, where this Court summed  up
the law in the following words:

“In view of the  aforementioned  authoritative  pronouncements,  it  is  not
possible to agree with the decision of the High Court that the  trial  court
was bound to record either a  judgment  of  conviction  or  acquittal,  even
after holding that the sanction was not valid. We have noticed  hereinbefore
that [pic]even if a judgment of conviction or acquittal  was  recorded,  the
same would not  make  any  distinction  for  the  purpose  of  invoking  the
provisions of Section 300 of the Code as, even then, it  would  be  held  to
have been rendered illegally and without jurisdiction.”


13.   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. This Court observed:

“Ordinarily, the question as to whether a proper sanction has been  accorded
for prosecution of the accused persons or not is a matter  which  should  be
dealt with at the stage of taking cognizance. But in a case of  this  nature
where a question  is  raised  as  to  whether  the  authority  granting  the
sanction was competent therefore or not, at the  stage  of  final  arguments
after trial, the same may have to be considered having regard to  the  terms
and conditions of service of the accused for the  purpose  of  determination
as to who could remove him from service.

Grant of proper sanction by a competent authority is  a  sine  qua  non  for
taking cognizance of the offence. It  is  desirable  that  the  question  as
regard sanction may be determined at an early stage.

But, even if a cognizance of the offence is taken erroneously and  the  same
comes to the court's notice at a later stage a finding  to  that  effect  is
permissible. Even such a plea can be taken for  the  first  time  before  an
appellate court.”


14.   In B. Saha & Ors. vs. M.S. Kochar (1979) 4 SCC  177,  this  Court  was
dealing with the need for a sanction under Section 197 of  the  Cr.P.C.  and
the stage at which the question regarding  its  validity  could  be  raised.
This Court held that the question of validity of an order of sanction  under
Section 197  Cr.P.C.  could  be  raised  and  considered  at  any  stage  of
proceedings. Reference may also be made to the decision of this Court in  K.
Kalimuthu vs. State by DSP (2005) 4 SCC 512 where Pasayat, J., speaking  for
the Court, held that the question touching the need  for  a  valid  sanction
under Section 197 of  the  Cr.P.C.  need  not  be  raised  as  soon  as  the
complaint is lodged but can be agitated at any  stage  of  the  proceedings.
The following observation in this connection is apposite:
“The question relating to the need of sanction  under  Section  197  of  the
Code is not necessarily be considered as soon as  the  complaint  is  lodged
and on the allegations contained therein. This question  may  arise  at  any
stage of the proceeding. The question whether sanction is necessary  or  not
may have to be determined from stage  to  stage.  Further,  in  cases  where
offences under the Act are concerned the effect of Section 19, dealing  with
question of prejudice has also to be noted.”


15.   The legal position regarding the importance of sanction under  Section
19 of the  Prevention  of  Corruption  is  thus  much  too  clear  to  admit
equivocation. The statute forbids taking of cognizance by the Court  against
a  public  servant  except  with  the  previous  sanction  of  an  authority
competent to grant such sanction in terms of clauses (a),  (b)  and  (c)  to
Section 19(1). The question regarding  validity  of  such  sanction  can  be
raised at any stage of the proceedings. The competence of the  court  trying
the accused so much depends upon the existence of a valid sanction. In  case
the sanction is found to be invalid the  court  can  discharge  the  accused
relegating the parties to a stage where the competent authority may grant  a
fresh sanction for prosecution in accordance with law. If  the  trial  Court
proceeds, despite the invalidity attached to the sanction  order,  the  same
shall be deemed to be non-est in the eyes of law  and  shall  not  forbid  a
second trial for the same offences, upon grant of a valid sanction for  such
prosecution.
16.   Having said that there are  two  aspects  which  we  must  immediately
advert to. The first relates to the effect of  sub-section  (3)  to  Section
19, which starts with a non-obstante  clause.  Also  relevant  to  the  same
aspect would be Section 465 of the Cr.P.C. which we have extracted  earlier.
It was argued on behalf of the State with considerable tenacity worthy of  a
better cause, that in  terms  of  Section  19(3),  any  error,  omission  or
irregularity in the order sanctioning prosecution of an accused  was  of  no
consequence so long as there was no failure of justice resulting  from  such
error,  omission  or  irregularity.  It  was  contended  that  in  terms  of
explanation to Section 4, “error includes competence  of  the  authority  to
grant sanction”. The argument is on the face of it attractive but does  not,
in our opinion, stand closer scrutiny.  A  careful  reading  of  sub-section
(3)  to  Section  19  would  show  that  the  same  interdicts  reversal  or
alteration of any finding, sentence or order passed by a Special  Judge,  on
the ground that the sanction  order  suffers  from  an  error,  omission  or
irregularity, unless of course the court before whom such finding,  sentence
or order is challenged in appeal or  revision  is  of  the  opinion  that  a
failure of justice has  occurred  by  reason  of  such  error,  omission  or
irregularity. Sub-section (3), in other words, simply  forbids  interference
with an order passed by Special Judge in appeal, confirmation or  revisional
proceedings on the ground that the sanction  is  bad  save  and  except,  in
cases where the appellate or revisional court finds that failure of  justice
has occurred by such invalidity. What is noteworthy is  that  sub-section(3)
has no application to proceedings before the Special Judge, who is  free  to
pass an order discharging the accused, if he is of the opinion that a  valid
order sanctioning prosecution of  the  accused  had  not  been  produced  as
required under Section 19(1).  Sub-section (3), in our  opinion,  postulates
a prohibition against a higher  court  reversing  an  order  passed  by  the
Special Judge on the ground of any defect, omission or irregularity  in  the
order of sanction.  It does not forbid  a  Special  Judge  from  passing  an
order at whatever stage of the proceedings holding that the  prosecution  is
not maintainable for want  of  a  valid  order  sanctioning  the  same.  The
language  employed  in  sub-section  (3)  is,  in  our  opinion,  clear  and
unambiguous.  This is, in our opinion, sufficiently evident  even  from  the
language employed in sub-section (4) according to  which  the  appellate  or
the revisional Court shall, while examining whether the error,  omission  or
irregularity in the sanction had occasioned in any failure of justice,  have
regard to the fact whether the objection could and should have  been  raised
at an early stage. Suffice it to  say,  that  a  conjoint  reading  of  sub-
sections 19(3) and (4) leaves no manner of doubt that  the  said  provisions
envisage a challenge to the  validity  of  the  order  of  sanction  or  the
validity of the proceedings including finding, sentence or order  passed  by
the Special Judge in appeal or  revision  before  a  higher  Court  and  not
before the Special Judge trying the accused. The  rationale  underlying  the
provision obviously is that if the trial has proceeded  to   conclusion  and
resulted  in  a  finding  or  sentence,  the  same  should  not  be  lightly
interfered with by the appellate or  the  revisional  court  simply  because
there was some omission, error or  irregularity  in  the  order  sanctioning
prosecution under Section 19(1). Failure of justice is, what  the  appellate
or revisional Court would in  such  cases  look  for.  And  while  examining
whether any such failure had indeed taken place, the Court  concerned  would
also keep in mind whether the objection  touching  the  error,  omission  or
irregularity in the sanction could or should have been raised at an  earlier
stage of the proceedings meaning thereby whether the same could  and  should
have been raised at the trial stage instead of  being  urged  in  appeal  or
revision.
17.   In the case at hand,  the  Special  Court  not  only  entertained  the
contention urged on behalf of the accused about the invalidity of the  order
of sanction but  found  that  the  authority  issuing  the  said  order  was
incompetent to grant sanction. The trial Court held that the  authority  who
had issued the sanction was not competent to do so, a  fact  which  has  not
been disputed before the High Court or before us. The only error  which  the
trial Court, in our opinion, committed was that, having  held  the  sanction
to be invalid, it should have discharged the accused rather  than  recording
an order of acquittal on the merit of the case. As observed  by  this  Court
in Baij Nath Prasad Tripathi’s case  (supra),  the  absence  of  a  sanction
order implied that the court was not competent to  take  cognizance  or  try
the accused. Resultantly, the trial by an incompetent Court was bound to  be
invalid and non-est in law.

18.   To the same effect is the decision of this Court in Mohammad Safi  vs.
The State of West Bengal (AIR 1966 SC 69). This Court observed:

“As regards the second contention of Mr. Mukherjee it is necessary to  point
out that a criminal court is precluded from determining the case  before  it
in which a charge has been framed otherwise  than  by  making  an  order  of
acquittal or conviction  only  where  the  charge  was  framed  by  a  court
competent to frame it and by a court competent to try the case  and  make  a
valid order of acquittal or  conviction.  No  doubt,  here  the  charge  was
framed by Mr. Ganguly but on his own view  he  was  not  competent  to  take
cognizance of the offence and, therefore, incompetent  to  frame  a  charge.
For this reason the mere fact that a charge had been  framed  in  this  case
does not help the appellant.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

12. In addition to the competent of the court, s. 403 of the Code speaks  of
there having been a trial and the trial having ended in an  acquittal.  From
what we have said above, it will  be  clear  that  the  fact  that  all  the
witnesses for the prosecution as well as for the defence had  been  examined
before Mr. Ganguly  and  the  further  fact  that  the  appellant  was  also
examined under s. 342 cannot in law be deemed to  be  a  trial  at  all.  It
would be only repetition to say that for proceedings to amount  to  a  trial
they must be held before a court which is in fact  competent  to  hold  them
and which is not of opinion that it has no  jurisdiction  to  hold  them.  A
fortiori it would also  follow  that  the  ultimate  order  made  by  it  by
whatever name it is characterised cannot in law operate as an acquittal.  In
the Privy  Council  case  it  was  interpreted  by  Sir  John  Beaumont  who
delivered the opinion of the Board to  be  an  order  of  discharge.  It  is
unnecessary for us to say whether such an  order  amounts  to  an  order  of
discharge in the absence of any express provision governing  the  matter  in
the Code or it does not amount to an order of discharge.  It  is  sufficient
to say that it does not amount to an order of acquittal as  contemplated  by
s. 403(1) and since the proceedings before  the  Special  Judge  ended  with
that order it would be enough to look upon it merely as an order  putting  a
stop to the proceedings. For these  reasons  we  hold  that  the  trial  and
eventual conviction of the appellant by Mr. Bhattacharjee were valid in  law
and dismiss the appeal.”


19.   In Babu Thomas (supra) also this Court  after  holding  the  order  of
sanction to be invalid, relegated the  parties  to  a  position,  where  the
competent authority could issue  a  proper  order  sanctioning  prosecution,
having regard to the nature of the allegations made against accused in  that
case.
20.   The High Court has not, in  our  opinion,  correctly  appreciated  the
legal position regarding  the  need  for  sanction  or  the  effect  of  its
invalidity. It has simply glossed over the  subject,  by  holding  that  the
question should have been raised at an earlier stage.  The  High  Court  did
not, it appears, realise that the issue was not being raised before  it  for
the first time but had been successfully urged before the trial Court.
21.   The next question then is  whether  we  should,  while  allowing  this
appeal, set aside the order passed by the High Court and permit  the  launch
of a fresh prosecution against the  appellant,  at  this  distant  point  of
time.  The incident in question occurred on 24th March, 1998. The  appellant
was, at that point of time, around 38 years old. The appellant  is  today  a
senior citizen. Putting the clock back at this stage  when  the  prosecution
witnesses themselves may not be available, will in  our  opinion,  serve  no
purpose. That apart, the trial Court had,  even  upon  appreciation  of  the
evidence, although it was not required to do so, given its  finding  on  the
validity of the sanction,  and  had  held  that  the  prosecution  case  was
doubtful, rejecting the prosecution story.  It  will,  therefore,  serve  no
purpose to resume the proceedings over and again.  We do not, at  any  rate,
see any compelling reason for directing a fresh trial at this distant  point
of time in a case of this nature involving a bribe of  Rs.500/-,  for  which
the appellant has already suffered the ignominy of a trial,  conviction  and
a jail term no matter for a short while. We, accordingly, allow this  appeal
and set aside the order passed by the High Court.


                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)



                                                        ………………………………….…..…J.
                                                               (AMITAVA ROY)
New Delhi
July 24, 2015

ITEM NO.1G-For Judgment        COURT NO.2         SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  1867/2012

NANJAPPA                                          Appellant(s)

                                VERSUS

STATE OF KARNATAKA                               Respondent(s)

Date : 24/07/2015 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Mr. S. N. Bhat,Adv.

For Respondent(s)
                     Mr. V. N. Raghupathy,Adv.


            Hon'ble Mr. Justice T.S. Thakur pronounced the judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice Amitava Roy.
            The  appeal  is  allowed  in  terms  of  the  Signed  Reportable
Judgment.

      (VINOD KR.JHA)                         (VEENA KHERA)
       COURT MASTER                                COURT MASTER

          (Signed Reportable judgment is placed on the file)

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