TMI Blog2015 (7) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 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 - The rationale underlying the provision obviously is that if the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 ₹ 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 deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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 Code of Criminal Procedure 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 Section 190, Sub-section (1), cls. (a) and (b); it has no bearing in a case where sanction is nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid 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 v. State of Delhi [Criminal Appeal No. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms 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 Code of Criminal Procedure 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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