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Sanction to prosecution – sec.19 of PC Act and sec. 465 of Cr.P.C. -High court can not interfere the on errors or defects of sanction at preliminary stage – Sanction not from parent department – Sanction is a defective one – High court can not question the same on the grounds of errors and mistakes – Trial court alone decide the same after trial – Apex court held that we do not think that the High Court was justified in coming to the said findings at the stage when the same were recorded. A more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question.=STATE OF BIHAR & ORS. … APPELLANT (S) VERSUS RAJMANGAL RAM … RESPONDENT (S)= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41364

 Sanction to prosecution – sec.19 of PC Act and sec. 465 of Cr.P.C. -High court can not interfere the on errors or defects of sanction at preliminary stage – Sanction not from parent department – Sanction is a defective one – High court can not question the same on the grounds of errors and mistakes – Trial court alone decide the same after trial – Apex court held that we do not think that the High Court was justified in  coming to the said findings at the stage when  the  same  were  recorded.   A  more appropriate stage for reaching the said  conclusion  would  have  been  only after evidence in the cases had been led on the issue in question.=

 

the  criminal  proceedings  instituted  against  the

respondents under different provisions of the Indian Penal Code as  well  as

the Prevention of Corruption Act, 1988 have been interdicted on  the  ground

that sanction for prosecution of the respondents in both the cases has  been

granted by the Law Department of the State and not by the parent  department

to which the respondents belong.=

“Whether a criminal prosecution ought to be  interfered  with  by  the

      High Courts at the instance of an accused who seeks mid-course  relief

      from  the  criminal  charges  levelled  against  him  on  grounds   of

      defects/omissions  or  errors  in  the  order  granting  sanction   to

      prosecute including errors of jurisdiction to grant such sanction?”

 

Section 19 of the PC Act

 

      “19.  Previous sanction necessary for prosecution.—(1) No court  shall

      take cognizance of an offence punishable under sections 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 (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.

 

        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.”

 

Section 465 of Cr.P.C.

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

      omission or irregularity.—(1) Subject to the  provisions  hereinbefore

      contained, no  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.”

 in  State  by

Police Inspector vs. T. Venkatesh Murthy[1] wherein it has been  inter  alia

observed that,

   “14.   ……Merely  because  there  is  any  omission,   error   or

           irregularity in the matter of according sanction, that does  not

           affect the validity of the proceeding unless the  court  records

           the satisfaction that such error, omission or  irregularity  has

           resulted in failure of justice.”=

In the instant cases the  High  Court  had  interdicted  the  criminal

proceedings on the ground that the Law  Department  was  not  the  competent

authority to accord sanction for the prosecution of the  respondents.   Even

assuming that the Law Department was not competent, it was  still  necessary

for the High Court to reach the conclusion that a  failure  of  justice  has

been occasioned.  Such  a  finding  is  conspicuously  absent  rendering  it

difficult to sustain the impugned orders of the High Court.

 

11.   The High Court in both the cases had also come to the conclusion  that

the sanction  orders  in  question  were  passed  mechanically  and  without

consideration of the relevant facts and records.  This  was  treated  as  an

additional ground for interference with the criminal proceedings  registered

against the respondents.  Having perused the relevant  part  of  the  orders

under challenge we do not think that the High Court was justified in  coming

to the said findings at the stage when  the  same  were  recorded.   A  more

appropriate stage for reaching the said  conclusion  would  have  been  only

after evidence in the cases had been led on the issue in question.

 

12.   We, therefore, hold that the orders dated  23.03.2012  and  03.03.2011

passed by the High Court cannot be sustained in law.  We,  therefore,  allow

both the appeals; set aside the said orders and  direct  that  the  criminal

proceeding  against  each  of  the  respondents   in   the   appeals   under

consideration shall now commence and shall be concluded as expeditiously  as

possible.

 

2014 (March. Part ) judis.nic.in/supremecourt/filename=41364

P SATHASIVAM, RANJAN GOGOI

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.708 OF 2014
(Arising out of Special Leave Petition (Crl.) No. 8013 OF 2012)

STATE OF BIHAR & ORS. … APPELLANT (S)

VERSUS

RAJMANGAL RAM … RESPONDENT (S)

WITH

CRIMINAL APPEAL NOS.709-710 OF 2014
(Arising out of Special Leave Petition (Crl.) Nos.159-160 OF 2013)
J U D G M E N T

RANJAN GOGOI, J.

1. Leave, as prayed for, is granted in both the matters.

2. The two appeals are by the State of Bihar against separate orders
(dated 23.03.2012 and 03.03.2011) passed by the High Court of Patna, the
effect of which is that the criminal proceedings instituted against the
respondents under different provisions of the Indian Penal Code as well as
the Prevention of Corruption Act, 1988 have been interdicted on the ground
that sanction for prosecution of the respondents in both the cases has been
granted by the Law Department of the State and not by the parent department
to which the respondents belong.

3. A short and interesting question, which is also of considerable
public importance, has arisen in the appeals under consideration. Before
proceeding further it will be necessary to take note of the fact that in
the appeal arising out of SLP (Crl.) No. 8013 of 2012 the challenge of the
respondent- writ petitioner before the High Court to the maintainability of
the criminal proceeding registered against him is subtly crafted. The
criminal proceeding, as such, was not challenged in the writ petition and
it is only the order granting sanction to prosecute that had been impugned
and interfered with by the High Court. The resultant effect, of course, is
that the criminal proceeding stood interdicted. In the second case (SLP
(Crl.) Nos.159-160/2013) the maintainability of the criminal case was
specifically under challenge before the High Court on the ground that the
order granting sanction is invalid in law. Notwithstanding the above
differences in approach discernible in the proceedings instituted before
the High Court, the scrutiny in the present appeals will have to be from
the same standpoint, namely, the circumference of the court’s power to
interdict a criminal proceeding midcourse on the basis of the legitimacy or
otherwise of the order of sanction to prosecute.

4. Though learned counsels for both sides have elaborately taken us
through the materials on record including the criminal complaints lodged
against the respondents; the pleadings made in support of the challenge
before the High Court, the respective sanction orders as well as the
relevant provisions of the Rules of Executive Business, we do not consider
it necessary to traverse the said facts in view of the short question of
law arising which may be summed up as follows:-

“Whether a criminal prosecution ought to be interfered with by the
High Courts at the instance of an accused who seeks mid-course relief
from the criminal charges levelled against him on grounds of
defects/omissions or errors in the order granting sanction to
prosecute including errors of jurisdiction to grant such sanction?”

5. The object behind the requirement of grant of sanction to prosecute a
public servant need not detain the court save and except to reiterate that
the provisions in this regard either under the Code of Criminal Procedure
or the Prevention of Corruption Act, 1988 are designed as a check on
frivolous, mischievous and unscrupulous attempts to prosecute a honest
public servant for acts arising out of due discharge of duty and also to
enable him to efficiently perform the wide range of duties cast on him by
virtue of his office. The test, therefore, always is—whether the act
complained of has a reasonable connection with the discharge of official
duties by the government or the public servant. If such connection exists
and the discharge or exercise of the governmental function is, prima facie,
founded on the bonafide judgment of the public servant, the requirement of
sanction will be insisted upon so as to act as a filter to keep at bay any
motivated, ill-founded and frivolous prosecution against the public
servant. However, realising that the dividing line between an act in the
discharge of official duty and an act that is not, may, at times, get
blurred thereby enabling certain unjustified claims to be raised also on
behalf of the public servant so as to derive undue advantage of the
requirement of sanction, specific provisions have been incorporated in
Section 19(3) of the Prevention of Corruption Act as well as in Section 465
of the Code of Criminal Procedure which, inter alia, make it clear that
any error, omission or irregularity in the grant of sanction will not
affect any finding, sentence or order passed by a competent court unless in
the opinion of the court a failure of justice has been occasioned. This is
how the balance is sought to be struck.

6. For clarity it is considered necessary that the provisions of Section
19 of the P.C. Act and Section 465 of the Cr.P.C. should be embodied in the
present order:-

Section 19 of the PC Act

“19. Previous sanction necessary for prosecution.—(1) No court shall
take cognizance of an offence punishable under sections 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 (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.

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.”

Section 465 of Cr.P.C.
“465. Finding or sentence when reversible by reason of error,
omission or irregularity.—(1) Subject to the provisions hereinbefore
contained, no 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.”

(emphasis is ours)

7. In a situation where under both the enactments any error, omission or
irregularity in the sanction, which would also include the competence of
the authority to grant sanction, does not vitiate the eventual conclusion
in the trial including the conviction and sentence, unless of course a
failure of justice has occurred, it is difficult to see how at the
intermediary stage a criminal prosecution can be nullified or interdicted
on account of any such error, omission or irregularity in the sanction
order without arriving at the satisfaction that a failure of justice has
also been occasioned. This is what was decided by this Court in State by
Police Inspector vs. T. Venkatesh Murthy[1] wherein it has been inter alia
observed that,
“14. ……Merely because there is any omission, error or
irregularity in the matter of according sanction, that does not
affect the validity of the proceeding unless the court records
the satisfaction that such error, omission or irregularity has
resulted in failure of justice.”

8. The above view also found reiteration in Prakash Singh Badal and
Another vs. State of Punjab and Others[2] wherein it was, inter alia, held
that mere omission, error or irregularity in sanction is not to be
considered fatal unless it has resulted in failure of justice. In Prakash
Singh Badal (supra) it was further held that Section 19(1) of the PC Act is
a matter of procedure and does not go to the root of jurisdiction. On the
same line is the decision of this Court in R. Venkatkrishnan vs. Central
Bureau of Investigation[3]. In fact, a three Judge Bench in State of
Madhya Pradesh vs. Virender Kumar Tripathi[4] while considering an
identical issue, namely, the validity of the grant of sanction by the
Additional Secretary of the Department of Law and Legislative Affairs of
the Government of Madhya Pradesh instead of the authority in the parent
department, this Court held that in view of Section 19 (3) of the PC Act,
interdicting a criminal proceeding mid-course on ground of invalidity of
the sanction order will not be appropriate unless the court can also reach
the conclusion that failure of justice had been occasioned by any such
error, omission or irregularity in the sanction. It was further held that
failure of justice can be established not at the stage of framing of charge
but only after the trial has commenced and evidence is led (Para 10 of the
Report).

9. There is a contrary view of this Court in State of Goa vs. Babu
Thomas[5] holding that an error in grant of sanction goes to the root of
the prosecution. But the decision in Babu Thomas (supra) has to be
necessarily understood in the facts thereof, namely, that the authority
itself had admitted the invalidity of the initial sanction by issuing a
second sanction with retrospective effect to validate the cognizance
already taken on the basis of the initial sanction order. Even otherwise,
the position has been clarified by the larger Bench in State of Madhya
Pradesh vs. Virender Kumar Tripathi (supra).
10. In the instant cases the High Court had interdicted the criminal
proceedings on the ground that the Law Department was not the competent
authority to accord sanction for the prosecution of the respondents. Even
assuming that the Law Department was not competent, it was still necessary
for the High Court to reach the conclusion that a failure of justice has
been occasioned. Such a finding is conspicuously absent rendering it
difficult to sustain the impugned orders of the High Court.

11. The High Court in both the cases had also come to the conclusion that
the sanction orders in question were passed mechanically and without
consideration of the relevant facts and records. This was treated as an
additional ground for interference with the criminal proceedings registered
against the respondents. Having perused the relevant part of the orders
under challenge we do not think that the High Court was justified in coming
to the said findings at the stage when the same were recorded. A more
appropriate stage for reaching the said conclusion would have been only
after evidence in the cases had been led on the issue in question.

12. We, therefore, hold that the orders dated 23.03.2012 and 03.03.2011
passed by the High Court cannot be sustained in law. We, therefore, allow
both the appeals; set aside the said orders and direct that the criminal
proceeding against each of the respondents in the appeals under
consideration shall now commence and shall be concluded as expeditiously as
possible.

……………………………CJI.
[P. SATHASIVAM]

 

………………………………J.
[RANJAN GOGOI]

NEW DELHI,
MARCH 31, 2014.

———————–
[1] (2004) 7 SCC 763 (paras 10 and 11)
[2] (2007) 1 SCC 1 (para 29)
[3] (2009) 11 SCC 737
[4] (2009) 15 SCC 533
[5] (2005) 8 SCC 130

———————–
12

 

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