NANJAPPA vs. STATE OF KARNATAKA

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.

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 1 Page 1 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:

amount, he prayed for action against the appellant. The Lokayukta JUDGMENT 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 2 Page 2 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

appellant had any role in the passing of the resolution by the JUDGMENT 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 3 Page 3 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

Relying upon the deposition of PW-4 examined at the trial, the Trial JUDGMENT 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.

4 Page 4 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

explanation of the appellant as recorded in the trap mahazar to JUDGMENT 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 5 Page 5 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: JUDGMENT “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 6 Page 6 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.

(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.” JUDGMENT 7 Page 7 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.” JUDGMENT 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 8 Page 8 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

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: JUDGMENT “"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; 9 Page 9 (c) in the case of any other person, of the authority competent to remove him from his office.

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 JUDGMENT 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 10 Page 10 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

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 JUDGMENT 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. 11 Page 11 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 ,

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.” JUDGMENT 8. In Yusofalli Mulla’s case (supra), the Privy Council was 12 Page 12 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

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.” JUDGMENT 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: 13 Page 13

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 14 Page 14 accused. This Court observed:

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 JUDGMENT 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 15 Page 15 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

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 , JUDGMENT 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 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.” 16 Page 16 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,

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. JUDGMENT 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 17 Page 17 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

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.” JUDGMENT 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 18 Page 18 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

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 JUDGMENT 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 19 Page 19 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

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 JUDGMENT 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 20 Page 20 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

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 JUDGMENT 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 21 Page 21 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

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, JUDGMENT 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 22 Page 22 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

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 JUDGMENT 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 23 Page 23 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

JUDGMENT 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 24 Page 24 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 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 th this distant point of time. The incident in question occurred on 24 JUDGMENT 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 25 Page 25 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

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) JUDGMENT ………………………………….…..…J. (AMITAVA ROY) New Delhi July 24, 2015 26 Page 26 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

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 Judgment. (VINOD KR.JHA) (VEENA KHERA) COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file) 27 Page 27