Full Judgment Text
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CASE NO.:
Appeal (crl.) 766 of 2001
PETITIONER:
State of Karnataka
RESPONDENT:
Ameer Jan
DATE OF JUDGMENT: 18/09/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. Interpretation and/ or application of the provisions of Section 19 of
the Prevention of Corruption Act, 1988 (for short "the Act") falls for our
consideration in this appeal which arises out of a judgment and order dated
19.06.2000 passed by the High Court of Karnataka at Bangalore in Criminal
Appeal No. 222 of 1995.
2. Respondent herein was working as a Second Division Assistant in the
Office of the Registrar of Firms and Cooperative Societies. D.V.
Thrilochana (PW-3) approached him for grant of a certificate. He allegedly
demanded a sum of Rs. 300/- from him. He was put to trial for alleged
commission of an offence under Sections 7, 13(1)(d) read with 13(2) of the
Act.
3. An order of sanction was issued by the Commissioner of Stamps
solely relying on or on the basis of a purported report issued by the Inspector
General of Police, Karnataka Lokayuktha. The purported order of sanction
being dated 20.07.1992 reads as under:
"In exercise of the powers conferred under Section
19(1)(c) of the Prevention of Corruption Act,
1988, I hereby accord sanction to prosecute Sri
Ameerjan, Second Division Assistant in the office
of the Registrar of Firms and Societies, Bangalore,
Urban District, Bangalore for offences punishable
under Section 7 and 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988 in the
competent court of law."
4. The sanctioning authority examined himself before the learned Trial
Judge as PW-8. He, however, did not produce the report of the Inspector
General of Police, Karnataka Lokayuktha. Even otherwise the same was not
brought on records. The learned Trial Judge upon considering the materials
brought on records by the prosecution opined that the respondent was guilty
of commission of the said offence.
By reason of the impugned judgment, the High Court, however,
reversed the same opining that the order of sanction being illegal, the
judgment of conviction could not be sustained.
5. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the State
of Karanataka, in support of this appeal would submit that an order of
sanction should not be construed in a pedantic manner. The learned counsel
urged that the High Court committed a manifest error in proceeding to
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determine the legality or validity of the order of sanction having regard to an
irrelevant factor, viz., that the offence involved only a sum of Rs. 300/-.
In particular, the following findings of the High Court was criticized
submitting that the same do not lay down the correct legal position:
"...The additional reason for this view is because
there is an entirely different aspect of the law
which applies to cases of this category insofar as
the courts have now held that if the amount
involved is relatively small if it is a single isolated
instance and there is no evidence of habitual bribe
taking or assets dis-proportionate to the known
sources of income, that the sanctioning authority
will have to carefully evaluate as to whether the
interest of justice will not be adequately served by
taking disciplinary action rather than by burdening
the courts with full fledged prosecution in a case of
relatively trivial facts. These are all areas of deep
seated evaluation which can only be truly justified
through a proper perusal of the records. I am
unable to accept the submission put forward by the
learned Public Prosecutor that the reference to the
receipt of the records is sufficient to get over the
basic infirmity in the sanction order wherein the
authority is quick to state that he acted only on the
basis of the letter from the Inspector General of
Police..."
6. Mr. Sanjay Parikh, learned counsel appearing on behalf of the
respondent, however, would submit that the purported order of sanction
dated 20.07.1992 ex facie shows a total non-application of mind on the part
of PW-8 and, thus, the impugned judgment is unassailable.
7. We agree that an order of sanction should not be construed in a
pedantic manner. But, it is also well settled that the purpose for which an
order of sanction is required to be passed should always be borne in mind.
Ordinarily, the sanctioning authority is the best person to judge as to whether
the public servant concerned should receive the protection under the Act by
refusing to accord sanction for his prosecution or not.
8. For the aforementioned purpose, indisputably, application of mind on
the part of the sanctioning authority is imperative. The order granting
sanction must be demonstrative of the fact that there had been proper
application of mind on the part of the sanctioning authority. We have
noticed hereinbefore that the sanctioning authority had purported to pass the
order of sanction solely on the basis of the report made by the Inspector
General of Police, Karnataka Lokayuktha. Even the said report has not been
brought on record. Thus, whether in the said report, either in the body
thereof or by annexing therewith the relevant documents, IG Police
Karnataka Lokayuktha had placed on record the materials collected on
investigation of the matter which would prima facie establish existence of
evidence in regard to the commission of the offence by the public servant
concerned is not evident. Ordinarily, before passing an order of sanction,
the entire records containing the materials collected against the accused
should be placed before the sanctioning authority. In the event, the order of
sanction does not indicate application of mind as the materials placed before
the said authority before the order of sanction was passed, the same may be
produced before the court to show that such materials had in fact been
produced.
9. The Privy Council as far back in 1948 in Gokulchand Dwarkadas
Morarka v. The King [AIR 1948 PC 82] opined that the object of the
provision for sanction is that the authority giving it should be able to
consider for itself the evidence before it comes to a conclusion that the
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prosecution in the circumstances be sanctioned or forbidden stating:
"In Their Lordships’ view, to comply with the
provisions of clause 23 it must be proved that the
sanction was given in respect of the facts
constituting the offence charged. It is plainly
desirable that the facts should be referred to on the
face of the sanction, but this is not essential, since
clause 23 does not require the sanction to be in any
particular form, nor even to be in writing. But if
the facts constituting the offence charged are not
shown on the face of the sanction, the prosecution
must prove by extraneous evidence that those facts
were placed before the sanctioning authority. The
sanction to prosecute is an important matter; it
constitutes a condition precedent to the institution
of the prosecution and the Government have an
absolute discretion to grant or withhold their
sanction."
The said decision has been referred to by this Court, with approval, in
Jaswant Singh v. State of Punjab [AIR 1958 SC 124].
10. Yet again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh [(1979) 4
SCC 172], this Court opined that the sanctioning authority cannot rely on the
statutory presumption contained in Section 4 of the Prevention of Corruption
Act, 1947 stating:
"\005In the first place there is no question of the
presumption being available to the Sanctioning
Authority because at that stage the occasion for
drawing a presumption never arises since there is
no case in the Court. Secondly, the presumption
does not arise automatically but only on proof of
certain circumstances, that is to say, where it is
proved by evidence in the Court that the money
said to have been paid to the accused was actually
recovered from his possession. It is only then that
the Court may presume the amount received would
be deemed to be an illegal gratification. So far as
the question of sanction is concerned this arises
before the proceedings come to the Court and the
question of drawing the presumption, therefore,
does not arise at this stage\005"
11. In R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183] following Mohd.
Iqbal Ahmed (supra), this Court held:
"\005The Legislature advisedly conferred power on
the authority competent to remove the public
servant from the office to grant sanction for the
obvious reason that that authority alone would be
able, when facts and evidence are placed before
him to judge whether a serious offence is
committed or the prosecution is either frivolous or
speculative. That authority alone would be
competent to judge whether on the facts alleged,
there has been an abuse or misuse of office held by
the public servant. That authority would be in a
position to know what was the power conferred on
the office which the public servant holds, how that
power could be abused for corrupt motive and
whether prima facie it has been so done. That
competent authority alone would know the nature
and functions discharged by the public servant
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holding the office and whether the same has been
abused or misused. It is the vertical hierarchy
between the authority competent to remove the
public servant from that office and the nature of
the office held by the public servant against whom
sanction is sought which would indicate a
hierarchy and which would therefore, permit
inference of knowledge about the functions and
duties of the office and its misuse or abuse by the
public servant. That is why the Legislature clearly
provided that that authority alone would be
competent to grant sanction which is entitled to
remove the public servant against whom sanction
is sought from the office."
12. In Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC
622], this Court held:
"14. From a perusal of Section 6, it would appear
that the Central or the State Government or any
other authority (depending upon the category of
the public servant) has the right to consider the
facts of each case and to decide whether that
"public servant" is to be prosecuted or not. Since
the section clearly prohibits the courts from taking
cognizance of the offences specified therein, it
envisages that the Central or the State Government
or the "other authority" has not only the right to
consider the question of grant of sanction, it has
also the discretion to grant or not to grant
sanction."
[See also State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268]
13. Our attention, however, was drawn to a recent decision of this Court
in Prakash Singh Badal and Another v. State of Punjab and Others [(2007) 1
SCC 1] by Mr. Hegde to contend that having regard to Sub-sections (3) and
(4) of Section 19 of the Act, only because an order of sanction contains
certain irregularities, the court would not set aside an order of conviction.
In Prakash Singh Badal (supra), the question which arose for
consideration before this Court was as to whether an order of sanction is
required to be passed in terms of Section 197 of the Code of Criminal
Procedure in relation to an accused who has ceased to be a public servant. It
was in that context a question arose before this Court as to whether the act
alleged to be performed under the colour of office is for the benefit of the
officer or for his own pleasure. In the context of question as to whether the
public servant concerned should receive continuous protection, it was
opined:
"29. The effect of sub-sections (3) and (4) of
Section 19 of the Act are of considerable
significance. In sub-section (3) the stress is on
"failure of justice" and that too "in the opinion of
the court". In sub-section (4), the stress is on
raising the plea at the appropriate time.
Significantly, the "failure of justice" is relatable to
error, omission or irregularity in the sanction.
Therefore, mere error, omission or irregularity in
sanction is ( sic not) considered fatal unless it has
resulted in failure of justice or has been occasioned
thereby. Section 19(1) is a matter of procedure and
does not go to the root of jurisdiction as observed
in para 95 of Narasimha Rao case 2 . Sub-section
(3)( c ) of Section 19 reduces the rigour of
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prohibition. In Section 6(2) of the old Act [Section
19(2) of the Act] question relates to doubt about
authority to grant sanction and not whether
sanction is necessary."
Prakash Singh Badal (supra), therefore, is not an authority for the
proposition that even when an order of sanction is held to be wholly invalid
inter alia on the premise that the order is a nullity having been suffering
from the vice of total non-application of mind. We, therefore, are of the
opinon that the said decision cannot be said to have any application in the
instant case.
14. We may notice that in Sankaran Moitra v. Sadhna Das & Anr. [(2006)
4 SCC 584 : JT 2006 (4) SC 34], the Majority, albeit in the context of
Section 197 of the Code of Criminal Procedure, opined:
"22. Learned counsel for the complainant argued
that want of sanction under Section 197(1) of the
Code did not affect the jurisdiction of the Court to
proceed, but it was only one of the defences
available to the accused and the accused can raise
the defence at the appropriate time. We are not in a
position to accept this submission. Section 197(1),
its opening words and the object sought to be
achieved by it, and the decisions of this Court
earlier cited, clearly indicate that a prosecution hit
by that provision cannot be launched without the
sanction contemplated. It is a condition precedent,
as it were, for a successful prosecution of a public
servant when the provision is attracted, though the
question may arise necessarily not at the inception,
but even at a subsequent stage. We cannot
therefore accede to the request to postpone a
decision on this question."
15. In this case, the High Court called for the original records. It had
gone thereinto. It was found that except the report, no other record was
made available before the sanctioning authority. The order of sanction also
stated so. PW-8 also did not have the occasion to consider the records
except the purported report.
16. We are, therefore, of the opinion that the impugned judgment does not
suffer from any legal infirmity although some observations made by the
High Court, as noticed hereinbefore, do not lay down the correct legal
position. The appeal is dismissed.