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CASE NO.: Appeal (crl.)  1279 of 2002

PETITIONER: State of Karnataka through CBI                           

RESPONDENT: C. Nagarajaswamy                                                 

DATE OF JUDGMENT: 07/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NO. 137 OF 2003

State of Karnataka through CBI                          \005Appellant

Versus

M.K. Vijayalakshmi                                      \005Respondent

S.B. SINHA,  J :

Interpretation of Section 300 of the Code of Criminal Procedure (for  short "the Code") is in question in these appeals which arise out of  judgments and orders dated 9.1.2002 and 10.4.2002 in Criminal Petition  Nos. 330 of 2000 and 4007 of 2001 respectively passed by the High Court of  Karnataka at Bangalore.  

We will notice the fact of both the appeals separately.

Criminal Appeal No. 1279 of 2002

       The Respondent herein was working as a Junior Telecom Officer in  Shankarapuram Telecom Exchange.  One R. Veera Prathap made a  complaint that he had demanded an illegal gratification for showing official  favour whereupon a case in Crime No. R.C. 34A/1994 was registered.  A  charge sheet was filed therein and the Special Judge for CBI cases,  Bangalore by an order dated 16.7.1999 took cognizance of an offence under  Section 7 of the Prevention of Corruption Act, 1988 (for short "the Act").  In  the trial, 12 witnesses were examined.  The statement of Respondent under  Section 313 of the Code was also recorded.   

       The learned Special Judge formulated two points for his  determination:

"1. Whether the prosecution has proved that the  sanction accorded for the prosecution of the  accused in this case is a valid sanction?

2. Whether the prosecution has further proved  beyond any reasonable doubt that the accused has  committed the offences punishable under S.7 and  under S. 13(1)(d) R/w. S 13(2) of the Prevention of  Corruption Act, 1988?"

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       In regard to point No. 1, the learned Special Judge was of the opinion  that the sanction for prosecution accorded by PW11 was illegal and in that  view of the matter, the same was determined in favour of the Respondent.   In view of his findings as regard point No. 1, the learned Special Judge did  not record any finding on point No. 2 and directed as under:

"Accused C. Nagarajaswamy is hereby discharged  from the proceedings and his bail bonds stand  cancelled."

       A fresh charge sheet was filed after obtaining an order of sanction  which came to be challenged before the High Court by the Respondent in an  application filed under Section 482 of the Code.

Criminal Appeal No. 137 of 2003

       The Respondent herein was working as a Manager in State Bank of  Mysore, 4th Block, Rajajinagar, Bangalore.  She had dominion and control  over the management of the accounts of the Bank.  She allegedly  misappropriated a sum of Rs. 40,000/- wherefor a chargesheet was filed on  27.12.1984.  While the criminal proceedings were pending, she was  dismissed from service by an order dated 1.6.1985.  She faced a full-fledged  trial.  She was examined under Section 313 of the Code and also laid  defence evidence.  The question as regard sanction accorded by the  Managing Director of the Bank was raised by the Respondent herein before  the learned XXI Addl. City Civil and Sessions and Special Judge,  Bangalore, contending that only the Board of Directors was the competent  authority therefor.    By a judgment and order dated 14.11.1991, the learned  XXI Addl. City Civil and Sessions and Special Judge while accepting the  said plea directed:

"The sanction order (Ex. P28) is invalid.  The  sanctioning authority was not competent to issue  the said sanction order.  Further proceedings of the  case is stopped and the accused is released.  The  Bail bond of the accused is cancelled\005"

       A second chargesheet was filed after years on 18.8.1995 on the  ground that as the Respondent has been dismissed from the service, no  sanction was required for her prosecution.  Cognizance was taken by an  order dated 31.8.2001.  The Respondent herein filed an application under  Section 482 of the Code for quashing the criminal proceedings as also the  said order dated 31.8.2001.

       The High Court allowed the first application under Section 482 of the  Code filed by the Respondent herein on the ground that when an accused  faces a full-fledged trial, having regard to the provisions of the Code, the  Trial Court must either record a judgment of conviction or acquittal and the  accused cannot be discharged in terms of Section 227 of the Code after a  full-fledged trial.  In the second matter, the High Court was of the opinion  that no fresh trial is permissible in law.

       Mr. A. Sharan, learned Additional Solicitor General appearing on  behalf of the Appellant would contend that the High Court committed a  manifest error in passing the impugned orders insofar as it failed to take into  consideration the ingredients of the provisions of Section 300 of the Code.

       Relying on the decisions of this Court in Baij Nath Prasad Tripathi  Vs. the State of Bhopal [(1957) SCR 650] and Mohammad Safi Vs. The  State of West Bengal [AIR 1966 SC 69], Mr. Sharan would submit that in a

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case where a proper order of sanction was not passed, the court will have no  jurisdiction to take cognizance thereof and as such a judgment passed therein  shall be illegal and of no effect and in that view of the matter, subsequent  trial with proper sanction is not barred.

       Mr. Basava Prabhu S. Patil, learned counsel appearing on behalf of  the Respondents would submit that Chapter XVIII of the Code does not  envisage an order of discharge or dropping of the proceedings after a charge  has been framed, witnesses are examined, the statement of the accused under  Section 313 of the Code is taken and defence witnesses are examined.   

       Chapter XIX of the Code provides for trial of warrant-cases by  Magistrates.  An accused can be discharged in the cases instituted under  Section 173 in terms of Section 239 of the Code in the event, the Magistrate  considers the charge against the accused to be groundless wherefor reasons  are required to be recorded.  However, if charge is framed whereto the  accused pleads not guilty, the prosecution and defence may lead their  respective evidence.  Section 248 provides for recording of a judgment of  acquittal or conviction.

       The Appellant was proceeded against the Respondents under the Act.   Section 5 of the Act provides for the procedure and powers of the Special  Judge.  Section 19 of the Act mandates that no court shall take cognizance of  offence punishable under the provisions specified therein except with the  previous sanction by the authorities specified therein.

       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 therefor 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.  [See Ashok Sahu Vs.  Gokul Saikia and Another, 1990 (Supp) SCC 41 and Birendra K. Singh Vs.  State of Bihar, JT 2000 (8) SC 248]   

       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. [See B. Saha and Others Vs. M.S. Kochar, (1979) 4 SCC  177, para 13 and K. Kalimuthu Vs. State by DSP, (2005) 4 SCC 512]

       It is true that in terms of Clause (2) of Article 20 of the Constitution of  India no person can be prosecuted and punished for the same offence more  than once.  Section 300 of the Code was enacted having regard to the said  provision.  Sub-section (1) of Section 300 of the Code reads as under:

"Persons once convicted or acquitted not to be  tried for same offence \026 (1) A person who has once  been tried by a Court of competent jurisdiction for  an offence and convicted or acquitted of such  offence shall, while such conviction or acquittal  remains in force, not be liable to be tried again for  the same offence, nor on the same facts for any  other offence for which a different charge from the  one made against him might have been made under  sub-section (1) of section 221, or for which he  might have been convicted under sub-section (2)  thereof."

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       The essential conditions for invoking the bar under said provision are:

(i)     the court had requisite jurisdiction to take cognizance and tried the  accused; and (ii)    the court has recorded an order of conviction or acquittal, and such  conviction/ acquittal remains in force.

       The question came up for consideration before the Federal Court in  Basdeo Agarwalla Vs. King Emperor [(1945) F.C.R. 93] wherein it was held  that if a proceeding is initiated without sanction, the same would be null and  void.

       In Yusofalli Mulla Noorbhoy Vs. the King [AIR 1949 Privy Council  264], it was held:

"16\005A court cannot be competent to hear and  determine a prosecution the institution of which is  prohibited by law and S. 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: Cr. L.J. 510) that a prosecution  launched without a valid sanction is a nullity."

       The matter came up before this Court in Budha Mal Vs. The State of  Delhi [Criminal Appeal No. 17 of 1952] disposed of on 3rd October, 1952  wherein a trial of the Appellant therein for alleged commission of an offence  under Section 161 of the Indian Penal Code resulted in conviction but an  appeal therefrom was accepted on the ground that no sanction for the  prosecution of the Appellant was accorded therefor.  The police prosecuted  the Appellant again after obtaining fresh sanction whereupon a plea of bar  thereto in terms of Section 403 of the Code was raised.  Mahajan, J.  speaking for a Division Bench opined:

"We are satisfied that the learned Sessions Judge  was right in the view he took.  Section 403,  Cr.P.C. 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."

       The aforementioned cases were noticed by a Constitution Bench of  this Court in Baij Nath Prasad Tripathi (supra) wherein a similar plea was  repelled stating:

"\005The Privy Council decision is directly in point,  and it was there held that the whole basis of  Section 403(1) was that the first trial should have  been before a court competent to hear and  determine the case and to record a verdict of

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conviction or acquittal; if the court was not so  competent, as for example where the required  sanction for the prosecution was not obtained, it  was irrelevant that it was competent to try other  cases of the same class or indeed the case against  the particular accused in different circumstances,  for example if a sanction had been obtained."

         In  Mohammad Safi (supra), this Court held:

"6. It is true that Mr Ganguly could properly take  cognizance of the offence and, therefore, the  proceedings before him were in fact not vitiated by  reason of lack of jurisdiction. But we cannot close  our eyes to the fact that Mr Ganguly was himself  of the opinion \027 and indeed he had no option in  the matter because he was bound by the decisions  of the High Court \027 that he could not take  cognizance of the offence and consequently was  incompetent to try the appellant. Where a court  comes to such a conclusion, albeit erroneously, it  is difficult to appreciate how that court can absolve  the person arraigned before it completely of the  offence alleged against him. Where a person has  done something which is made punishable by law  he is liable to face a trial and this liability cannot  come to an end merely because the court before  which he was placed for trial forms an opinion that  it has no jurisdiction to try him or that it has no  jurisdiction to take cognizance of the offence  alleged against him. Where, therefore, a court says,  though erroneously, that it was not competent to  take cognizance of the offence it has no power to  acquit that person of the offence. An order of  acquittal made by it is in fact a nullity.  

       Relying   upon Yusofalli Mulla Noorbhoy (supra), it was  held: "The principle upon which the decision of the  Privy Council is based must apply equally to a  case like the present in which the court which  made the order of acquittal was itself of the  opinion that it had no jurisdiction to proceed with  the case and therefore the accused was not in  jeopardy."

         [See also State of Goa vs. Babu Thomas \026 (2005) 7 SCALE 659]         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.

       The learned counsel for the Respondent next contended that having  regard to the fact that the Respondents herein have faced ordeal of trial for a  long time, it would not be in the interest of justice to put them on trial once  over.  In this behalf he relied on the decision of this Court in State of  Madhya Pradesh Vs. Bhooraji and Ors. [JT 2001 (7) SC 55] wherein it is  observed that fresh trial should be ordered only in exceptional cases of  ’failure of justice’.  In Bhooraji (supra), the specified court being a Sessions

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Court took cognizance of the offence under the SC & ST (Prevention of  Atrocities) Act without the case being committed to it.  It convicted and  sentenced the accused.  During pendency of appeal by the accused before  High Court, this court took the view that committal proceedings are  necessary for a specified court, to take cognizance of offences to be tried  under the Act.  The High Court, therefore, quashed the entire proceedings  and directed trial de novo.  In that context this Court held that ordering de  novo trial was not justified and as the trial was conducted by a ’competent  court’, the same cannot be erased merely on account of a procedural lapse.   We may notice that in a case where the trial was conducted by a court of  competent jurisdiction ending in conviction or acquittal, a retrial may not be  directed.  Interpreting Section 465 of the Code, this Court in Bhooraji  (supra) held:

"22. The bar against taking cognizance of certain  offences or by certain courts cannot govern the  question whether the court concerned is "a court of  competent jurisdiction", e.g. courts are debarred  from taking cognizance of certain offences without  sanction of certain authorities. If a court took  cognizance of such offences, which were later  found to be without valid sanction, it would not  become the test or standard for deciding whether  that court was "a court of competent jurisdiction".  It is now well settled that if the question of  sanction was not raised at the earliest opportunity  the proceedings would remain unaffected on  account of want of sanction. This is another  example to show that the condition precedent for  taking cognizance is not the standard to determine  whether the court concerned is "a court of  competent jurisdiction".

       However, the learned counsel appearing on behalf of the Respondents  may be right in his submissions as regards the right of an accused for a  speedy trial having regard to the provisions contained in Article 21 of the  Constitution of India that a person’s fate may not be kept hanging for a long  time.

       In Mahendra Lal Das Vs. State of Bihar and Others [(2002) 1 SCC  149], this Court opined:

"5. It is true that interference by the court at the  investigation stage is not called for. However, it is  equally true that the investigating agency cannot  be given the latitude of protracting the conclusion  of the investigation without any limit of time. This  Court in Abdul Rehman Antulay v. R.S. Nayak  while interpreting the scope of Article 21 of the  Constitution held that every citizen has a right to  speedy trial of the case pending against him. The  speedy trial was considered also in public interest  as it serves the social interest also. It is in the  interest of all concerned that guilt or innocence of  the accused is determined as quickly as possible in  the circumstances. The right to speedy trial  encompasses all the stages, namely, stage of  investigation, enquiry, trial, appeal, revision and  retrial. While determining the alleged delay, the  court has to decide each case on its facts having  regard to all attending circumstances including  nature of offence, number of accused and  witnesses, the workload of the court concerned,  prevailing local conditions etc. Every delay may

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not be taken as causing prejudice to the accused  but the alleged delay has to be considered in the  totality of the circumstances and the general  conspectus of the case. Inordinate long delay can  be taken as a presentive proof of prejudice."

       In that case, however, the prosecution had miserably failed to explain  the delay of more than 13 years in granting the sanction for prosecution of  the Appellant therein of possessing disproportionate wealth of about Rs.  50,600/-.  The State was also not satisfied about the merit of the case and the  authorities were convinced that despite granting of sanction the trial would  be a mere formality and an exercise in futility.

       Yet again in P. Ramachandra Rao Vs. State of Karnataka [(2002) 4  SCC 578] this Court while categorically holding that no period of limitation  can be prescribed on which the trial of a criminal case or criminal  proceeding cannot continue and must mandatorily be closed followed by an  order acquitting or discharging the accused observed:

"(4) It is neither advisable, nor feasible, nor  judicially permissible to draw or prescribe an outer  limit for conclusion of all criminal proceedings.  The time-limits or bars of limitation prescribed in  the several directions made in Common Cause (I),  Raj Deo Sharma (I) and Raj Deo Sharma (II) could  not have been so prescribed or drawn and are not  good law. The criminal courts are not obliged to  terminate trial or criminal proceedings merely on  account of lapse of time, as prescribed by the  directions made in Common Cause case (I), Raj  Deo Sharma case (I) and (II). At the most the  periods of time prescribed in those decisions can  be taken by the courts seized of the trial or  proceedings to act as reminders when they may be  persuaded to apply their judicial mind to the facts  and circumstances of the case before them and  determine by taking into consideration the several  relevant factors as pointed out in A.R. Antulay  case and decide whether the trial or proceedings  have become so inordinately delayed as to be  called oppressive and unwarranted. Such time- limits cannot and will not by themselves be treated  by any court as a bar to further continuance of the  trial or proceedings and as mandatorily obliging  the court to terminate the same and acquit or  discharge the accused."

       Keeping in view of the aforementioned principles and having regard  to the facts and circumstances of this case, however, we are of the opinion  that the interest of justice shall be sub-served if while allowing these appeals  and setting aside the judgments of the High Court, the trial court is requested  to dispose of the matters at an early date preferably within six months from  the date of communication of this order, subject, of course, to rendition of all  cooperation of the Respondents herein.  In the event, the trial is not  completed within the aforementioned period, it would be open to the  Respondents to approach the High Court again.  These appeals are disposed  of with the aforementioned directions.  No costs.