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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.