REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    843           OF 2009 (Arising out of SLP (Crl.) No. 707 of 2004)

State of M.P.  ....Appellant

Versus

Virendra Kumar Tripathi ....Respondent

With

CRIMINAL APPEAL NO.    844         OF 2009 (Arising out of SLP (Crl.) No. 3753 of 2004)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted.

2. These  appeals  are  inter  linked and  are  therefore  disposed  of  by this  common  

judgment.  Challenge in these appeals is to  the order passed by a learned Single  

Judge of the Madhya Pradesh High Court,  Indore Bench, questioning the order  

dated 3.10.2002 passed by a learned Special Judge and First Additional Sessions  

Judge,  Indore framing charges in relation to  accusations under Section 13(1)(e)  

read with Section 13(2)  of the Prevention of Corruption Act,1988 (in short  the  

‘Act’).   A revision petition  was  filed by Virender  Kumar  Tripathi  (hereinafter  

referred  to  as  the  ‘accused’).   The State  through Special Police Establishment,  

Lokayukt Office, Indore filed charge sheet against the accused alleging that during

the period of 1.1.1980 to 1.1.1990 while serving as Ranger in Forest Department of  

the State  of Madhya Pradesh he acquired assets disproportionate  to  the known  

sources of income.  At the time of framing charge the accused took the stand that  

he  was  liable to  be  discharged  as  the  investigation  was  not  conducted  by the  

authorized police officer as required under Section 17 (second proviso) of the Act.  

Further sanction was not accorded in accordance with law by the Law Department  

who was required to  consult  the parent  department  of the  applicant i.e.  Forest  

Department in view of the order dated 9th February, 1988 of the State Government.  

It  was  also  submitted  that  the  investigating  agency had  wrongly excluded  the  

income of the wife of the accused though the same was properly disclosed as her  

income before the department as well as in the income tax returns. Similarly, certain  

receipts were not taken into account.  The trial court held that the investigation was  

done by the authorized police officers i.e. Deputy Superintendent of Police who had  

obtained search warrant from the CJM, Indore and, therefore,  authorized officer  

investigated the matter.  It  was also submitted that  under Section 17 of the Act  

Deputy Superintendent  of police can investigate into any offence under the Act  

being a designated officer.  Further it was noted that as per the Business Allocation  

Rules framed under Article 166(3) of the Constitution of India, 1950 (in short the  

‘Constitution’) the sanction was granted in the name of the Governor of the State  

by the Additional Secretary of the Department of Law and Legislative Affairs which  

was the legally authorized Department. However, the Court held that the plea that  

value of disproportionate asset was to be reduced so far as the exclusion of certain  

items is concerned, same was matter of evidence and is to be considered trial.  The  

stands taken before the trial court were reiterated before the High Court.    By the  

impugned judgment the High Court held that the Law and Legislative Department  

was required to  consult  the  parent  department  which was necessary as per  the  

circular/order  dated  9th February,  1988  and,  therefore,  there  was  no  proper

sanction.  Accordingly, it was held that the accused cannot be prosecuted on the  

basis of the sanction of the Law and Legislative Department.  It did not express any  

final opinion as far as  the exclusion of income aspect is concerned.  But it upheld  

the view regarding legality of investigation.   

3. In the appeal filed by the State it has been contended that the sanction had been given  

by the concerned authority and, therefore, the High Court’s view is not correct. Additionally, it is  

submitted that the exclusion of certain items as directed by the High Court cannot be maintained  

because at the stage of framing charges the Court is not required to take into account materials  

which have to be established during trial.   

4. In the appeal filed by the accused the stand is that apart from the question of lack of  

sanction even on facts there is no scope for proceeding against the accused.  In that view of the  

matter  also  the  accused  was  entitled  to  be  discharged.   It  is  also  submitted  that  the  Dy.  

Superintendent of Police was not authorized to conduct investigation.   

5. So far as the defect in sanction aspect  is concerned,  the circular of which the High  

Court  has placed reliance needs  to  be noted.  The  Circular  in question is dated  9.2.1988  the  

relevant portion reads as follows :

“The  Government  also  decided  that  before  giving  approval  of  prosecutions,  the  Principal  Secretary, Law and Legal Deptt. will obtain the advise of concerned Department.”

6. A bare perusal of the paragraph shows that  before giving approval for prosecution,

advice of the concerned Department was necessary.  The question arises whether the absence of  

advice  renders  the  sanction  inoperative.   Undisputedly  the  sanction  has  been  given  by  the  

Department  of  Law  and  Legislative.   The  State  government  had  granted  approval  of  the  

prosecution.  As noted above, the sanction was granted in the name of the Governor of the State  

by Additional Secretary, Department of Law and Legislative Affairs.  The advice at the most is an  

inter-departmental matter.   Further the High Court  has failed to  consider the effect of Section  

19(3) of the Act.  The said provision makes it clear that no finding, sentence or order passed by a  

Special Judge shall be reversed or altered by a court of appeal on the ground of absence of /or any  

error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the  

opinion of the Court a failure of justice has in fact been occasioned thereby.  In the instant case  

there was not even a whisper or pleading about any failure of justice.  The stage when this failure  

is to be established yet to be reached since the case is at the stage of framing of charge whether or  

not  failure has in fact  been occasioned was  to  be determined once  the  trial commenced and  

evidence was lead.  In this connection the decisions of this Court in State v. T. Venkatesh Murthy  

[2004(7) SCC 763] and in Prakash Singh Badal v.  State of Punjab [2007(1) SCC 1] need to be  

noted.

7. That being so the High Court’s view quashing the proceedings cannot be sustained and  

the State’s appeal deserves to be allowed which we direct.   

8. Coming  to  the  appeal  filed  by the  accused  one  of  the  questions  is  whether  the  

investigating officer was authorized to conduct the investigation. The investigation was carried on  

by the duly authorized officer namely the Dy. Superintendent of Police under Section 17(c) of the  

Act.

9. The broader issues raised need not be looked into.  The function of investigation was  

merely to collect evidence and any irregularity and illegality in the course of collection of evidence  

can hardly be considered by itself to affect legality of trial by a competent Court of the offence so  

investigated. In  H.N. Rishbud and Anr. v. State of Delhi (AIR 1955 SC 196), it was observed that  

a conviction is not violated because there has not been strict compliance with the provisions of the  

Act in the matter of investigation  by a police officer unless the accused is shown to have been  

prejudiced.  There is no material to show prejudice.  The proceedings started in 1987. FIR was  

registered on 22.2.1991.  In 1992, the accused filed a petition before the High Court.  Chargesheet  

was filed on 21.12.1993.  On 30.8.2000, the petition filed before the High Court was disposed of.  

There was no challenge at that stage to  legality of investigation and related to  consideration of  

certain documents.  Learned Special Judge considered the matter  afresh and rejected accused’s  

plea.  Again, High Court  was moved.  Only the plea related to non-consideration of documents  

during investigation and did not relate to legality of investigation.  So, the present stand without  

establishing any prejudice deserves to be rejected.

10. So far as the non-exclusion of certain alleged income of relatives is concerned, it needs  

to be noted that these are matters of evidence and in such matters, the decision of this Court in  

State  of Orissa v.  Debendra Nath Padhi [JT 2004(10)  SC 303] is relevant.  The High Court’s  

judgment in this aspect does not suffer from any infirmity.  

11. In the ultimate analysis, the appeal filed by the State deserves to be allowed which we

direct while dismissing the appeal filed by the accused.

...................J. (Dr. ARIJIT PASAYAT)

..................J. (P. SATHASIVAM)

...................J. (AFTAB ALAM)

New Delhi; April 27, 2009