10 September 2004
Supreme Court
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STATE BY POLICE INSPECTOR Vs T. VENKATESH MURTHY

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-000997-000997 / 2004
Diary number: 14615 / 2003


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CASE NO.: Appeal (crl.)  997 of 2004

PETITIONER: State by Police Inspector                                        

RESPONDENT: Sri. T. Venkatesh Murthy                                         

DATE OF JUDGMENT: 10/09/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.3615/2003)

ARIJIT PASAYAT, J.

Leave granted.

The scope and ambit of Section 19 of the Prevention of Corruption  Act, 1988 (in short the ’Act’) falls for consideration in this appeal.         State of Karnataka calls in question legality of the judgment  rendered by a learned Single judge of the Karnataka High Court.  The  High Court upheld the order of discharge passed by the Trial Court.   The respondent-accused was discharged in a criminal trial by the said  order.         Background facts necessary for disposal of the appeal in a  nutshell are as follows :

       A charge-sheet was filed against the respondent (hereinafter  referred to as the ’Accused’) for commission of offences relatable  under Sections 7, 13 (1) (d) read with Section 13(2) of the Act.   Charges were framed by the Trial Court under the aforesaid provisions.   Evidence of witnesses had also been recorded.  At that stage the public  prosecutor filed an application stating that in view of some earlier  judgments of the High Court, question relating to validating a sanction  for prosecution was to be adjudicated first.  The accused had no  objection to it. Undisputedly, the sanction was accorded by the  Superintending Engineer of the Karnataka Electricity Board (hereinafter  referred to as the ’Board’).  The Trial Court referred to the Karnataka  Electricity Board Employees (Classification, Disciplinary Control and  Appeal) Regulations, 1987 (in short the ’Regulations’) and held that  the sanction accorded by the Superintending Engineer was not sufficient  to prosecute the accused.  Consequently it was held that the accused  was entitled to discharge for the time being for the grant of invalid  sanction. However, liberty was given to the prosecution to obtain fresh  sanction and to file a fresh charge sheet.  The order was assailed  before the Karnataka High Court on the ground that even if it is  conceded that the sanction was defective, that did not entitle the  accused to an order of discharge. By the impugned order the revision  application filed under Section 397 read with Section 401 of the Code  of Code of  Criminal Procedure, 1973 (in short the ’Code’), was  dismissed.

       In support of the appeal learned counsel for the State submitted  that even if it is conceded for the sake of arguments that the sanction  was defective that did not entitle the accused to an order of  discharge. It was required to be shown by the accused as to how any

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prejudice was caused or there was failure of justice. It was also  pointed out that the order of the High Court is practically non- reasoned and no reason was assigned for accepting the view of the trial  court.   

       Per contra, learned counsel for the respondent \026 accused  submitted that the sanction was sine-qua-non for prosecution. In the  absence of a valid sanction the proceedings could not be continued and  therefore the trial court was right in its conclusion.

       Section 19 is a part of Chapter 5 of the Act which deals with  "Sanction For Prosecution and Other Miscellaneous Provisions". This  Section has four sub- sections which read as follows :          "19. Previous sanction necessary for prosecution.- (1) No  court shall take cognizance of an offence punishable under  Sections 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 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.

(2) Where for any reason whatsoever any doubt arises as to  whether the previous sanction as required under sub-section  (1) should be given by the  Central Government or the State  Government or any other authority, such sanction shall be  given by that Government or authority which would have been  competent to remove the public servant from his office at  the time when the offence was alleged to have been  committed.

(3)     Notwithstanding anything contained in the Code of  Criminal Procedure, 1973 (2 of 1974),-

(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

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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 \026 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."

       A combined reading of sub-sections (3) and (4) make the position  clear that notwithstanding anything contained in the Code no finding,  sentence and 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. Clause (b) of sub-section (3) is also relevant.  It shows that no  Court shall stay the proceedings under the 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.

       Sub-section (4) postulates that in determining under sub-section  (3) whether the absence of, or any error, omission or irregularity in  the 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 appended to the Section is also of significance.  It  provides, that for the purpose of Section 19, error includes competency  of the authority to grant sanction.

       The expression "failure of justice" is too pliable or facile an  expression, which could be fitted in any situation of a case.  The  expression "failure of justice" would appear, sometimes, as an  etymological chameleon (the simile is borrowed from Lord Diplock in  Town Investments Ltd. v. Deptt. Of Environment (1977) 1 All E.R. 813:  1978 AC 359). The criminal Court, particularly the superior Court  should make a close examination to ascertain whether there was really a  failure of justice or it is only a camouflage. [See Shamnsaheb M.  Multtani v. State of Karnataka (2001 (2) SCC 577)].

   It  would also be relevant to take note of Sections 462 and 465 of  the Code, which read as follows:

"462. PROCEEDINGS IN WRONG PLACE:  No finding, sentence or order of any Criminal Court  shall be set aside merely on the ground that the  inquiry, trial or other proceedings in the course of  which it was arrived at or passed, took place in a  wrong sessions division, district, sub-division or  other local area, unless it appears that such error

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has in fact occasioned a failure of justice.  465. FINDING OR SENTENCE WHEN REVERSIBLE BY REASON  OF ERROR, OMISSION OR IRREGULARITY:  (1) Subject to the provisions hereinbefore  contained, no 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."  

       In State of M.P. v. Bhooraji and Ors. (2001 (7) SCC 679), the  true essence of the expression "failure of justice" was highlighted.   Section 465 of the Code in fact deals with "finding or sentences when  reversible by reason of error, omission or irregularity", in sanction.                      In the instant case neither the Trial Court nor the High Court  appear to have kept in view the requirements of sub-section (3)  relating to question regarding "failure of justice".  Merely because  there is any omission, error or irregularity in the matter of according  sanction that does not affect the validity of the proceeding unless the  court records the satisfaction that such error, omission or  irregularity has resulted in failure of justice. The same logic also  applies to the appellate or revisional court.  The requirement of sub- section (4) about raising the issue, at the earliest stage has not been  also considered.  Unfortunately the High Court by a practically non- reasoned order, confirmed the order passed by the learned trial judge.   The orders are, therefore, indefensible.  We set aside the said orders.   It would be appropriate to require the trial Court to record findings  in terms of clause (b) of sub-section (3) and sub-section (4) of  Section 19.

       The appeal is allowed to the aforesaid extent.