REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1386 of 2009

[Arising out of Special Leave Petition (Crl.) No. 3276 of 2008]  

State of Madhya Pradesh                                       … Appellant(s)

Versus

Jiyalal                                                                  … Respondent(s)  

O   R   D   E   R   

1. Leave granted.  

2. Application for exemption from filing O.T. is allowed.   

3. The  State  of  Madhya  Pradesh  had  filed  a  petition  seeking  special  

leave  to  appeal  against  a  judgment  given by a  single  judge  at  the  

Jabalpur Bench of the High Court of Madhya Pradesh (in Criminal  

Appeal  No. 1539 of 1995).  Prior to the impugned judgment of the  

High  Court,  a  Special  Judge  at  Balaghat,  Madhya  Pradesh  had  

convicted the Respondent for offences under Section 7 and Section  

13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption  

Act, 1988 [hereinafter referred to as ‘the Act’].  In pursuance of the  

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findings of the Special Judge, the Respondent had been sentenced to  

undergo  imprisonment  for  a  period  of  one  year  and  a fine of  

Rs. 200-/-  had also been imposed on him. Aggrieved by this result,  

the Respondent had filed an appeal before the High Court.  

4. The learned single judge of the High Court set aside the conviction  

and  the  sentence  mainly  on  the  ground  that  the  requisite  sanction  

order had not been obtained properly. Under the scheme of the Act, a  

sanction  order  from  an  appropriate  authority  is  required  before  

proceeding with a prosecution under the same Act. The rationale for  

requiring such a sanction order is to discourage frivolous prosecutions  

under the Act.   In the present case, the learned single judge of the  

High Court had opined that the District  Magistrate (the appropriate  

authority in this case) who had granted the sanction order in question  

had not applied his mind. It was held that since the sanction order did  

not enumerate reasons, it had been given mechanically and was hence  

illegal. It was further stated that the said sanction order (Exhibit - P/6  

in  the  proceedings  before  the  Special  Judge)  had not  been  proved  

because the District  Magistrate who passed the order  had not  been  

subsequently examined as a witness by the prosecution in order to  

prove the same.  

5. In our opinion, both of the above-mentioned findings of the learned  

single judge of the High Court are not correct.  Therefore, the High  

Court was not justified in interfering with the ‘finding, sentence or  

order  passed  by  a  Special  Judge’  under  the  Act.  As  per  Section  

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19(3)(a) of the  Act ‘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.’  

6. The relevant portion of the Act reads as follows :-

“Section 19. Previous sanction necessary for prosecution  

(1)  No court  shall  take cognizance of  an offence punishable   under  section  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  the  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.  

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(3) Notwithstanding anything contained in the code of Criminal   Procedure, 1973,-  (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 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.-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.”

7. In the case before us, even if it were to be accepted that there has been  

an ‘error, omission or irregularity’ in the passing of the sanction order,  

the learned single judge of the High Court has not made a finding  

which shows that a serious failure of justice had been caused to the  

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Respondent. In the absence of such a finding it was not correct for the  

High  Court  to  set  aside  the  conviction  and  sentence  given  by  the  

Special Judge.

8. It was also not justified for the learned single judge to hold that the  

District  Magistrate  who had passed the sanction order should have  

been subsequently examined as a witness by the prosecution in order  

to prove the same. The sanction order was clearly passed in discharge  

of routine official functions and hence there is a presumption that the  

same was done in a bona fide manner. It was of course open to the  

Respondent  to  question the genuineness  or  validity  of  the  sanction  

order before the Special Judge but there was no requirement for the  

District Magistrate to be examined as a witness by the prosecution.  

9. It is apparent that the High Court has not considered the appeal on  

merits to decide whether a failure of justice had been occasioned in  

the present case. Therefore, we set aside the judgment of the learned  

single judge of the High Court and direct that the appeal filed by the  

Respondent  before  the  High  Court  be  considered  on  merits  and  

disposed of accordingly.  

10.  The appeal is disposed of accordingly.  

…………………….……….CJI  (K.G. BALAKRISHNAN)  

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……………………………… J.  (P. SATHASIVAM)  

New Delhi  July 31, 2009.  

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