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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1867 OF 2012  

Nanjappa  …Appellant

Vs.

State of Karnataka  …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal  arises  out  of  a  judgment  and  order  dated  9th

February,  2012  passed  by  the  High  Court  of  Karnataka  at

Bangalore whereby the High Court has, while reversing an order of

acquittal passed by the Trial Court, convicted the appellant under

Sections 7 and 13 read with Section 13(2) of the Prevention of

Corruption Act, 1988 and sentenced him to undergo imprisonment

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for a period of six months under Section 7 and a period of one year

under  Section 13 besides  fine and sentence of  imprisonment  in

default of payment of the same. The facts giving rise to the filing of

the appeal may be summarised as under:

2. The  appellant  was  working  as  a  Bill  Collector  in

Sabbanakruppe  Grama  Panchayath,  in  S.R.  Patna  Taluk  of  the

State of Karnataka. The prosecution case is that the complainant

who  was  examined  at  the  trial  as  PW-1,  appeared  before  the

Lokayukta Police to allege that the appellant had demanded a bribe

of Rs.500/- from him for issue of a copy of a certain resolution

dated  13th March,  1998  passed  by  the  Sabbanakruppe  Grama

Panchayath. Since the complainant was unwilling to pay the bribe

amount, he prayed for action against the appellant. The Lokayukta

Police  appears  to  have  secured  panch  witnesses,  prepared  an

entrustment memo and handed over the intended bribe amount to

the  complainant  after  applying  phenolphthalein  powder  to  the

currency notes for being paid to the appellant upon demand. The

prosecution case is that the bribe amount was demanded by the

appellant  and  paid  to  him  by  the  complainant  whereupon  the

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raiding party on a signal given by the complainant arrived at the

spot  and  recovered  the  said  amount  from  his  possession.  The

appellant’s hands were got washed in sodium carbonate solution

which turned pink, clearly suggesting that the bribe money had

been handled by the appellant. On completion of the investigation,

the police filed charge-sheet before the jurisdictional court where

the prosecution examined as many as 5 witnesses in support of its

case. The appellant did not, however, adduce any evidence in his

defence. The Trial Court eventually came to the conclusion that the

prosecution  had failed to prove the charges  framed against  the

appellant  and  accordingly  acquitted  him of  the  same.  The  Trial

Court  held  that  the  prosecution  had  failed  to  prove  that  the

appellant  had  any  role  in  the  passing  of  the  resolution  by  the

members of the Panchayat, a copy whereof was demanded by the

complainant.  The  Trial  Court  further  held  that  there  was  no

material to suggest that the Sabbanakruppe Grama Panchayat had

joined hands with the appellant in converting the road running in

front of the complainant’s house into sites for allotment to third

parties. The Trial Court found that the property purchased by the

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complainant did not actually show a road on the northern side of

the said property. The Trial Court, on those findings, concluded that

the complainant’s accusation about the appellant demanding bribe

from him was unreliable and unworthy of credit.  Relying upon the

decision of this Court in Kaliram vs. State of Himachal Pradesh

(AIR 1973 SC 2773), the Trial Court held that since two views

were possible on the evidence adduced in the case, one pointing to

the guilt of the appellant and the other to his innocence, the view

that was favourable to the appellant had to be accepted. The Trial

Court further held that the sanction for prosecution of the appellant

had  not  been  granted  by  the  competent  authority  and  was,

therefore,  not  in  accordance  with  Section  19  of  the  P.C.  Act.

Relying upon the deposition of PW-4 examined at the trial, the Trial

Court  held  that  the  Chief  Officer, Zilla  Panchayat  was  the  only

competent authority to grant sanction for prosecution in terms of

Section 113 of the Panchayat Raj Act. The prosecution case against

the appellant was on those findings rejected by the Trial Court and

the appellant acquitted.   

3. Aggrieved by the order of acquittal passed by the Trial Court,

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the State  preferred Criminal  Appeal  No.1260 of  2006 which,  as

noticed earlier, has been allowed by the High Court in terms of the

judgment and order impugned in this appeal. The High Court held

that since the validity of the sanction order was not questioned at

the appropriate stage, the appellant was not entitled to raise the

same at the conclusion of the trial. On the merits of the case, the

High Court held that the depositions of PWs 1 and 2, who were

none  other  than  the  complainant  and  the  shadow  witness  had

sufficiently proved that the appellant had demanded bribe amount

and received the same. The High Court held that the discrepancies

in the evidence regarding the manner of giving the amount were

inconsequential.  The  High  Court  also  placed  reliance  upon  the

explanation of the appellant as recorded in the trap mahazar to

hold that the appellant had admitted the receipt of the amount, no

matter  he  had  offered  an  explanation  according  to  which  the

amount  represented  “tap  charges”,  which  explanation  was  not

supported by any defence. The High Court has, on those findings,

held  the  charges  framed  against  the  appellant  to  have  been

proved. He was accordingly convicted for the offences punishable

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under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.

Act and sentenced to imprisonment for six months and one year

respectively  besides  a  fine  of  Rs.3,000/-  under  Section  7  and

Rs.5,000/- under Section 13(1)(d) read with Section 13(2) of the

P.C. Act with a default  sentence of one month and two months

respectively. The sentences were directed to run concurrently.

4. We have heard learned counsel for the parties at considerable

length.  This  appeal  must,  in  our  opinion,  succeed  on the  short

ground that in the absence of a valid previous sanction required

under  Section  19  of  the  Prevention  of  Corruption  Act,  the  trial

Court was not competent to take cognizance of the offence alleged

against the appellant. Section 19 of the Prevention of Corruption

Act reads as under:

“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

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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.  

(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.”  

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5. We may also, at the outset, extract Section 465 of the Cr.P.C.

which is a cognate provision dealing with the effect of any error,

omission or irregularity in the grant of sanction on the prosecution.

Section 465 Cr.P.C. runs thus:  

“465. Finding or sentence when reversible by reason of error, omission or irregularity.

(1)  Subject  to  the  provisions  hereinbefore  contained,  on 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.”

6. A plain reading of Section 19(1) (supra) leaves no manner of

doubt that the same is couched in mandatory terms and forbids

courts  from taking  cognizance  of  any  offence  punishable  under

Sections 7, 10, 11, 13 and 15 against public servants except with

the previous sanction of the competent authority enumerated in

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clauses  (a),  (b)  and  (c)  to  sub-section  (1)  of  Section  19.  The

provision contained in sub-section (1) would operate in absolute

terms but for  the presence of  sub-section  (3)  to  Section  19 to

which we shall presently turn. But before we do so, we wish to

emphasise  that  the  language  employed  in  sub-section  (1)  of

Section 19 admits of no equivocation and operates as a complete

and absolute bar to any court taking cognizance of any offence

punishable under Sections 7, 10, 11, 13 and 15 of the Act against

a  public  servant  except  with  the  previous  sanction  of  the

competent  authority. A  similar  bar  to  taking  of  cognizance  was

contained in Section 6 of the Prevention of Corruption Act, 1947

which was as under:

“"6.  (1)  No  Court  shall  take  cognizance  of  an  offence punishable under section  161 or section  165 of the Indian Penal Code or under sub-section (2) of section 5 of this Act, 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 the] Central 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 the] State Government;  

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(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 whether the previous sanction as required under sub-section (1) should be given by the Central or 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."  

7. In  Baij Nath Tripathi vs. The State of Bhopal and Anr.

(AIR 1957 SC 494), a Constitution Bench of this of Court was

dealing with the case of a sub-inspector of police from the then

State of Bhopal, who was prosecuted by the Special Judge, Bhopal

and convicted of offences punishable under Section 161 of the IPC

and Section 5 of the Prevention of Corruption Act, 1947. He was

sentenced  by  the  Trial  Court  to  undergo  nine  months’  rigorous

imprisonment  on  each  count.  In  an  appeal  before  the  Judicial

Commissioner against the said conviction and sentence, it was held

that  since no sanction according to law had been given for  the

prosecution of the accused, the Special Judge had no jurisdiction to

take cognizance of the case and that the trial was invalid and void

ab-initio, hence quashed relegating the parties to the position as if

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no legal charge-sheet had been submitted against the appellant.

The  accused  was  then  tried  for  a  second  time  before  another

Special Judge to which prosecution, the accused took exception on

the ground that a second trial was impermissible having regard to

the  provisions  of  Article  20(2)  of  the  Constitution  of  India  and

Section 403 of the Code of Criminal Procedure. A similar contention

was raised by Sudhakar Dube, another Sub-Inspector of Police who

was similarly tried and prosecuted but the Special Judge finding

the  sanction  order  to  be  incompetent  had  quashed  the

proceedings. Dube was also thereupon sought to be tried for the

second time which second trial was assailed by him in writ petition

before this Court. The short question that fell for consideration in

the  above  backdrop,  was  whether  the  petitioners  had  been

prosecuted and punished within the meaning of Article 20 of the

Constitution of India or tried by a Court of competent jurisdiction

within  the  meaning  of  Section  403(1)  of  the  Code  of  Criminal

Procedure. It was urged on behalf of the respondent, that in case

the previous trial was null and void and non-est, a second trial was

legally permissible. That contention found favour with the Court.

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Relying upon  Yusofalli Mulla vs. The King AIR 1949 PC 264,

Basdeo  Agarwalla  vs.  King  Emperor  AIR  1945 FC  16  and

Budha Mal vs. State of Delhi, Criminal Appeal No.17 of 1952,

it was held that the accused had neither been tried by a Court of

competent jurisdiction nor was there any accusation or conviction

in force within the meaning of Section 403 of Cr.P.C. to stand as a

bar against their prosecution for the same offences. The following

passage from the decision succinctly sums up the legal foundation

for  accepting  the  contention  urged  on  behalf  of  the  State  of

Bhopal:

“If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to  be a Court  of  competent  jurisdiction to try  those offences and that any trial in the absence of such sanction must  be  null  and  void,  and  the  sections  of  the  Code  on which learned counsel for the petitioners relied have really no bearing on the matter. Section 530 of the Code is really against the contention of learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try  an offender,  tries  him,  then the proceedings  shall  be void. Section 529(e) is merely an exception in the matter of taking cognizance of an offence under s. 190, sub-s. (1), cls. (a) and (b); it has no bearing in a case where sanction is  necessary and no sanction in accordance with  law has been obtained.”

8. In  Yusofalli  Mulla’s  case (supra),  the  Privy  Council  was

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examining  whether  failure  to  obtain  sanction  affected  the

competence of the Court to try the accused.  The contention urged

was that there was a distinction between a valid institution of a

prosecution on the one hand and the competence of the Court to

hear and determine the prosecution, on the other.  Rejecting the

contention that any such distinction existed, this Court observed:

“The  next  contention  was  that  the  failure  to  obtain  a sanction  at  the  most  prevented  the  valid  institution  of  a prosecution, but did not affect the competency of the Court to  hear  and  determine  a  prosecution  which  in  fact  was brought  before it.  This  suggested  distinction between the validity of the prosecution and the competence of the Court was pressed strenuously by Mr. Page, but seems to rest on no foundation. A Court  cannot be competent to hear and determine a prosecution the institution of which is prohibited by  law  and  Section  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 that a prosecution launched without a valid sanction is a nullity.”

9. The Federal Court had in Basdeo Agarwalla’s case (supra),

summed up the legal position regarding the effect of absence of a

sanction in the following words:

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“In our view the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical defect. The clause in question was obviously enacted for the purpose of protecting the citizen, and in order to give the Provincial Government in every case a proper opportunity of considering  whether  a  prosecution  should  in  the circumstances of  each particular  case be instituted at  all. Such a clause, even when it may appear that a technical offence  has  been  committed,  enables  the  Provincial Government, if in a particular case it so thinks fit, to forbid any  prosecution.  The  sanction  is  not  intended  to  be  and should not be an automatic formality and should not so be regarded  either  by  police  or  officials.  There  may  well  be technical offences committed against the provisions of such an  Order  as  that  in  question,  in  which  the  Provincial Government might have excellent reason for considering a prosecution  undesirable  or  inexpedient.  But  this  decision must be made before a prosecution is started. A sanction after  a  prosecution  has  been  started  is  a  very  different thing.  The  fact  that  a  citizen  is  brought  into  Court  and charged  with  an  offence  may  very  seriously  affect  his reputation  and  a  subsequent  refusal  of  sanction  to  a prosecution cannot possibly undo the harm which may have been  done  by  the  initiation  of  the  first  stages  of  a prosecution. Moreover in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction  a  prosecution  which  has  in  fact  already  been started.”

10. So also the decision of this Court in Budha Mal vs. State of

Delhi [Criminal Appeal No.17 of 1952 disposed of on 3/10/1952],

this  Court  had  clearly  ruled  that  absence  of  a  valid  sanction

affected  the  competence  of  the  Court  to  try  and  punish  the

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accused. This Court observed:

“We are satisfied that the learned Sessions Judge was right in  the  view  he  took.  Section  403  CrPC  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.”

11. The above line  of  reasoning  was  followed by this  Court  in

State of Goa vs. Babu Thomas (2005) 8 SCC 130, where this

Court while dealing with a case under Section 19 of the Prevention

of Corruption Act, 1988 held that absence of a valid sanction under

Section 19(1) went to the very root of the prosecution case having

regard to the fact that the said provision prohibits any Court from

taking cognizance of any offence punishable under Sections 7, 10,

13 and 15 against  the public  servant,  except  with the previous

sanction granted by the competent authority in terms of clauses

(a),  (b) and (c) to Section 19(1).  This Court was in that case

dealing with a sanction order issued by an authority who was not

competent to do so as is also the position in the case at hand. The

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second sanction order issued for prosecution of the accused in that

case was also held to be incompetent apart from the fact that the

same purported  to  be  retrospective  in  its  operation.  This  Court

noted that on 29th March, 1995 when cognizance was taken by the

Special Judge, there was no order sanctioning prosecution with the

result that the Court was incompetent to take cognizance and that

the error was so fundamental that it invalidated the proceedings

conducted by the Court. The Court accordingly upheld the order

passed by the High Court but reserved liberty to the competent

authority  to  issue  fresh  orders  having  regard  to  the  serious

allegation made against the accused.   

12. The legal position was reiterated once more by this Court in

State of Karnataka vs. C. Nagarajaswamy (2005) 8 SCC 370,

where this Court summed up the law in the following words:

“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.”

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13. What is important is that, not only was the grant of a valid

sanction held to be essential for taking cognizance by the Court,

but the question about the validity of any such order, according to

this Court, could be raised at the stage of final arguments after the

trial or even at the appellate stage. This Court observed:

“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 therefore 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.  

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.”

 14. In B. Saha & Ors. vs. M.S. Kochar (1979) 4 SCC 177, this

Court was dealing with the need for a sanction under Section 197

of the Cr.P.C. and the stage at which the question regarding its

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sanction of an authority competent to grant such sanction in terms

of clauses (a), (b) and (c) to Section 19(1). The question regarding

validity  of  such  sanction  can  be  raised  at  any  stage  of  the

proceedings. The competence of the court trying the accused so

much depends upon the existence of a valid sanction. In case the

sanction is found to be invalid the court can discharge the accused

relegating the parties to a stage where the competent authority

may grant a fresh sanction for prosecution in accordance with law.

If the trial Court proceeds, despite the invalidity attached to the

sanction order, the same shall be deemed to be non-est in the eyes

of law and shall not forbid a second trial for the same offences,

upon grant of a valid sanction for such prosecution.

16. Having  said  that  there  are  two  aspects  which  we  must

immediately advert to. The first relates to the effect of sub-section

(3) to Section 19, which starts with a  non-obstante clause. Also

relevant to the same aspect would be Section 465 of the Cr.P.C.

which we have extracted earlier. It was argued on behalf of the

State with considerable tenacity worthy of a better cause, that in

terms of Section 19(3), any error, omission or irregularity in the

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order  sanctioning  prosecution  of  an  accused  was  of  no

consequence so long as there was no failure of justice resulting

from such error, omission or irregularity. It was contended that in

terms of explanation to Section 4, “error includes competence of

the authority to grant sanction”. The argument is on the face of it

attractive but does not, in our opinion, stand closer scrutiny.  A

careful reading of sub-section (3) to Section 19 would show that

the same interdicts reversal or alteration of any finding, sentence

or  order  passed  by  a  Special  Judge,  on  the  ground  that  the

sanction  order  suffers  from  an  error,  omission  or  irregularity,

unless of course the court before whom such finding, sentence or

order is challenged in appeal or revision is of the opinion that a

failure of justice has occurred by reason of such error, omission or

irregularity.  Sub-section  (3),  in  other  words,  simply  forbids

interference  with  an  order  passed  by  Special  Judge  in  appeal,

confirmation  or  revisional  proceedings  on  the  ground  that  the

sanction is bad save and except, in cases where the appellate or

revisional court finds that failure of justice has occurred by such

invalidity.  What  is  noteworthy  is  that  sub-section(3)  has  no

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application to proceedings before the Special Judge, who is free to

pass an order discharging the accused, if he is of the opinion that a

valid order sanctioning prosecution of the accused had not been

produced as required under Section 19(1).  Sub-section (3), in our

opinion, postulates a prohibition against a higher court reversing

an order passed by the Special Judge on the ground of any defect,

omission or irregularity in the order of sanction.  It does not forbid

a Special Judge from passing an order at whatever stage of the

proceedings holding that the prosecution is not maintainable for

want  of  a  valid  order  sanctioning  the  same.  The  language

employed  in  sub-section  (3)  is,  in  our  opinion,  clear  and

unambiguous.   This  is,  in  our  opinion,  sufficiently  evident  even

from the language employed in sub-section (4) according to which

the appellate or the revisional Court shall, while examining whether

the error, omission or irregularity in the sanction had occasioned in

any failure of justice, have regard to the fact whether the objection

could and should have been raised at an early stage. Suffice it to

say, that a conjoint reading of sub-sections 19(3) and (4) leaves no

manner of doubt that the said provisions envisage a challenge to

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the  validity  of  the  order  of  sanction  or  the  validity  of  the

proceedings  including  finding,  sentence  or  order  passed  by  the

Special Judge in appeal or revision before a higher Court and not

before  the  Special  Judge  trying  the  accused.  The  rationale

underlying the provision obviously is that if the trial has proceeded

to   conclusion  and resulted  in  a  finding or  sentence,  the same

should  not  be  lightly  interfered  with  by  the  appellate  or  the

revisional court simply because there was some omission, error or

irregularity  in  the  order  sanctioning  prosecution  under  Section

19(1). Failure of justice is, what the appellate or revisional Court

would in such cases look for. And while examining whether any

such failure had indeed taken place, the Court concerned would

also  keep  in  mind  whether  the  objection  touching  the  error,

omission or irregularity in the sanction could or should have been

raised  at  an  earlier  stage  of  the  proceedings  meaning  thereby

whether the same could and should have been raised at the trial

stage instead of being urged in appeal or revision.   

17. In the case at hand, the Special Court not only entertained

the contention urged on behalf of the accused about the invalidity

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of the order of sanction but found that the authority issuing the

said order was incompetent to grant sanction. The trial Court held

that the authority who had issued the sanction was not competent

to do so, a fact which has not been disputed before the High Court

or before us. The only error which the trial Court, in our opinion,

committed  was  that,  having  held  the  sanction  to  be  invalid,  it

should have discharged the accused rather than recording an order

of acquittal on the merit of the case. As observed by this Court in

Baij  Nath  Prasad  Tripathi’s case  (supra),  the  absence  of  a

sanction order implied that the court was not competent to take

cognizance  or  try  the  accused.  Resultantly,  the  trial  by  an

incompetent Court was bound to be invalid and non-est in law.   

18. To  the  same  effect  is  the  decision  of  this  Court  in

Mohammad Safi vs. The State of West Bengal (AIR 1966 SC

69). This Court observed:

“As regards  the second contention of  Mr.  Mukherjee it  is necessary to  point  out  that  a  criminal  court  is  precluded from determining the case before it in which a charge has been framed otherwise than by making an order of acquittal or conviction only where the charge was framed by a court competent to frame it and by a court competent to try the case and make a valid order of acquittal or conviction. No

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sanctioning  prosecution,  having  regard  to  the  nature  of  the

allegations made against accused in that case.

20. The High Court has not, in our opinion, correctly appreciated

the legal position regarding the need for sanction or the effect of

its invalidity. It has simply glossed over the subject, by holding that

the question should have been raised at an earlier stage.  The High

Court  did  not,  it  appears,  realise  that  the  issue  was  not  being

raised before it for the first time but had been successfully urged

before the trial Court.

21. The next question then is whether we should, while allowing

this  appeal,  set  aside  the  order  passed by the  High Court  and

permit the launch of a fresh prosecution against the appellant, at

this distant point of time.  The incident in question occurred on 24th

March, 1998. The appellant was, at that point of time, around 38

years old. The appellant is today a senior citizen. Putting the clock

back at this stage when the prosecution witnesses themselves may

not be available, will in our opinion, serve no purpose. That apart,

the  trial  Court  had,  even  upon  appreciation  of  the  evidence,

although it  was not  required to  do so,  given its  finding on the

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validity of the sanction, and had held that the prosecution case was

doubtful, rejecting the prosecution story. It will, therefore, serve no

purpose to resume the proceedings over and again.  We do not, at

any rate, see any compelling reason for directing a fresh trial at

this distant point of time in a case of this nature involving a bribe

of  Rs.500/-,  for  which  the  appellant  has  already  suffered  the

ignominy of a trial, conviction and a jail term no matter for a short

while. We, accordingly, allow this appeal and set aside the order

passed by the High Court.

………………………………….…..…J.        (T.S. THAKUR)

………………………………….…..…J.        (AMITAVA ROY)

New Delhi July 24, 2015

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ITEM NO.1G-For Judgment        COURT NO.2         SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  1867/2012 NANJAPPA                                          Appellant(s)                                 VERSUS STATE OF KARNATAKA                               Respondent(s) Date : 24/07/2015 This appeal was called on for pronouncement of  JUDGMENT today. For Appellant(s)                      Mr. S. N. Bhat,Adv.                       For Respondent(s)                      Mr. V. N. Raghupathy,Adv.                       

Hon'ble Mr. Justice T.S. Thakur pronounced the judgment of the  Bench  comprising  His  Lordship  and  Hon'ble  Mr.  Justice Amitava Roy.

The appeal is allowed in terms of the Signed Reportable Judgment.  

  (VINOD KR.JHA)                      (VEENA KHERA)   COURT MASTER              COURT MASTER

   (Signed Reportable judgment is placed on the file)

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