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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL  NO.708 OF 2014

(Arising out of Special Leave Petition (Crl.) No. 8013 OF 2012)

STATE OF BIHAR & ORS.        ...    APPELLANT (S)

VERSUS

RAJMANGAL RAM        ...  RESPONDENT (S)  

WITH

CRIMINAL APPEAL  NOS.709-710 OF 2014 (Arising out of Special Leave Petition (Crl.) Nos.159-160 OF 2013)

J U D G M E N T

RANJAN GOGOI, J.

1. Leave, as prayed for, is granted in both the matters.

2. The  two  appeals  are  by  the  State  of  Bihar  against  

separate orders (dated 23.03.2012 and 03.03.2011) passed  

by the High Court of Patna, the effect of which is that the  

criminal  proceedings  instituted  against  the  respondents  

under different provisions of the Indian Penal Code as well as  

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the Prevention of Corruption Act, 1988 have been interdicted  

on  the  ground  that  sanction  for  prosecution  of  the  

respondents in both the cases has been granted by the Law  

Department of the State and not by the parent department  

to which the respondents belong.

3. A  short  and  interesting  question,  which  is  also  of  

considerable  public  importance,  has  arisen  in  the  appeals  

under  consideration.   Before  proceeding  further  it  will  be  

necessary to take note of the fact that in the appeal arising  

out  of  SLP  (Crl.)  No.  8013  of  2012  the  challenge  of  the  

respondent-  writ  petitioner  before  the  High  Court  to  the  

maintainability of the criminal proceeding registered against  

him is subtly crafted.  The criminal proceeding, as such, was  

not challenged in the writ petition and it is only the order  

granting sanction to prosecute that had been impugned and  

interfered with by the High Court.  The resultant effect, of  

course, is that the criminal proceeding stood interdicted.  In  

the  second  case  (SLP  (Crl.)  Nos.159-160/2013)  the  

maintainability  of  the  criminal  case  was specifically  under  

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challenge before the High Court on the ground that the order  

granting  sanction  is  invalid  in  law.   Notwithstanding  the  

above differences in approach discernible in the proceedings  

instituted before the High Court, the scrutiny in the present  

appeals will have to be from the same standpoint, namely,  

the circumference of the court’s power to interdict a criminal  

proceeding  midcourse  on  the  basis  of  the  legitimacy  or  

otherwise of the order of sanction to prosecute.

4. Though  learned  counsels  for  both  sides  have  

elaborately  taken  us  through  the  materials  on  record  

including  the  criminal  complaints  lodged  against  the  

respondents; the pleadings made in support of the challenge  

before the High Court, the respective sanction orders as well  

as the relevant provisions of the Rules of Executive Business,  

we do not consider it necessary to traverse the said facts in  

view  of  the  short  question  of  law  arising  which  may  be  

summed up as follows:-

“Whether  a  criminal  prosecution  ought  to  be  interfered with by the High Courts at the instance   of an accused who seeks mid-course relief  from  

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the  criminal  charges  levelled  against  him  on  grounds of defects/omissions or errors in the order   granting sanction to prosecute including errors of   jurisdiction to grant such sanction?”

5. The object behind the requirement of grant of sanction  

to prosecute a public servant need not detain the court save  

and  except  to  reiterate  that  the  provisions  in  this  regard  

either  under  the  Code  of  Criminal  Procedure  or  the  

Prevention of Corruption Act, 1988 are designed as a check  

on  frivolous,  mischievous  and  unscrupulous  attempts  to  

prosecute a honest public servant for acts arising out of due  

discharge  of  duty  and  also  to  enable  him  to  efficiently  

perform the wide range of duties cast on him by virtue of his  

office.   The  test,  therefore,  always  is—whether  the  act  

complained  of  has  a  reasonable  connection  with  the  

discharge of official duties by the government or the public  

servant.   If  such  connection  exists  and  the  discharge  or  

exercise  of  the  governmental  function  is,  prima  facie,  

founded on the bonafide judgment of the public servant, the  

requirement of sanction will be insisted upon so as to act as  

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a  filter  to  keep  at  bay  any  motivated,  ill-founded  and  

frivolous prosecution against the public servant.  However,  

realising  that  the  dividing  line  between  an  act  in  the  

discharge  of  official  duty  and  an  act  that  is  not,  may,  at  

times, get blurred thereby enabling certain unjustified claims  

to be raised also on behalf  of the public servant so as to  

derive  undue  advantage  of  the  requirement  of  sanction,  

specific provisions have been incorporated in Section 19(3) of  

the Prevention of Corruption Act as well as in Section 465 of  

the Code of Criminal  Procedure which, inter alia,   make it  

clear that any error, omission or irregularity in the grant of  

sanction will not affect any finding, sentence or order passed  

by a competent court unless in the opinion of the court a  

failure  of  justice  has  been  occasioned.   This  is  how  the  

balance is sought to be struck.

6. For clarity it is considered necessary that the provisions  

of Section 19 of the P.C. Act and Section 465 of the Cr.P.C.  

should be embodied in the present order:-

Section 19 of the PC Act

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“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  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 (2 of 1974), —

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(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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Section 465 of Cr.P.C.

“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.”  

(emphasis is ours)

7. In  a  situation where  under  both  the  enactments  any  

error, omission or irregularity in the sanction, which would  

also  include  the  competence  of  the  authority  to  grant  

sanction, does not vitiate the eventual conclusion in the trial  

including  the  conviction and sentence,  unless  of  course  a  

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failure of justice has occurred, it is difficult to see how at the  

intermediary stage a criminal prosecution can be nullified or  

interdicted  on  account  of  any  such  error,  omission  or  

irregularity  in  the  sanction  order  without  arriving  at  the  

satisfaction that a failure of justice has also been occasioned.  

This is what was decided by this Court in  State by Police  

Inspector  vs.  T. Venkatesh Murthy1 wherein it has been  

inter alia observed that,

“14.   ……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.”

8. The  above  view  also  found  reiteration  in  Prakash  

Singh  Badal  and  Another vs.  State  of  Punjab  and  

Others2  wherein it was, inter alia, held that mere omission,  

error or irregularity in sanction is not to be considered fatal  

unless it has resulted in failure of justice.  In Prakash Singh  

Badal (supra) it was further held that Section 19(1) of the PC  

Act is a matter of procedure and does not go to the root of  1 (2004) 7 SCC 763 (paras 10 and 11) 2 (2007) 1 SCC 1 (para 29)

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jurisdiction.  On the same line is the decision of this Court in  

R. Venkatkrishnan vs. Central Bureau of Investigation3.  

In fact, a three Judge Bench in State of Madhya Pradesh  

vs.  Virender  Kumar  Tripathi4 while  considering  an  

identical issue, namely, the validity of the grant of sanction  

by the Additional Secretary of the Department of Law and  

Legislative  Affairs  of  the  Government  of  Madhya  Pradesh  

instead of the authority in the parent department, this Court  

held that in view of Section 19 (3) of the PC Act, interdicting  

a criminal proceeding mid-course on ground of invalidity of  

the sanction order will not be appropriate unless the court  

can also reach the conclusion that failure of justice had been  

occasioned by any such error, omission or irregularity in the  

sanction.  It was further held that failure of justice can be  

established not at the stage of framing of charge but only  

after the trial has commenced and evidence is led (Para 10  

of the Report).

3 (2009) 11 SCC 737 4 (2009) 15 SCC 533

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9. There is a contrary view of this Court in State of Goa  

vs. Babu Thomas5 holding that an error in grant of sanction  

goes to the root of the prosecution.  But the decision in Babu  

Thomas (supra)  has  to  be  necessarily  understood  in  the  

facts thereof, namely, that the authority itself had admitted  

the  invalidity  of  the  initial  sanction  by  issuing  a  second  

sanction with retrospective effect to validate the cognizance  

already taken on the basis of the initial sanction order.  Even  

otherwise, the position has been clarified by the larger Bench  

in  State  of  Madhya  Pradesh  vs.  Virender  Kumar  

Tripathi (supra).

10. In the instant cases the High Court had interdicted the  

criminal proceedings on the ground that the Law Department  

was not the competent authority to accord sanction for the  

prosecution of the respondents.  Even assuming that the Law  

Department was not competent, it was still necessary for the  

High Court to reach the conclusion that a failure of justice  

has been occasioned.  Such a finding is conspicuously absent  

5 (2005) 8 SCC 130

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rendering it difficult to sustain the impugned orders of the  

High Court.

11. The High Court in both the cases had also come to the  

conclusion that the sanction orders in question were passed  

mechanically and without consideration of the relevant facts  

and records.  This was treated as an additional ground for  

interference with the criminal proceedings registered against  

the respondents.  Having perused the relevant part of the  

orders under challenge we do not think that the High Court  

was justified in coming to the said findings at the stage when  

the  same  were  recorded.   A  more  appropriate  stage  for  

reaching  the  said  conclusion  would  have  been  only  after  

evidence in the cases had been led on the issue in question.

12. We, therefore, hold that  the orders dated 23.03.2012  

and  03.03.2011  passed  by  the  High  Court  cannot  be  

sustained in law.  We, therefore, allow both the appeals; set  

aside the said orders and direct that the criminal proceeding  

against  each  of  the  respondents  in  the  appeals  under  

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consideration shall now commence and shall be concluded as  

expeditiously as possible.

...…………………………CJI. [P. SATHASIVAM]

.........………………………J. [RANJAN GOGOI]

NEW DELHI, MARCH 31, 2014.

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