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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 2345 OF 2009

State of Maharashtra Through C.B.I. ...Appellant

Versus

Mahesh G. Jain              ...Respondent

J U D G M E N T

Dipak Misra, J.

The  singular  question  that  emanates  for  

consideration in this appeal is whether the High Court of  

Judicature at Bombay in Criminal Application No. 2648 of  

2007 is justified in refusing to grant leave to file an appeal  

by  the  Central  Bureau  of  Investigation,  Anti  Corruption  

Branch,  Mumbai  (for  short  “the  CBI”)   to  assail  the  

judgment and order dated  8th September, 2006  in Special

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Case No.  62 of  2000 by the Court  of  Special  Judge for  

Greater Bombay whereby the learned Special Judge had  

acquitted the respondent No. 1 under Sections 7, 13 (1)  

(d) read with 2 of the Prevention of Corruption Act, 1988  

(For brevity “the Act”) principally on the foundation that  

the  sanction  granted  by  the  competent  authority  was  

defective and illegal as there was non-application of mind  

which would show lack of satisfaction.

2. At the very outset, it is condign to state that as we  

are  only  dealing  with  a  singular  issue  it  is  not  

necessary to state the facts in detail.   Suffice it  to  

state one Satish P. Doshi, proprietor of Shree Travels,  

the complainant, had given his vehicles to State Bank  

of India on contract basis and was entitled to receive  

hire  charges  for  his  vehicles  periodically.   The  

complainant  experienced  certain  difficulties  in  

getting  his  cheques  and  Tax  Deducted  at  Source  

certificates.   When  he  approached  the  accused-

respondent, he demanded illegal gratification which  

was  not  acceded  to  by  the  complainant.   Despite  

consistent refusal by the complainant, the demand of  

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the  accused  was  persistent  which  constrained  the  

complainant  to  approach  the  CBI  with  a  written  

complaint.  The CBI took up the investigation and the  

raiding party carried out a trap operation, seized the  

bribe amount of Rs.1000/-, sent the seized article to  

the CFSL, obtained the sanction order and ultimately  

on  5.10.2000  filed  the  charge-sheet  before  the  

learned Special Judge.  After the trial was over the  

learned Special Judge adverted to all the issues and  

answered all of them in the affirmative against the  

accused but acquitted him solely  on the base that  

the sanction order was defective and illegal and that  

went to the very root of jurisdiction of the court.

3. Grieved by the aforesaid judgment of acquittal, the  

CBI  filed an application for  grant  of  leave and the  

learned single  Judge of  the  High  Court  of  Bombay  

declined to  grant  leave on  the  ground that  it  was  

doubtful  whether  the  sanctioning  authority  had,  in  

fact,  actually  applied  its  mind  while  granting  

sanction.   The  High  Court  further  opined  that  the  

view  taken  by  the  learned  Special  Judge  in  that  

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regard  was  a  plausible  one  being  not  contrary  to  

material on record and hence, it did not require any  

interference.   

4. We  have  heard  Mr.  Sidharth  Luthra,  learned  

Additional  Solicitor  General  appearing  for  the  

appellant,  and  Mr.  V.N.  Bachawat,  learned  senior  

counsel appearing for the respondent.

5. Section 19(1) of the Act postulates that 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.   The  said  provision  enumerates  

about  the  competent  authorities.   In  the  case  at  

hand,  the  competence  of  the  authority  who  has  

granted sanction is not in question.  The only aspect  

that is required to be scrutinized whether the order  

granting sanction is valid in law.   

6. Grant of sanction is irrefragably a sacrosanct act and  

is  intended  to  provide  safeguard  to  public  servant  

against  frivolous  and  vexatious  litigations.  

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Satisfaction of the sanctioning authority is essential  

to validate an order granting sanction.  This Court in  

Jaswant  Singh   v.  State  of  Punjab1 was  

considering  the  validity  and  effect  of  the  sanction  

given  under  Section  6(1)  of  the  Prevention  of  

Corruption Act, 1947.  After referring to the decisions  

in  Basdeo  Agarwala  v.  Emperor2 and  

Gokulchand Dwarkadas Morarka  v.  The King3,  

the Court opined as follows: -

“It should be clear from the form of the sanction  that  the  sanctioning  authority  considered  the  evidence before it and after a consideration of  all the circumstances of the case sanctioned the  prosecution,  and  therefore  unless  the  matter  can  be  proved  by  other  evidence,  in  the  sanction itself  the facts  should  be referred to  indicate  that  the  sanctioning  authority  had  applied its mind to the facts and circumstances  of the case.”

In  the  said  case,  the  two-Judge  Bench  had  

reproduced the order of sanction and opined that if  the  

same,  strictly  construed,  indicated  the  consideration  by  

the  sanctioning  authority  of  the  facts  relating  to  the  

receiving of the illegal gratification by the accused.  We  

1 AIR 1958 SC 124 2 AIR 1945 FC 18 3 AIR 1948 PC 84

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think it apt to reproduce the order of sanction in that case:  

-

“Whereas  I  am  satisfied  that  Jaswant  Singh  Patwari son of Gurdial Singh Kamboh of village  Ajaibwali had accepted an illegal gratification of  Rs.50  in  5  currency  notes  of  Rs.10  denomination each from one Pal Singh son of S.  Santa Singh of village Fatehpur Rajputan, Tehsil  Amritsar for making a favourable report on an  application for allotment of an ahata to S. Santa  Singh father of the said S. Pal Singh.

And whereas the evidence available in this  case clearly discloses that the said S. Jaswant  Singh Patwari had committed an offence under  S. 5 of the Prevention of Corruption Act.

Now  therefore,  I,  N.N.  Kashyap,  Esquire  I.C.S. Deputy Commissioner, Asr, as required by  S. 6 of the Prevention of Corruption Act of 1947,  hereby sanction the prosecution of the said S.  Jaswant  Singh  Patwari  under  S.  5  of  the  said  Act.”

We have quoted the aforesaid order only to highlight  

the  approach  of  this  Court  pertaining  to  application  of  

mind that is reflected in the order.

7. In  Mohd.  Iqbal  Ahmed  v.  State  of  Andhra  

Pradesh4 this Court lucidly registered the view that  

it  is  incumbent on the prosecution to prove that a  

valid sanction has been granted by the sanctioning  

authority after being satisfied that a case for sanction  4 AIR 1979 SC 677

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has been made out constituting an offence and the  

same  should  be  done  in  two  ways;  either  (i)  by  

producing the original sanction which itself contains  

the facts constituting the offence and the grounds of  

satisfaction and (ii) by adducing evidence aliunde to  

show  the  facts  placed  before  the  Sanctioning  

Authority and the satisfaction arrived at by it.  It is  

well settled that any case instituted without a proper  

sanction  must  fail  because  this  being  a  manifest  

defect in the prosecution, the entire proceedings are  

rendered void ab initio.  

8. In  Superintendent of Police (C.B.I.)  v.  Deepak  

Chowdhary and others5 it has been ruled that the  

grant of sanction is only an administrative function,  

though it  is true that the accused may be saddled  

with the liability to be prosecuted in a court of law.  

What is material at that time is that the necessary  

facts  collected during investigation constituting the  

offence  have  to  be  placed  before  the  sanctioning  

authority and it has to consider the material. Prima  

5 (1995) 6 SCC 225

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facie,  the  authority  is  required  to  reach  the  

satisfaction that the relevant facts would constitute  

the offence and then either grant or refuse to grant  

sanction.

9. In  C.S. Krishnamurthy  v.  State of Karnataka6 it  

has been held as follows: -

“...sanction order should speak for itself and in  case the facts do not so appear,  it  should be  proved  by  leading  evidence  that  all  the  particulars were placed before the sanctioning  authority  for  due application of  mind.  In  case  the  sanction  speaks  for  itself  then  the  satisfaction  of  the  sanctioning  authority  is  apparent by reading the order.”  

10. In  R. Sundararajan  v.  State by DSP, SPE, CBI,   

Chennai7, while dealing with the validity of the order  

of sanction, the two learned Judges have expressed  

thus: -

“it may be mentioned that we cannot look into  the  adequacy  or  inadequacy  of  the  material  before the sanctioning authority and we cannot  sit as a court of appeal over the sanction order.  The order granting sanction shows that all the  available  materials  were  placed  before  the  sanctioning authority who considered the same  in great detail. Only because some of the said  materials  could  not  be  proved,  the  same  by  itself, in our opinion, would not vitiate the order  

6 (2005) 4 SCC 81 7 (2006) 12 SCC 749

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of  sanction.  In  fact  in  this  case  there  was  abundant  material  before  the  sanctioning  authority, and hence we do not agree that the  sanction order was in any way vitiated.”

11. In  State  of  Karnata  v.  Ameerjan8 it  has  been  

opined  that  an  order  of  sanction  should  not  be  

construed in a pedantic manner. But, it is also well  

settled  that  the  purpose  for  which  an  order  of  

sanction is required to be passed should always be  

borne in mind. Ordinarily, the sanctioning authority is  

the best  person to  judge as to  whether  the public  

servant  concerned  should  receive  the  protection  

under the Act by refusing to accord sanction for his  

prosecution or not.

12. In  Kootha Perumal  v.  State through Inspector  

of Police, Vigilance and Anti-Corruption9, it has  

been  opined  that  the  sanctioning  authority  when  

grants sanction on an examination of the statements  

of the witnesses as also the material on record, it can  

safely  be  concluded  that  the  sanctioning  authority  

has duly recorded its satisfaction and, therefore, the  

sanction order is valid. 8 (2007) 11 SCC 273 9 (2011) 1 SCC 491

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13. From  the  aforesaid  authorities  the  following  

principles can be culled out: -

(a) It is incumbent on the prosecution to prove that  

the valid sanction has been granted by the sanctioning  

authority after being satisfied that a case for sanction  

has been made out.

(b) The sanction order may expressly show that the  

sanctioning authority has perused the material placed  

before  him  and,  after  consideration  of  the  

circumstances, has granted sanction for prosecution.

(c) The  prosecution  may  prove  by  adducing  the  

evidence  that  the  material  was  placed  before  the  

sanctioning authority and his satisfaction was arrived at  

upon perusal of the material placed before him.

(d) Grant  of  sanction  is  only  an  administrative  

function  and  the  sanctioning  authority  is  required  to  

prima  facie  reach  the  satisfaction  that  relevant  facts  

would constitute the offence.

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(e) The  adequacy  of  material  placed  before  the  

sanctioning authority cannot be gone into by the court  

as it does not sit in appeal over the sanction order.

(f) If  the  sanctioning  authority  has  perused  all  the  

materials placed before him and some of them have not  

been  proved  that  would  not  vitiate  the  order  of  

sanction.

(g) The order of sanction is a pre-requisite as it is  

intended  to  provide  a  safeguard  to  public  servant  

against  frivolous  and  vexatious  litigants,  but  

simultaneously  an  order  of  sanction  should  not  be  

construed in a pedantic manner and there should not be  

a hyper-technical approach to test its validity.

14. Keeping in view the aforesaid principles it  is  to be  

seen whether the order of sanction granted by the  

sanctioning authority withstands scrutiny or not.  For  

the aforesaid purpose it is necessitous to reproduce  

the order of sanction in entirety: -

“WHEREAS, it is alleged that Shri Mahesh  Gandmal Jain, Accounts Clerk working in Office  Administration Department, State Bank of India,  

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Corporate  Centre,  Mumbai  while  working  as  such on 03.04.2000, abused his official position,  in as much as demanded and accepted illegal  gratification from Satish P. Doshi, Proprietor of  Shree  Travels,  Matunga,  Mumbai  for  handling  over  TDS  Certificates  in  the  form  of  16A  of  Income Tax Act, in respect of Shree Travels.  

WHEREAS, it is alleged that in pursuance  of aforesaid demand, Shri Mahes Gandmal Jain,  Accourt  Clerk,  on  03.04.2000  accepted  the  illegal gratification of Rs. 1000/- from Shri Satish  P. Doshi for the aforesaid purpose at the office  of Shree Travels situated at 445, Mahilashram  Road, Somaya Building No. 2, Matunga Central  Railway, Mumbai-19, before the panch witness  when  Mahesh  Gandmal  Jain  was  caught  red  handed by the officers of CBI, ACB, Mumbai.  

AND WHEREAS, the said acts on the part of  Shre Mahesh Gandmal Jain constitute offences  punishable under Section 7, 13 (2) r/w.  13(1)(d)  of Prevention of Corruption Act, 1988.

AND WHEREAS, I, Shri Yeshwant Balkrishna  Kelkar,  Asst.  General  Manager,  Office  Administration  Dept.,  State  Bank  of  India,  Corporate Centre, Mumbai, being the authority  competent  to  remove  the  said  Shri  Mahesh  Gandmal  Jain,  Accounts  Clerk,  Office  Administration  Dept.,  State  Bank  of  India,  Corporate Centre, Mumbai from office after fully  examining  the  material,  documents  i.e.  Statement of witnesses under the provisions of  Section 161 of Criminal Procedure Code 1973,  FIR, CFSL Opinion and other relevant documents  placed before me in regard to the said above  allegations and the facts and circumstances of  the  case,  consider  that  the  said  Shri  Mahesh  Gandmal Jain has committed the offences and  he should be prosecuted in the court of law for  the said offences.  

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NOW,  therefore,  I,  Shri  Yeshwant  Balkrishna  Kelakar,  Asst.  General  Manager,  Office  Administration  Dept.,  State  of  Bank  of  India,  Corporate  Centre,  Mumbai,  do  hereby  accord  sanction  under  Section  19(1)(c)  of  the  Prevention  of  Corruption  Act,  1988  for  the  prosecution  of  the  said  Shri  Mahesh Gandmal  Jain for the said offences and any other offences  punishable under the provisions of any law in  respect  of  the  acts  aforesaid  and  for  taking  cognizance of the said offences by the court of  competent jurisdiction.  

Date :  04.10.2000 (Illegible)

(SHRI Y.B. KELKAR) ASST. GENERAL MANAGER (OAD)

& APPOINTING AUTHORITY”

15. Reserving our opinion on the same for the present we  

shall proceed to deal with the reasons for treating the  

said order of sanction as invalid and improper by the  

learned  trial  Judge.   The  learned  trial  Judge  has  

referred  to  the  sanction  order  Ext.13  and  the  

forwarding letter Ext. 14 and, thereafter, proceeded  

to observe that the order of sanction is completely  

bereft of elementary details; that though the date is  

not  mentioned  in  the  FIR,  the  authority  has  

mentioned the date in the sanction order; that the  

order  of  sanction  is  delightfully  vague;  that  the  

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amount of bribe that finds place in the sanction order  

was told to him and he had no personal knowledge  

about it;  that the minimum discussion is  absent in  

the order of sanction; that grant of sanction being not  

an idle formality it was incumbent on the competent  

authority to ascribe proper reasons on perusal of the  

materials;  that  there  is  no  material  to  show  the  

existence  of  objective  material  to  formulate  the  

subjective satisfaction; that the authority has granted  

sanction in an absolute mechanical manner; and that  

the  order  of  sanction  does  not  reflect  sincerity  of  

approach.   The High  Court,  while  dealing  with  the  

said reason, has really not discussed anything except  

stating that a possible view has been taken by the  

learned trial Judge and in appeal it cannot substitute  

the  findings  merely  because  any  other  contrary  

opinion can be rendered in the facts of the case.

16. Presently, we shall proceed to deal with the contents  

of the sanction order.  The sanctioning authority has  

referred  to  the  demand  of  the  gratification  for  

handing  over  TDS  certificate  in  Form  16A  of  the  

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Income-tax Act, the acceptance of illegal gratification  

by the accused before the panch witnesses and how  

the accused was caught red handed.  That apart, as  

the order  would  reveal,  he has fully  examined the  

material  documents,  namely,  the  FIR,  CFSL  report  

and other relevant documents placed in regard to the  

allegations and the statements of witnesses recorded  

under Section 161 of the Code and, thereafter, being  

satisfied he has passed the order of sanction.  The  

learned  trial  Judge,  as  it  seems,  apart  from  other  

reasons has found that the sanctioning authority has  

not referred to the elementary facts and there is no  

objective material to justify a subjective satisfaction.  

The  reasonings,  in  our  considered  opinion,  are  

absolutely hyper-technical and, in fact, can always be  

used by  an  accused  as  a  magic  trick  to  pave  the  

escape route.  The reasons ascribed by the learned  

trial Judge appear as if he is sitting in appeal over the  

order of sanction.  True it is, grant of sanction is a  

sacrosanct and sacred act and is intended to provide  

a safeguard to the public servant against vexatious  

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litigation but simultaneously when there is an order  

of  sanction  by  the  competent  authority  indicating  

application of mind, the same should not be lightly  

dealt  with.   The  flimsy  technicalities  cannot  be  

allowed to become tools in the hands of an accused.  

In the obtaining factual matrix, we must say without  

any  iota  of  hesitation  that  the  approach  of  the  

learned  trial  Judge  as  well  as  that  of  the  learned  

single Judge is wholly incorrect and does not deserve  

acceptance.

17. At this stage, we think it apposite to state that while  

sanctity  attached  to  an  order  of  sanction  should  

never be forgotten but simultaneously the rampant  

corruption in society has to be kept in view.  It has  

come to the notice of this Court how adjournments  

are sought in a maladroit manner to linger the trial  

and how at every stage ingenious efforts are made to  

assail every interim order.  It is the duty of the court  

that  the  matters  are  appropriately  dealt  with  on  

proper  understanding  of  law  of  the  land.   Minor  

irregularities  or  technicalities  are  not  to  be  given  

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Everestine status.  It  should be borne in mind that  

historically  corruption  is  a  disquiet  disease  for  

healthy governance.  It has the potentiality to stifle  

the progress of a civilized society.   It  ushers in an  

atmosphere of distrust.  Corruption fundamentally is  

perversion and infectious and an individual perversity  

can become a social evil.  We have said so as we are  

of the convinced view that in these kind of matters  

there has to be reflection of promptitude, abhorrence  

for procrastination, real understanding of the law and  

to  further  remain  alive  to  differentiate  between  

hyper-technical contentions and the acceptable legal  

proponements.

18. We shall presently deal with the course of action that  

is  required  to  be  undertaken in  the  case  at  hand.  

Had the High Court dealt with the appeal on merits,  

we would have proceeded to deal with justifiability of  

the  same.   The  High  Court  has  declined  to  grant  

leave  solely  on  the  ground  that  the  conclusion  

reached  by  the  learned  trial  Judge  pertaining  to  

validity of sanction being justified, the judgment of  

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acquittal  did  not  warrant  interference.   There  has  

been no deliberation on the merits of the case.

19. At  this  juncture,  we  may  note  that  Mr.  Luthra  

submitted that the matter should be remitted to the  

High Court to deal with the application for grant of  

leave as per law.  Per contra, Mr. Bachawat, learned  

senior  counsel,  submitted  that  if  this  Court  would  

think  of  remitting  the  entire  matter  it  should  be  

remanded to the learned trial  Judge as he has not  

appropriately dealt with the real  issues,  for he has  

been  guided  by  the  impropriety  and  validity  of  

sanction.   On  a  perusal  of  the  judgment  of  the  

learned trial Judge we find that he had recorded his  

conclusions on every aspect.  He has not rested his  

conclusion exclusively on sanction. True it is, he has  

acquitted the accused on the ground that the order  

of sanction is invalid in law but simultaneously he has  

dealt with other facets.  Thus, remitting the matter to  

the trial  court  is  not  warranted.   If  the High Court  

thinks it  apt to grant leave, it  has ample power to  

deal with the appeal from all the spectrums.  It is well  

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settled in law that it is obligatory on the part of the  

appellate court to scrutinize the evidence and further  

its power is coextensive with the trial court.  It has  

power to consider all the matters which weighed with  

the  trial  court  and  the  reasons  ascribed  by  it  for  

disbelieving  or  accepting  the  witnesses.   This  has  

been  so  held  in  Laxman  Kalu  v.  State  of  

Maharashtra10 and Keshav Ganga Ram Navge v.  

The  State  of  Maharashtra11.   Needless  to  

emphasise  that  the  High  Court,  while  hearing  an  

appeal against conviction, can scan the evidence and  

weigh the probabilities.  It is incumbent on the High  

Court  to  analyse the  evidence,  deal  with  the  legal  

issues  and  deliver  a  judgment.   Thus,  there  is  no  

merit in the submission that it should be remanded  

to the learned trial Judge.  Apart from the aforesaid  

reason, we are also not inclined to remit the matter  

to the learned trial Judge as there would be another  

round of hearing before the learned trial Judge which  

is avoidable.   It  has to be kept uppermost in mind  

that remit to the trial court has to be done in very  10 AIR 1968 SC 1390 11 AIR 1971 SC 953

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rare circumstances, for it brings in procrastination in  

the criminal justice dispensation system which is not  

appreciated.

20. Consequently, the appeal is allowed, the judgment of  

the High Court and the conclusion of the learned trial  

Judge pertaining to the validity  of  sanction are set  

aside and the matter is remitted to the High Court.  

As we have not dealt with any other finding recorded  

by the learned trial Judge, it has to be construed that  

there  has  been  no  expression  of  opinion  on  the  

merits of the case on those counts.  The High Court  

shall  be  well  advised  to  consider  all  the  aspects  

barring what has been dealt with in this appeal while  

dealing with the application for grant of leave.

…………………………….J.    [Dr. B.S. Chauhan]

….………………………….J.                                            [Dipak Misra]

New Delhi; May 28, 2013.

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