REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1322           OF 2018 (Arising out of SLP(Crl.) No.10290 of 2015)

STATE OF MIZORAM     ….Appellant

VERSUS

DR. C. SANGNGHINA           ….Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the order dated 13.08.2015 passed

by the High Court of Assam in Criminal Revision Petition No.6 of

2014  in  and  by  which  the  High  Court  affirmed  the  order  of  the

Special Court declining to take on file the charge sheet filed under

Section  13(1)(c)(d)(e)  read  with  Section  13(2)  of  Prevention  of

Corruption Act,  1988 on the ground that it  was barred under the

principles of “double jeopardy”.  

3. Brief  facts  which  led  to  filing  of  this  appeal  are  that  a

complaint  was  made  to  the  Superintendent  of  Police,  Mizoram,

Aizawl  against  the  accused/respondent  on  17.02.2009  by  the

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President  of  PRISM alleging  misappropriation/mismanagement  of

public money. On the basis of the complaint, the Superintendent of

Police,  ACB  conducted  an  inquiry  and  submitted  its  report  on

21.08.2009 with a request for registration of ACB case against the

accused/respondent.   During  inquiry,  it  was  detected  that  the

respondent  has  acquired  his  valuable  assets  disproportionate  to

known sources of income.  On receipt of the inquiry report and after

taking  the  approval  of  the  Government  of  Mizoram,  Vigilance

Department, ACB Case No.3 of 2009 under Section 13(1)(c)(d)(e)

read with Section 13(2) of Prevention of Corruption Act, 1988 (PC

Act)  and  Section  409  IPC  was  registered  against  the

accused/respondent.   

4. Charge sheet No.6 of 2013 was filed under Section 409 IPC

and Section 13(1)(c)(d)(e) read with Section 13(2) of PC Act.  The

Special Court, PC Act found that the prosecution sanction against

the  accused/respondent  was  issued  by  the  Commissioner-

Secretary, Department of Personnel & Administrative Reforms (DP

& AR) directly without sanction of the Governor. After hearing the

parties, the learned Judge, Special Court, PC Act by an order dated

12.09.2013, discharged the accused/respondent from the charges

levelled against him due to lack of proper sanction.  By its order

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dated 12.09.2013, Special Judge closed the criminal case arising

out of ACB Case No.3 of 2009 under Section 13(1)(c)(d)(e) of the

PC Act read with Section 409 IPC.  

5. Subsequently,  after  due  consideration  of  the  materials,  the

Governor vide order dated 20.12.2013 in supersession of the earlier

order  dated  08.04.2013  granted  sanction  for  prosecution  of  the

respondent for the aforesaid offences and other offence punishable

under any other provisions of  law.  In view of the fresh sanction

issued against the respondent on 20.12.2013, the Inspector, ACB

Mizoram  on  30.01.2014  submitted  fresh/supplementary  charge

sheet  along  with  fresh  prosecution  sanction  against  the

accused/respondent  with  further  request  to  accept  the

fresh/supplementary charge sheet and to reopen the case.  

6. The  learned  Judge,  Special  Court  vide  order  dated

26.08.2014 dismissed SR (PCA) No.8 of 2014 holding that there is

no  provision/scope  for  review  of  its  own  order  under  Criminal

Procedure Code. The learned Judge found that the second charge

sheet  is  barred  by  the  principles  of  “double  jeopardy”  and

accordingly,  the  application  to  take  the  fresh  charge  sheet  was

dismissed by order dated 26.08.2014.  

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7. Being aggrieved by the order dated 26.08.2014 as well as the

earlier  order  dated  12.09.2013,  the  State  has  preferred  Criminal

Revision Petition No.6 of 2014 before the High Court and the same

was dismissed by the High Court affirming the order of the Special

Court that the second charge sheet with fresh sanction cannot be

entertained.   The  High  Court  also  held  that  the  revision  petition

against the order dated 12.09.2013 is barred by the limitation and

there is no proper explanation by the State as to the delay in filing

the revision petition.

8. We  have  heard  learned  counsel  for  the  appellant  and  the

respondent  and  perused  the  impugned  judgment  and  other

materials placed on record.

9. In  ACB P.S.C./No.3/2009  under  Section  13(1)(c)(d)(e)  read

with  Section  13(2)  of  PC  Act,  the  prosecution  sanction  was

accorded against the respondent vide order dated 08.04.2013 by

the Commissioner-Secretary (DP & AR) to Government of Mizoram.

The Commissioner-Secretary  (DP &  AR)  was not  the  competent

authority to accord sanction for prosecution and the case came to

be closed for want of proper sanction.  Since the earlier sanction

accorded  was  not  by  the  competent  authority,  after  due

consideration  of  the  materials  placed  before  him,  the  Governor

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accorded  fresh  sanction  vide  order  dated  20.12.2013  in

supersession of the earlier order dated 08.04.2013.  In view of the

prosecution  sanction  against  respondent  accorded  by  the

Government  of  Mizoram,  the  Inspector  of  Police  made  an

application  on  30.01.2014  to  accept  fresh/supplementary  charge

sheet  No.3/2014  under  Section  13(1)(c)(d)(e)  read  with  Section

13(2) of PC Act.  Since the earlier order of sanction was found to be

invalid, there is no bar for the competent authority to issue a proper

order of sanction for prosecution.   

10. The courts are not to quash or stay the proceedings under the

Act merely on the ground of an error, omission or irregularity in the

sanction  granted  by  the  authority  unless  it  is  satisfied  that  such

error,  omission or irregularity has resulted in failure of justice.   A

combined  reading  of  sub-sections  (3)  and  (4)  of  Section  19  of

Prevention  Act  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.  In the instant case, of course,

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the  initial  sanction  was  granted  by  the  Secretary,  DP  &  AR  to

Government of  Mizoram. Having taken cognizance of  the matter,

before  passing  the  order  dated  12.09.2013,  the  Special  Judge

ought to have examined the matter to ascertain whether such error

or irregularity in the sanction has resulted in failure of justice.  No

such reasonings are recorded by the Special Judge or by the High

Court  that  the  initial  sanction  for  prosecution  granted  by  the

Secretary has resulted in failure of justice.

11. This Court in  State of Goa v. Babu Thomas (2005) 8 SCC

130 was dealing with a sanction order issued by an authority who

was not competent as is also the position in the case at hand. The

second sanction order issued for the 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. In the said

case, the Supreme Court held that when cognizance was taken by

the Special Judge on 29.03.1995, there was no order sanctioning

the prosecution with the result that the court could not have taken

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

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the competent  authority  to  issue fresh orders  of  sanction having

regard to the serious allegation made against the accused.

12. The judgment in Babu Thomas was referred to with approval

in  Nanjappa v.  State  of  Karnataka (2015)  14  SCC 186.   After

referring  to  number  of  judgments  and  observing  that  despite

invalidity attached to the sanction order, upon grant of a fresh valid

sanction is not  forbidden, in para (22) of  Nanjappa case,  it  was

held as under:-

22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear  to  admit  equivocation.  The  statute  forbids  taking  of cognizance by the court against a public servant except with the previous 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 the 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.

13. In Nanjappa case, after referring to number of judgments, this

Court summarised the principles in para (23) as under:-

“23. 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 CrPC which we have extracted earlier. ………….. 23.2. A careful reading of sub-section (3) to Section 19 would show that  the  same  interdicts  reversal  or  alteration  of  any  finding,

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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 the 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 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). 23.3. 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. 23.4. 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 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. 23.5. 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  the 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.”

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14. In light of the above principles, considering the case in hand,

even before commencement of trial, the respondent/accused was

discharged due to lack of proper sanction, there was no impediment

for filing the fresh/supplementary charge sheet after obtaining valid

sanction.   Unless  there  is  failure  of  justice  on  account  of  error,

omission  or  irregularity  in  grant  of  sanction  for  prosecution,  the

proceedings  under  the  Act  could  not  be  vitiated.  By  filing  fresh

charge sheet, no prejudice is caused to the respondent nor would it

result  in  failure  of  justice  to  be  barred  under  the  principles  of

“double jeopardy”.  

15. Under Article 20(2) of the Constitution of India, no person shall

be prosecuted and punished for the same offence more than once.

Section  300  Cr.P.C.  lays  down that  a  person  once  convicted  or

acquitted, cannot be tried for the same offence. In order to bar the

trial of any person already tried, it must be shown – (i) that he has

been tried by a competent court for the same offence or one for

which he might have been charged or convicted at that trial, on the

same facts; (ii) that he has been convicted or acquitted at the trial;

and         (iii) that such conviction or acquittal is in force.  Where the

accused has not been tried at all  and convicted or acquitted, the

principles of “double jeopardy” cannot be invoked at all.

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16. The whole basis of Section 300 (1) Cr.P.C. is that the person

who was tried by a competent court, once acquitted or convicted,

cannot be tried for the same offence.  As discussed earlier, in the

case in hand, the respondent/accused has not been tried nor was

there a full-fledged trial.  On the other hand, the order of discharge

dated 12.09.2013 passed by the  Special  Court  was  only  due to

invalidity  attached  to  the  prosecution.  When  the

respondent/accused  was  so  discharged  due  to  lack  of  proper

sanction, the principles of “double jeopardy” will not apply.  There

was  no  bar  for  filing  fresh/supplementary  charge  sheet  after

obtaining a valid sanction for prosecution.  The Special Court once it

found that there was no valid sanction, it should have directed the

prosecution to do the needful.   The Special  Court  has not  given

sufficient opportunities to produce valid prosecution sanction from

the competent authority.  The Special Court erred in refusing to take

cognizance of the case even after production of valid prosecution

sanction obtained from the competent authority and the High Court

was  not  right  in  affirming  the  order  of  the  Special  Court.   The

Special Court and the High Court were not right in holding that the

filing  of  the  fresh  charge  sheet  with  proper  sanction  order  for

prosecution was barred under the principles of “double jeopardy”.   

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17. The  learned  counsel  for  the  respondent  has  drawn  our

attention to the annexures filed by the respondent and submitted

that  the respondent  has been exonerated from the departmental

proceedings on various charges by order dated 08.07.2013. We are

not  inclined  to  go  into  the  merits  of  this  contention  and  all  the

contentions raised by the respondent are kept open.

18. In  the  result,  the  impugned  judgment  and  order  dated

13.08.2015 is set aside and this appeal is allowed.  The Special

Court, PC Act, Aizawl, Mizoram is directed to take cognizance of the

charge sheet dated 30.01.2014 in ACB P.S.C.No.3/2009 on file and

proceed with the same in accordance with law.  

…………….……………J.  [R. BANUMATHI]

…………….……………J.      [INDIRA BANERJEE]

New Delhi; October 30, 2018

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