caselaws
Supreme Court of India
Nanjappa vs State Of Karnataka on 24 July, 2015Author: ………………………………….…..…J.
Bench: T.S. Thakur, Amitava Roy
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 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 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 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, 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 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
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.”
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 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;
(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 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. 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 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:
“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 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 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 [pic]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.”
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 validity could be raised.
This Court held that the question of validity of an order of sanction under
Section 197 Cr.P.C. could be raised and considered at any stage of
proceedings. Reference may also be made to the decision of this Court in K.
Kalimuthu vs. State by DSP (2005) 4 SCC 512 where Pasayat, J., speaking for
the Court, held that the question touching the need for a valid sanction
under Section 197 of the Cr.P.C. need not be raised as soon as the
complaint is lodged but can be agitated at any stage of the proceedings.
The following observation in this connection is apposite:
“The question relating to the need of sanction under Section 197 of the
Code is not necessarily be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. Further, in cases where
offences under the Act are concerned the effect of Section 19, dealing with
question of prejudice has also to be noted.”
15. The legal position regarding the importance of sanction under Section
19 of the Prevention of Corruption 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 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 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 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 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 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 doubt, here the charge was
framed by Mr. Ganguly but on his own view he was not competent to take
cognizance of the offence and, therefore, incompetent to frame a charge.
For this reason the mere fact that a charge had been framed in this case
does not help the appellant.
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12. In addition to the competent of the court, s. 403 of the Code speaks of
there having been a trial and the trial having ended in an acquittal. From
what we have said above, it will be clear that the fact that all the
witnesses for the prosecution as well as for the defence had been examined
before Mr. Ganguly and the further fact that the appellant was also
examined under s. 342 cannot in law be deemed to be a trial at all. It
would be only repetition to say that for proceedings to amount to a trial
they must be held before a court which is in fact competent to hold them
and which is not of opinion that it has no jurisdiction to hold them. A
fortiori it would also follow that the ultimate order made by it by
whatever name it is characterised cannot in law operate as an acquittal. In
the Privy Council case it was interpreted by Sir John Beaumont who
delivered the opinion of the Board to be an order of discharge. It is
unnecessary for us to say whether such an order amounts to an order of
discharge in the absence of any express provision governing the matter in
the Code or it does not amount to an order of discharge. It is sufficient
to say that it does not amount to an order of acquittal as contemplated by
s. 403(1) and since the proceedings before the Special Judge ended with
that order it would be enough to look upon it merely as an order putting a
stop to the proceedings. For these reasons we hold that the trial and
eventual conviction of the appellant by Mr. Bhattacharjee were valid in law
and dismiss the appeal.”
19. In Babu Thomas (supra) also this Court after holding the order of
sanction to be invalid, relegated the parties to a position, where the
competent authority could issue a proper order 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
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
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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