Supreme Court of India
NANJAPPAversusSTATE OF KARNATAKA
- Citation
- 2015 INSC 521
- Decided
- 24 July 2015
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
A court cannot take cognizance of an offence punishable under the Prevention of Corruption Act unless a valid prior sanction under Section 19(1) is obtained; if the sanction is invalid, the accused must be discharged.
Summary
Nanjappa, a bill collector in a Karnataka gram panchayat, was accused of demanding a Rs 500 bribe for a resolution copy. The trial court acquitted him, holding that the prosecution failed to prove the charge and that the sanction for prosecution under Section 19 of the Prevention of Corruption Act, 1988 was invalid. The Karnataka High Court reversed the acquittal, convicted Nanjappa, and sentenced him. On appeal, the Supreme Court held that without a valid prior sanction a court cannot take cognizance of an offence under the Act; the validity of the sanction may be raised at any stage, and if the sanction is invalid the trial court should discharge the accused rather than convict. The Court also clarified that higher courts cannot overturn a special judge’s order on sanction defects unless a failure of justice is shown. While setting aside the High Court’s conviction, the Court declined to order a fresh prosecution, noting the passage of time and the trivial nature of the alleged bribe.
Issues considered
- The trial court's competence to take cognizance of an offence under the Prevention of Corruption Act without a valid prior sanction under Section 19(1).
- Whether the validity of a sanction order can be challenged at the appellate stage.
- The scope of Section 19(3) in preventing higher courts from interfering with a special judge’s order on the ground of an invalid sanction.
- Whether a fresh prosecution should be ordered despite the lapse of time and the nature of the alleged offence.
Legislation cited
- Code of Criminal Procedure, 1973s. 197, s. 403, s. 465
- Prevention of Corruption Act, 1988s. 19(1), s. 19(3), s. 19(4)
Subjects
Prevention of Corruption ActSection 19sanctioncognizancespecial judgejurisdictiondouble jeopardyCrPCappealacquittalconvictioninvalid sanction
Judgment
[2015] 8 S.C.R. 685
NANJAPPA A
v.
STATE OF KARNATAKA
(Criminal Appeal No. 1867 of 2012)
s·
JULY 24, 2015
[T.S. THAKUR AND AMITAVA ROY, JJ.]
Prevention of Corruption Act, 1988: s.19 - Sanction
required uls. 19- Competency of trial court to take cognizance C
of offence alleged against the public servant - Held: In the
absence of a valid previous sanction required uls.19 of the
Act, the trial Court is not competent to take cognizance of the
offence alleged - The question regarding validity of such
sanction can be raised at any stage of the proceedings - D.
The competence of the court trying the accused 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 ~tage where the c_om~etent auth6rity) E
may grant a fresh sanction for prosecution m accordance
with· 1aw - If the trial Court proceeds, despite the invaiidity
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 F
such prosecution - Code of Criminal Procedure, 1973 -
s.465.
Allowing the appeal, the Court
·HELD: 1. The language employed in sub-section (1) G
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
685 H
-------· ·----
686 SUPREME COURT REPORTS · · [2015] 8 S.C.R.
A ], 10, 11, 13 and 15 of the Act against a public servant
except with the previous sanction of the competent
authority.· 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
B 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
C trial Court proceeds, despite the invalidity attached to
the sanction order, the trial 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. [paras 6, 15] [695-F-G; 703-G-H; 704-
0
A-B]
Baij Nath Tripathi vs. The State of Bhopal and Anr. 1957
SCR 650 : AIR 1957 SC 494; Budha Mal vs. State of Delhi,
fC"f°iminal Appeal No.17 of 1952; State of Goa vs. Babu
E Thomas 2005 (3) Suppl. SCR 712: (2005) 8 SCC 130; State
of Kamataka vs. C. Nagarajaswamy 2005 (4) Suppl. SCR
169 : (2005) 8 SCC 370; B. Saha & Ors. vs. M.S. Kochar
1980 (1) SCR 111 : (1979) 4 SCC 177; K. Kalimuthu vs.
State by DSP 2005 (3) SCR 1 : (2005) 4 SCC 512; Yusofalli
F Mui/a vs. The King AIR 1949 PC 264, Basdeo Agarwal/a vs.
King Emperor AIR 1945 FC - relied on .
._.. 2. A careful reading of sub-section (3) to Section 19
would show that the same interdicts reversal or alteration
G of any finding, sentence or order passed by a Special
Judge, on the ground thatthe 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
H failure of justice has occurred by reason of such error,
omission or irregularity. Sub-section (3), in other words,
NANJAPPA v. STATE OF KARNATAKA 687
simply forbids interference with an order passed by A
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 B
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) postulates C
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
0
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 clear and unambiguous. This is sufficiently
evident even from the language employed in sub- E
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 F
early stage. A conjoint reading of Sections 19(3) and (4)
leaves no manner of tloubt 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 G
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 H
688 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 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
B 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
C and should have been raised at the trial stage instead of
being urged in appeal or revision. [para 16] [704-E-H; 705-
A-H; 706-A]
3. In the case at hand, the Special Court not only
D entertained the contention urged on behalf of the
accused aboutthe 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
E competent to do so, a fact which was not disputed before
the High Court or before this court. The only error which
the trial Court committed was that, having held the
sanction to be invalid, it should have discharged the
accused rather than recording an order of acquittal on
F the merit of the case. The High Court has not 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
G 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. [paras 17, 20]
[706-B-C; 708-A-B]
H Mohammad Safi vs. The State of West Bengal 1965
SCR 467 : AIR 1966 SC 69 - relied on.
NANJAPPA v. STATE OF KARNATAKA 689
4. The incident in question occurred on 24th March, A
1998. The appellant was, atthat 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 serve
no purpose. That apart, the trial Court had, even upon B
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 C
again. There is no 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
0
jail term no matter for a short while. [para 21] [708-C-F]
Kaliram vs. State of Himachal Pradesh 1974 (1) SCR
722: AIR 1973 SC 2773- referred to.
Case Law Reference E
1974 (1) SCR 722 referred to para 2
1957 SCR 650 . relied on Para 7
AIR 1949 PC 264 relied on Para 7 F
AIR 1945 FC relied on Para 7
2005 (4) Suppl. SCR 169 relied on Para 12
1980 (1) SCR 111 relied on Para 14 G
2005 (3) SCR 1 relied on Para 14
1965 SCR 467 relied on Para 18
H
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1867 of2012.
690 SUPREME COURT REPORTS (2015] 8 S.C.R.
A From the Judgment and Order dated 09.02.2012 of
Division Bench of the High Court of Karnataka at Bangalore
in Crl. Appeal No. 1260 of 2006.
D.P. Chaturvedi, Ravi Panwar, S.N. BhatfortheAppellant.
B
V. N. Raghupathyforthe Respondent.
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. This appeal arises out of a judgment
C 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
D 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:
E
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
F 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 13'" March, 1998 passed by the
Sabbanakruppe Grama Panchayath. Since the complainant
was unwilling to pay the bribe amount, he prayed for action
G 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
H for being paid to the appellant upori demand. The prosecution
case is that the bribe amount was demanded by the appellant
NANJAPPA v. STATE OF KARNATAKA 691
[TS. THAKUR, J.)
and paid to him by the complainant whereupon-the raiding party A
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
i··">(- - •
solution which turned pink, clearly suggesting that the bribe
money had been handled by the appellant. On completion of B
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 p'rosecution had C
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
0
Panchayat, a copy whereof was demanded by the complainant.
The Trial Court further held thatthere was no material to suggest·
thatthe Sabbanakruppe Grama Panchayat had joined tiands
with the appellant in converting the road running in front of the
complainant's house into sites for allotment to third parties. E
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 fin~ings,
concluded that the complainant's accusation about the
appellant demanding bribe from him was unreliable and F
unworthy of credit. Relying upon the decision of this Court in
Ka/iram vs. State of Himachal Pradeshl/UR 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 G
was favourable to the appellant had to be accepted. The Trial
Court. further held th_at the sanction for pros!3cution 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 H
692 SUPREME COURT REPORTS [2015] 8 S.C.R.
A trial, the Trial qourt 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.
B
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.
C 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
D 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
E 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
F 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
G 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.Actwith a default
sentence of one month and two months respectively. The
sentences were directed to run concurrently.
H
NANJAPPA v. STATE OF KARNATAKA 693
[T.S. THAKUR, J. ]
4. We have heard learned counsel for the parties at A
considerable length. This appeal must, in our opinion, succeed
on the short ground that in the absence ofa'valid previous
sanction required under Section 19 of the Prevention of
..; .L., ·-·.t~
Corruption Act, the trial Court was not competent to take
cognizance of the offence alleged again~t. the appellant. B
Section 19 of the Prevention ofCorruptionAct.rei;ids 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 C
committed by a public seNant, 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, ofth'at Government; (b) in D
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 E
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 F
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 seNant from his office
at the time when the offence was· alleged.to have been G
committed.
'~0
(3) Notwithstanding anything contained)[[ the code of
Criminal Procedure, 1973,-(a) no finding, sentence or
order passed by a special Judge shall be reversed or H
694 SUPREME COURT REPORTS (2015] 8 S.C.R.
A altered by a Court in appeal, confirmation or revisiof!
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
ofjustice has in fact been occasioned thereby; (b) no
B 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·
c 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,
D
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
E 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
F 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
G 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. .
..
H (1) Subject to the provisions hereinbefore contained,
NANJAPPA v. STATE OF KARNATAKA 695
[T.S. THAKUR, J. ]
on finding sentence or order passed by a .Court of A
competent jurisdiction shall be reversed or altered by
a Court of appeal, confirmation or revisionon 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 B
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.
c
(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 ofjustice, the Court shall have
regard to the fact whether the objection could and should D
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 couch~ in mandatory terms
and forbids courts from taking cognizance of any offence E
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 S"'ection 19, The provision contained in sub-section (1)
would operate in absolute terms but for the presence of sub- F
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 punis~iJble under G
Sections 7, 10, 11, 13and 15 oftheActagainsta 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: H
696 SUPREME COURT REPORTS (2015] 8 S.C.R.
A ""6. (1) No Court shall take cognizance of an offence
punishable under section 161 or section 165 of the In-
dian 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, -
B
(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
c 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
D 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.
E (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
F
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 Tripathivs. The State of Bhopal and
G Anr. (AIR 1957 SC494), 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
H
Corruption Act, 1947. He was sentenced by the Trial Court to
NANJAPPA v. STATE OF KARNATAKA 697
[T.S. THAKUR, J. ]
undergo nine months' rigorous imprisonment on each count. A
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 B
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 C
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
0
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 E
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 F
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 Mui/a vs. The King AIR
1949 PC 264, Basdeo Agarwal/a vs. King Emperor AIR
1945 FC 16 and Budha Mal vs. State of Delhi, Criminal G
Appeal No.17of1952, it was held that the accused had neither
been tried by a Court of competeritjurisdiction 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 H
698 SUPREME COURT REPORTS [2015) 8 S.C.R.
A 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
B 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
C 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) ts
merely an exception in the matter of taking cognizance
D of an offence under s. 190, sub-s. (1 ), els. (a) and (b); it
has no bearing in a case where sanction is necessary
and no sanction in accordance with law has been
obtained."
E 8. In Yusofalli Mu/la'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
F 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
G sanction at the most prevented the valid institution of a
prosecution, but did not affect the competency of the
Court to hear and detennine a prosecution which in fact
was brought before it. This suggested distinction
between the validity of the prosecution and the
H competence of the Court was pressed strenuously by
NANJAPPA v. STATE OF KARNATAKA 699
[T.S. THAKUR, J.)
Mr. Page, but seems to rest on no foundation. A Court A
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 B
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 C
agree with the view expressed by the Federal Court in
Agarwalla's case A.l.R. (32) 1945 F.C. 16 that a
prosecution launched without a valid sanction is a
nullity."
D
9..The Federal Court had in BasdeoAgatwalla'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 E
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 pr9per opportunity of considering F
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 G
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 H
provisions of such an Order as that in question, in which
700 SUPREME COURT REPORTS [2015) 8 S.C.R.
A 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
B 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.
c 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
D
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 311011952], this Court had clearly ruled that absence of a
E valid sanction affected the competence of the Court to try and
punish the accused. This Court observed:
"We are satisfied that the teamed Sessions Judge was
right in the view he took. Section 403 CrPC applies to
F cases where the acquittal order has been made by a
court of coinpetentjurisdiction 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
G record that in theabsence of a valid sanction the trial of
the appellant in the first instance was by a Magistrate
who had no jurisdiction ro try him."
11. The above line of reasoning was followed by this Court
H in State of Goa vs. Babu Thomas (2005) 8 SCC 130, where
NANJAPPA v. STATE OF KARNATAKA 701
[T.S. THAKUR, J. ]
a
this Court while dealing with case under Section 19 of the A
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
offencepunishableunderSections7, 10, 13and 15against B
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 C
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·b-e retrospective in its operation". This .
Court noted that on 29th March, 1995 when cognizance was
0
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 E
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 F
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 G
decision of the High Court that the trial court was bound
to record either a judgment of conviction or acquittal,
even after holding that the sanction was not valid. We
have noticed hereinbefore that .even if a judgment of H
702 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 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."
B
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
C arguments after the trial or even at the appellate stage. This
Court observed:
"Ordinarily, the question as to whether a proper sanc-
tion has been accorded for prosecution of the accused
o persons or not is a matter which should be dealt with at
the stage of taking cogni?ance. But in a case of this
nature where a question is raised as to whether the au-
thority granting the sanction· was competent therefore
or not, at the stage of final arguments after trial, the
E 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.
F 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.
G But, even if a cognizance of the offence is taken erro-
neously 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."
H
14. In B. Saha & Ors. vs. M.S. Kochar(1979) 4 SCC
NANJAPPA v: STATE OF KARNATAKA 703
[T.S. THAKUR, J.)
177, this Court was dealing with the need for a sanction under A
Section 197 of the Cr. P. C. and the stage at which the question
regarding its validity could be raised. This Court held thatthe
question of validity of an order of sanction under Section 197
Cr.P.C. could be raised and considered at any stage of pro-
ceedings. Reference may also be made to the decision of B
this Court in K. Kalimuthu vs. State by DSP (2005) 4 SCC
512where 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 com-
plaint is lodged but can be agitated at any stage of the pro- C
ceedings. The following observation in this connection is ap-
posite:
"The question relating to the need of sanction under
Section 19 7 of the Code is not necessarily be D ·
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 E
offences under the Act are concerned the effect of
Section 19, dealing with question of prejudice has a/so
to be noted."
15. The legal position regarding the importance of F
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 G
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 H
be inv_alid the court can discharge the accused relegating the
704 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H no application to proceedings before the Special Judge, who
NANJAPPA v. STATE OF KARNATAKA 705
[T.S. THAKUR, J. ]
is free to pass an order discharging !he accused, if he is of the A
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 B
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 ofa valid order
sanctioning the same. The language employed in sub-section
(3) is, in our opinion, clear and unambiguous. This is, in our C
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
0
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-sedions 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 E
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 F
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 G
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 H
706 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 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
B 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
C 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
D 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
E Mohammad Safi vs. The State of West Bengal (AIR 1966
SC 69). This Court observed:
''.l\s regards the second contention of Mr. Mukherjee it
is necessary.to point out that a criminal court is pre-
F eluded 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
G 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 rea-
son the mere fact that a charge had been framed in
H this case does not help the appellant.
NANJAPPA v. STATE OF KARNATAKA 707
[T.S. THAKUR, J. ]
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx A
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
s~id above, it will be clear that the fact that all the wit- B
nesses for the prosecution as well as fgr the defence
had been examined before Mr. Ganguly and the fur-
. ther 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 c
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 what-
ever name it is characterised cannot in law operate as D
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 whetger such an order amounts to an order of
discharge in the absence of any express provision gov- E
eming 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 I and since the proceedings before the Spe-
cial Judge ended with that order it would be enough to F
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."
G
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. H
708 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 20. The High Court has not, in our opinion, correctly ap-
preciated the legal position regarding the need for sanction or
the effect of its invalidity. It has simply glossed over the sub-
ject, by holding that the question should have been raised at
an earlier stage. The High Court did not, it appears, realise
B 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
C Court and permit the launch of a fresh prosecution against the
appellant, at this distant point of time. The incident in ques-
tion occurred on 241h March, 1998. The appellant was, atthat
point of time, around 38 years old. The appellant is today a
senior citizen. Putting the clock back at this stage when the
D 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 doubt-
E ful, rejecting the prosecution story. It wilf. 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 invoiv-
F ing 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.
Devika Gujral Appeal allowed.
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