STATE OF MADHYA PRADESHversusJIYALAL

                        [2009] 12 S.C.R. 214


A                 STATE OF MADHYA PRADESH
                                 v.                                   ',
                             JIYALAL
                (Criminal Appeal No. 1386 of 2009)
                           JULY 31, 2009
B
     [K.G. BALAKRISHNAN, CJI AND P. SATHASIVAM, J.)

        PREVENT/ON OF CORRUPTION ACT, 1988:

c        ss. 19(1) and 19(3)(a) - Sanction for prosecution -
   Conviction of accused u/ss 7 and 13(1)(d)(ii) rlw s.13(2) set
   aside by High Court on the ground that requisite sanction was
   not obtained properly- HELD: As per s.19(3)(a), the decision
   of trial court would not be reversed on the ground of any error!
D omission/irregularity in the sanction order unless a failure of
  justice has in fact occasioned - In the instant case, High Court
   erred in setting aside the conviction on the ground that
  sanction order was not obtained properly as it was granted
  mechanically and that the sanction order was not proved as
   the sanctioning officer was not examined as a witness in the
E
   Court - Both the grounds stated by High Court are not correct
  - High Court did not record a finding that any serious failure
  of justice was occasioned to accused - Appeal was not
  considered on merits - Matter is remitted to High Court for
  decision of the appeal on merits.
F
         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
  No. 1386 of 2009.

      From the Judgment & Order dated 26.6.2006 of the High
G Court of Judicature of Madhya Pradesh at Jabalpur in Criminal
  Appeal No. 1539 of 1995.

        Vibha Datta Makhija for the Appellant.

        Rajesh for the Respondent.
H                             214
              STATE OF MADHYA PRADESH v. JIYALAL                        215


             The following Order of the Court was delivered                    A

                                        ORDER

             1. Leave granted.

             2. Application for exemption from filing O.T. is allowed.         8

             3. The State of Madhya Pradesh had filed a petition
        seeking special leave to appeal against a judgment given by
· 1c    a single judge at the Jabalpur Bench of the High Court of
        Madhya Pradesh (in Criminal Appeal No. 1539 of 1995). Prior
        to the impugned judgment of the High Court, a Special Judge
                                                                               c
        at Balaghat, Madhya Pradesh had convicted the Respondent
        for offences under Section 7 and Section 13(1)(d)(ii) read with
        Section 13(2) of the Prevention of Corruption Act, 1988
        [hereinafter referred to as 'the Act']. In pursuance of the findings
                                                                               D
        of the Special Judge, the Respondent had been sentenced to
  >--   undergo imprisonment for a period of one year and a fine of
  ...   Rs. 200-/- had also been imposed on him. Aggrieved by this
        result. the Respondent had filed an appeal before the High
        Court.
                                                                               E
              4. The learned single judge of the High Court set aside the
        conviction and the sentence mainly on the ground that the
 ..,     requisite sanction order had not been obtained properly. Under
        the scheme of the Act, a sanction order from an appropriate
        authority is required before proceeding with a prosecution under F
        the same Act. The rationale for requiring such a sanction order
        is to discourage frivolous prosecutions under the Act. In the
        present case, the learned single judge of the High Court had
        opined that the District Magistrate (the appropriate authority in
        this case) who had granted the sanction order in question had G
        not applied his mind. It was held that since the sanction order
        did not enumerate reasons, it had been given mechanically and
        was hence illegal. It was further stated that the said sanction
        order (Exhibit - P/6 in the proceedings before the Special
        Judge) had not been proved because the District Magistrate
                                                                          H
    216       SUPREME COURT REPORTS               [2009] 12 S.C.R.


A who passed the order had not been subsequently examined as            .,..
                                                                         )·
  a witness by the prosecution in order to prove the same.

        5. In our opinion, both of the above-mentioned findings of
  the learned single judge of the High Court are not correct.
  Therefore, the High Court was not justified in interfering with the
8
  'finding, sentence or order passed by a Special Judge' under
  the Act. As per Section 19(3)(a) of the Act 'no finding, sentence
  or order passed by a special Judge shall be reversed or altered
  by a Court in appeCll, confirmation or revision on the ground of
  the absence of, or any error, omission or irregularity in, the
C sanction required under sub-section (1), unless in the opinion
  of that court, a failure of justice has in fact been occasioned.'

          6. The relevant portion of the Act reads as follows :-

D         "Section 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,-
E
          (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;
F
          (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;

G         (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-
H         section (1) should be given by the Central Government or
        STATE OF MADHYA PRADESH v. JIYALAL                      217


       the State Government or any other authority, such sanction      A
t    , 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.
                                                                       8
       (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,       c
       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; .
                                                                       D
      (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;                                                      E
      (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.
                                                                       F
      (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        G
      the proceedings.

      Explanation.-For the purposes of this section,-

      (a) error includes competency of the authority to grant
      sanction;                                                        H
    218        SUPREME COURT l~EPORTS              [2009] 12 S.C.R.


A          (b) a sanction required for prosecution includes reference
           to any requirement that the prosecution shall be at the       t
           instance of a specified authority or with the sanction of a
           specified person or any requirement of a similar nature."

          7. In the case before us, even if it were to be accepted
B
    that there has been an 'error, omission or irregularity' in the
    passing of the sanction order, the learned single judge of the
    High Court has not made a finding which shows that a serious
    failure of justice had been caused to the Respondent. In the
    absence of such a finding it was not correct for the High Court
c   to set aside the conviction and sentence given by the Special
    Judge.

       8. It was also not justified for the learned single judge to
  hold that the District Magistrate who had passed the sanction
D order should have been subsequently examined as a witness
  by the prosecution in order to prove the same. The sanction            -+
  order was clearly passed in discharge of routine official              <I
  functions and hence there is a presumption that the same was
  done in a bona fide manner. It was of course open to the
E Respondent to question the genuineness or validity of the
  sanction order before the Special Judge but there was no
  requirement for the District Magistrate to be examined as a
  witness by the prosecution.

        9. It is apparent that the High Court has not considered the
F appeal on merits to decide whether a failure of justice had been
  occasioned in the present case. Therefore, we set aside the
  judgment of the learned single judge of the High Court and direct
  that the appeal filed by the Respondent before the High Court
  be considered on merits and disposed of accordingly.
G
       10. The appeal is disposed of accordingly.

    R.P.                                        Appeal disposed of.