Bombay High Court
Central Bureau Of ... vs V.Prabhakar Rao on 4 September, 2024
2024:BHC-NAG:9966
Judgment
278 apeal101.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.101 OF 2006
Central Bureau of Investigation,
Nagpur. ..... Appellant.
:: V E R S U S ::
V.Prabhakar Rao,
Stenographer,
c/o Regional Labour
Commissioner, Seminary
Hills, Nagpur. ..... Respondent.
================================
Mrs.Mugdha Chandurkar, Counsel for the Appellant.
Shri R.M.Patwardhan, Counsel for the Respondent.
================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 13/08/2024
PRONOUNCED ON : 04/09/2024
JUDGMENT
1. By this appeal, the appellant - Central Bureau of
Investigation, Nagpur (the CBI) has challenged judgment
and order dated 30.9.2005 passed by learned Judge,
Special Court for CBI, Nagpur (learned Judge of the
Special Court) in Special Case No.17 of 2003 (Old case
No.21/1994).
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2. By the said judgment impugned, the respondent
(accused) is acquitted of offences under Sections 7 and
13(1)(d) read with 13(2) of the Prevention of Corruption
Act, 1988 (the P.C.Act) on ground of absence of valid
sanction.
3. Facts of the prosecution case can be summarized
as under:
In April 1994, the accused was working as
Stenographer in the office of the Assistant Labour
Commissioner (Central) at Nagpur (the ALC). On
7.4.1994, Pradipkumar Choudhary (the complainant)
submitted an application for amendment of his licence
under the Contract Labour Regulation Act. By the said
application, he requested for a licence to engage 70
labourers as the original licence was granted to him to
65 labourers only. On receipt of the application, he was
called after 3-4 days. Accordingly, he met the accused
for 2-3 times. At the time of such meetings, it was
alleged that the accused demanded Rs.700/- on a
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pretext that out of the said amount, he has to pay some
amount to the Assistant Labour Commissioner Shri Zade.
The accused called him in his office on 29.4.1994. On
that day also, the demand was made by the accused. As
he was not desirous to pay the amount demanded by the
accused, on the same day, he approached to the office
of the CBI and filed a complaint alleging that gratification
amount is demanded by the accused. On receipt of the
complaint, an offence was registered and the officer of
the CBI called two witnesses to act as panchas. After
arrival of panchas, allegations in the complaint were
explained to panchas as well as the complaint was given
to panchas who verified contents of the complaint. The
complainant produced seven currency notes of Rs.100/-.
The officer of the CBI shown demonstration as to use of
phenolphthalein powder and sodium carbonate. The said
solution was applied on the tainted notes and the same
was kept in a shirt pocket of the complainant. The
complainant and panchas were instructed. As per
instructions, the complainant was asked not to hand over
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the amount unless it is demanded. Pancha No.1 was
instructed to remain along with the complainant and
observe events took place between the complainant and
the accused. Whereas, accused No.2 was asked to
remain with other raiding party members. Accordingly,
pre-trap panchanama was drawn.
4. After the pre-trap panchanama, the complainant,
panchas, and other raiding party members proceeded
towards the office of the accused. The complainant and
pancha No.1 met the accused and after some time, they
along with the accused went to a Tea Stall and,
thereafter, the complainant gave a predetermined signal
to raiding party members on which the accused was
caught. The hand wash of the complainant and the
accused was collected. After completion of investigation
and obtaining a sanction, chargesheet was filed against
the accused.
5. To substantiate contentions, the prosecution
examined in all four witnesses namely Nandkumar
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Shivnarayan Shahu vide Exhibit-20 (PW1), the
Sanctioning Authority; Anil Madhav Deshpande vide
Exhibit-25 (PW2), the Shadow Pancha; Pradipkumar
Choudhary vide Exhibit-33 (PW3), the Complainant; and
Satish Joshi vide Exhibit-34 (PW4), the Trap Officer.
6. Besides the oral evidence, the prosecution further
relied upon Sanction Order Exhibit-21, office order
Exhibit-22, pre-trap panchanama Exhibit-26, seizure
memo Exhibit-27, post-trap panchanama Exhibit-29, First
Information Report Exhibit-35, seizure memo Exhibit-27,
and map Exhibit-28,
7. After considering the evidence adduced during the
trial, learned Judge of the Special Court held that the
sanction accorded to prosecute the accused is not valid
sanction as Sanctioning Authority PW1 Nandkumar
Shahu is not competent person to accord the sanction
and acquitted the accused though offences under
Sections 7 and 13(1)(d) read with 13(2) of the PC Act are
proved against the accused.
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8. Being aggrieved and dissatisfied with the same,
the present appeal is preferred.
9. Heard learned counsel Mrs.Mugdha Chandurkar for
the CBI and learned counsel Shri R.M.Patwardhan for the
accused.
10. Learned counsel for the CBI submitted that
observation of learned Judge of the Special Court, that
the sanction accorded to prosecute the accused is not by
competent person, is itself erroneous. She submitted
that learned Judge of the Special Court observed that
Sanctioning Authority PW1 Nandkumar Shahu has not
considered that the accused was appointed as
Stenographer and the Regional Labour Commissioner
(RLC) is the post of Administrator and Controlling
Authority at the station. The accused was appointed and
transferred to the post of Stenographer. Thus, PW1
Nandkumar Shahu is not the Sanctioning Authority and
there is no evidence that powers are delegated to him to
accord the sanction. She submitted that it is observed
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by learned Judge of the Special Court that the accused
was appointed as Stenographer as per the office order
issued by under Secretary and was working in the office
of the RLC. Thus, PW1 Nandkumar Shahu was not the
Competent Authority to grant the sanction to
prosecute the accused. As the sanction is not accorded
by the Competent Authority, the accused was acquitted.
To substantiate her contentions, she placed reliance on
Exhibit-22 the office order and submitted that if the said
office order is perused, it would show that upon
qualifying test held by the office of the RLC at Nagpur,
the accused who was working in the office of the RLC at
Vijaywada, Hyderabad Region, was appointed and
transferred as Stenographer in regular basis in the Pay
Scale of Rs.1200-30-1560-EB-40-2040 w.e.f. the date of
his joining duties in the office of the RLC at Nagpur. She
submitted that as the said office order was issued by the
under Secretary, learned Judge of the Special Court held
that the under Secretary is the appointing and removing
authority. In support of her contentions, she placed
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reliance on provisions of the Departmental Manual (the
DM) of the Chief Labour Commissioner and submitted
that in view of Rule 19(2) of the said DM for Group-C and
D, the RLC is the Appointing Authority. She submitted
that though this fact was brought to the notice of learned
Judge of the Special Court, the said learned Judge has not
considered the same.
11. Learned counsel for the CBI further invited my
attention towards heading of filling of vacancies and
submitted that as per the Schedule, appointing
authorities for various cadres are determined and as per
the Department Manual, all other posts other than Office
Superintendent in the office of the RLC, the RLC is the
appointing authority. She also invited my attention
towards Chapter-6 of the said manual which deals with
Conduct and Discipline and submitted that in view of
point No.6.4.(iii), under Rule 10(1) of the Central Civil
Services Rules (CCS Rules), following are authorities
competent to place a government servant under
suspension and it states that RLC is the competent
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authority to take departmental action of suspension
against the Group-C employee. Thus, she submitted that
in view of the Central Civil Services Rules, department
manual, Sanctioning Authority PW1 Nandkumar Shahu,
who was serving as the RLC at the relevant time, was the
Competent Authority who accorded the sanction. She
further submitted that even accepting contention that
Sanctioning Authority PW1 Nandkumar Shahu is not
competent person to accord the sanction, the accused
cannot be acquitted on the sole ground of absence of
valid sanction in view of bar under Section 19(3)(a) of the
PC Act which states that no order of sanction and
sentence can be reversed or altered even on the ground
of absence of sanction unless a "failure of justice" has
been occasioned thereby. She submitted that a reading
of the said Section makes it clear that error, omission or
irregularity in proceedings held before or during the trial
or in any enquiry were reckoned by legislature as
possible occurrences in criminal courts and, therefore,
prohibition is imposed that such error, omission or
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irregularity has occasioned "a failure of justice" the
superior court shall not quash the proceedings merely on
the ground of such error, omission or irregularity. She
submitted that learned Judge of the Special Court has
given finding that as far as offences under Sections 7
and 13(1)(d) of the PC Act are concerned, the same are
held to be proved. Thus, merely on the ground of
sanction, learned Judge of the Special Court acquitted
the accused which is erroneous.
12. Per contra, learned counsel for the accused
submitted that learned Judge of the Special Court
considered that Sanctioning Authority PW1 Nandkumar
Shahu was not Competent Authority to accord the
sanction. Not only the competency but also learned
Judge of the Special Court held that the sanction granted
is without application of mind. He submitted that the
accused was appointed by the order of the under
Secretary and learned Judge of the Special Court
considered Exhibit-22 and, therefore, the judgment
impugned in the appeal is legal and correct one.
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13. During hearing of the appeal, learned counsel for
the accused filed on record an application under Section
391 of the Code of Criminal Procedure for adducing
additional evidence on the ground that during the course
of hearing of the appeal, learned counsel who was
appearing for the accused earlier sought time to prove
the Civil Services Rules to show that RLC at Nagpur is the
Competent Authority for appointing candidates. The
category specified in the Rules covers post of
Stenographers. However, it is pertinent to note that the
accused was working as Lower Division Clerk in the office
of the RLC at Hyderabad Region at the relevant time and
after passing of the examination for the post of
Stenographer, he was appointed and posted at Nagpur
by virtue of Exhibit-22 which is the order issued by the
under Secretary. He further submitted that during the
trial, one communication issued by the RLC (Central) to
the RLC at Hyderabad Region is relevant, which shows
that the RLC at Nagpur is not Competent Authority to
accord the sanction. Being the said communication was
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issued, the accused be permitted to adduce additional
evidence by producing relevant documents on record.
He further submitted that learned Judge of the Special
Court rightly considered that Sanctioning Authority PW1
Nandkumar Shahu admitted that offices like RLC and ALC
fall under the Ministry of Labours. The appointment
order is issued by the under Secretary and from the
evidence of the Sanctioning Authority and Trap Officer
PW4 Satish Joshi, nothing came on record that the
accused was appointed by the Head of the Department.
No evidence is adduced as to who is the Head of the
Department. There is no evidence as to delegation of
powers of Appointing Authority for the post of
Stenographers in Group-C and held that there was no
valid sanction and acquitted the accused.
14. In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
1. The State of Maharashtra vs. Ajay
Ratansingh Parmar1 and
1 2022 ALL MR (Cri) 2140
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2. The State of Maharashtra vs. Vithal Sajan
Ahire2.
On the point of additional evidence, he placed
reliance on the decision in the case of:
Mrs.Maria Felicidade Amaltina Mascarenhas
and ors vs. Shri Joao Francisco Serrao and
anr3.
15. After considering submissions made by learned
counsel for the CBI and learned counsel for the accused,
issue raised is that the accused is acquitted only on the
ground that the sanction obtained by the prosecution
was not valid.
16. Thus, validity of the sanction has been raised in
the present appeal.
17. Learned counsel for the CBI submitted that
acquittal of the accused on the ground of invalid sanction
itself is erroneous. Learned Judge of the Special Court
could not have acquitted the accused only on the ground
2 2024 ALL MR (Cri) 1782
3 2022(1) ALL MR 652
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of the alleged invalid sanction. She invited my attention
to evidence of Sanctioning Authority PW1 Nandkumar
Shahu and submitted that the Sanctioning Authority
accorded the sanction after application of mind.
18. Perusal of the evidence of Sanctioning Authority
PW1 Nandkumar Shahu shows that he was serving as the
Welfare Commissioner and at the time of the alleged
incident, he was working as the RLC at Nagpur and
holding jurisdiction all over Vidarbha and Marathwada
Regions. Three ALCs and four Labour Enforcement
Officers were his subordinates. Two posts of the ALCs
were at Nagpur and one post of the ALC Assistant Labour
Commissioner was at Chandrapur. During his tenure, in
second week of April 1994, Shri A.P.Zade was holding the
charge of the post of Shri M.T.Rughani as the ALC in
addition to his own charge. Post of stenographer in the
office of the RLC at Nagpur was non-gazetted post of
Group-C. The RLC was the Competent Authority for
appointment and termination of the post of
Stenographer. The accused was working as
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Stenographer in his office. He accorded the sanction for
prosecution of the accused. Before according the
sanction, he perused the entire documents and came to
conclusion that sufficient material is available to accord
the sanction and he accorded the sanction.
19. During the cross examination of Sanctioning
Authority PW1 Nandkumar Shahu, it was brought on
record that the RLC is the post of Administration and
Controlling Authority. Two Stenographers were working
in the office. It was admitted that appointment of
officers i.e. the RLC and the ALC are being made by the
Ministry of Labour. He denied that the appointment of
the Stenographers are to be made by the Ministry of
Labour under the signature of the under Secretary. He
specifically stated that he had no occasion to see
documents making appointment and posting of the
accused as Stenographer at Nagpur.
Thus, an attempt was made to show that PW1
Nandkumar Shahu is not appointing or removing
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authority of the accused and, therefore, the sanction
accorded by him is not a valid sanction.
20. Perusal of the Sanction Order shows that
Sanctioning Authority PW1 Nandkumar Shahu specifically
mentioned that he being the Competent Authority, after
fully and carefully examining material placed before him,
accorded the sanction.
21. Whether sanction is valid or not and when it can
be called as valid, the same is settled by various
decisions of the Honourable Apex Court as well as this
court.
22. The Honourable Apex in the case of Mohd.Iqbal
Ahmad vs. State of Andhra Pradesh4 has held that
what the Court has to see is whether or not the
sanctioning authority at the time of giving the sanction
was aware of the facts constituting the offence and
applied its mind for the same and any subsequent fact
coming into existence after the resolution had been
4 1979 AIR 677
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passed is wholly irrelevant. The grant of sanction is not
an idle formality or an acrimonious exercise but a solemn
and sacrosanct act which affords protection to
government servants against frivolous prosecutions and
must therefore be strictly complied with before any
prosecution can be launched against the public servant
concerned.
23. The Honourable Apex Court, in another decision,
in the case of CBI vs. Ashok Kumar Agrawal 5, has
held that sanction lifts the bar for prosecution and,
therefore, it is not an acrimonious exercise but a solemn
and sacrosanct act which affords protection to the
government servant against frivolous prosecution. There
is an obligation on the sanctioning authority to discharge
its duty to give or withhold sanction only after having full
knowledge of the material facts of the case. The
prosecution must send the entire relevant record to the
sanctioning authority including the FIR, disclosure
statements, statements of witnesses, recovery memos,
5 2014 Cri.L.J.930
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draft charge sheet and all other relevant material. It has
been further held by the Honourable Apex Court that the
record so sent should also contain the
material/document, if any, which may tilt the balance in
favour of the accused and on the basis of which, the
competent authority may refuse sanction. The authority
itself has to do complete and conscious scrutiny of the
whole record so produced by the prosecution
independently applying its mind and taking into
consideration all the relevant facts before grant of
sanction while discharging its duty to give or withhold
the sanction. The power to grant sanction is to be
exercised strictly keeping in mind the public interest and
the protection available to the accused against whom
the sanction is sought. The order of sanction should
make it evident that the authority had been aware of all
relevant facts/materials and had applied its mind to all
the relevant material. In every individual case, the
prosecution has to establish and satisfy the court by
leading evidence that the entire relevant facts had been
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placed before the sanctioning authority and the authority
had applied its mind on the same and that the sanction
had been granted in accordance with law.
24. The Honourable Apex Court, in the case of State
of Karnataka vs. Ameerjan6, held that it is true that an
order of sanction should not be construed in a pedantic
manner. But, it is also well settled that the purpose for
which an order of sanction is required to be passed
should always be borne in mind. Ordinarily, the
sanctioning authority is the best person to judge as to
whether the public servant concerned should receive the
protection under the Act by refusing to accord sanction
for his prosecution or not. For the aforementioned
purpose, indisputably, application of mind on the part of
the sanctioning authority is imperative. The order
granting sanction must be demonstrative of the fact that
there had been proper application of mind on the part of
the sanctioning authority.
6 (2007)11 SCC 273
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25. Perusal of the evidence and findings recorded by
learned Judge of the Special Court shows that learned
Judge of the Special Court held that Sanctioning
Authority PW1 Nandkumar Shahu is not competent
person and, therefore, the sanction accorded by him is
not a valid sanction. Though reliance was placed on CCS
and CCA Rules, the same were not considered by learned
Judge of the Special Court and held that no evidence is
adduced about delegation of powers of Appointing
Authority for the post of Stenographer.
26. The entire issue revolves around the office order
issued by the under Secretary. The said order shows that
the RLC at Vijaywada, Hyderabad Region, was requested
to relieve the accused of his duties and asked to report
duty to RLC at Nagpur. As far as initial appointment of
the accused is concerned, no evidence is adduced. The
entire reliance is placed on provisions of Manual. In view
of Rule 19(2) and Schedule thereunder, it shows that for
Group-C and Group-D, the Appointing Authority is the
Head of the Department. Exhibit-22, the Office Order,
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would show that upon qualifying test held by the office of
the RLC at Nagpur, the accused working in the office of
the RLC at Vijaywada, Hyderabad Region, was appointed
and transferred as Stenographer. Learned Judge of the
Special Court held that the under Secretary is the
Appointing and Removing Authority. As per Schedule,
Appointing Authority for Group-C and Group-D is the RLC.
Chapter-6 of the DM, deals with Conduct and Discipline
and submitted that in view of clause 6.4(iii), it deals with
Rule 10(1) of the CCS Rules which states that the RLC is
the Competent Authority to take departmental action of
suspension against Group-C employees.
27. Thus, in view of CCS Rules and the DM,
Sanctioning Authority PW1 Nandkumar Shahu serving as
the RLC at the relevant time was the Competent
Authority who accorded the sanction.
28. Besides CCS Rules, under Section 19(3)(a) of the
P.C. Act, there is a bar which states that no finding,
sentence or order passed by a special Judge shall be
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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.
Unless failure of justice has been occasioned by such
error, omission or irregularity in sanction, order of
conviction cannot be interfered with. The object behind
the requirement of grant of sanction to prosecute a
public servant need not detain the court save and except
to reiterate that the provisions in this regard either under
the Code or the P.C. Act designed as a check on frivolous,
mischievous and unscrupulous attempts to prosecute a
honest public servant for acts arising out of due
discharge of duty and also to enable him to efficiently
perform his duties cast on him by virtue of his office.
29. A combined reading of sub-sections (3) and (4) of
Section 19 of the said P.C.Act makes position clear that
notwithstanding anything contained in the Code no
finding, sentence and order passed by a Special Judge
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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.
Sub section (4) states that 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 thereto further provides that
for the purpose of Section 19, error includes
"competency of the authority to grant sanction".
30. Thus, it is clear from language employed in sub-
section (3) of Section 19 that the said sub-section has
application to the proceedings before the Court in
appeal, confirmation or revision, and not to the
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proceedings before the Special Judge. The said sub-
section (3) clearly forbids the court in appeal,
confirmation or revision, the interference with the order
passed by the Special Judge on the ground that the
sanction was bad.
31. Section 19(4) of the P.C.Act:
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.
32. Considering the legal position informed in sub-
section (3) of Section 19 and the Explanation, the term
"Error" includes competency of the authority to grant
sanction. Hence, such competency to grant sanction
would not be open to be questioned. That apart, it was
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for the accused to demonstrate what prejudice he has
suffered by such inappropriate action.
33. The Honourable Apex Court in the case of
Nanjappa vs. State of Karnataka7 dealt with
intricacies of Section 19(1) as also Section 19(3) and
19(4) of the P.C. Act as to at what stage the question of
validity of sanction accorded under Section 19(1) of the
P.C. Act could be raised, and what are the powers of the
court in appeal, confirmation or revision under sub-
section (3) of Section 19 of the P.C. Act. It is observed
that the legal position regarding the importance of
sanction under Section 19 of the Prevention of Corruption
Act is thus much too clear to admit equivocation. The
statute forbids taking of cognizance by the court against
a public servant except with the previous sanction of an
authority competent to grant such sanction in terms of
clauses (a), (b) and (c) to Section 19(1). The question
regarding validity of such sanction can be raised at any
stage of the proceedings. The competence of the court
7 ((2015) 14 SCC 186
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trying the accused so much depends upon the existence
of a valid sanction. In case the sanction is found to be
invalid the court can discharge the accused relegating
the parties to a stage where the competent authority
may grant a fresh sanction for the prosecution in
accordance with law. If the trial court proceeds, despite
the invalidity attached to the sanction order, the same
shall be deemed to be non est in the eyes of law and
shall not forbid a second trial for the same offences,
upon grant of a valid sanction for such prosecution.
34. Thus, learned Judge of the Special Court has to
consider whether any failure of justice has been
occasioned on account of such error, omission or
irregularity.
35. The Honourable Apex Court in the case of
Shamnsaheb M.Multtani vs. State of Karnataka 8
observed that we often heard about 'failure of justice'
and quite often the submission in a criminal court is
accentuated with the said expression. Perhaps it is too
8 (2001)2 SCC 577
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pliable or facile an expression which could be fitted in
any situation of a case. The expression 'failure of justice'
would appear, sometimes, as an etymological chameleon
(the simile is borrowed from Lord Diplock in Town
Investments Ltd. v. Deptt. of the Environment [(1977) 1
All ER 813 : 1978 AC 359 : (1977) 2 WLR 450 (HL)] ). The
criminal court, particularly the superior court should
make a close examination to ascertain whether there
was really a failure of justice or whether it is only a
camouflage.
36. Here, in the present case, learned Judge of the
Special Court acquitted the accused only on the ground
of the alleged invalid sanction when the entire evidence
sufficiently proved that the accused demanded and
accepted the amount towards illegal gratification.
37. A plain reading of Section 19(1) 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
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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 which says that no Court can take cognizance of
the offences in question without a legal sanction. Thus,
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. There is
always distinction between a valid institution of a
prosecution and the competence of the court to hear and
determine the prosecution.
38. What is important is that, not only grant of valid
sanction held to be essential for taking cognizance by
the Court, but also the question about the validity of
such sanction could be raised at the stage of final
arguments after the trial or even at the appellate stage.
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 regards sanction may be
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determined at an early stage. When question regarding
validity of sanction is raised, merely because there is any
omission, error or irregularity in the matter of according
sanction that does not affect the validity of the
proceeding unless the court records the satisfaction that
such error, omission or irregularity has resulted in failure
of justice.
39. The order of the sanction is prerequisite as it is
intended to provide a safeguard to a public servant
against vexatious litigation, but it should not be
construed in a pedantic manner with a hyper-technical
approach to test its validity.
40. Insofar as the present case is concerned, it was
never raised that due to the erroneous sanction, any
prejudice is caused to the accused. The question as to
whether the sanction for prosecuting the accused was
valid or not and prejudice caused to the accused by the
said invalid sanction, was never raised before the trial
court.
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41. Learned counsel for the CBI rightly placed reliance
on the decision of the Honourable Apex Court in the case
of P.I.Babu vs. CBI9 wherein it is held that the Special
Court has committed an error acquitting accused only on
the ground of alleged invalid sanction.
In the case of Central Bureau Investigation vs.
V.K.Sehgal and anr10 also the Honourable Apex Court
had considered aspect as to validity of sanction and
observed that in a case where accused failed to raise
question of valid sanction, the trial would normally
proceed to its logical end by making judicial scrutiny of
the entire case law. If that case ends in conviction there
is no question of failure of justice on the mere premise
that no valid sanction was accorded for prosecuting the
public servant, because the very purpose of providing
such a filtering check is to safeguard public servants
from frivolous or mala fide or vindictive prosecution on
the allegation that they have committed offence in the
discharge of their official duties.
9 Criminal Appeal No.1864/2013 decided on 18.1.2024.
10 (1999)8 SCC 501
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278 apeal101.06
In the case of State of Madhya Pradesh vs.
Virender Kumar Tripathi11 also the Honourable Apex
Court held that as far as defect in sanction aspect is
concerned, there was not even a whisper or pleading
about any failure of justice and when no prejudice is
caused to the accused, the High Court's view quashing
the proceedings cannot be sustained.
In the case of State of Bihar and ors vs.
Rajmangal Ram12 also the Honourable Apex Court held
that error, omission or irregularity in sanction order
including error of jurisdiction of grant of sanction, court's
power to interdict a criminal proceeding is not available.
It is held that unless court reaches to conclusion that a
failure of justice has been occasioned by such error,
omission or irregularity in sanction, order passed
interdicting criminal proceedings against the respondent
public servants on ground that Law Department was not
Competent Authority to accord sanction held not
sustainable.
11 (2009)15 SCC 553
12 (2014)11 SCC 388
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42. Thus, when any error, omission or irregularity in
the sanction including competency of the authority to
grant sanction does not vitiate the eventual conclusion
unless a failure of justice has occurred, merely because
there is any omission, error or irregularity in the matter
of according sanction, that does not affect the validity of
the proceeding unless the court records the satisfaction
that such error, omission or irregularity has resulted in
failure of justice.
43. In the instant case, admittedly, from the judgment
impugned in the appeal, it reveals that the accused has
not raised a ground that due to error, omission or
irregularity and the sanction accorded by the
incompetent person, any prejudice is caused to the
accused.
44. Thus, unless and until any prejudice is caused to
the accused, due to the error, omission or irregularity,
the validity of sanction cannot be affected.
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278 apeal101.06
45. Learned counsel for the accused filed the
application for adducing additional evidence on ground
that essential communication dated 8.12.1989 was not
produced before learned Judge of the Special Court to
show that RLC at Nagpur was not the Competent
Authority. The document Exhibit-22 is the similar
document issued under the signature of the under
Secretary. By this letter, the under Secretary requested
RLC at Hyderabad Region to relieve the accused. The
similar request is made by the RLC at Nagpur to RLC at
Hyderabad Region stating that the accused is qualified in
the Departmental Examination of Stenographer and his
appointment from 1.11.1989 is at Nagpur. His
appointment will be with effect from the date of his
joining at RLC at Nagpur. The document is produced by
filing the application under Section 391 of the Code. The
said Section deals with Appellate Court's power to
receive additional evidence. Section 391 forms an
exception to the general rule that an appeal must be
decided on the evidence which was before the trial court
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278 apeal101.06
and the powers being an exception shall always have to
be exercised with caution and circumspection so as to
meet the ends of justice. Be it noted further that the
doctrine of finality of judicial proceedings does not stand
annulled or affected in any way by reason of exercise of
power under Section 391. It is not to fill up the lacuna
but to subserve the ends of justice. Section 391 is thus
akin to Order 41 Rule 27 of the Civil Procedure Code. The
power to record additional evidence under the said
Section should only be exercised when the party making
such request was prevented from presenting the
evidence in the trial despite due diligence being
exercised or that the facts giving rise to such prayer
came to light at a later stage during pendency of the
appeal and that non- recording of such evidence may
lead to failure of justice. The proposition of taking
additional evidence in a criminal appeal cannot be
adopted as a matter of course by the Appellate Court
and in fact, the occasion for the Appellate Court to take a
considered decision on the prayer for adducing
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278 apeal101.06
additional evidence in appeal could arrive only after the
appeal itself has been heard on merits and not before.
The key words in Section 391(1) are "if it thinks
additional evidence to be necessary". The word
"necessary" used in Section 391(1) is to mean necessary
for deciding the appeal. The powers of Appellate Court
are contained in Section 386 of the Code. Power to take
additional evidence under Section 391 is, thus, with an
object to appropriately decide the appeal by the
Appellate Court to secure ends of justice.
46. The Appellate Court's powers to receive additional
evidence under Section 391 of the Code are powers
being in the nature of an exception shall always have to
be exercised with caution and circumspection so as to
meet the ends of justice. Though under provisions of the
said Section a wide discretion has been conferred, the
powers could not be exercised for filling up any lacunae
and the Appellate Court while directing taking of
additional evidence was required to record reasons for
the same. The powers were held to be in the nature of
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278 apeal101.06
exception to the general rule and it was stated that the
same must be exercised with great care. It is, therefore,
seen that the powers under Section 391 to take
additional evidence by the appellate court are of a
discretionary nature and are to be exercised sparingly
and only in suitable cases. In view thereof, additional
evidence cannot be tendered at the appellate stage as a
matter of right and the power to be exercised by the
appellate court is to be based on discretion, sound
judicial principles and in the interest of justice. The
discretion is to be exercised in suitable cases.
47. In the case in hand, learned counsel for the
accused filed on record the document to show that the
RLC is not Competent Authority. The similar nature of
communication is already at Exhibit-22. Moreover, he
has not placed any circumstances to show that parties
seeking to produce additional evidence, after due
exercise of diligence, the document was not within his
knowledge and could not be produced the same. It was
also not established that in absence of the said
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278 apeal101.06
document, the court cannot come to conclusion or
decide the matter.
48. Thus, no material is produced on record to show
that in absence of this document, the Appellate Court is
not in a position to dispose of the appeal and, therefore,
the application for producing the additional evidence
deserves to be rejected.
49. Learned counsel for the CBI submitted that merely
on the basis of any error, omission or incompetency in
the Sanction Order, learned Judge of the Special Court
cannot acquit the accused,hence case be remanded for
deciding issue as to validity of sanction. Section 386 of
the Code deals with powers of the Appellate Court.
50. The Honourable Apex Court in the case Issac
alias Kishore vs. Ronald Cheriyan and ors 13 has
dealt with when powers can be exercised and observed
that under Section 386(a) and (b)(i), the power to direct
retrial has been conferred upon the Appellate Court when
13 (2018)2 SCC 278
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278 apeal101.06
it deals either with an appeal against judgment of
conviction or an appeal against acquittal (High Court).
There is a difference between the powers of an Appellate
Court under Clauses (a) and (b). Under Clause (b), the
Court is required to touch the finding and sentence, but
under Clause (a), the Court may reverse the order of
acquittal and direct that further enquiry be made or the
accused may be retried or may find him guilty and pass
sentence on him according to law. Normally, retrial
should not be ordered when there is some infirmity
rendering the trial defective. A retrial may be ordered
when the original trial has not been conducted
satisfactorily for particular reasons like, appropriate
charge not framed, evidence wrongly rejected which
could have been admitted or evidence admitted which
could have been rejected etc. Retrial cannot be ordered
when there is a mere irregularity or where it does not
cause any prejudice, the Appellate Court may not direct
retrial. The power to order retrial should be exercised
only in exceptional cases.
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51. In the light of the above well settled legal position,
it is required to see whether retrial can be directed in the
present case.
52. In view of the settled principles of law, it is crystal
clear that the Sanctioning Authority has to apply his/her
own independent mind for generation of his/her
satisfaction for sanction and purpose for which an order
of sanction is required to be passed should always be
borne in mind. It is also well settled that merely because
there is some omission, error or irregularity in the
sanction order, criminal proceedings cannot be thrown
out unless some prejudice is caused to accused or failure
of justice had been occasioned by such error. As already
observed, no such issue is raised before the Special
Court that due to the error, omission or irregularity, as
sanction is accorded by the incompetent person, any
such prejudice is caused to the accused. Learned Judge
of the Special court has not considered the evidence and
wrongly rejected the evidence of the Sanctioning
Authority. Learned Judge of the Special Court ought to
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278 apeal101.06
have considered the evidence as regards, whether the
Sanctioning Authority has applied his mind. Merely on
the basis of incompetency of the authority, the sanction
accorded held to be invalid which is an erroneous
observation and, therefore, the power under Section
386(b) of the Code is to be exercised and the matter is to
be remitted back to learned Judge of the Special Court to
reconsider the issue, whether the sanction accorded is
valid or not by considering an aspect whether any
prejudice is caused to the accused as the sanction was
accorded by the incompetent person. Learned Judge of
the Special Court to consider whether the Sanctioning
Authority was incompetent to accord the sanction.
53. Under these circumstances, the judgment
impugned passed by learned Judge of the Special Court
is hereby quashed and set aside and the matter is
remanded back to learned Judge of the Special Court
with a direction to decide the issue of sanction afresh on
merits and record its findings on the issue of the
sanction. The case shall be decided by learned Judge of
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278 apeal101.06
the Special Court expeditiously and preferably within a
period of six months from the date of receipt of copy of
this judgment. Learned Judge of the Special Court shall
give an opportunity to both parties to adduce an
evidence on the issue of the sanction, if required. The
parties shall cooperate with the Special Court to dispose
of the matter, at the earliest.
Appeal stands disposed of.
Criminal Application No.741/2024 also stands
disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 05/09/2024 10:46:28
