Gujarat High Court
State Of Gujarat vs Parshottambhai Keshavbhai Sutariya on 21 April, 2025
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Reserved On : 07/04/2025
Pronounced On : 21/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 3965 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
PARSHOTTAMBHAI KESHAVBHAI SUTARIYA
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Appearance:
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No.
1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the petitioner has prayed to quash and set aside common order
passed below Exhs.8 and 21 in Special ACB Case No.3 of 2006
dated 23.1.2014 passed by the learned 3 rd Addl. Sessions Judge,
Veraval.
2. An FIR being 15/2003 respondent 1- registered against
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present Parsottambhai Keshavbhai Sutariya, Principal of
Madhavpur, Jambur Sidi Bilali High School, residing at Talala
for the offence punishable under Sections 7, 13 (1) (d) & 13 (2) of
the Prevention of Corruption Act, 1988. Thereafter, the
investigation which was registered as Special Case No.7/2003 in
the Court of 3rd Additional Sessions Judge, Junagadh. Pursuant
to that an application at Exh-8 was submitted by the accused
objecting to the sanction granted to prosecute him. Said
complaint same pending was before the Court. Thereafter, an
application at Exh-21 was submitted by the accused in the year
2008 praying therein to discharge him from the charge-sheet
filed against him. By order dated 23.01.2014, the learned 3rd
Additional Sessions Judge, Veraval, Dist: Junagadh application
was pleased to and Exh-21 at allow the also the objection at
Exh-8 and acquit the accused from the charges of offence
punishable under Sections 7, 13(1) (d) & 13 (2) of the Prevention
of Corruption Act, 1988 for want of sanction by exercising power
under Section 227 of Criminal Procedure Code and closed
proceedings.
3. While assailing the impugned common order passed below
Exhs.8 and 21 in Special ACB Case No.3 of 2006, the learned
APP would submit that before the learned trial court, the
accused has questioned grant of sanction order granted under
section 19 of the Prevention Of Corruption Act, 1988 (in short
"the Act"). He would further submit that approach of the learned
Special Court to decide the validity and defectiveness of the
sanction order of the trial is totally impermissible at threshold.
Referring to the order passed by this Court in case of Bhanuben
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Bagda Vs. State of Gujarat rendered in Criminal Revision
Application No.954 of 2019, learned APP would submit that
question of absence of sanction can be raised at the inception or
at the threshold as it goes to the root of the matter. However,
validity of the sanction order can be examined during trial. He
would further submit that in absence of sanction, no Court can
take cognizance of the offence under the Prevention of
Corruption Act and therefore question of absence of sanction can
be and has to be addressed at the first instance and even before
the inception of special case under the Act. But, once the
sanction exists, its legality and validity is not to be questioned
and adjudged at threshold, as it is a matter of trial and can be
decided during the trial. He would further submit that in the
present case, the learned Special Court has committed serious
error by allowing application Exhs.8 and 21 by common order
and scuttled the proceedings under the Act against the
respondent on the ground that sanction is invalid sanction, and
therefore, he submits to allow this petition and to quash and set
aside the impugned common order.
4. On the other hand, learned advocate Mr. Ashish Dagli
appearing for the accused, supporting the impugned common
order would submit that in the case on hand, it is alleged that
the accused has obtained certain amount from the complainant.
However, he would submit that the accused is the teacher in the
school managed by the trust being Junagadh Jilla Adivasi Vikas
Seva Sangh (in short "the trust") and by passing a resolution,
permitted the accused to accept the amount toward donation for
construction of two rooms in the school building. He would
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further submit that the amount which the accused has accepted
on behalf of the trust was handed over to the Vice President by
kacha hisab. He would further submit that such proceedings are
the part of the charge sheet papers and it indicates that the
accused has not demanded any bribe or illegal gratification from
the complainant, but has accepted donation on behalf of the
trust in which he was working and for which he was authorized
also. He would further submit that the President or the Secretary
of the Trust, who is the appointing authority twice refused to
grant the prosecution sanction, however, since the trust was
threatened to stop the grant, it compelled the trust through its
President to grant the prosecution sanction. Therefore, he would
submit that grant of prosecution sanction is bad in law, and
since it was granted under the threat and coercion, it cannot be
considered as valid prosecution sanction, and no court can take
cognizance upon such invalid and defective prosecution
sanction.
5. Learned advocate Mr. Dagli referred to the judgment of the
Hon'ble Apex Court in case of State of Himachal Pradesh Vs.
Nishant Sarren, (2010) 14 SCC 527 as well as in case of B.
Shivarudraswamy Vs. State, 2008(0) Supreme (Kar) 120 to
submit that since the appointing authority i.e. the trust did not
find any justification in granting the prosecution sanction twice
and refused to accord the sanction for prosecution, cannot
reconsider and review its own decision by sitting in appeal in
absence of fresh material available for further consideration and
to grant sanction to prosecute the accused. He would further
submit that the power of sanctioning authority can be exercised
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only once and review or revision is warranted only in a
circumstances where some fresh material is produced before the
sanctioning authority. He would further submit that in case on
hand, no fresh material was placed before the sanctioning
authority, which has twice refused to grant sanction for
prosecution. The sanctioning authority has been pressurized by
the concerned department and obtained sanction for persecution
under the threat and therefore, such obtaining of sanction to
prosecute the accused is totally invalid prosecution sanction. He
would further submit that the learned Special Court having
referred to all these aspects, has rightly reached to the
conclusion and by passing impugned order, has rightly set aside
the sanction for persecution on its invalidity and defectiveness
and rightly closed the proceedings of special case.
5.1 Upon such submission, learned advocate Mr. Dagli would
submit to dismiss the petition.
6. No other and further submissions are canvassed by
learned advocates for both the sides.
7. I have heard learned advocates for both sides at length.
8. In State by Police Inspector V/s. T. Venkatesh Murthy,
(2004) 7 SCC 763, the Hon'ble Apex Court while referring to sub
sections (3) and (4) of section 19 of the Act held that in the fact
of the case, where the learned trial court and the appellate court
believed that the sanction granted by the concerned authority to
prosecute the accused, is faulty and defective, the Hon'ble Apex
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Court observed that the learned courts below have not kept in
view the requirement of subsection (3) and (4) relating to "failure
of justice". The Hon'ble Apex Court set aside the order of the
courts below and directed to record findings in terms of
subsection (3) and (4) of section 19 of the Act. The relevant
paras are para 6 to 11, which reads as under:-
"6. Section 19 is a part of Chapter 5 of the Act which
deals with "Sanction For Prosecution and Other
Miscellaneous Provisions". This Section has four sub-
sections which read as follows :
"19. Previous sanction necessary for prosecution.
(1) No court shall take cognizance of an offence
punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public
servant, except with the previous sanction, (a) in
the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the
sanction of the Central Government, of that
Government; (b) in the case of a person who is
employed in connection with the affairs of a State
and is not removable from his office save by or
with sanction of the State Government, of that
Government; (c) in the case of any other person, of
the authority competent to remove him from his
office.
(2) Where for any reason whatsoever any doubt
arises as to whether the previous sanction as
required under sub-section (1) should be given by
the Central Government or the State Government
or any other authority, such sanction shall be
given by that Government or authority which
would have been competent to remove the public
servant from his office at the time when the
offence was alleged to have been committed.
(3) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974) (a)
no finding, sentence or order passed by a special
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Judge shall be reversed or altered by a court in
appeal, confirmation or revision on the ground of
the absence of, or any error, omission or
irregularity in, the sanction required under
subsection (1), unless in the opinion of that court,
a failure of justice has in fact been occasioned
thereby; (b) no court shall stay the proceedings
under this Act on the ground of any error,
omission or irregularity in the sanction granted by
the authority, unless it is satisfied that such
error, omission or irregularity has resulted in a
failure of justice; (c) no court shall stay the
proceedings under this Act on any other ground
and no court shall exercise the powers of revision
in relation to any interlocutory order passed in
any inquiry, trial, appeal or other proceedings. In
determining under sub-sec. (3) whether the
absence of, or any error, omission or irregularity
in, such sanction has occasioned or resulted in a
failure of justice the court shall have regard to the
fact whether the objection could and should have
been raised at any earlier stage in the
proceedings. Explanation For the purposes of this
section, (a) error includes competency of the
authority to grant sanction; (b) a sanction
required for prosecution includes reference to any
requirement that the prosecution shall be at the
instance of a specified authority or with the
sanction of a specified person or any requirement
of a similar nature."
7. A combined reading of sub-sections (3) and (4) make
the position clear that notwithstanding anything
contained in the Code no finding, sentence and order
passed by a Special Judge shall be reversed or altered
by a Court in appeal, confirmation or revision on the
ground of the absence of, or any error, omission or
irregularity in the sanction required under sub-sec. (1),
unless in the opinion of that court a failure of justice
has in fact been occasioned thereby.
8. Clause (b) of sub-sec. (3) is also relevant. It shows
that no Court shall stay the proceedings under the Act
on the ground of any error, omission or irregularity in
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the sanction granted by the authority, unless it is
satisfied that such error, omission or irregularity has
resulted in a failure of justice.
9. Sub-section (4) postulates that in determining under
sub-sec. (3) whether the absence of, or any error,
omission or irregularity in the 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.
10. Explanation appended to the Section is also of
significance. It provides, that for the purpose of Section
19, error includes competency of the authority to grant
sanction.
11. The expression "failure of justice" is too 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/s. Deptt. of Environment
(1977) 1 All E.R. 813 : 1978 AC 359). The criminal
court, particularly the superior Court should make a
close examination to ascertain whether there was really
a failure of justice or it is only a camouflage. "
9. At this juncture, let refer Section 465 of the Code, which
reads as under:-
"465. Finding or sentence when reversible by reason of
error, omission or irregularity.
(1)Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered by a
Court of appeal, confirmation or revision on account of
any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or in any
inquiry or other proceedings under this Code, or any
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error, or irregularity in any sanction for the
prosecution, unless in the opinion of that Court, a
failure of justice has in fact been occasioned thereby.
(2)In determining whether any error, omission or
irregularity in any proceeding under this Code, or any
error, irregularity in any sanction for the prosecution
has occasioned a failure of justice, the Court shall have
regard to the fact whether the objection could and
should have been raised at an earlier stage in the
proceedings.
10. In State Of Madhya Pradesh Versus Bhooraji, 2001 (7) SCC
679, the true essence of the expression "failure of justice"was
highlighted. Section 465 of the Code in fact deals with the
findings or sentence when reversible by reason of error, omission
or irregularity. 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 of Criminal Procedure or the Prevention of
Corruption Act, 1988 are 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. If the act complained off under the
Prevention of Corruption Act has a reasonable connection with
the discharge of official duties by the government or the public
servant. If such connection exists and the discharge or exercise
of the governmental function is, prima facie, founded on the
bonafide judgment of the public servant, the requirement of
sanction will be insisted upon so as to act as a filter to keep at
bay any motivated, ill-founded and frivolous prosecution against
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the public servant. However, realising that the dividing line
between an act in the discharge of official duty and an act that is
not, may, at times, get blurred thereby enabling certain
unjustified claims to be raised also on behalf of the public
servant so as to derive undue advantage of the requirement of
sanction, specific provisions have been incorporated in Section
19(3) of the Prevention of Corruption Act as well as in Section
465 of the Code of Criminal Procedure which, inter alia, make it
clear that any error, omission or irregularity in the grant of
sanction will not affect any finding, sentence or order passed by
a competent court unless in the opinion of the court "failure of
justice" has been occasioned.
11. Yet in another case in State of Bihar vs. Rajmangal Ram
[2014 (11) SCC 388, the Hon'ble Supreme Court after examining
the purport of Section 19(3) and Section 465 of the Code of
Criminal Procedure, in paragraph 7, 8, 10 and 11 held the
following:
"7. In a situation where under both the enactments any error,
omission or irregularity in the sanction, which would also
include the competence of the authority to grant sanction, does
not vitiate the eventual conclusion in the trial including the
conviction and sentence, unless of course a failure of justice
has occurred, it is difficult to see how at the intermediary stage
a criminal prosecution can be nullified or interdicted on
account of any such error, omission or irregularity in the
sanction order without arriving at the satisfaction that a failure
of justice has also been occasioned. This is what was decided by
this Court in State by Police Inspector V/s. T. Venkatesh
Murthy, (2004) 7 SCC 763 (paras 10 and 11), wherein it has
been inter alia observed that,
"14. ..Merely because there is any omission, error or
irregularity in the matter of according sanction, that does
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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."
8. The above view also found reiteration in Prakash Singh Badal
and Another V/s. State of Punjab and Others, (2007) 1 SCC 1
(para 29), wherein it was, inter alia, held that mere omission,
error or irregularity in sanction is not to be considered fatal
unless it has resulted in failure of justice. In Prakash Singh
Badal (supra) it was further held that Section 19(1) of the PC
Act is a matter of procedure and does not go to the root of
jurisdiction. On the same line is the decision of this Court in R.
Venkatkrishnan V/s. Central Bureau of Investigation, (2009) 11
SCC 737. In fact, a three Judge Bench in State of Madhya
Pradesh V/s. Virender Kumar Tripathi, (2009) 15 SCC 533,
while considering an identical issue, namely, the validity of the
grant of sanction by the Additional Secretary of the Department
of Law and Legislative Affairs of the Government of Madhya
Pradesh instead of the authority in the parent department, this
Court held that in view of Section 19 (3) of the PC Act,
interdicting a criminal proceeding mid-course on ground of
invalidity of the sanction order will not be appropriate unless
the court can also reach the conclusion that failure of justice
had been occasioned by any such error, omission or irregularity
in the sanction. It was further held that failure of justice can be
established not at the stage of framing of charge but only after
the trial has commenced and evidence is led (Para 10 of the
Report).
xxx xxx xxx xxx
10. In the instant cases the High Court had interdicted the
criminal proceedings on the ground that the Law Department
was not the competent authority to accord sanction for the
prosecution of the respondents. Even assuming that the Law
Department was not competent, it was still necessary for the
High Court to reach the conclusion that a failure of justice has
been occasioned. Such a finding is conspicuously absent
rendering it difficult to sustain the impugned orders of the High
Court.
11. The High Court in both the cases had also come to the
conclusion that the sanction orders in question were passed
mechanically and without consideration of the relevant facts
and records. This was treated as an additional ground for
interference with the criminal proceedings registered against the
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respondents. Having perused the relevant part of the orders
under challenge we do not think that the High Court was
justified in coming to the said findings at the stage when the
same were recorded. A more appropriate stage for reaching the
said conclusion would have been only after evidence in the
cases had been led on the issue in question."
12. In the present case, the accused has raised objection at
Exh.8 questioning the legality and validity of the sanction order
even before proceeding to frame charge commenced by raising
objection that the person, who has signed the prosecution
sanction is not authorized to sanction the same and therefore,
no cognizance can be taken on the basis of unauthorized
sanction. However, in view of section 19 of the Act, the said
contention raised by the accused at the most can be said to be
defence of the accused and without examining the evidence in
this regard, one cannot jumped to the conclusion that the
person, who has signed the sanction order to prosecute the
accused is unauthorized person to sanction it. According to the
prosecution, the sanction order has been signed by the Vice
President of the trust, where he is authorized to do so or can be
tested during trial, but that could not be the reason to scuttle
the special ACB case where the offences u/s 7, 13(1)(d) and 13(2)
of the Act has been alleged against the accused persons.
13. In Exh.21, the accused came out with the detailed
averment and objection that, as per the Constitution of the trust,
the president is empowered to pass order for sanction, as he is
the appointing authority. The secretary is handling day to day
affairs of the trust. However, either of them have not passed the
order for grant of sanction of prosecution. Therefore, such order
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is bad in law. The another contention raised in Exh.21 is that by
resolution No.1 passed in meeting held on 14th March, 2001 of
the trust, the accused was permitted to accept the donation from
the village people, which was sent to the vice president along
with the list, and therefore, in fact, the petitioner has not taken
any illegal gratification and has accepted the donation on behalf
of the trust. Thus, the case under section 7 of the Act is not
made out. Another contention raised in application Exh.21 that
twice the president and the secretary of the trust have declined
to grant the sanction for prosecution, but exerting threat upon
the trust from the DEO, Junagadh. Monetary grant given to the
trust shall be discontinued if sanction for prosecution is not
granted. As such prosecution sanction has been obtained, and
therefore the same is said to be prosecution sanction received
under the threat and coercion.
14. At the cost of the repetition, it can be stated that the
prosecution sanction is existed, when stage comes to take
cognizance of the offence. Whether such prosecution sanction is
legal or valid or otherwise is a question to be decided during
trial. Illegality or error, including competency of the authority to
grant sanction could be examined during trial, in context of
whether such error, omission, irregularity resulted in "failure of
justice". Application of test of "failure of justice" is legal
necessity.
15. In case of State Of Punjab Versus Hari Kesh, 2025-
AIR(SC)-0-729, the Hon'ble Apex Court after referring to the
judgment in case of State Of Karnataka, Lokayukta Police Vs. S.
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Subbegowda, 2023 0 SCCOnlineSC 911 addressed identical
issue. Relevant paras are para 7 and 8, which reads as under:-
"7. In our opinion, the judgment in the case of S.
Subbegowda (supra) clinches the issue, in which, this
Court in the similar facts and circumstances, after
considering the provisions contained in Section 19 of
the Act, has held as under: -
"11. The combined reading of sub-section (3) and
(4) of Section 19 makes it clear that
notwithstanding anything contained in the Code,
no finding, sentence or order passed by the Special
Judge shall be reversed or altered by a Court in
appeal, confirmation or revision on the ground of,
the absence of, or any error, omission or
irregularity in the sanction required under sub-
section (1), unless in the opinion of the Court, a
failure of justice has in fact been occasioned
thereby. sub-section (4) further postulates that in
determining under subsection (3) whether the
absence of, or any error, omission or irregularity in
the sanction has occasioned, or resulted in failure
of justice, the Court shall have regard to the fact
whether the objection could and should have been
raised at an earlier stage in the proceedings. The
explanation to sub-section (4) further provides
that for the purpose of Section 19, error includes
"competency of the authority to grant sanction".
Thus, it is clear from the 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 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, save and except
in cases where the appellate or revisional court
finds that the failure of justice had occurred by
such invalidity. "
12. & 13............
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14. In the instant case, the Special Judge
proceeded with the trial, on the second application
for discharge filed by the respondent having not
been pressed for by him. The Special Judge, while
dismissing the third application filed by the
respondent seeking discharge after examination of
17 witnesses by the prosecution, specifically held
that the sanction accorded by the government
which was a superior authority to the Karnataka
Water Supply Board, of which the respondent was
an employee, was proper and valid. Such findings
recorded by the Special Judge could not have been
and should not have been reversed or altered by
the High Court in the petition filed by the
respondent challenging the said order of the
Special Judge, in view of the specific bar contained
in sub-section (3) of Section 19, and that too
without recording any opinion as to how a failure
of justice had in fact been occasioned to the
respondent-accused as contemplated in the said
sub-section (3). As a matter of fact, neither the
respondent had pleaded nor the High Court opined
whether any failure of justice had occasioned to
the respondent, on account of error if any,
occurred in granting the sanction by the authority.
8. In the instant case, it appears that the petition for
quashing of Sanction Order was filed by the respondent
after the trial court framed the charge and commenced
the trial, rather after the prosecution examined five
witnesses. It is pertinent to note that whether the
Sanction has been granted by the competent authority
or not, would be a matter of evidence. Further, as per
the Explanation to sub-section (4), for the purpose of
Section 19, error includes "competency of the authority
to grant Sanction." Therefore, in view of the settled legal
position, the High Court should not have quashed the
Sanction Order and the consequent proceedings, unless
it was satisfied that the failure of justice had occurred
by such error or irregularity or invalidity. There is not a
whisper in the impugned order about any failure of
justice having occurred on account of the impugned
Sanction Order. The High Court also should not have
entertained the petition for quashing the Sanction Order
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when the prosecution had already examined seven
witnesses."
16. Another contention canvassed by learned advocate Mr.
Dagli is that, after twice refusing to grant sanction for
prosecution, the same authority cannot continue its jurisdiction
and review its decision without having fresh material on record.
The contention raised by learned advocate Mr. Dagli at first
blush looks atractive, however, can be taken care of during trial.
At this juncture, it cannot be said that there is no fresh material
placed before the sanctioning authority, permitting them to
review the decision. In view of the aforesaid reason,, the order
passed by the learned Special Court suffers from illegality, and it
deserves to be quashed and set aside.
17. Approach of learned Special Court to entertain two
applications viz. Exhs.8 and 21filed in form of objection for
validity of prosecution sanction even before reaching to stage of
farming of charge, is unknown to procedural law and is
impermissible. Putting prosecution case in sepulchre coffin even
before opening of the case is not only verboten, but unlawful and
outlawed decision.
18. Under the above facts and circumstances, the judgment
relied upon by learned advocate Mr. Dagli in case of Nishant
Sarren (supra) and B. Shivarudraswamy (surpa) does not render
any assistance to him, as the case of that judgment is on
different footings than the present case.
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19. In the result, the petition is allowed and impugned
common order passed below Exhs.8 and 21 in Special ACB Case
No.3 of 2006 dated 23.1.2014 passed by the learned 3 rd Addl.
Sessions Judge, Veraval is hereby quashed and set aside.
Special ACB Case No.3 of 2006 is restored to its original file.
Proceeding of Special ACB Case No.3 of 2006 shall continue and
proceeded in accordance with law.
20. As the matter is pending since 2006, the learned Special
Judge shall make an endevour to dispose of the matter as early
as possible.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
