The present petition under Section 482 of CrPC seeks quashment of
order dated 04-08-2023 passed by the Special Judge (PC Act), Morena allowing
the application under Section 19 of the Prevention of Corruption Act, 1988 ( in
brevity ''the PC Act'') filed by the prosecution, has been allowed and thereby
reopening the case of accused-petitioner herein.
(2) Short facts for disposal of this case are germane to be noticed as below:-
Prosecution filed its reply and submitted that sanction was properly obtained
and prayed for rejection of application.
(iv) After hearing learned counsel for both the parties, on 25-07-2022 the
trial Court held that the sanction was obtained by prosecution in proper manner
and prima facie, sanction is legal and within the jurisdiction. The trial Court
rejected the application filed by petitioner under Section 19 of the PC Act and
further held that there are prima facie sufficient grounds to frame charges under
Section 7 read with Sections 13(1)(b) and 13(2) of the PC Act.
(v) The trial Court proceeded with the matter and recorded statements of
13 witnesses out of 25 witnesses and prosecution did not examine 11 witnesses
and only Investigating Officer is left to examine. Prosecution examined
sanctioning authority i.e. Vinod Katare (PW-4), General Manager (Store),
MPMKVVC Ltd, Gwalior and his evidence was deferred at the time of cross-
examination.
(vi) Thereafter, prosecution filed an application under Section 19 of the
PC Act seeking withdrawal of charge-sheet with liberty to file fresh charge-
sheet after taking an appropriate sanction from the competent authority.
(vii) After hearing both the parties, the trial Court vide impugned order
dated 04-08-2023 allowed the application filed by prosecution under Section 19
of the PC Act.
(viii) Being aggrieved by the impugned order, the instant petition has
been filed by petitioner.
illegality to file fresh charge-sheet after obtaining proper sanction from the
authority concerned. Although the earlier order of sanction from the concerned
authority was validly granted, but as soon as it comes to light that the petitioner
prior to his posting at Gwalior was serving at Morena where the offence is said
to have committed, therefore, the prosecution moved to approach the trial Court
under Section 19 of the PC Act seeking withdrawal of charge-sheet with liberty
to file fresh charge-sheet after taking appropriate sanction from the competent
authority. The evidence of witnesses have been recorded and trial has begun. It
is not in dispute that the offence was committed at Morena and, therefore,
sanction from the authority at Morena ought to have been sought at the earlier
point of time, but having failed to obtain necessary sanction from the authority
at Morena, does not affect the case of prosecution.
''9. Now, it is necessary to state that the point taken by learned
counsel for the petitioners is really concluded by three decisions-(a)
one of the Privy Council,(b) another of the Federal Court and (c) the
third of this Court itself. The Privy Council decision is in Yusofalli
Mulla v. The King (1); the Federal Court decision in Basdeo
Agarwalla v. King- Emperor (2) ; and the decision of this Court (not
yet reported) was given in Budha Mal v. State of Delhi (3) on October
3, 1952. The Privy Council decision is directly in point, and it was
there held that the whole basis of s. 403 (1) was that the first trial
should have been before a Court competent to hear and determine the
case and to record a verdict of conviction or acquittal; if the Court
was not so competent, as for example where the required sanction for
the prosecution was not obtained, it was irrelevant that it was
competent to try other cases of the same class or indeed the case
against the particular accused in different circumstances, for example
if a sanction had been obtained. So is the decision of this Court where
the following observations were made with regard to the point in
question:
" Section 403, Criminal Procedure Code, applies to cases
where the acquittal order has been made by a Court of
competent jurisdiction but it does not bar a retrial of the
accused in cases where such an order has been made by a court
which had no jurisdiction to take cognizance of the case. It is
quite apparent on this record that in the absence of a valid
sanction the trial of the appellant in the first instance was by: a
magistrate who had no jurisdiction to try him."
10. After the pronouncements made in the decisions referred to
above, it is really unnecessary to embark on a further or fuller
discussion of the point raised, except merely to state that we have
heard learned counsel for the petitioners who made a vain attempt with
a crusading pertinacity worthy of a better cause, to show that the Privy
Council decision was wrong and the decision of this Court required
reconsideration, and having heard learned counsel in full, we are of
the view that the decisions referred to above state the legal position
correctly. It is clear beyond any doubt that clause (2) of Art. 20 of the
Constitution has no application in these two cases. The petitioners are
not being prosecuted and punished for the same offence more than
once,, the earlier proceedings having been held to be null and void.
With regard to s. 403, Code of Criminal Procedure, it is enough to state
that the petitioners were not tried,- in the earlier proceedings, by a
Court of competent jurisdiction, nor is there any conviction or
acquittal in force within the meaning of s. 403. (1) of the Code, to stand
as a bar against their trial for the same offences. Learned counsel for
the petitioners invited our attention to ss. 190, 191, 192, 529 and 530
of the Code of Criminal Procedure and submitted that in certain
circumstances the Code drew a distinction between 'jurisdiction' and I
taking cognizance'. The whole fabric of the argument of learned
counsel was founded on this distinction. Assuming, however, that in
certain cases one Magistrate may take cognizance and another
Magistrate may try an accused person, it is difficult to appreciate how
any Court can try the petitioners of these cases in the absence of a
sanction in view of the mandatory provisions of s. 6 of the Prevention
of Corruption Act, 1947. If no Court can take cognizance of the
offences in question without a legal sanction, it is obvious that no
Court can be said to be a Court of competent jurisdiction to try those
offences and that any trial in the absence of such sanction must be null
and void, and the sections of the Code on which learned counsel for
the petitioners relied have really no. bearing on the matter. Section 530
of the Code is really against the contention of learned counsel, for it
states, inter alia, that if any Magistrate not being empowered by law to
try all offender, tries him, then the proceedings shall be void. Section
529 (e) is merely an exception in the matter of taking cognizance of an
offence under s. 190, sub-s. (1), cls. (a) and (b); it has no bearing in a
case where sanction is necessary and no sanction in accordance with
law has been obtained.''
(6) Basing the same principles as laid down in the case of Nanjappa
(supra) and Baij Nath Prasad Tripathi (supra), although the earlier order was
passed by the trial Court holding therein that the sanction is a valid sanction,
but it cannot be said that order passed at subsequent stage, cannot be said to be
bad in law. Learned Counsel has drawn attention of this Court to provision of
Section 362 of CrPC which refers to the provisions of the Court regarding
signing of judgment and passing of final order. Hence, it is contended that
impugned order passed by the Trial Court does not suffer from any vengeance.
The petition has been filed on wrong production of facts and, therefore, it is
liable to be dismissed.
(7) Heard learned Counsel for the parties and perused the record.
(8) The moot questions in the instant petition involved are that;
(i) whether the Trial Court can review/recall/ review its own order ? And
(ii) whether in exercise of powers u/S. 311 of CrPC, the prosecution can
fill up a lacuna in the case of prosecution ?
(9) First of all, before going into controversy involved herein, the provision
of Section 362 of CrPC reproduced as under:-
''362. Court not to alter judgment. - Save as otherwise provided by
this Code or by any other law for the time being in force, no Court,
when it has signed its judgment or final order disposing of a case,
shall alter or review the same except to correct a clerical or
arithmetical error.''
(10) The Hon'ble Supreme Court in the case of Hari Singh Mann vs.
Harbhajan Singh Bajwa and Others, reported in AIR 2001 SC 43 has held as
under:-
'' There is no provision in the Code of Criminal Procedure authorizing
the High Court to review its judgment passed either in exercise of its
appellate or reivisional or original criminal jurisdiction. Such a power
cannot be exercised with the aid or under the cloak of Section 482,
Section 362 of the Code mandates that no Court, when it has signed its
judgment or final order disposing of a case shall alter or review the
same except to correct a clerical or arithmetical error. The Section is
based on an acknowledged principles of law that once a matter is
finally disposed of by a Court, the said Court in the absence of a
specific statutory provision becomes functus officio and dis-entitled to
entertain a fresh prayer for the same relief unless the former order of
final disposal is set aside by a Court of competent jurisdiction in a
manner prescribed by law. The Court becomes functus officio the
moment the official order disposing of a case is signed. Such an order
cannot be altered except to the extent of correcting a clerical or
arithmetical error.'' (Emphasis underlined)
(11) In the present case, the trial Court on 25 th of July, 2022 rejected the
application filed by the petitioner under Section 19 of PC Act by which, the
petitioner had sought discharge from charges levelled against him on the
ground that sanction obtained from the authority concerned is not proper and
valid, as it was without jurisdiction. During trial, prosecution gave its reply
stating that sanction was properly obtained and the sanctioning authority was
within the jurisdiction to give sanction against petitioner for prosecution. The
trial Court rejected the application of petitioner under Section 19 of the PC Act
holding therein that the sanction was prima facie is a valid sanction and within
jurisdiction. Thereafter, an application was filed by prosecution on 28-07-2023
under Section 19 of the PC Act at the fag end of trial seeking withdrawal of
entire charge-sheet with liberty to file fresh charge sheet after taking
appropriate sanction from competent authority and the said application was
allowed by the trial Court vide impugned order.
(12) So, it appears that the Trial Court reviewed its own earlier order although
there is no provision in Code of Criminal Procedure that the Court can review/
alter/recall of its own order. Section 362 of CrPC also gives no power to the
Court to review/alter/recall of its own order, once the Court has signed its
judgment or final order disposing of case. On bare reading of relevant
provisions of Section 362 of CrPC and reference given to the case-law of
Adalat Prasad (supra) and Hari Singh Mann (supra) where it is categorically
held that power to review/recall/ alter previous order is not permissible under
Section 362 of CrPC and amounts to misuse of process of law.
(13) Secondly, before going into controversy involved herein regarding fill up
lacuna by prosecution in the case, this Court thinks it apposite to reproduce the
relevant provision of 311 of CrPC (Section 348 Bharatiya Nagarik Suraksha
Sanhita, 2023 is analogous to Section 311 CrPC) which is intended to support
the Criminal Court with widespread power for the purpose of getting at the
truth. Said Section 311 reads as follows:
"311. Power to summon material witness, or examine person
present: Any Court may, at any stage of inquiry, trial or other
proceeding under this Code, summon any person as a witness, or
examine any person in attendance, though not summoned as a
witness, or recall or re-examine any person already examined, and
the Court shall summon and examine or recall and re-examine any
such person if his evidence appears to be essential for the just
decision of the case."
(14) While dealing with an application under Section 311 of CrPC, we feel the
following principles will have to be borne in mind by the Court:
''a) Whether the Court is right in thinking that the new evidence is
needed by it? Whether the evidence sought to be led in under Section
311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311
Cr.P.C. should ensure that the judgment should not be rendered on
inchoate, inconclusive speculative presentation of facts, as thereby
the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to
the just decision of the case, it is the power of the Court to summon
and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be
resorted to only with the object of finding out the truth or obtaining
proper proof for such facts, which will lead to a just and correct
decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a
lacuna in a prosecution case, unless the facts and circumstances
of the case make it apparent that the exercise of power by the
Court would result in causing serious prejudice to the accused,
resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and
not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential
to examine such a witness or to recall him for further examination in
order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty
on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is
necessary, not because it would be impossible to pronounce the
judgment without it, but because there would be a failure of justice
without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the
safe guard, while exercising the discretion. The Court should bear in
mind that no party in a trial can be foreclosed from correcting errors
and that if proper evidence was not adduced or a relevant material
was not brought on record due to any inadvertence, the Court should
be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial
is basically for the prisoners and the Court should afford an
opportunity to them in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution against possible
prejudice at the cost of the accused. The Court should bear in mind
that improper or capricious exercise of such a discretionary power,
may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to
change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence
that is likely to be tendered, would be germane to the issue involved
and also ensure that an opportunity of rebuttal is given to the other
party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked
by the Court only in order to meet the ends of justice for strong and
valid reasons and the same must be exercised with care, caution and
circumspection. The Court should bear in mind that fair trial entails
the interest of the accused, the victim and the society and, therefore,
the grant of fair and proper opportunities to the persons concerned,
must be ensured being a constitutional goal, as well as a human
right.''
[See Rajaram Prasad Yadav vs. State of Bihar and Another
(2013) 14 SCC 461) ]
(15) Similarly, in the matter of Natasha Singh vs. Central Bureau of
Investigation (State) reported in (2013) 5 SCC 741, the Hon'ble Apex Court in
para 15 has observed as under:-
''15. The scope and object of the provision is to enable the Court to
determine the truth and to render a just decision after discovering all
relevant facts and obtaining proper proof of such facts, to arrive at a
just decision of the case. Power must be exercised judiciously and
not capriciously or arbitrarily, as any improper or capricious exercise
of such power may lead to undesirable results. An application under
Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in
the case of the prosecution, or of the defence, or to the disadvantage
of the accused, or to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the opposite party. Further,
the additional evidence must not be received as a disguise for retrial,
or to change the nature of the case against either of the parties. Such
a power must be exercised, provided that the evidence that is likely
to be tendered by a witness, is germane to the issue involved. An
opportunity of rebuttal however, must be given to the other party.
The power conferred under Section 311 Cr.P.C. must therefore, be
invoked by the Court only in order to meet the ends of justice, for
strong and valid reasons, and the same must be exercised with great
caution and circumspection. The very use of words such as 'any
Court', 'at any stage", or 'or any enquiry, trial or other proceedings',
'any person' and 'any such person' clearly spells out that the
provisions of this section have been expressed in the widest possible
terms, and do not limit the discretion of the Court in any way. There
is thus no escape if the fresh evidence to be obtained is essential to
the just decision of the case. The determinative factor should
therefore be, whether the summoning/recalling of the said witness is
in fact, essential to the just decision of the case.''
(16) Now, coming to the facts of the case, it is evident that the Trial Court on
earlier occasion i.e. on 25th of July, 2022 rejected application filed by petitioner
under Section 19 of PC Act by which petitioner had sought discharge from
charges levelled against him on the ground that sanction obtained from the
authority is not proper and valid as it was without jurisdiction. Trial was started
and the Trial Court proceeded with the matter and recorded statements of 13
witnesses out of 25 witnesses and prosecution decided not to examine 11
witnesses and only Investigating Officer is left to examine. On 11-02-2023 the
prosecution examined sanctioning authority i.e. Vinod Katare (PW-4), General
Manager (Store), MPMKVVC Ltd, Gwalior and his evidence was deferred at
the time of cross-examination. Way back thereafter, the prosecution again
moved an application under Section 19 of the PC Act after coming to the note
that sanction was not validly granted by the authority concerned and, therefore,
bringing all the facts necessary for grant of sanction, prosecution has moved the
trial Court under Section 19 of the PC Act seeking withdrawal of charge-sheet
with liberty to file fresh charge-sheet after taking an appropriate sanction from
the competent authority. The said prayer of prosecution was opposed by the
petitioner. The Trial Court allowed the application under Section 19 of the PC
Act filed by prosecution vide impugned order and permission was granted for
sanction. Admittedly, the said facts were available before the Trial Court at the
first instance, when the earlier order was passed dismissing the prayer of
petitioner for discharging him from the charges levelled against him on the
ground that the sanction was not properly obtained by the prosecution vide
order dated 25-07-2022 holding that the sanction obtained from authority was
valid and without jurisdiction.
(17) What was the occasion to allow the application of prosecution under
Section 19 of the PC Act at subsequent stage i,e. On 04-08-2023 by the Trial
Court?
(18) After dismissal of earlier application filed by petitioner under Section
19 of the PC Act and after examination of witnesses, so also evidence of
sanctioning authority i.e. Vinod Katare (PW-4), General Manager (Store),
MPMKVVC Ltd, Gwalior whose evidence was deferred at the time of cross-
examination, prosecution sought withdrawal of entire charge sheet with liberty
to file fresh charge sheet after obtaining sanction from the competent authority,
which clearly shows that the prosecution has tried to fill up the lacuna left by it,
which is not permissible under Section 311 of CrPC. So, in the considered
opinion of this Court, provision of Section 362 of CrPC clearly restricts the
Court to alter or review its view taken finally by the Court while disposing of
the case. Judgment or final order means ''disposal of case or application'' also.
(19) It is apparent from the facts on record that the case when was being tried
by the Trial Court although the facts were similar before the Trial Court, but
the issue was same regarding grant/non-grant of sanction by the competent
authority. On the earlier occasion, it was stated on behalf of prosecution that the
sanction was proper and valid and on the other hand, after recording evidence
of sanctioning authority i.e. Vinod Katare (PW-4), respondent/prosecution
agency was insisting to say that proper sanction was not granted from authority
concerned and the said prayer of prosecution was allowed by the trial Court
vide impugned order, which amounts to abuse of process of law by granting
sanction at subsequent stage. The prosecution has tried to fill up the lacuna of
the case, causing serious prejudice to the petitioner resulting in miscarriage of
justice which is not permissible and allowed.
(20) In view of above, for want of proper sanction by the authority, the whole
trial began against the accused is vitiated against the the eyes of law and same
deserves to be set at naught.
(21) Consequently, petition filed by the petitioner stands allowed. The
impugned order dated 4-08-2023 passed by the Special Judge (PC Act), Morena
being based on the erroneous approach, is hereby set aside.
(22) However, the learned Trial Court is directed to proceed with the trial and
conclude the same as expeditiously as possible in accordance with law. No
costs.
(23) A copy of this order be sent to the Trial Court concerned for necessary
information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
MAHEN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
DRA
GWALIOR,
2.5.4.20=8c6d4d6122d7ee987e457a3bec
5922cacbc050c998981397a35d9758a2b5
5074, postalCode=474001, st=Madhya
Pradesh,
BARIK
serialNumber=AB90F893988F10D718DA0
1F8065D87F25DDC9B6C8C3FF0E5E280D
D36D476F6BA, cn=MAHENDRA BARIK
Date: 2025.05.26 14:02:42 +05'30'
