Holding

Section 319 CrPC does not override Section 19 of the Prevention of Corruption Act; sanction is required unless its absence has caused a failure of justice.

Summary

The case concerned the prosecution of three accused under the Prevention of Corruption Act, 1988. The sanctioning authority approved prosecution of only one accused, but the trial court later impleaded the other two under Section 319 of the Code of Criminal Procedure, 1973, holding that this provision overrides Section 19 of the Act which requires sanction. The High Court set aside the trial court's order, and the Supreme Court affirmed that Section 319 does not have primacy over Section 19; a sanction is required unless the lack of it results in a failure of justice. The Court explained that an error, omission or irregularity in sanction is fatal only if it causes such failure, and the accused must raise the objection at the earliest stage. Consequently, the appeal was dismissed and the High Court's decision upheld.

Issues considered

Whether Section 319 of the Code of Criminal Procedure, 1973 overrides Section 19 of the Prevention of Corruption Act, 1988 for impleadment of accused without sanction.
Whether a defect in sanction amounts to a failure of justice warranting reversal of conviction or prosecution.

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 319
Prevention of Corruption Act, 1988s. 19

Subjects

Prevention of Corruption ActSection 19CrPC Section 319sanction for prosecutionimpleadmentfailure of justicepublic servantcriminal procedure

Judgment

(

PAUL VARGHESE A
v.
STATE OF KERALA AND ANR.

APRIL I 0, 2007

[DR. ARIIlT PASAYAT AND S.H. KAPADIA, JJ.] Bl

Prevention of Corruption Act, 1988:

s. 19-Sanctionfor prosecution-Necessity of-lmpleadment of accused
under s. 319 Cr.P.C. without sanction for prosecution, holding thats. 319 C
Cr.P. C. overrides s. 19 ofthe Act-Order ofimpleadment set aside by Revisional
Court holding that s. 319 does not override s. 19-0n appeal, held: s. S 19
Cr.P.C. does not have preference overs. 19-However, in the cases covered
under the Act, in respect ofpublic servants, the sanction is automatic-Mere
error, omission or irregularity in sanction is not fatal unless it has resulted D
in failure of justice-Code of Criminal Procedure, 1973-s. 319.

s. 19-Sanction for prosecution-Under s. 19 of the Act ands. 197
Cr.P.C.-Distinction between-Code of Criminal Procedure, 1973-s. lW. .

Investigating Officer submitted a report recommending prosecution, of E
accused 1, accused 2 (respondent No. 2) and accused 3. Sanctioning Authority
decided to sanction the prosecution of only A-1 and names of A-2 & 3 were
deleted. During trial, material came to light showing alleged involvement of
A-2 and A-3 also. Trial Court impleaded A-2 and A-3 in terms of Section 3.19
Cr.P.C and directed Legal Advisor to obtain sanction from the Competent
Authority to prosecute them. Legal Advisor took the stand that no sancti~n F
was necessary. Trial court held that the accused could be impleaded even
without sanction as Section 319 Cr.P.C. overrides Section 19 of Prevention
of Corruption Act, 1988, and for exercise of power under section 319, the
only condition required to be fulfilled was as set out in sub-section (4) therC9£
In Revision, High Court held that the view of trial court was not sustainable. G
Hence the present ap~I.

Disposing of the appeal, the Court

HELD: 1. It has been rightly held by the High Court that the Trial Court
I

1155 fl
1156 SUPREME COURT REPORTS [2007] 4 S.C.R.

A was not justified in holding that Section 319 Cr.P.C. has to get preference/
primacy over Section 19 of Prevention of Corruption Act, 1988.
[Para 4) [1157-E)

2.1. In Sub-Section (3) of Section 19, the stress is on "failure of justice"
and that too "in the opinion of the Court". In sub-section (4), the stress is on
B raising the plea at the appropriate time. Significantly; the "failure of justice"
is relatable to error, omission or irregularity in the sanction. Therefore, mere
error, omission or irregularity in sanction is considered fatal unless it has
resulted in failure of justice or has been occasioned thereby. Whether sanction
is necessary or not has to be considered on the factual scenario. The question
of sanction involves two aspects i.e. one relating to alleged lack of jurisdiction
C and the other relating to prejudice. [Paras 8 ~nd 9) [1159-C, D, E)

State by Police Inspector v. T. Venkatesh Murthy, [2004) 7 SCC 763,
relied on.

Central Bureau ofInvestigation v. V. K. Sehgal and Anr., (1999] 8 SCC
D 501 and Parkash Singh Badal and Anr. v. State of Punjab and Ors., [2007] 1
sec 1, re"fen-.e!!, to.
2.2. Section 197 Cr.P.C. and Section 19 of the Act operate in
conceptually different fields. In cases covered under the Act, in respect of
public servants the sanctio_n is of automatic nature and thus factual. aspects
E are oflittle or no consequence. Conversely, in a case relatable to Section 197
Cr.P.C. the substratum and basic features of the case have to be considered to
find out whether the alleged act has any nexus to the discharge of duties.
Position is not so in case of Section 19 of the Act. (Para 10) (1159-E, F)

Lalu Prasad@Lalu Prasad Yadav v. State ofBihar through CBI (AHD)
F Patna, [2007) 1 sec 49, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 527 of
2007.
From the Judgment and Order dated 19.01.2006 of the High Court of
Kerala at Emakulam in Criminal Revision Petition No. 370of1999.
G
Colin Gonsalves, Komal and Jyoti Mendiratta for the Appellant.

The Judgment of the Court was d.elivered by

DR. ARIJIT PASAYAT, J. l. Leave granted.

H 2. Challenge in this appeal is to the order passed by a learned Single
PAUL VARGHESEv. STATEOFKERALA(PASAYAT,J.] 1157
Judge of the Kerala High Court allowing the revision filed by the respondent A
no.2 in the present appeal who was the petitioner before the High Court. He
had questioned correctness of the order passed by the Inquiry Commissioner
and Special Judge, Trichoor, by which the prayer for his impleadment as .
accused in terms of Section 319 of the Code of Criminal Procedure, 1973 (in
short the 'Code') was accepted. By the said order the Trial Court had held
that Section 319 of the Code overrides the provisions of Section 19 of the B
Prevention of Corruption Act, 1988 (in short the 'Act') and for exercise of
power under the former provision, the only conditions required to be fulfilled
are set out in sub-section (4) of Section 319 itself. The High Court felt that
the view was not sustainable in view of what has been stated by this Court
hDilawar Singh v. Parvinder Singh alias Iqbal Singh and Anr., [2005] 12 C
sec 709. Accordingly, the order was set aside.
3. In support of the appeal, learned counsel submitted that the view
taken by the High Court is not correct as the effect of sub-sections (3) and
(4) of Section 19 of the Act has been lost sight of. There was no material to
show that absence of sanction in any way occasioned failure of justice. It was D
also submitted-that it is a case where no sanction was necessary because the
alleged act did not form part of any official duty. There is no appearance on
behalf of respondent no.2 in _spite of service of notice.

4. As has been rightly held by the High Court in view of what has been
stated in Dilawar Singh 's case (supra), the Trial Court was not justified in E
holding that Section 319' of the Code has to get preference/primacy over
Section 19 of the Act, and that matter stands concluded. But the other stand
of Mr. Colin Gonsalves, learned counsel, deserves consideration.

5. It appears that by order dated 22.3.1999 the Trial Court had impleaded F
two persons as accused nos. 2 and 3. We are concerned with accused no.2
i.e. respondent no.2. It appears from the order of the High Court that accused
no.3 has expired and so there is no need for considering his case. While
impleading the persons as accused nos. A2 and A3, the Trial Court had
directed the Additional Legal Advisor to obtain sanction from the competent
authority to prosecute them. When the matter was taken up on 12.4.1999, the G
Vigilance Legal Advisor took the stand that no sanction was necessary. The
investigating officer had submitted a report recommending prosecution of
accused nos. 2 and 3, but the sanctioning authority decided to sanction for
prosecuting only Al, and names of A2 and A3 were deleted. During tria~
material came to light showing alleged involvement of two other persons i.e. H
1158 SUPREME COURT REPORTS [2007] 4 S.C.R.

A A2 and A3. In view of that situation, Section 319 of the Code was resorted
to. The broader question as to whether sanction was at all necessary was not
gone into.

6. At 'this juncture it would be appropriate to take note of what has been
stated by this Court in Central Bureau of Investigation v. V.K. Sehgal and
B Anr., [ 1999] 8 SCC 50 I. At para I 0 it was stated, inter alia, as follows:

"A Court of appeal or revision is debarred from reversing a finding
(or even an order of conviction and sentence) on account of any error
or irregularity in the sanction for the prosecution, unless failure of
justice had been occasioned on account of such error or irregularity.
c For determining whether want of valid sanction had in fact occasioned
failure of justice the aforesaid Sub-section (2) enjoins on the Court a
duty to consider whether the accused had raised any objection on
that score at the trial stage. Even if he had raised any such objection
at the early stage it is hardly sufficient to conclude that there was
D failure of justice. It has to be determined on the facts of each case. ·
But an accused who did not raise it at the trial stage cannot possibly
sustain such a plea made for the first time in the appellate Court. In
Kalpnath Rai v. State, (through CBI) [1997] 8 SCC 732, this Court has
observed in paragraph 29 thus:

"29. Sub-section (2) of Section 465 of the Code is .not a carte
blanche. for rendering all trials vitiated on the ground <!f the
irregularity of sanction if objection thereto was raised at the first
instance itself. The sub-section only says that 'the. Court shall
have regard to the fact' that objection has been raised at the
earlier stage in the proceedings. It is only one of the _considerations .
F to be weighed but it does not mean that if objection was raised .>

at the earlier stage, for that very reason the irregularity in .the
sanction 'would. spo.il the prosecution ·and transmute· the
proceedings into a void trial."

7. In State by Police Inspector v. T. Venkatcih Murihy, [2004] 7 SCC 763,
G it was observed as follows:

· "14. In the instant case neither the Trial Court nor the High Court
appear to have kept in view the requirements of sub-section (3)
. relating to question regarding "failure of justice". Merely because
there is any omission, error or irregularity in the' matter of according
H
(

PAULVARGHESEv. STATEOFKERALA[PASAYAT,J.] 1159
sanction that does not affect the validity of the proceeding unless the A
court records the satisfaction that such error, omission or irregularity
has resulted in failure of justice. The same logic also applies to the
appellate or revisional court. The requirement of sub-section (4) about
raising the issue, at the earliest stage has not be~n also considered.
Unfortunately the High Court by a practically non-reasoned order,
confirmed the order passed by the learned trial judge. The orders are, B
therefore, indefensible. We set aside the said orders. It would be
appropriate to require the trial Court to record findings in terms of
clause (b) of sub-section (3) and sub-section (4) of Section 19."

8. The effect of sub-sections (3) and (4) of Section 19 of the Act is of
considerable significance as noted in Parkash Singh Badal and Anr. v. State C
ofPunjab and Ors., [2007] I SCC l. In Sub-Section (3) the stress is on "failure
of justice" and that too "in the opinion of the Court". In sub-section (4), the
stress is on raising the plea at the appropriate time. Significantly, the "failure
of justice" is relatable to error, omission or irregularity in the sanction.
Therefore, mere error, omission or irregularity in sanction is not considered
fatal unless it has resulted in failure of justice or has been occasioned thereby. 0
Section 19( 1) is a matter of procedure and does not go to root of jurisdiction.
Sub-section (3 )(c) of Section 19 reduces the rigour of prohibition. In Section
6(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the
'Old Act') corresponding to Section 19(2) of the Act, question relates to
doubt about authority to grant sanction and not whether sanction is necessary. E
· 9. Whether sanction is necessary or not has to be considered on the
factual scenario. The question of sanction involves two aspects i.e. one
relating to alleged lack of jurisdiction and the other relating to prejudice.

10. It may be noted that Section 197 of the Code and Section 19 of the
Act operate in conceptually different fields. In cases covered und~r the Act,
p'
in respect of public servants the sanction is of automatic nature and thus
factual aspects are of little or no consequence. Conversely, in a case relatable
to Section 197 of the Code, the substratum and basic features of the case
have to be considered to find out whether the alleged act has any nexus to
the discharge of duties. Position is not so in case of Section 19 of the Act. G
11. The above aspect was highlighted in Lalu Prasad @ La/u Prasad
Yadav v. State of Bihar through CBI (AHD) Patna, [2007] l SCC 49.

12. Appeal is accordingly disposed of.

KKT. Appeal disposed of. H