Supreme Court of India
STATE BY POLICE INSPECTORversusT. VENKATESH MURTHY
- Citation
- 2004 INSC 510
- Decided
- 10 September 2004
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
A sanction defect does not invalidate proceedings unless the court is satisfied that it has caused a failure of justice, and the issue must be raised at the earliest stage.
Summary
The State prosecuted T. Venkatesh Murthy, a public servant, under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. Although a sanction was granted by the Superintending Engineer of the Karnataka Electricity Board, the trial court held that the sanction was insufficient under the Board's 1987 Regulations and discharged the accused; the Karnataka High Court affirmed this order. On appeal, the Supreme Court examined whether a defect in the sanction automatically invalidates the proceeding, emphasizing Section 19(3) and (4) of the Act and Sections 462 and 465 of the CrPC, which require a finding of "failure of justice" and that the objection be raised at the earliest stage. The Court held that an error or omission in sanction does not affect the validity of the trial unless the court is satisfied that it caused a failure of justice, and that the lower courts had failed to consider this requirement. Consequently, the Supreme Court set aside the trial and High Court orders and remanded the case for the trial court to record findings under Section 19(3)(b) and (4). The appeal was partly allowed.
Issues considered
- Whether a defect or insufficiency in the sanction for prosecution under Section 19(1) of the Prevention of Corruption Act automatically warrants discharge of the accused.
- Whether the trial and appellate courts must be satisfied that such defect resulted in a 'failure of justice' before setting aside findings or orders.
- Whether the objection to the sanction must be raised at the earliest stage of the proceedings as mandated by Section 19(4).
- Interpretation and scope of the term 'failure of justice' under Section 19 of the Act and Sections 462 and 465 of the Code of Criminal Procedure.
Legislation cited
- Code of Criminal Procedure, 1973s. 462, s. 465
- Prevention of Corruption Act, 1988s. 19(1), s. 19(3), s. 19(4)
Subjects
Prevention of Corruption Actsanction for prosecutionfailure of justicepublic servantcriminal procedureappealdischargeKarnataka Electricity Boardregulationerror omission irregularitySection 19
Judgment
STATE BY POLICE INSPECTOR A
v.
T. VENKATESH MURTHY
SEPTEMBER 10, 2004
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.]
B
Prevention ofCorrupti;n Act, 1988-Section 19 (3) & (4)-Karnataka
Electricity Board Employees (Classification, Disciplinary Control
. and Appeal) Regulations, 1987-Sanction for prosecution of a
public servant-Charges framed and evidence recorded-Trial c
court discharging the accused after finding that sanction granted wa~
insufficient-High Court upholding same-On appeal, Held: Mere omission,
error or irregularity in according sanction for prosecution could not affect
validity of proceeding unless court records satisfaction that it resulted in
failure of justice-Same logic applying to appellate and revisional courts
also-Further, th~ requirement ofraising the issue of sanction at the earliest
D
opportunity has to be kept in view in deciding about failure ofjustice.
Words and phrases-'Failure ofjustice'-Meaning of in the context of
Section 19 of Prevention of Corruption Act, 1988 and Sections 462 and 465
of the Code of Criminal Procedure, 1973. E
Respondent-accused, a public servant, was being tried for offences
under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act,
1988. After charges had been framed and evidence recorded, in view of
earlier judgments of High Court, prosecution moved an application
praying that question relating to sanction for prosecution was to be
F
adjudicated first. Undisputedly, sanction was accorded. However, trial
court referred to Karnataka Electricity Board Employees (Classification,
Disciplinary Contro~ and Appeal) Regulations, 1987 and held that as the
sanction was not sufficient to prosecute the respondent, he was entitled
to be discharged. High Court, on revision, upheld the judgment of trial G
·court. Hence, the present appeal by State.
Appellant contended that even if it was conceded that sanction was
defective, the resp'ondent was not entitled to discharge since it was
required to be shown as to how any prejudice or failure of justice was H
279
280 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A caused thereby. It was conti!nded further that order of the High Court
was fodefensible as it was non-reasoned.
Respondent contended that the sanction was sine-qua-non for
prosecution, and in absence of same, proceedings could not be continued.
B Partly allowing the appeal, the Court.
HELD : 1. Neither th~ Trial Court nor the High Court appear to have
kept in view the requirement of sub-section 3 of section 19 of Prevention of
Corruption Act, 1988 relating to 'failure of justice'. Merely because there
c 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 tl~at 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 also not been considered. [285-G, HJ
D
2.1. 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 criminal court, particularly the superior court should
E make a close examination to ascertain whether there was really a failure
of justice or it is only a camouflage. [284-F]
Shamnsaheb M Multtani v. State of Karnataka, (2001] 2 SCC 577,
relied on.
F State of MP. v. Bhooraji and Ors., [2001] 7 SCC 679, referred to.
Town Investments Ltd. v. Deptt. Of Environment, [1977] 1 ALL E.R.
813 : (1978) AC 3S9, referred to.
2.2. Unfortunately the High Court by a practically non-reasoned
G order, confirmed the order passed by the trial judge. The orders are
therefore, indefensible and set aside. [285-H; 286-A]
3. 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
H Section 19. (286-A]
STATE BY POLICE INSPECTOR v. T.V. MURTHY [PASAYAT, J.] 281
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 997 A
of 2004.
From the Judgment and Order dated 14.11.2002 of the Kamataka High
Court in Cr!. R.P. No. 998 of 2001.
B
Sanjay R. Hegde for the Appellant.
G.V. Chandrashekhara and P.P. Singh for the Respondent.
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. : Leave granted.
c
The scope and ambit of Section 19 of the Prevention of Corruption Act,
1988 (in short the 'Act') falls for consideration in this appeal. State of
Kamataka calls in question legality of the judgment rendered by a learned
Single judge of the Kamataka High Court. The High Court upheld the order D
of discharge passed by the Trial Court. The respondent-accused was
discharged in a criminal trial by the said order.
Background facts necessary for disposal of the appeal in a nutshell are
as follows :
E
A charge-sheet was filed against the respondent (hereinafter referred
to as the 'Accused') for commission of offences relatable under Sections 7,
13 (1) (d) read with Section 13(2) of the Act. Charges were framed by the
Trial Court under the aforesaid provisions. Evidence of witnesses had also
been recorded. At that stage the public prosecutor filed an application stating F
that in view of some earlier judgments of the High Court, question relating
to validating a sanction for prosecution was to be adjudicated first. The
accused had no objection to it. Undisputedly, the sanction was accorded by
the Superintending. Engineer of the Kamataka Electricity Board (hereinafter
referred to as the 'Board'). The Trial Court referred to the Kamataka
Electricity Board Employees (Classification, Disciplinary Control and Appeal} G
Regulations, 1987 (in short the 'Regulations') and held that the sanction
accorded by the Superintending Engineer was not sufficient to prosecute the
accused. Consequently it was held that the accused was entitled to discharge
for the time being for the grant of invalid sanction. However, liberty was
given to the prosecution to obtain fresh sanction and to file a fresh charge H
282 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A sheet. The order was assailed before the Karnataka High Court on the ground
that even if it is conceoed that the sanction was defective, that did not entitle
the accused to an order of discharge. By the impugned order the revision
application filed under Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973 (in short the 'Code'), was dismissed.
B
In support of the appeal learned counsel for the State submitted that
even if it is conceded for the sake of arguments that the sanction was defective
that did not entitle the accused to an order of discharge. It was required to
be shown by the accused as to how any prejudice was caused or there was
failure of justice. It was also pointed out that the order of the High Court
c is practically non-reasoned and no reason was assigned for accepting the view
of the trial court.
· Per contra, _learned counsel for the respondent accused submitted that
the sanction was sine-qua-non for prosecution. In the absence of a valid
sanction the proceedings could not be continued and therefore the trial court
D was right in its conclusion.
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 :
E
"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,-
F (a) in the case of a perso~ 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
G
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
H to remove him from his office.
STATE BY POLICE INSPECTOR v. T.V. MURTHY [PASAYAT, J.] 283
(2) Where for any reason whatsoever any doubt arises as to whether A
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
i\Uthority which would have been competent to remove the public
servant from his office at the time when the offence was alleged to B
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 Judge C ·
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;
D
(b) no court shall stay the proceedings under this Act on the
ground of any error, omission or irregularity in the sanction
granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
E
(c) no court shall stay the proceedings under this Act on
any other ground and no court shall exercise the powers of
revision in relation to any interlocutory order passed in any
inquiry, trial, appeal or other proceedings. ·
4. In determining under sub-section (3) whether the absence of, F
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 bee.n raised at any
earlier stage in the proceedings.
G
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 H
284 SUPREME COURT REPORTS [2004]SUPP. 4 S.C.R.
A of a specified authority or with the sanction of a specified
person or any requirement of a similar nature."
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
B 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.
c shall stay
Clause (b) of sub-section (3) is also relevant. It shows that no Court
the proceedings under the 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.
Sub-section (4) postulates that in determining under sub-section (3)
D 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.
Explanation appended to the Section is also of significance. It provides,
E that for the purpose of Section 19, error includes competency of the authority
to grant sanction.
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
F is borrowed from Lord Diplock in Town Investments Ltd v. 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. [See
Shamnsaheb M Multtani v. State of Karnataka, [2001] 2 SCC 577].
G
It would also be relevant to take' note of Sections 462 and 465 of the
Code, which read as follows:
"462. PROCEEDINGS IN WRONG PLACE:
H No finding, sentence or order of any Criminal Court shall be set
STATE BY POLICE INSPECTOR v. T.V. MURTHY [PASAYAT, J.] 285
aside merely on the ground that the inquiry, trial or other proceedings A
in the course of which it was arrived at or passed, took place in a
wrong sessions division, district, sub-division or other local area,
unless it appears that such error has in fact occasioned a failure of
justice.
B
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 ct>mpetent jurisdiction shall
be reversed or altered by a Court of appeal confirmati.on or revision C
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 error, or irregularity in any
sanction for the prosecution, unless in the opinion of that Court, a D
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, or 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 E
should have been raised at an earlier stage in the proceedings."
- In State of MP. v. Bhooraji and Ors., [2001] 7 SCC 679, the true
essence of the expression "failure of justice" was highlighted. Section 465
of the Code in fact deals with "finding or sentences when reversible by reason
of error, omission or irregularity", in sanction.
F
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 sanction that does not affect the G
validity of the proceeding unless the court records the satisfaction that such
error, omission or irregularity has resulted in failure ofjustice. 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 been also
considered. Unfortunately the High Court by a practically non-reasoned H
286 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A order, confirmed the order passed by the learned trial judge. The orders are,
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.
B The appeal is allowed to the aforesaid extent.
v.s.s. Appeal partly allowed.
,•
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