STATE OF BIHAR & ORS.versusRAJMANGAL RAM

                        [2014] 4 S.C.R. 602


A                    STATE OF BIHAR & ORS.
                                  v.
                         RAJMANGAL RAM
                 (Criminal Appeal No. 708 of 2014)
                         MARCH 31, 2014
B
        [P. SATHASIVAM, CJI AND RANJAN GOGOi, JJ.]

        CODE OF CRIMINAL PROCEDURE 1973:

c      s. 465 rlw s. 197 Cr.P.C. ands. 19 (3) rlw s.19 (1) of PC
  Act - Interference with criminal prosecution on the ground of
  defects/omissions/errors in the order granting sanction for
  prosecution - Held: Both s. 465, Cr.P.C. ands. 19 (3) of PC
  Act make it clear that any effor, omission or iffegularity in the
  grant of sanction will not affect any finding, sentence or order
0
  passed by a competent court unless in the opinion of the
  court, a failure of justice has been occasioned - In the instant
  case, even assuming that Law Department was not competent
  to accord sanction, it was still necessary for High Court to
E reach the conclusion that a failure of justice had occasioned
  -- Such a finding is conspicuously absent - Order of High
  Court interdicting the criminal prosecution of respondents is
  set aside - Prevention of Coffuption Act, 1988 - s. 19 (3) rlw
  s. 19 (1).

F      The instant appeals were filed by the State
  Government against two orders passed by the High Court
  holding that the Law Department of the State was not
  competent to accord sanction for prosecution of the
  respondents under the Penal Code, 1860 as well as the
G Prevention of Corruption Act, 1988, resultantly,
  interdicting the criminal proceedings instituted against
  the respondents.

        The question for consideration before the Court
H                                602
   STATE OF BIHAR & ORS. v. RAJMANGAL RAM              603

was: whether a criminal prosecution ought to be              A
interfered with by the High Court at the instance of an
accused who sought mid-course relief from the criminal
charges levelled against him on grounds of defects/
omissions or errors in the order granting sanction to
prosecute including errors of jurisdiction to grant such     B
sanction.

    Allowing the appeals, the Court
     HELD: 1.1 Keeping in view the object behind the
 requirement of grant of sanction to prosecute a public c
servant, the provisions in this regard either under the
Code of Criminal Procedure, 1973 or the Prevention of
Corruption Act, 1988 are designed as a check on
frivolous, mischievous and unscrupulous attempts to
prosecute an honest public servant for acts arising out o
of due discharge of duty and also to enable him to
efficiently perform the wide range of duties cast on him
by virtue of his office. The test, therefore, always is-
whether the act complained of has a reasonable
connection with the discharge of official duties by the
                                                              E
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 F
prosecution against 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 G
so as to derive undue advantage of the requirement of
sanction, speci~ic provisions have been incorporated in
s. 19(3) of the Prevention of Corruption Act as well as in
s. 465 of the Code of Criminal Procedure which, inter alia,
make it clear that any error, omission or irregularity in the H
    604      SUPREME COURT REPORTS               [2014] 4 S.C.R.


A grant of sanction will not affect any finding, sentence or
  order passed by a competent court unless in the opinion
  of the court, a failure of justice has been occasioned. This
  is how the balance is sought to be struck. [Para 5] [607-
  B-H]
B
       1.2 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
C of course a failure of justice has occurred, at the
  intermediary stage a criminal prosecution cannot 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
D been occ,asioned. [Para 7] [610-F-G]
       State of Madhya Pradesh vs. Virender Kumar Tripathi
  2009 (7) SCR 89 = (2009) 15 SCC 533; State by Police
  Inspector vs. T. Venkatesh Murthy 2004 (4) Suppl. SCR 279
E   =
    (2004) 7 SCC 763; Prakash Singh Badal and Another vs.
  State of Punjab and Others 2006 (10) Suppl. SCR 197          =
  (2007) 1 SCC 1; and R. Venkatkrishnan vs. Central Bureau
                                         =
  of Investigation 2009 (12) SCR 762 (2009) 11 SCC 737 -
  relied on.
F         State of Goa vs. Babu Thomas 2005 (3) Suppl. SCR 712
    =(2005) 8 sec 130 - distinguished.
       1.3 In the instant cases, the High Court had
  interdicted the criminal proceedings on the ground that
G 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
H occasioned. Such a finding is conspicuously absent.
  STATE OF BIHAR & ORS. v. RAJMANGAL RAM                  605


Therefore, the impugned orders passed by the High A
Court cannot be sustained in law and, as such, are set
aside. [Para 10 and 12) [612-C-D, G]
                     Case Law Reference:
    2006 (10) Suppl. SCR 197       relied on       Para 7        B

    2004 (4) Suppl. SCR 279        relied on       Para 8
    2009 (12) SCR 762              relied on       Para 8
    2009 (7) SCR 89                relied on       Para 8        c
    2005 (3) Suppl. SCR 712        distinguished Para 9
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 708 of 2014.
                                                                 D
    From the Judgment and Order dated 23.03.2012 of the
High Court of Patna in CRLW No. 487 of 2011.
                              WITH
Criminal Appeal Nos. 709-710 of 2014.
                                                                 E
    Ranjit Kumar, H.P. Raval, Rajiv Dutta, Gopal Singh, Manish
Kumar, Arunabh Chowdhury, Ashish Jha, Gainilung Panmei,
Karma Dorjee, Jayant Mohan, Ajit Kumar, Avinash Kumar,
Deepali Dwivedi, Siddharth Dutta, Dushyant Kumar for the
appearing parties.                                               F

    The Judgment of the Court was delivered by

     RANJAN GOGOi, J. 1. Leave, as prayed for, is granted
in both the matters.
                                                                 G
     2. The two appeals are by the State of Bihar against
separate orders (dated 23.03.2012 and 03.03.2011) passed
by the High Court of Patna, the effect of which is that the
criminal proceedings instituted against the respondents under
different provisions of the Indian Penal Code as well as the     H
    606     SUPREME COURT REPORTS                  (2014].4 S.C.R.

A   Prevention of Corruption Act, 1988 have been interdicted on
    the ground that sanction for prosecution of the respondents in
    both the cases has been granted by the Law Department of
    the State and not by the parent department to which the
    respondents belong.
B
        3. A short and interesting question, which is also of
  considerable public importance, has arisen in the appeals
  under consideration. Before proceeding further it will be
  necessary to take note of the fact that in the appeal arising out
C of SLP (Crl.) No. 8013 of 2012 the challenge of the respondent-
  writ petitioner before the High Court to the maintainability of the
  criminal proceeding registered against him is subtly crafted.
  The criminal proceeding, as such, was not challenged in the
  writ petition and it is only the order granting sanction to
  prosecute that had been impugned and interfered with by the
D High Court. The resultant effect, of course, is that the criminal
  proceeding stood interdicted. In the second case (SLP (Crl.)
  Nos.159-160/2013) the maintainability of the criminal case was
  specifically under challenge before the High Court on the ground
  that the order granting sanction is invalid in law. Notwithstanding
E the above differences in approach discernible in the
  proceedings instituted before the High Cour,t, the scrutiny in the
  present appeals will have to be from the same standpoint,
  namely, the circumference of the court's power to interdict a
  criminal proceeding midcourse on the basis of the legitimacy
F or otherwise of the order of sanction to prosecute.

       4. Though learned counsels for both sides have
  elaborately taken us through the materials on record including
  the criminal complaints lodged against the respondents; the
G pleadings made in support of the challenge before the High
  Court, the respective sanction orders as well as the relevant
  provisions of the Rules of Executive Business, we do not
  consider it necessary to traverse the said facts in view of the
  short question of law arising which may be summed up as
H follows:-
   STATE OF BIHAR & ORS. v. RAJMANGAL RAM                    607
              [RANJAN GOGOi, J.]
     "Whether a criminal prosecution ought to be interfered          A
     with by the High Courts at the instance of an accused who
     seeks mid-course relief from the criminal charges
     levelled against him on grounds of defects/omissions or
     errors in the order granting sanction to prosecute
     including errors of jurisdictiQIJ to grant such sancti9f!?"     B
                       11"

      5. 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,           C
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 the wide range of duties
cast on him by virtue ·~of his office. The test, therefore, always
is-whether the act complained of has a reasonable connection         D
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   E
at bay any motivated, ill-founded and frivolous prosecution
against the public servant. However, realising that the dividing
fine 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         F
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    G
sanction will not affect any finding, sentence or order passed
by a competent court unless in the opinion of the court a failure
of justice has been eccasioned. This is how the balance is
sought to be struck.
                                                                     H
    608          SUPREME COURT REPORTS               [2014] 4 S.C.R.


A       6. For clarity it is considered necessary that the provisions
    of Section 19 of the P.C. Act and Section 465 of the Cr.P.C.
    should be embodied in the present order:-

    Section 19 of the PC Act
B         "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,-
c
           (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
D                  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 the
                   sanction of the State Government, of that
E                  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
F         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
G         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),-
H
STATE OF BIHAR & ORS. v. RAJMANGAL RAM                      609
           [RANJAN GOGOi, J.]
  (a)   no finding. sentence or order passed by a special           A
        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 that court. a failure of justice   8
        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     C
        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          o
       order passed in any inquiry, trial, appeal or other
       proceedings.

(4) In determining under sub-section (3) whether the
absence of, or any error, omission or irregularity in, such
                                                                    E
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,-                     F

 (a)    error includes competency of the authority to grant
        sanction;

 (b)    a sanction required for prosecution includes
        reference to any requirement that the prosecution           G
        shall be at the instance of a specified authority or
        with the sanction of a specified person or any
        requirement of a similar nature."

                                                                    H
    610      SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A   Section 465 of Or.P.C.

         "465. Finding or sentence when reversible by reason
         of error, omission or irregularity.-(1) Subject to the
         provisions hereinbef9re contained, no finding, sentence or
         order passed by a Court of competent jurisdiction shall be
B
         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
c        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
D         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 should have
          been raised at an earlier stage in the proceedings."
E
                                                  (emphasis is ours)

        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
F 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
G 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 vs. T. Venkatesh Murthy1 wherein it has
  been inter alia observed that,

H   1. (2004) 7 sec 763 (paras 1o and 11 ).
     STATE OF BIHAR & ORS. v. RAJMANGAL RAM                  611
                [RANJAN GOGOi, J.]
      "14 ....... Merely because there is any omission, error or     A
      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."
                                                                     B
      8. The above view also found reiteration in Prakash Singh
Badal and Another vs. State of Punjab and Others2 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         C
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
vs. Central Bureau of lnvestigation 3 • In fact, a three Judge
Bench in State of Madhya Pracfesh vs. Virender Kumar
Tripathi4 while considering an identical issue, namely, the          D
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     E
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    F
of charge but only after the trial has commenced and evidence
is led (Para 10 of the Report).

     9. There is a contrary view of this Court in State of Goa
vs. Babu Thomas5 holding that an error in grant of sanction          G
goes to the root of the prosecution. But the decision in Babu
2.   (2007) 1 sec 1 (para 19).
3.   c2009) 11 sec 737.
4.   (2009) 15 sec 533.
5.   (2005) a sec 130.                                               H
    612      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A Thomas (supra) has to be necessarily understood in the facts
  thereof, namely, that the authority itself had admitted the
  invalidity of the initial sanction by issuing a second sanction with
  retrospective effect to validate the cognizance already taken on
  the basis of the initial sanction order. Even otherwise, the
B position has been clarified by the larger Bench in State of
  Madhya Pradesh vs. Virender Kumar Tripathi (supra).
    . 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
C 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
D 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
E interference with the criminal proceedings registered against
  the 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
F conclusion would have been only after evidence in the cases
  had been led on the issue in question.
        12. We, therefore, hold that the orders dated 23.03.2012
  and 03.03.2011 passed by the High Court cannot be sustained
G in law. We, therefore, allow both the appeals; set aside the said
  orders and direct that the criminal proceeding against each of
  the respondents in the appeals under consideration shall now
  commence and shall be concluded as expeditiously as
  possible.
H R.P.                                            Appeals allowed.