Holding

A sanction order that is passed without the sanctioning authority applying its mind to material placed on record, and relying solely on an unrecorded police report, is illegal and cannot support a conviction.

Summary

The respondent, Ameerjan, a second‑division assistant in the Registrar of Firms and Co‑operative Societies, was alleged to have demanded a bribe of Rs 300 for issuing a certificate. He was charged under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The sanctioning authority, the Commissioner of Stamps, issued a sanction order under Section 19 solely on the basis of a report of the Inspector General of Police, Karnataka Lokayuktha, which was never placed on the record. The trial court convicted Ameerjan; the Karnataka High Court set aside the conviction, holding the sanction order illegal for lack of application of mind. On appeal, the Supreme Court affirmed that a sanction order must demonstrate that the authority considered the material before it and that reliance on an unrecorded report amounts to a failure of mind, rendering the sanction invalid. Consequently, the conviction could not stand and the appeal was dismissed.

Issues considered

Whether a sanction order under Section 19 of the Prevention of Corruption Act is invalid if it is based solely on a police report that is not placed on record.
Whether the absence of a demonstrable application of mind by the sanctioning authority defeats the validity of the sanction and the subsequent conviction.
Whether the quantum of the alleged bribe (Rs 300) influences the legality of the sanction order.
Whether the statutory presumption under Section 4 of the Act applies at the stage of granting sanction.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 19, s. 4, s. 7

Subjects

Prevention of Corruption Actsanction orderapplication of mindpublic servantbriberyprocedural irregularitySection 19criminal procedure

Judgment

STATE OF KARNATAKA A
v.
AMEERJAN

SEPTEMBER 18, 2007

[S.B. SINHA AND HARJIT SINGH BEDI, JJ.) B

Prevention of Corruption Act, 1988:

ss. 19, 7, 13(/)(d) r/w 13(2)-Sanction for prosecution of public
servant-Sa1Jctioning authority passed order of sanction solely on basis of C
report made by the JG Police-Said report not brought on record-Held: The
order of sanction did not demonstrate proper application of mind on part of
the sanctioning authority-Hence, High Court justified in holding the order
of sanction to be illegal and on that ground setting aside conviction of the
public servant concerned. D
Respondent was working as an Assistant in the Office of the Registrar
of Firms and Co-operative Societies. He allegedly demanded bribe of Rs.300/
- from PW3, who had approached him for grant of a certificate. An order of
sanction was issued under Section 19 of the Prevention of Corruption Act,
1988 for prosecution of Respondent for offences punishable under Sections E
7, 13(1)(d) read with 13(2) of the said Act. The sanction order was issued
solely on basis of purported report issued by Inspector General of Police. The
sanctioning authority examined himself before the Trial Court as PW-8. He,
however, did not produce the report of the Inspector General of Police and
even otherwise the same was not brought on record. Trial Court convicted
Respondent. High Court, however, held that the order of sanction was illegal F
and on that ground set aside the conviction of Respondent. Hence the present
appeal

Dismissing the appeal, the Court

HELD: 1. An order of sanction should not be construed in a pedantic G
manner. But, it is also well settled that the purpose for which an order of
sanction is required to be passed should always be borne in mind. Ordinarily,
the sanctioning authority is the best person to judge as to whether the public
servant concerned should receive the protection under the Act by refusing to
1105 H
1106 SUPREME COURT REPORTS [2007] 9 S.C.R

A accord sanction for his prosecution or not. For the aforementioned purpose,
1·
application of mind on the part of the sanctioning authority is imperative. The
order granting sanction must be demonstrative of the fact that there had been
proper application of mind on the part of the sanctioning authority.
(Paras 7 and 8) (1108-F, G, HJ

B 2.1. In the present case, the sanctioning authority had purported to pass
the order of sanction solely on the basis of the report made by the Inspector
General of Police, Karnataka Lokayuktha. The said report has not been
brought on record. Thus, whether in the said report, either in the body thereof .....
or by annexing therewith the relevant documents, JG Police Karnataka
C Lokayuktha had placed on record the materials collected on investigation of
the matter which would prima facie establish existence of evidence in regard
to the commission of the offence by the public servant concerned is not evident.
(Para 8] (1109-A, BJ

2.2. The High Court called for the original reco_rds. It had gone thereinto.
D It was found that except the report of the Inspector General of Police,
Karnataka Lokayuktha, no other record was made available before the
sanctioning authority. The order of sanction .also stated so. PW-8, the
sanctioning authority, also did not have the occasion to consider the records
except the purported report. Therefore, the judgment ofHigh Court does not
suffer from any legal infirmity. [Paras 15 and 16) [1112-E, F, GJ
E
Prakash Singh Badal and Anr. v. State of Punjab and Ors., (2007) 1
sec 1, distinguished.
Gokulchand Dwa'rkadas Morarka v. The King, AIR (1948) PC 82;
Jaswant Singh v. State of Punjab, AIR (1958) SC 124; Mohd. Iqbal Ahmedv.
F State ofAndhra Pradesh, (1979] 4 sec 172; R.S. Nayakv. A.R. Antulay, (1984)
2 SCC 183; Mansukh/al Vitha/das Chauhan v. State ofGujarat, (1997) 7 SCC
622 and Sankaran Moitra v. Sadhna Das & Anr., (2006] 4 S_~C 584, referred
to.

G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 766 of
2001.

From the Judgment and Order dated I 9.06.200.0 ~f the High Court of
Kamataka at Bangalore in Criminal Appeal No. 222 of 199~.

Sanjay R. Hedge and Ramesh S. Jadhav for the Appellant.
H
_k

STATEv. AMEERJAN [SINHA,J.] 1107

Sanjay Parikh, A.M. Singh and Jitin Sahni for the Respondent. A
The Judgment of the Court was delivered by'

S.B. SINHA, J. 1. Interpretation and/ or application of the provisions
of Section 19 of the Prevention of Corruption Act, 1988 (for short "the Act")
falls for our consideration in this appeal which arises out of a judgment and B
order dated 19 .06.2000 passed by the High Court of Karnataka at Bangalore
in Criminal Appeal No. 222of1995.

2. Respondent herein was working as a Second Division Assistant in
the Office of the Registrar ofFirms and Cooperative Societies. D.V. Thrilochana
(PW-3) approached him for grant of a certificate. He allegedly demanded a C
sum of Rs. 300/- from him. He was put to trial for alleged commission of an
offence under Sections 7, 13(1 )(d) read with 13(2) of the Act.

3. An order of sanction was issued by the Commissioner of Stamps
solely relying on or on the basis of a purported report issued by the Inspector D
General of Police, Karnataka Lokayuktha. The purported order of sanction
being dated 20.07.1992 reads as under:

"In exercise of the powers conferred under Section 19(l)(c) of the
Prevention of Corruption Act, 1988, I hereby accord sanction to
prosecute Sri Ameerjan, Second Division Assistant in the office of the E
Registrar of Firms and Societies, Bangalore, Urban District, Bangalore
for offences punishable under Section 7 and 13(l)(d) read with 13(2)
of the Prevention of Corruption Act, 1988 in the competent court of
law."

4. The sanctioning authority examined himself before the learned Trial p
Judge as PW-8. He, however, did not produce the report of the Inspector
General of Police, Karnataka Lokayuktha. Even otherwise the same was not
brought on records. The learned Trial Judge upon considering the materials
brought on records by the prosecution opined that the respondent was guilty
of commission of the said offence.
G
By reason of the impugned judgment, the High Court, however,· reversed
the same opining that the order of sanction being illegal, the judgment of
-l._
conviction could not be sustained.

5. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the
State of Karanataka, in support of this appeal would submit that an order of H
1108 SUPREME COURT REPORTS (2007] 9 S.C.R

A sanction should not be construed in a pedantic manner. The learned counsel
. urged that the High Court committed a manifest error in proceeding to determine
the legality or validity of the order of sanction having regard to an irrelevant
factor, viz., that the offence involved only a sum of Rs. 300/-.

In particular, the following findings of the High Court was criticized
B submitting that the same do not lay down the correct legal position:

"... The additional reason for this view is because there is an entirely
different aspect of the law which applies to cases of this category
insofar as the courts have now held that if the amount involved is
relatively small if it is a single isolated instance and there is no
c evidence of habitual bribe taking or assets dis-proportionate to the
known sources of income, that the sanctioning authority will have to
carefully evaluate as to whether the interest of justice will not be
adequately served by taking disciplinary action rather than by
burdening the courts with full fledged prosecution in a case ofrelatively
D trivial facts. These are all areas of deep seated evaluation which can
only be truly justified through a proper perusal of the records. I am
unable to accept the submission put forward by the learned Public
Prosecutor that the reference to the receipt of the records is sufficient
to get over the basic infirmity in the sanction order wherein the
authority is quick to state that he acted only on the basis of the letter
E from the Inspector General of Police ... "

6. Mr. Sanjay Parikh, learned counsel appearing on behalf of the
respondent, however, would submit that the purported order of sanction
dated 20.07.1992 ex facie shows a total non-application of mind on the part
F of PW-8 and, thus, the impugned judgment is unassailable.
..J-
7. We agree that an order of sanction should not be construed in a
pedantic manner. But, it is also well settled that the purpose for which an
order of sanction is required to be passed should always be borne in mind.
Ordinarily, the sanctioning authority is the best person to judge as to whether
G the public servant concerned should receive the protection under the Act by
refusing to accord sanction for his prosecution or not.

8. For the aforementioned purpose, indisputably, application of mind on
the part of the sanctioning authority is imperative. The order granting sanction .;_
must be demonstrativ~ of the fact that there had been proper application of
H mind on the part of the sanctioning authority. We have noticed hereinbefore
}:;_

STATEv. AMEERJAN [SINHA, J.) 1109
that the sanctioning authority had purported to pass the order of sanction A
solely on the basis of the report made by the Inspector General of Police,
Karnataka Lokayuktha. Even the said report has not been brought on record.
Thus, whether in the said report, either in the body thereof or by annexing
therewith the relevant documents, IG Police Karnataka Lokayuktha had placed
on record the materials collected on investigation of the matter which would
prima facie establish existence of evidence in regard to the commission of the B
offence by the public servant concerned is not evident. Ordinarily, before
passing an order of sanction, the entire records containing the materials
collected against the accused should be placed before the sanctioning
authority. In the event, the order of sanction does not indicate applic21.tion of
mind as the materials placed before the said authority before the order of C
sanction was passed, the same may be produced before the court to show
that such materials had in fact been produced.

9. The Privy Council as far back in 1948 in Gokulchand Dwarkadas
Morarka v. The King, AIR (1948) PC 82 opined that the object of the
provision for sanction is that the authority giving it should be able to D
consider for itself the evidence before it comes to a conclusion that the
prosecution in the circumstances be sanctioned or forbidden stating:

"In Their Lordships' view, to comply with the provisions of clause 23
it must be proved that the sanction was given in respect of the facts
constituting the offence charged. It is plainly desirable that the facts E
should be referred to on the face of the sanction, but this is not
essential, since clause 23 does not require the sanction to be in any
particular form, nor even to be in writing. But ifthe facts constituting
the offence charged are not shown on the face of the sanction, the
prosecution must prove by extraneous evidence that those facts were F
placed before the sanctioning authority. The sanction to prosecute is
an important matter; it constitutes a condition precedent to the
institution of the prosecution and the Government have an absolute
discretion to grant or withhold their sanction."

The said decision has been referred to by this Court, with approval, in G
Jaswant Singh v. State of Punjab, AIR (1958) SC 124.

10. Yet again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh, [1979]
4 SCC 172, this Court opined that the sanctioning authority cannot rely on
the statutory presumption contained in Section 4 of the Prevention of
Corruption Act, 194 7 stating: H
1110 SUPREME COURT REPORTS (2007] 9 S.C.R

A ".. .In the first place there is no question of the presumption being
available to the Sanctioning Authority because at that stage the
occasion for drawing a presumption never arises since there is no
case in the Court. Secondly, the presumption does not arise
automatically but only on proof of certain circumstances, that is to
say, where it is proved by evidence in the Court that the money said
B to have been paid to the accused was actually recovered froi.n his
possession. It is only then that the Court may presume the amount
received would be deemed to be an illegal gratification. So far as the
question of sanction is concerned this arises before the proceedings
come to the Court and the question of drawing the presumption,
c therefore, does not arise at this stage ... "

I I. In R.S. Nayak v. A.R. Antulay, (1984] 2 SCC 183 following Mohd
Iqbal Ahmed (supra), this Court held:

"... The Legislature advisedly conferred power on the authority
D competent to remove the public servant from the office to grant
sanction for the obvious reason that that authority alone would be
able, when facts and evidence are placed before him to judge whether 'f
a serious offence is committed or the prosecution is either frivolous
or speculative. That authority alone would be competent to judge
whether on the facts alleged, there has been an abuse or misuse of
E office held by the public servant. That authority would be in a position
to know what was the power conferred on the office which the public
servant holds, how that power could be abused for corrupt motive
and whether primafacie it has been so done. That competent authority
alone would know the nature and functions discharged by the public
servant holding the office and whether the same has been abused or
F -+
misused. It is the vertical hierarchy between the authority competent
to remove the public servant from that office and the nature of the
office held by the public servant against whom sanction is sought
which would indicate a hierarchy and which would therefore, permit
inference of knowledge about the functions and duties of the office
G and its misuse or abuse by the public servant. That is why the
Legislature clearly provided that that authority alone would be
competent to grant sanction which is entitled to remove the public
servant against whom sanction is sought from the office."

12. In Mansukhlal Vitha/das Chauhan v. State ofGujarat, (1997] 7 SCC
H
STATE v. AMEER JAN [SINHA, J.] 1lll
622, this Court held: A
"14. From a perusal of Section 6, it would appear that the Central or
the State Government or any other authority (depending upon the
category of the public servant) has the right to consider the facts of
each case and to decide whether that "public servant" is to be
prosecuted or not. Since the section clearly prohibits the courts from B
taking cognizance of the offences specified therein, it envisages that
the Central or the State Government or the "other authority" has not
~-
only the right to consider the question of grant of sanction, it has also
the discretion to grant or not to grant sanction."

[See also State of T.N. v. M.M. Rpjendran, [1998] 9 SCC 268] c
13. Our attention, however, was drawn to a recent decision of this Court
in Prakash Singh Badal and Anr. v. State of Punjab and Ors., [2007] I SCC
l by Mr. Hegde to contend that having regard to Sub-sections (3) and (4) of
Section 19 of the Act, only because an order of sanction contains certain D
irregularities, the court would not set aside an order of conviction.

In Prakash Singh Badal (supra), the question which arose for
consideration before this Court was as to whether an order of sanction is
required to be passed in terms of Section 197 of the Code of Criminal Procedure
in relation to an accused who has ceased to be a public servant. It was in E
that context a question arose before this Court as to whether the act alleged
to be performed under the colour of office is for the benefit of the officer .or
for his own pleasure. In the context of question as to whether the public
servant concerned should receive continuous protection, it was opined:

"29. The effect of sub-sections (3) and (4) of Section 19 of the Act F
are of considerable significance. 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 (sic not) considered fatal unless it has resulted in failure G
of justice or has been occasioned thereby. Section 19(1) is a matter
of procedure and does not go to the root of jurisdiction as observed
in para 95 of Narasimha Rao case 2 . Sub-section (3 )(c) of Section 19
reduces the rigour of prohibition. In Section 6(2) of the old Act
[Section 19(2) of the Act] question relates to doubt about authority H
1112 SUPREME COURT REPORTS [2007] 9 S.C.R.

A to grant sanction and not whether sanction is necessary."

Prakash Singh Badal (supra), therefore, is not an authority for the
proposition that even when an order of sanction is held to be wholly invalid
inter alia on the premise that the order is a nullity having been suffering from
the vice of total non-application of mind. We, therefore, are of the opinon that
B the said decision cannot be said to have any application in the instant case.

14. We may notice that in Sankaran Moitra v. Sadhna Das & Anr.,
[2006] 4 SCC 584 : JT (2006) 4 SC 34, the Majority, albeit in the context of
Section 197 of the Code of Criminal Procedure, opined:

c "22. Learned counsel for the complainant argued that want of sanction
under Section 197( 1) of the Code did not affect the jurisdiction of the
Court to proceed, but it was only one of the defences available to the
accused and the accused can raise the defence at the appropriate time.
We are not in a position to accept this submission. Section 197(1 ), its
opening words and the object sought to be achieved by it, and the
D decisions of this Court earlier cited, clearly indicate that a prosecution
hit by that provision cannot be launched without the sanction
contemplated. It is a condition precedent, as it were, for a successful
prosecution of a public servant when the provision is attracted, though
the question may arise necessarily not at the inception, but even at
E a subsequent stage. We cannot therefore accede to the request to
postpone a decision on this question."

15. In this case, the High Court called for the original records. It had
gone thereinto. It was found that except the report, no other record was made
available before the sanctioning authority. The order of sanction also stated
F so. PW-8 also did not have the occasion to consider the records except the
purported report.
+

16. We are, therefore, of the opinion that the impugned judgment does
not suffer from any legal infirmity although some observations made by the
High Court, as noticed hereinbefore, do not lay down the correct legal position.
G The appeal is dismissed.

B.B.B. Appeal dismissed.
J..