Supreme Court of India
STATE OF M.P.versusVIRENDRA KUMAR TRIPATHI
- Citation
- 2009 INSC 611
- Decided
- 27 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
A sanction issued by the Department of Law and Legislative Affairs, approved by the State Government, is valid and cannot be set aside under Section 19(3) of the Prevention of Corruption Act unless a failure of justice is demonstrably occasioned.
Summary
The State of Madhya Pradesh charged Virendra Kumar Tripathi, a former Forest Department ranger, under Sections 13(1)(c) and 13(2) of the Prevention of Corruption Act, 1988 for possessing assets disproportionate to his known income. Tripathi contended that the investigation was conducted by an unauthorised officer and that the sanction for prosecution was invalid because the Law Department had not consulted the Forest Department as required by a 1988 circular. The trial court held that the Deputy Superintendent of Police was a designated officer under Section 17 and that the sanction was issued by the Department of Law and Legislative Affairs in the name of the Governor, with State Government approval. The High Court quashed the proceedings, finding the sanction defective for lacking inter‑departmental advice, but the Supreme Court reversed this, emphasizing that Section 19(3) of the Act bars reversal of a Special Judge’s order absent a proven failure of justice. The Court also ruled that procedural lapses in investigation do not invalidate the trial unless prejudice is shown, and that the exclusion of certain income items is a matter of evidence for the trial court. Consequently, the State’s appeal was allowed and the accused’s appeal dismissed.
Issues considered
- Whether the sanction for prosecution under the Prevention of Corruption Act was valid despite the alleged non‑consultation of the parent department as per the 1988 circular.
- Whether the Deputy Superintendent of Police was an authorized investigating officer under Section 17 of the Act.
- Whether a defect in sanction or investigation can be a ground to set aside a Special Judge’s order under Section 19(3) of the Act absent a failure of justice.
- Whether the accused suffered prejudice due to alleged procedural irregularities in the investigation.
Legislation cited
- Code of Criminal Procedure, 1973s. 482
- Prevention of Corruption Act, 1988s. 13(1)(c), s. 13(2), s. 17(2), s. 19(3)
Subjects
Prevention of Corruption Actsanction validityauthorized investigating officerdisproportionate assetsSection 19(3) protectionprocedural irregularityfailure of justiceevidence
Judgment
[2009] 7 S.C.R. 89
STATE OF M.P. A
v.
VIRENDRA KUMAR TRIPATHI
Criminal Appeal No. 843 of 2009
APRIL 27, 2009
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
·-
ALAM, JJ.]
f
.,. Prevention of Corruption Act, 1988:
ss.13(1)(c) and 13(2) - Allegation of acquired assets
disproportionate to the known source - Chargesheet - Prayer
c
for discharge at the time of framing of charges on the ground
that sanction was not accorded by Law Department which was
required to consult parent department - Trial Court rejected
• the prayer - ·However, High Court quashed the proceedings
D
-
r
holding that there was no proper sanction - On appeal, held:
Sanction was given in the name of Governor by Department
" of Law and Legislative Affairs and State Government granted
approval of the prosecution - Further, High Court failed to
notice that uls. 19(3) order of Special judge cannot be reversed
' unless there was failure of justice - The stage when this failure · E
is to be established was not reached since case was at framing
of charge - Whether or not failure has been occassioned was
to be determined after commencement of the trial and leading
evidence - Hence High Court's order quashing the proceeding
...•
~ cannot be sustained - Code of Criminal Procedure, 1973 - F
' s.482.
s.17(second proviso) -Authorised officer- Held: Deputy
Superintendent of Police is authorised to conduct investigation
into any offence under the Act.
G
Prosecution case was that accused while serving as
t- Ranger in Forest Department acquired assets dispropor-
tionate to known sources of income. At the time of framing
charges the accused took the stand that he was liable to
89 H
90 SUPREME COURT REPORTS [2009] 7 S.C.R.
A be discharged as the investigation was not conducted
by the authorized police officer as required under Section
17 (second proviso) of the Prevention of Corruption Act,
1988 and that sanction was not accorded in accordance
with law by the Law Department who was required to
B consult the parent department of the applicant i.e. Forest
Department in view of the order dated 9th February, 1988
of the State Government.
The trial court held that the investigation was done
by the authorized police officers i.e. Deputy Superin-
c tendent of Police who had obtained search warrant from
the CJM; and that under Section 17 of the Act, the Deputy
Superintendent of police can investigate into any offence
under the Act being a designated officer.
The High Court held that the Law and ·Legislative ., -..
D Department was required to consult the parent department
which was necessary as per the circular/order dated 9th
February, 1988 and, therefore, there was no proper ,-
sanction. Accordingly, it held that the accused cannot be
prosecuted on the basis of the sanction of the Law and
E Legislative Department. It did not express any final
opinion as far as the exclusion of income aspect is
concerned. But it upheld the view regarding legality of
investigation. Hence the appeal. • >----
Allowing the appeal, the Court
F HELD : 1. A bare perusal of the circular dated 9.2.1988
shows that before giving appr~val for prosecution, advice
of the concerned Department was necessary. Undis-
putedly the sanction was given by the Department of Law
and Legislatives Affairs. The State Government granted
G approval of the prosecution. The sanction was granted
-
in the name of the Governor of the State by Additional
Secretary, Department of Law and Legislative Affairs. The
advice at the most is an inter-departmental matter. The
High Court has failed to consider the effect of Section 19(3)
H of the Prevention of Corruption Act. The said provision
•·'
STATE OF MP. V. VIRENDRA KUMAR TRIPATHI 91
makes it clear that no finding, sentence or order passed A
by a Special Judge shall be reversed or altered by a'· court
of appeal on the ground of absence of for any error,
omission or irregularity in sanction required under sub-
section (1) of Section 19 unless in the opinion of the Court
a failure of justice has in fact been occasioned thereby. In B
the instant case there was not even a whisper or pleading
about any failure of justice. The stage when this failure is
f
to be established is yet to be reached since the case is at
the stage of framing of charge whether or not failure has
in fact been occasioned was to be determined once the
trial commenced and evidence was led. That being so the C
High Court's view quashing the proceedings cannot be
sustained. [Para 6] [95-8-F]
State v. T Venkatesh Murthy 2004(7) SCC 763; Prakash
Singh Badal v. State of Punjab 2007(1) SCC 1 - relied on.
D
2. The investigation was carried on by the duly
authorized officer namely the Dy. Superintendent of Police
under Section 17(c) of the Act. The function of .
investigation was merely to collect evidence and any
irregularity and illegality in the course of collection of E
evidence can hardly be considered by itself to affect
legality of. trial by a competent Court of the offence so
investigated. [Paras 8, 9] [96-A-B]
3. A conviction is not violated because there has not
been strict compliance with the provisions of the Act in F
the matter of investigation by a police officer unless the
accused is shown to have been prejudiced. There is no
material to show prejudice. The proceedings started in
1987. FIR was registered on 22.2.1991. In 1992, the
~ accused filed a petition before the High Court.
- Chargesheet was filed on 21.12.1993. On 30.8.2000, the G
~- petition filed before the High Court was disposed of. There
was no challenge at that stage to legality of investigation
and related to consideration of certain documents. The
Special Judge considered the matter afresh and rejected
accused's plea. Again, High Court was moved. The plea H
'
92 SUPREME COURT REPORTS (2009] 7 S.C.R.
~
A related to non-consideration of documents during
investigation and did not relate to legality of investigation.
So, the present stand without establishing any prejudice
deserves to be rejected. [Para 9] [96-A-E]
H. N. Rish bud and Anr. v. State of Delhi Al R 1955 SC 196
8 - relied on.
4. So far as the non-exclusion of certain alleged
income of relatives is concerned, it needs to be noted that '
these are matters of evidence and in such matters, the
c decision of this Court is relevant. The High Court's
judgment in this aspect does not suffer from any infirmity.
[Para 10] [96-F-G]
State of Orissa v. Debendra Nath Padhi JT 2004 ( 10) SC
303 - relied on.
D '
Case Law Reference
2004(7) sec 763 relied on Para 6
2001(1) sec 1 relied on Para 6
E AIR 1955 SC 196 relied on Para 9
JT 2004 (10) SC 303 relied on Para 10
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 843 of 2009
F From the Judgement and Order dated 10.10.2003 of the
Hon'ble High Court of Madhya Pradesh, Indore Bench in
Criminal Revision No. 794 of 2002 ..
WITH
,L.
G Criminal Appeal No. 844 of 2009 .....
Siddhartha Dave, Vibha Datta Makhija, Jemtiben,
.
Pratibha Jain, for the Appellant.
Sushi! Kumar Jain, Puneet Jain, Christi Jain, Piyush Jain,
H Archana Mishra, Pratibha Jain, for the Respondent.
. STATt''OF M.P. V VIRENDRA KUMAR TRIPATHI 93
The Judgement of the Court was delivered by A
DR. ARIJIT PASAYAT, J.
1. Leave granted. 11
2. These appeals are inter linked and are therefore
8
disposed of by this common judgment. Challenge in these
appeals is to the order passed by a learned Single Judge of
the Madhya Pradesh High Court, Indore Bench, questioning the.
order dated 3.10.2002 passed by a learned Special Judge and
First Additional Sessions Judge, Indore framing charges in
relation to accusations under Section 13(1 )(e) read with Section C
13(2) of the Prevention of Corruption Act, 1988 (in short the 'Act').
A revision petition was filed by Virender Kumar Tripathi ·
(hereinafter referred to as the 'accused'). The State through
Special Police Establishment, Lokayukt Office, Indore filed
r
charge sheet against the accused alleging that during the period D
of 1.1.1980 to 1.1.1990 while serving as Ranger in Forest
Department of the State of Madhya Pradesh he acquired assets
disproportionate to the known sources of income. At the time of
framing charge the accused took the stand that he was liable to
be discharged as the investigation was not conducted by the E
authorized police officer as required under Section 17 (second
proviso) of the Act. Further sanction was not accorded in
accordance with law by the Law Department who was required
to consult the parent department of the applicant i.e. Forest
1
Department in view of the order dated 9 h February, 1988 of the F
State Government. It was also submitted that the investigating
agency had wrongly excluded the income of the wife of the
accused though the same was properly disclosed as her income
before the department as well as in the income tax returns.
Similarly, certain receipts were not taken into account. The trial G
court held that the investigation was done by the authorized
police officers i.e. Deputy Superintendent of Police who had
obtained search warrant from the CJM, Indore and, therefore,
authorized officer investigated the matter. It was also submitted
that under Section 17 of the Act Deputy Superintendent of police . H
94 SUPREME COURT REPORTS (2009] 7 S.C.R.
A can investigate into any offence under the Act being a
designated officer. Further it was noted that as per the Business
Allocation Rules framed under Article 166(3) of the Constitution
of India, 1950 (in short the 'Constitution') the sanction was
granted in the name of the Governor of the State by the Additional
B Secretary of the Department of Law and Legislative Affairs which
was the legally authorized Department. However, the Court held
that the plea that value of disproportionate asset was to be
reduced so far as the exclusion of certain items is concerned,
same was matter of evidence and is to be considered trial. The
c stands taken before the trial court were reiterated before the
High Court. By the impugned judgment the High Court held that
the Law and Legislative Department was required to consult
the parent department which was necessary as per the circular/
th
order dated 9 February, 1988 and, therefore, there was no
D proper sanction. Accordingly, it was held that the accused cannot
be prosecuted on the basis of the sanction of the Law and
Legislative Department. It did not express any final opinion as
far as the exclusion of income aspect is concerned. But it upheld
the view regarding legality of investigation.
E 3. In the appeal filed by the State it has been contended
that the sanction had been given by the concerned authority and,
therefore, the High Court's view is not correct. Additionally, it is
submitted that the exclusion of certain items as directed by the
High Court cannot be maintained because at the stage of
F framing charges the Court is not required to take into account
materials which have to be established during trial.
4. In the appeal filed by the accused the stand is that apart
from the question of lack of sanction even on facts there is no
scope for proceeding against the accused. In that view of the
G matter also the accused was entitled to be discharged. It is also
submitted that the Dy. Superintendent of Police was not
authorized to conduct investigation.
5. So far as the defect in sanction aspect is concerned,
the circular of which the High Court has placed reliance needs
H
STATE OF MP. V. VIRENDRA KUMAR TRIPATHI 95
[DR. ARIJIT PASAYAT, J.]
to be noted. The Circular in question is dated 9.2.1988 the A
relevant portion reads as follows :
"The Government also decided that before giving approval
of prosecutions, the Principal Secretary, Law and Legal
Deptt. will obtain the advise of concerned Department."
B
6. A bare perusal of the paragraph shows that before giving
approval for prosecution, advice of the concerned Department
was necessary. The question arises whether the absence of
advice renders the sanction inoperative. Undisputedly the
sanction has been given by the Department of Law and c
Legislative. The State government had granted approval of the
prosecution. As noted above, the sanction was granted in the
name of the Governor of the State by Additional Secretary,
Department of Law and Legislative Affairs. The advice at the
!"
most is an inter-departmental matter. Further the High Court has
D
failed to consider the effect of Section 19(3) of the Act. The
said provision makes it clear that no finding, sentence or order
passed by a Special Judge shall be reversed or altered by a
court of appeal on the ground of absence of /or any error,
omission or irregularity in sanction required under sub-section
(1) of Section 19 unless in the opinion of the Court a failure of E
justice has in fact been occasioned thereby. In the instant case
there was not even a whisper or pleading about any failure of
>, justice. The stage when this failure is to be established yet to
be reached since the case is at the stage of framing of charge
whether or not failure has in fact been occasioned was to be F
determined once the trial commenced and evidence was lead.
In this connection'the decisions of this Court in State v. T
Venkatesh Murthy [2004(7) SCC 763] and in Prakash Singh
Badal v. State of Punjab [2007(1) sec 1] need to be noted.
G
7. That being so the High Court's view quashing the
• proceedings cannot be sustained and the State's appeal
deserves to be allowed which we direct.
8. Coming to the appeal filed by the accused one of the
questions is whether the investigating officer was authorized to H
96 SUPREME COURT REPORTS [2009] 7 S.C.R.
A conduct the investigation. The investigation was carried on by .-
the duly authorized officer namely the Dy. Superintendent of
Police under Section 17(c) of the Act.
9. The broader issues raised need not be looked into. The
function of investigation was merely to collect evidence and any
8 irregularity and illegality in the course of collection of evidence
can hardly be considered by itself to affect legality of trial by a
competent Court of the offence so investigated. In H.N. Rishbud
and Anr. v. State of Delhi (AIR 1955 SC 196), it was observed
that a conviction is not violated because there has not been
C strict compliance with the provisions of the Act in the matter of
investigation by a police officer unless the accused is shown to
have been prejudiced. There is no material to show prejudice.
The proceedings started in 1987. FIR was registered on
22.2.1991. In 1992, the accused filed a petition before the High
D Court. Chargesheet was filed on 21.12.1993. On 30.8.2000,
the petition filed before the High Court was disposed of. There
was no challenge at that stage to legality of investigation and
related to consideration of certain documents. Learned Special
Judge considered the matter afresh and rejected accused's
E plea. Again, High Court was moved. Only the plea related to
non-consideration of documents during investigation and did
not relate to legality of investigation. So, the present stand without
establishing any prejudice deserves to be rejected.
10. So far as the non-exclusion of certain alleged income
F of relatives is concerned, it needs to be noted that these are
matters of evidence and in such matters, the decision of this
Court in State of Orissa v. Debendra Nath Padhi [JT 2004(10)
SC 303] is relevant. The High Court's judgment in this aspect
does not suffer from any infirmity.
G
11. In the ultimate analysis, the appeal filed by the State
deserves to be allowed which we direct while dismissing the •
appeal filed by the accused.
D.G. Appeal allowed.
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