STATE OF MIZORAMversusDR. C. SANGNGHINA

68                SUPREME [2018]
                          COURT14REPORTS
                                  S.C.R. 68                [2018] 14 S.C.R.


A                          STATE OF MIZORAM
                                       v.
                           DR. C. SANGNGHINA
                      (Criminal Appeal No. 1322 of 2018)
B                            OCTOBER 30, 2018
           [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
            Constitution of India – Art.20(2) – Principle of double
     jeopardy – When not applicable – Case registered against the
     respondent-accused u/s.13(1)(c)(d)(e) r/w s.13(2), 1988 Act and
C
     s.409,IPC– Special Court discharged the accused/respondent due
     to lack of proper sanction and closed the case– Subsequently,
     Governor in supersession of the earlier order granted sanction for
     prosecution of the respondent – Supplementary charge sheet along
     with fresh prosecution sanction against the respondent submitted
D    for reopening the case – Dismissed on the ground that it was barred
     by the principle of “double jeopardy” – Propriety of – Held: Since
     the earlier order of sanction was found to be invalid, there is no
     bar for the competent authority to issue a proper order of sanction
     for prosecution – Unless there is failure of justice on account of
     error, omission or irregularity in grant of sanction for prosecution,
E
     the proceedings under the 1988 Act could not be vitiated – By
     filing fresh charge sheet, no prejudice is caused to the respondent
     nor would it result in failure of justice to be barred under the
     principle of “double jeopardy” – Under Art.20(2), no person shall
     be prosecuted and punished for the same offence more than once –
F    Basis of s.300(1), CrPC is that the person who was tried by a
     competent court, once acquitted or convicted, cannot be tried for
     the same offence – However, in the case in hand, the respondent
     was not tried as he was discharged due to lack of proper sanction
     even before commencement of trial– Where the accused has not
     been tried at all and convicted or acquitted, the principle of “double
G
     jeopardy” cannot be invoked at all – Thus, when the respondent
     was so discharged due to lack of proper sanction, the principle of
     “double jeopardy” will not apply – There was no bar for filing
     fresh/supplementary charge sheet after obtaining valid sanction for
     prosecution – Special Court and the High Court were not right in
H
                                      68
         STATE OF MIZORAM v. DR. C. SANGNGHINA                           69


holding that the filing of the fresh charge sheet with proper sanction   A
order for prosecution was barred under the principle of “double
jeopardy”– Impugned judgment set aside – Special Court to take
cognizance of the charge sheet dated 30.01.2014 and proceed in
accordance with law – Prevention of Corruption Act, 1988 –
s.13(1)(c)(d)(e) r/w s.13(2) – Penal Code, 1860– s.409– Code of
                                                                         B
Criminal Procedure, 1973– s.300(1).
     Prevention of Corruption Act, 1988 – s.19(3) and (4) –
Discussed.
      Allowing the appeal, the Court
       HELD: 1.1 Since the earlier order of sanction was found to        C
be invalid, there is no bar for the competent authority to issue a
proper order of sanction for prosecution. The courts are not to
quash or stay the proceedings under the Prevention of Corruption
Act, 1988 merely on the ground of an error, omission or
irregularity in the sanction granted by the authority unless it is       D
satisfied that such error, omission or irregularity has resulted in
failure of justice. A combined reading of sub-sections (3) and (4)
of Section 19 of Prevention Act 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 appeal, confirmation or revision on the         E
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. In the instant case, of course, the initial sanction was
granted by the Secretary, DP & AR to Government of Mizoram.              F
Having taken cognizance of the matter, before passing the
discharge order, the Special Judge ought to have examined the
matter to ascertain whether such error or irregularity in the
sanction has resulted in failure of justice. No such reasonings
were recorded by the Special Judge or by the High Court that
the initial sanction for prosecution granted by the Secretary has        G
resulted in failure of justice. Unless there is failure of justice on
account of error, omission or irregularity in grant of sanction for
prosecution, the proceedings under the Act could not be
vitiated. By f iling fresh charge sheet, no prejudice is
                                                                         H
70               SUPREME COURT REPORTS                   [2018] 14 S.C.R.


A    caused to the respondent nor would it result in failure of justice
     to be barred under the principles of “double jeopardy”.
     [Paras 9, 10 and 14][73-C-G; 76-E]
            1.2 The respondent was discharged even before
     commencement of trial due to lack of proper sanction, there was
B    no impediment for filing the fresh/supplementary charge sheet
     after obtaining valid sanction. Under Article 20(2) of the
     Constitution of India, no person shall be prosecuted and punished
     for the same offence more than once. Section 300 Cr.P.C. lays
     down that a person once convicted or acquitted, cannot be tried
     for the same offence. In order to bar the trial of any person already
C    tried, it must be shown – (i) that he has been tried by a competent
     court for the same offence or one for which he might have been
     charged or convicted at that trial, on the same facts; (ii) that he
     has been convicted or acquitted at the trial; and (iii) that such
     conviction or acquittal is in force. Where the accused has not
D    been tried at all and convicted or acquitted, the principles of
     “double jeopardy” cannot be invoked at all. The whole basis of
     Section 300 (1) Cr.P.C. is that the person who was tried by a
     competent court, once acquitted or convicted, cannot be tried
     for the same offence. In the case in hand, the respondent/accused
     was not tried nor was there a full-fledged trial. On the other hand,
E    the order of discharge passed by the Special Court was only due
     to invalidity attached to the prosecution. When the respondent
     was so discharged due to lack of proper sanction, the principles
     of “double jeopardy” will not apply. There was no bar for filing
     fresh/supplementary charge sheet after obtaining a valid sanction
F    for prosecution. The Special Court and the High Court were not
     right in holding that the filing of the fresh charge sheet with
     proper sanction order for prosecution was barred under the
     principles of “double jeopardy”. The impugned judgment
     is set aside. The Special Court, PC Act, Aizawl, Mizoram
     is directed to take cognizance of the charge sheet
G    dated 30.01.2014 and proceed with the same in accordance with
     law. [Para 14-17 and 18][76-D, F-H; 77-A-D, F]
           State of Goa v. Babu Thomas (2005) 8 SCC 130 : [2005]
           3 Suppl. SCR 712 – referred to.

H          Nanjappa v. State of Karnataka (2015) 14 SCC 186 :
           [2015] 8 SCR 685 – relied on.
         STATE OF MIZORAM v. DR. C. SANGNGHINA                                  71


                         Case Law Reference                                     A
[2005] 3 Suppl. SCR 712            referred to                Para 11
[2015] 8 SCR 685                   relied on                  Para 12
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1322 of 2018.                                                               B
      From the Judgment and Order dated 13.08.2015 of the High Court
of Assam, Nagaland, Mizoram & Arunachal Pradesh, Aizawl Bench at
Aizawl in Criminal Revision Petition No. 6 of 2014.
      D. Mahesh Babu, A. K. Rokhum, Ms. Suchitra H., B. Rama
Krishna Rao, T. V. Bhaskar Reddy,, Advs. for the Appellant.                     C
       Manu Mridul, Shalaj Mridul, Ms. Neha Rai, Jitin Chaturvedi, Advs.
for the Respondent.
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. 1. Leave granted.                                        D
       2. This appeal arises out of the order dated 13.08.2015 passed by
the High Court of Assam in Criminal Revision Petition No.6 of 2014 in
and by which the High Court affirmed the order of the Special Court
declining to take on file the charge sheet filed under Section 13(1)(c)(d)(e)
read with Section 13(2) of Prevention of Corruption Act, 1988 on the            E
ground that it was barred under the principles of “double jeopardy”.
       3. Brief facts which led to filing of this appeal are that a complaint
was made to the Superintendent of Police, Mizoram, Aizawl against the
accused/respondent on 17.02.2009 by the President of PRISM alleging
misappropriation/mismanagement of public money. On the basis of the             F
complaint, the Superintendent of Police, ACB conducted an inquiry and
submitted its report on 21.08.2009 with a request for registration of ACB
case against the accused/respondent. During inquiry, it was detected
that the respondent has acquired his valuable assets disproportionate to
known sources of income. On receipt of the inquiry report and after
taking the approval of the Government of Mizoram, Vigilance                     G
Department, ACB Case No.3 of 2009 under Section 13(1)(c)(d)(e) read
with Section 13(2) of Prevention of Corruption Act, 1988 (PC Act) and
Section 409 IPC was registered against the accused/respondent.

                                                                                H
72                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A          4. Charge sheet No.6 of 2013 was filed under Section 409 IPC
     and Section 13(1)(c)(d)(e) read with Section 13(2) of PC Act. The
     Special Court, PC Act found that the prosecution sanction against the
     accused/respondent was issued by the Commissioner-Secretary,
     Department of Personnel & Administrative Reforms (DP & AR) directly
     without sanction of the Governor. After hearing the parties, the learned
B
     Judge, Special Court, PC Act by an order dated 12.09.2013, discharged
     the accused/respondent from the charges levelled against him due to
     lack of proper sanction. By its order dated 12.09.2013, Special Judge
     closed the criminal case arising out of ACB Case No.3 of 2009 under
     Section 13(1)(c)(d)(e) of the PC Act read with Section 409 IPC.
C           5. Subsequently, after due consideration of the materials, the
     Governor vide order dated 20.12.2013 in supersession of the earlier order
     dated 08.04.2013 granted sanction for prosecution of the respondent for
     the aforesaid offences and other offence punishable under any other
     provisions of law. In view of the fresh sanction issued against the
D    respondent on 20.12.2013, the Inspector, ACB Mizoram on 30.01.2014
     submitted fresh/supplementary charge sheet along with fresh prosecution
     sanction against the accused/respondent with further request to accept
     the fresh/supplementary charge sheet and to reopen the case.
            6. The learned Judge, Special Court vide order dated 26.08.2014
E    dismissed SR (PCA) No.8 of 2014 holding that there is no provision/
     scope for review of its own order under Criminal Procedure Code. The
     learned Judge found that the second charge sheet is barred by the
     principles of “double jeopardy” and accordingly, the application to take
     the fresh charge sheet was dismissed by order dated 26.08.2014.

F            7. Being aggrieved by the order dated 26.08.2014 as well as the
     earlier order dated 12.09.2013, the State has preferred Criminal Revision
     Petition No.6 of 2014 before the High Court and the same was dismissed
     by the High Court affirming the order of the Special Court that the second
     charge sheet with fresh sanction cannot be entertained. The High Court
     also held that the revision petition against the order dated 12.09.2013 is
G    barred by the limitation and there is no proper explanation by the State
     as to the delay in filing the revision petition.
           8. We have heard learned counsel for the appellant and the
     respondent and perused the impugned judgment and other materials
     placed on record.
H
         STATE OF MIZORAM v. DR. C. SANGNGHINA                                73
                   [R. BANUMATHI, J.]

       9. In ACB P.S.C./No.3/2009 under Section 13(1)(c)(d)(e) read           A
with Section 13(2) of PC Act, the prosecution sanction was accorded
against the respondent vide order dated 08.04.2013 by the Commissioner-
Secretary (DP & AR) to Government of Mizoram. The Commissioner-
Secretary (DP & AR) was not the competent authority to accord sanction
for prosecution and the case came to be closed for want of proper sanction.
                                                                              B
Since the earlier sanction accorded was not by the competent authority,
after due consideration of the materials placed before him, the Governor
accorded fresh sanction vide order dated 20.12.2013 in supersession of
the earlier order dated 08.04.2013. In view of the prosecution sanction
against respondent accorded by the Government of Mizoram, the
Inspector of Police made an application on 30.01.2014 to accept fresh/        C
supplementary charge sheet No.3/2014 under Section 13(1)(c)(d)(e) read
with Section 13(2) of PC Act. Since the earlier order of sanction was
found to be invalid, there is no bar for the competent authority to issue a
proper order of sanction for prosecution.
        10. The courts are not to quash or stay the proceedings under the     D
Act merely on the ground of an error, omission or irregularity in the
sanction granted by the authority unless it is satisfied that such error,
omission or irregularity has resulted in failure of justice. A combined
reading of sub-sections (3) and (4) of Section 19 of Prevention Act
make the position clear that notwithstanding anything contained in the
Code no finding, sentence and order passed by a Special Judge shall be        E
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.In the
instant case, of course, the initial sanction was granted by the Secretary,   F
DP & AR to Government of Mizoram. Having taken cognizance of the
matter, before passing the order dated 12.09.2013, the Special Judge
ought to have examined the matter to ascertain whether such error or
irregularity in the sanction has resulted in failure of justice. No such
reasonings are recorded by the Special Judge or by the High Court that
the initial sanction for prosecution granted by the Secretary has resulted    G
in failure of justice.
      11. This Court in State of Goa v. Babu Thomas (2005) 8 SCC
130 was dealing with a sanction order issued by an authority who was
not competent as is also the position in the case at hand. The second
                                                                              H
74                 SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A    sanction order issued for the prosecution of the accused in that case
     was also held to be incompetent apart from the fact that the same
     purported to be retrospective in its operation. In the said case, the
     Supreme Court held that when cognizance was taken by the Special
     Judge on 29.03.1995, there was no order sanctioning the prosecution
     with the result that the court could not have taken cognizance and that
B
     the error was so fundamental that it invalidated the proceedings conducted
     by the court. The Court accordingly upheld the order passed by the High
     Court but reserved liberty to the competent authority to issue fresh orders
     of sanction having regard to the serious allegation made against the
     accused.
C           12. The judgment in Babu Thomas was referred to with approval
     in Nanjappa v. State of Karnataka (2015) 14 SCC 186. After referring
     to number of judgments and observing that despite invalidity attached to
     the sanction order, upon grant of a fresh valid sanction is not forbidden,
     in para (22) of Nanjappa case, it was held as under:-
D          22. The legal position regarding the importance of sanction under
           Section 19 of the Prevention of Corruption Act is thus much too
           clear to admit equivocation. The statute forbids taking of cognizance
           by the court against a public servant except with the previous
           sanction of an authority competent to grant such sanction in terms
E          of clauses (a), (b) and (c) to Section 19(1). The question regarding
           validity of such sanction can be raised at any stage of the
           proceedings. The competence of the court trying the accused so
           much depends upon the existence of a valid sanction. In case the
           sanction is found to be invalid the court can discharge the accused
           relegating the parties to a stage where the competent authority
F          may grant a fresh sanction for the prosecution in accordance with
           law. If the trial court proceeds, despite the invalidity attached to
           the sanction order, the same shall be deemed to be non est in the
           eyes of law and shall not forbid a second trial for the same
           offences, upon grant of a valid sanction for such prosecution.
G          13. In Nanjappa case, after referring to number of judgments,
     this Court summarised the principles in para (23) as under:-
           “23. Having said that there are two aspects which we must
           immediately advert to. The first relates to the effect of sub-section
           (3) to Section 19, which starts with a non obstante clause. Also
H
   STATE OF MIZORAM v. DR. C. SANGNGHINA                                  75
             [R. BANUMATHI, J.]

relevant to the same aspect would be Section 465 CrPC which               A
we have extracted earlier.
…………..
23.2. A careful reading of sub-section (3) to Section 19 would
show that the same interdicts reversal or alteration of any finding,
sentence or order passed by a Special Judge, on the ground that           B
the sanction order suffers from an error, omission or irregularity,
unless of course the court before whom such finding, sentence or
order is challenged in appeal or revision is of the opinion that a
failure of justice has occurred by reason of such error, omission
or irregularity. Sub-section (3), in other words, simply forbids          C
interference with an order passed by the Special Judge in appeal,
confirmation or revisional proceedings on the ground that the
sanction is bad save and except, in cases where the appellate or
revisional court finds that failure of justice has occurred by such
invalidity. What is noteworthy is that sub-section (3) has no
application to proceedings before the Special Judge, who is free          D
to pass an order discharging the accused, if he is of the opinion
that a valid order sanctioning prosecution of the accused had not
been produced as required under Section 19(1).
23.3. Sub-section (3), in our opinion, postulates a prohibition against
a higher court reversing an order passed by the Special Judge on          E
the ground of any defect, omission or irregularity in the order of
sanction. It does not forbid a Special Judge from passing an order
at whatever stage of the proceedings holding that the prosecution
is not maintainable for want of a valid order sanctioning the same.
23.4. The language employed in sub-section (3) is, in our opinion,        F
clear and unambiguous. This is, in our opinion, sufficiently evident
even from the language employed in sub-section (4) according to
which the appellate or the revisional court shall, while examining
whether the error, omission or irregularity in the sanction had
occasioned in any failure of justice, have regard to the fact whether     G
the objection could and should have been raised at an early stage.
Suffice it to say, that a conjoint reading of sub-sections 19(3) and
(4) leaves no manner of doubt that the said provisions envisage a
challenge to the validity of the order of sanction or the validity of
the proceedings including finding, sentence or order passed by
                                                                          H
76                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A          the Special Judge in appeal or revision before a higher court and
           not before the Special Judge trying the accused.
           23.5. The rationale underlying the provision obviously is that if
           the trial has proceeded to conclusion and resulted in a finding or
           sentence, the same should not be lightly interfered with by the
B          appellate or the revisional court simply because there was some
           omission, error or irregularity in the order sanctioning the
           prosecution under Section 19(1). Failure of justice is, what the
           appellate or revisional court would in such cases look for. And
           while examining whether any such failure had indeed taken place,
           the Court concerned would also keep in mind whether the objection
C          touching the error, omission or irregularity in the sanction could or
           should have been raised at an earlier stage of the proceedings
           meaning thereby whether the same could and should have been
           raised at the trial stage instead of being urged in appeal or revision.”
             14. In light of the above principles, considering the case in hand,
D    even before commencement of trial, the respondent/accused was
     discharged due to lack of proper sanction, there was no impediment for
     filing the fresh/supplementary charge sheet after obtaining valid sanction.
     Unless there is failure of justice on account of error, omission or
     irregularity in grant of sanction for prosecution, the proceedings under
E    the Act could not be vitiated. By filing fresh charge sheet, no prejudice is
     caused to the respondent nor would it result in failure of justice to be
     barred under the principles of “double jeopardy”.
            15. Under Article 20(2) of the Constitution of India, no person
     shall be prosecuted and punished for the same offence more than once.
F    Section 300 Cr.P.C. lays down that a person once convicted or acquitted,
     cannot be tried for the same offence. In order to bar the trial of any
     person already tried, it must be shown – (i) that he has been tried by a
     competent court for the same offence or one for which he might have
     been charged or convicted at that trial, on the same facts; (ii) that he has
     been convicted or acquitted at the trial; and    (iii) that such conviction
G    or acquittal is in force. Where the accused has not been tried at all and
     convicted or acquitted, the principles of “double jeopardy” cannot be
     invoked at all.
          16. The whole basis of Section 300 (1) Cr.P.C. is that the person
     who was tried by a competent court, once acquitted or convicted, cannot
H
         STATE OF MIZORAM v. DR. C. SANGNGHINA                                  77
                   [R. BANUMATHI, J.]

be tried for the same offence. As discussed earlier, in the case in hand,       A
the respondent/accused has not been tried nor was there a full-fledged
trial. On the other hand, the order of discharge dated 12.09.2013 passed
by the Special Court was only due to invalidity attached to the prosecution.
When the respondent/accused was so discharged due to lack of proper
sanction, the principles of “double jeopardy” will not apply. There was
                                                                                B
no bar for filing fresh/supplementary charge sheet after obtaining a valid
sanction for prosecution. The Special Court once it found that there
was no valid sanction, it should have directed the prosecution to do the
needful. The Special Court has not given sufficient opportunities to
produce valid prosecution sanction from the competent authority. The
Special Court erred in refusing to take cognizance of the case even             C
after production of valid prosecution sanction obtained from the competent
authority and the High Court was not right in affirming the order of the
Special Court. The Special Court and the High Court were not right in
holding that the filing of the fresh charge sheet with proper sanction
order for prosecution was barred under the principles of “double
                                                                                D
jeopardy”.
        17. The learned counsel for the respondent has drawn our attention
to the annexures filed by the respondent and submitted that the respondent
has been exonerated from the departmental proceedings on various
charges by order dated 08.07.2013. We are not inclined to go into the
merits of this contention and all the contentions raised by the respondent      E
are kept open.
        18. In the result, the impugned judgment and order dated 13.08.2015
is set aside and this appeal is allowed. The Special Court, PC Act, Aizawl,
Mizoram is directed to take cognizance of the charge sheet dated
30.01.2014 in ACB P.S.C.No.3/2009 on file and proceed with the same             F
in accordance with law.

Divya Pandey                                                  Appeal allowed.



                                                                                G




                                                                                H