of Karnataka Vs. Ameer Jan  Insc 955 (18 September 2007)
Sinha & Harjit Singh Bedi S.B. Sinha, J:
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 order dated
19.06.2000 passed by the High Court of Karnataka at Bangalore in Criminal
Appeal No. 222 of 1995.
Respondent herein was working as a Second Division Assistant in the Office of
the Registrar of Firms and Cooperative Societies. D.V. Thrilochana (PW-3)
approached him for grant of a certificate. He allegedly demanded a 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.
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 General of Police,
Karnataka Lokayuktha. The purported order of sanction being dated 20.07.1992
reads as under:
exercise of the powers conferred under Section 19(1)(c) of the Prevention of
Corruption Act, 1988, I hereby accord sanction to prosecute Sri Ameerjan,
Second Division Assistant in the office of the Registrar of Firms and
Societies, Bangalore, Urban District, Bangalore for offences punishable under
Section 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act,
1988 in the competent court of law."
sanctioning authority examined himself before the learned Trial 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
reason of the impugned judgment, the High Court, however, reversed the same
opining that the order of sanction being illegal, the judgment of conviction
could not be sustained.
Sanjay R. Hegde, learned counsel appearing on behalf of the State of Karanataka, in support of this appeal would
submit that an order of 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/-.
particular, the following findings of the High Court was criticized submitting
that the same do not lay down the correct legal position:
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 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 of relatively 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 from the Inspector General of Police..."
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 of PW-8 and, thus, the
impugned judgment is unassailable.
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.
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
accord sanction for his prosecution or not.
the aforementioned purpose, indisputably, 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. We have noticed hereinbefore that 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.
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 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 application of mind as the materials placed
before the said authority before the order of sanction was passed, the same may
be produced before the court to show that such materials had in fact been
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 consider for itself the evidence
before it comes to a conclusion that the prosecution in the circumstances be
sanctioned or forbidden stating:
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 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 if the 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 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."
said decision has been referred to by this Court, with approval, in Jaswant
Singh v. State of Punjab [AIR 1958 SC 124].
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, 1947
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 to have been paid to the accused was actually recovered from 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, therefore, does not arise at this
R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183] following Mohd. Iqbal Ahmed
(supra), this Court held:
Legislature advisedly conferred power on the authority 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 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 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 prima facie 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 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 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."
Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622], this Court held:
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 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
also State of T.N. v. M.M. Rajendran, (1998) 9 SCC
Our attention, however, was drawn to a recent decision of this Court in Prakash
Singh Badal and Another v. State of Punjab and Others [(2007) 1 SCC 1] 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 irregularities, the
court would not set aside an order of conviction.
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 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:
The effect of sub-sections (3) and (4) of Section 19 of the Act 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.
the "failure of justice" is relatable to error, omission or
irregularity in the sanction.
mere error, omission or irregularity in sanction is (sic not) considered fatal
unless it has resulted in failure 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 to
grant sanction and not whether sanction is necessary."
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 the said
decision cannot be said to have any application in the instant case.
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:
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 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 a
subsequent stage. We cannot therefore accede to the request to postpone a
decision on this question."
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 so. PW-8 also did
not have the occasion to consider the records except the purported report.
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. The appeal is