1999 Supreme(SC) 1175

1999(8) Supreme 490
Supreme Court of India
(From Punjab & Haryana High Court)
K.T. Thomas and M.B. Shah, JJ.
Central Bureau of Investigation etc. -Appellants
versus
V.K. Sehgal & Anr. -Respondents
Criminal Appeal No. 1059 of 1999
(Arising out of SLP (Crl.) No. 96 of 1999)
With
Criminal Appeal No. 1060 of 1999
(Arising out of SLP (Crl.) No. 144 of 1999)
Decided on 8-10-1999
Counsel for the Parties :
For the Appearing Parties : Altaf Ahmed, Additional Solicitor General, R.K. Jain, Sr. Advocate, T.C. Sharma, (Ms. Sushma Suri) Advocate for P. Parmeswaran, (Mahabir Singh) Advocate (NP), (Aseem Mehrotra) Advo­cate for Ugra Shankar Pd., Advocates.

Very Important points
1. It is not open to the Court of appeal to reverse a conviction and sentence passed by the trial Court on the mere premise that there was no valid sanction to prosecute.
2. While dealing with appeal filed against conviction and sentence of any offence under the prevention of Corruption Act, 1947, no such conviction and sentence shall be altered or reversed merely on the ground of absence of sanction, much less on the ground of want of competency of the authority who granted the sanction.

Headnote:Prevention of Corruption Act, 1947-Section 5(2) r/w Section 6-Indian Penal Code, 1860-Section 161 - Conviction under-Reversal by High Court on ground that there was no valid sanction to prosecute-Unsustain­able - In view of Section 465 of Cr.P.C. unless failure of justice had been occasioned appellate/revisional Court debarred from reversing conviction and sentence-Further, question of proper sanction not raised before trial Court-Same could not be raised for first time in High Court-Prosecution though launched under 1947 Act trial continued under Prevention of Corruption Act, 1988 -Section 19(3) is attracted-Conviction and sentence cannot be reversed even on ground of absence of sanction.

       Held : A Court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the Court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objec­tion at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court. (Para 10)

       In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making judicial scrutiny of the entire materials. If that case ends in con­viction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public serv­ant, because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure. (Para 11)

       That apart, there is now another trammel on the appellate powers. It must be remembered that the need for a valid sanction for prosecu­tion was incorporated in Section 6 of the Prevention of Corruption Act, 1947 (it will hereinafter be referred to as ‘the 1947 Act’). The present prosecution was launched under the said Act, but by the time the case reached final stage in the trial Court, the 1947 Act was repealed by Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the 1988 Act’) which came into force on 9.9.1988. The prosecu­tion and the trial thereafter continued by virtue of sub-section (2) of Section 30 of the 1988 Act. Under Section 27 of the 1988 Act the powers of appeal and revision of the High Court conferred by the Code of Criminal Procedure shall be “subject to the provisions of” the 1988 Act. It is worthwhile to notice that a trammel has been imposed on a Court of appeal and revision under Section 19(3)(a) of the 1988 Act. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a Court of appeal or revi­sion even “on the ground of the absence of sanction” unless in the opinion of that Court a failure of justice has been occasioned there­by. By adding the Explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional Courts are debarred from interfering with the conviction and sentence merely on that ground. It is a further inroad into the powers of the appellate Court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. (Paras 12, 16 & 17)

       Thus the legal position to be followed, while dealing with the appeal filed against the conviction and sentence of any offence men­tioned in 1947 Act, is that no such conviction and sentence shall be altered or reversed merely on the ground of absence of sanction, much less on the ground of want of competency of the authority who granted the sanction. (Para 18)

       Held, consequently, the High Court committed an error in setting aside the conviction and sentence passed on the accused, on the ground of want of a valid sanction to prosecute. Hence we quash the impugned judgment of the High Court and remit the matter to the High Court for disposal afresh of the appeal preferred by the accused before it, in accordance with law. (Para 19)