IMPORTANT POINT
Section 319 Code could not be hold had preference/primary over section 19 of the Prevention of Corruption Act.

Headnote:Prevention of corruption Act, 1988—Section 19 —Criminal Procedure Code, 1973—Section 319— Impleadment of respondent No.2 as accused in exercise of power u/s. 319 code by trial court —Trial Court held that Section 319 over sides provisions of Section 19 of the Act — High Court was right to hold that trial court was not justified in holding that Section 319 Code got preference/primary over Section 19 of the Act - Question whether absence of sentenced occasioned failure of justice—Whether sanction was necessary or not has to be considered on factual scenario—Question of sanction would involve there aspects i.e. one relating to alleged law of jurisdiction & other relating to prejudice.
       Held : It appears that by order dated 22.3.1999 the Trial Court had impleaded two persons as accused nos. 2 and 3. We are concerned with accused no.2 i.e. respondent no.2. It appears from the order of the High Court that accused no.3 has expired and so there is no need for considering his case. While impleading the persons as accused nos. A2 and A3, the Trial Court had directed the Additional Legal Advisor to obtain sanction from the competent authority to prosecute them. When the matter was taken up on 12.4.1999, the Vigilance Legal Advisor took the stand that no sanction was necessary. The investigating officer had submitted a report recommending prosecution of accused nos. 2 and 3, but the sanctioning authority decided to sanction for prosecuting only A1, and names of A2 and A3 were deleted. During trial, material came to light showing alleged involvement of two other persons i.e. A2 and A3. In view of that situation, Section 319 of the Code was resorted to. The broader question as to whether sanction was at all necessary was not gone into.
       (Para 5)
       Held : Whether sanction is necessary or not has to be considered on the factual scenario. The question of sanction involves two aspects i.e. one relating to alleged lack of jurisdiction and the other relating to prejudice.
       It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties. Position is not so in case of Section 19 of the Act.
       The above aspect was highlighted in Lalu Prasad @ Lalu Prasad Yadav v. State of Bihar through CBI (AHD) Patna (2007 (1) SCC 49).
       Appeal is accordingly disposed of. (Para 9 to 12)

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single Judge of the Kerala High Court allowing the revision filed by the respondent no.2 in the present appeal who was the petitioner before the High Court. He had questioned correctness of the order passed by the Inquiry Commissioner and Special Judge, Trichoor, by which the prayer for his impleadment as accused in terms of Section 319 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) was accepted. By the said order the Trial Court had held that Section 319 of the Code overrides the provisions of Section 19 of the Prevention of Corruption Act, 1988 (in short the ‘Act’) and for exercise of power under the former provision, the only conditions required to be fulfilled are set out in sub-section (4) of Section 319 itself. The High Court felt that the view was not sustainable in view of what has been stated by this Court in Dilawar Singh v. Parvinder Singh alias Iqbal Singh and Anr.,1 (2005 (12) SCC 709). Accordingly, the order was set aside.

3.In support of the appeal, learned counsel submitted that the view taken by the High Court is not correct as the effect of sub-sections (3) and (4) of Section 19 of the Act has been lost sight of. There was no material to show that absence of sanction in any way occasioned failure of justice. It was also submitted that it is a case where no sanction was necessary because the alleged act did not form part of any official duty. There is no appearance on behalf of respondent no.2 in spite of service of notice.

4.As has been rightly held by the High Court in view of what has been stated in Dilawar Singh’s case (supra), the Trial Court was not justified in holding that Section 319 of the Code has to get preference/primacy over Section 19 of the Act, and that matter stands concluded. But the other stand of Mr. Colin Gonsalves, learned counsel, deserves consideration.

5.It appears that by order dated 22.3.1999 the Trial Court had impleaded two persons as accused nos. 2 and 3. We are concerned with accused no.2 i.e. respondent no.2. It appears from the order of the High Court that accused no.3 has expired and so there is no need for considering his case. While impleading the persons as accused nos. A2 and A3, the Trial Court had directed the Additional Legal Advisor to obtain sanction from the competent authority to prosecute them. When the matter was taken up on 12.4.1999, the Vigilance Legal Advisor took the stand that no sanction was necessary. The investigating officer had submitted a report recommending prosecution of accused nos. 2 and 3, but the sanctioning authority decided to sanction for prosecuting only A1, and names of A2 and A3 were deleted. During trial, material came to light showing alleged involvement of two other persons i.e. A2 and A3. In view of that situation, Section 319 of the Code was resorted to. The broader question as to whether sanction was at all necessary was not gone into.

6.At this juncture it would be appropriate to take note of what has been stated by this Court in Central Bureau of Investigation v. V.K. Sehgal and Anr.,2 (1999 (8) SCC 501). At para 10 it was stated, inter alia, as follows :

“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 s

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2007 Supreme(SC) 481

IMPORTANT POINTSection 319 Code could not be hold had preference/primary over section 19 of the Prevention of Corruption Act.

Cases Referred (4)

IMPORTANT POINT
Section 319 Code could not be hold had preference/primary over section 19 of the Prevention of Corruption Act.