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2025 Supreme(Ker) 799
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.G. AJITHKUMAR, J.
State of Kerala - Petitioner
Versus
Reji S. S/o Sathyanath - Respondent
Crl. M.C. No. 378 of 2022
Decided On : 03-04-2025
Advocate Appeared:
For the Appellant : SMT REKHA S, SR PUBLIC PROSECUTOR SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
For the Respondent: BY ADVS. G.SUDHEER R.HARIKRISHNAN
IMPORTANT POINT
Sanction to prosecute an approver under Section 308(1) must be sought on the judicial side, and prosecution is unwarranted without evidence of false testimony.
Headnote:
(A) Code of Criminal Procedure, 1973 - Section 308(1) - Sanction to prosecute an approver - The petitioner sought sanction to prosecute the respondent for giving false evidence after being an approver in a corruption case - The Special Court found it expedient to proceed against the respondent, but the High Court ruled that the prosecution lacked sufficient grounds for sanction. (Paras 1 - 21 )
(B) Judicial vs. Administrative Jurisdiction - The High Court clarified that sanction for prosecuting an approver must be sought on the judicial side, not administrative. (Paras 4 - 4 )
(C) Conditions of Pardon - The court emphasized that an approver must comply with the conditions of the pardon, failing which prosecution is warranted under Section 308(1). (Paras 6 - 6 )
(D) Expediency of Prosecution - The court found that the prosecution for giving false evidence was uncalled for due to the absence of a finding of false evidence by the trial court. (Paras 20 - 21 )
ORDER :
1. The State is the petitioner. The petitioner seeks sanction to prosecute the respondent as provided in sub-section (1) of Section 308 of the Code of Criminal Procedure, 1973 (Code). The respondent was the 2nd accused turned approver in C.C.No.22 of 2014 on the files of the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram. He was examined as prosecution witness No.3. Alleging that he did not make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence involved in the case, the Additional Legal Advisor in charge of the prosecution submitted Annexure-F report before the Special Court certifying that the respondent was to be prosecuted both for the offence involved in the case as well as for giving false evidence.
2. The Special Court as per the order dated 12.02.2019, Annexure-G, found that it was expedient in the interest of administration of justice to proceed against the respondent as provided in Section 308(1) of the Code. In pursuance of the said order, the Special Court submitted a report dated 25.03.2019 before this Court along with necessary documents seeking sanction as provided under the second proviso to Section 308(1) of the Code. The matter was considered on the administrative side of this Court. As per Annexure-H office memorandum dated 25.05.2019, the Registry of this Court instructed the Special Court to inform the prosecution that an application seeking sanction should be submitted by it on the judicial side. Accordingly, the State has filed this petition under Section 482 read with Section 308(1) of the Code.
3. Heard the learned Special Public Prosecutor (Vigilance) and the learned counsel for the respondent.
4. The question whether sanction to prosecute an approver under Section 308(1) of the Code has to be decided on the administrative side or the judicial side of the High Court has been a matter of discourse right from enacting the Code of Criminal Procedure, 1882 itself. As early as in 1897, this question was posed before the High Court of Calcutta. In Queen-Empress v. Manick Chandra Sarkar [(1897) ILR 24 Cal. 492], it was held that an application for sanction to prosecute an approver for giving false evidence should be made by a motion on behalf of the Crown in open Court, and not by a letter of reference by the trial court. That view was reiterated in a catena of decisions which followed. See: Crown v. Bulaka Singh [1904 (1) Cr. LJ 793]; Emperor v. Madiga Nallavadu [ILR (1909) 32 Mad. 47]and Emperor v. RajaS/o Ilm Din [1912 Cri. L.J 451]. The High Court of Delhi in State (CBI) v. Ranjeet Singh [2006 (87) DRJ 679] considered the said question in more detail. It was held that:
“3. ………… the sanction envisaged by the second proviso of Section 308(1) Cr.P.C. has to be necessarily on judicial side and not on administrative. Although the said judgment does not address this question, but having regard to the scheme of the Code of Criminal Procedure and that the entire investigation, prosecution and trial of the accused persons in this case is governed by the provisions of the Code of Criminal Procedure and that the pardon to the approver was granted under the provisions of Code of Criminal Procedure and it is proposed to try the said approver for the offence of perjury in terms of the provisions of Section 308(1), this Court has no hesitation in holding that the jurisdiction which the High Court exercises under the second proviso of Section 308(1) Cr.P.C. is necessarily a jurisdiction on judicial side. Therefore, I see no force in the objection of the learned counsel for the respondent.”
The preponderance of the judicial opinion therefore has been to the effect that sanction for prosecuting an approver for giving false evidence as contemplated in the second proviso to Section 308(1) of the Code shall be applied by submitting an application by the prosecution on the judicial side of the High Court.
5. The question next arises for consideration
