1. Appeals challenging the validity of a sanction order under Section 20-A(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. (Para 1 )
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1998 Supreme(SC) 435
SUPREME COURT OF INDIA
M. M. Punchhi, CJI., K.T.Thomas, S.R.Babu, JJ.
Lal Singh
Versus
State Of Gujarat
Case No. : 219 of 1997, 244 , 294 , 407 , 409 of 1997
Date of Decision : 4/1/98
Irregularities in a sanction for prosecution are curable under Section 465 of the Code of Criminal Procedure and are ignorable if the objection was not raised at the earliest possible stage, unless such a defect resulted in a failure of justice.
Headnote:(A) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 20-A(2) and 14(3) - Code of Criminal Procedure, 1973 - Section 465 - Defective sanction order - Cognizance taken on basis of sanction order - Objection raised for the first time in appeal - Designated court under the Act has powers of a court of Session and follows the procedure prescribed in the Code - Section 465 of the Code cures errors, omissions, or irregularities in sanction for prosecution unless a failure of justice has in fact been occasioned - In determining failure of justice, the court shall consider whether the objection could and should have been raised at an earlier stage - Where objection was not raised during trial, mere error or irregularity in sanction becomes ignorable. (Paras 1-4)
Facts of the case:
The appellants challenged the validity of the sanction order on the basis of which the court had taken cognizance. This objection regarding the defects in the sanction order was not raised during the trial and was brought before the court for the first time during the appellate proceedings.
Findings of Court:
The court held that the objection to the sanction order would fail as the Designated court functions as a court of Session and is subject to the provisions of the Code of Criminal Procedure. Under Section 465 of the Code, irregularities in the sanction for prosecution do not vitiate the proceedings unless they result in a failure of justice, particularly when the objection could have been raised earlier.
Issues: Whether a trial is vitiated if the court takes cognizance based on a defective sanction order, and whether such a defect is curable under the Code of Criminal Procedure when the objection is raised for the first time in appeal.
Ratio Decidendi: An error or irregularity in the sanction for prosecution is ignorable under Section 465 of the Code of Criminal Procedure if the objection could and should have been raised at an earlier stage in the proceedings but was not, provided no failure of justice has occurred.
Result: Plea of defect in sanction not permitted; appeals referred to a two-member bench.
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2. Whether a trial is vitiated if the court took cognizance based on a defective sanction order under Section 20-A(2) of the TADA Act. (Para 1 )
3. The court observed the objection was not raised at trial and that Section 465 of the CrPC cures irregularities in prosecution sanctions. (Para 1 , 2 , 3 , 4 )
4. Errors or irregularities in prosecution sanctions are ignorable under Section 465 CrPC if the objection could and should have been raised at an earlier stage. (Para 3 , 4 )
5. Plea regarding defective sanction rejected; appeals referred to a two-member bench for consideration on merits. (Para 4 , 5 )
6. Does a defective sanction order under the TADA Act necessarily vitiate a trial?
No, because a Designated Court under the TADA Act has the powers of a court of Session, and errors or irregularities in the sanction for prosecution are curable under Section 465 of the Code of Criminal Procedure. (Para 2 , 3 )
7. When is an error or irregularity in a prosecution sanction considered ignorable under the Code of Criminal Procedure?
An error or irregularity in any sanction for prosecution is ignorable if the court determines that the objection could and should have been raised at an earlier stage in the proceedings but was not. (Para 3 , 4 )
8. What are the procedural powers of a Designated Court under the TADA Act?
A Designated Court possesses all the powers of a court of Session and is required to try offences in accordance with the procedure prescribed in the Code of Criminal Procedure for trials before a court of Session. (Para 2 )
(1) IN this set of appeals, one of the questions raised is whether in terms of Ss. (2 of Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the court having taken cognizance on a defective sanction order, the trial would vitiate? That there was a sanction order on the basis of which the court took cognizance is beyond dispute. The effort herein is to point out defects therein so as to render it invalid. This question was not raised at the trial. It is being raised here for the first time. We are not prepared to have it raised.
(2) EVEN otherwise, the objection would fail for what is provided under Ss. (3 of Section 14 of the Terrorist & Disruptive Activities (Prevention) Act, 1987. The provision reads as follows:
"14. (3 Subject to the other provisions of this Act, a Designated court shall, for the purpose of trial of any offence, have all the powers of a court of Session and shall try such offence as if it were a court of Session as far as may be in accordance with the procedure prescribed in the Code for the trial before a court of Session."
(3) SINCE for all purposes the Designated court is a court of Session to which the provisions of the Code of Criminal Procedure come to aid. Section 465 of the Code of Criminal Procedure falling in Ch. XXXV regarding irregular proceedings cures the defect. The provision reads as follows:
"465. Finding or sentence when reversible by reason of error, omission or irregularity.-(l) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
(2 In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
(4) SS. (2 makes it clear that when the objection could and should have been raised at an earlier stage in the proceeding and has not been raised, mere error or irregularity in any sanction of prosecution becomes ignorable. We therefore do not permit the appellants to raise the plea of defect in sanction.
(5) REGARDING the merit of the matter, we feel that these appeals should be placed before a two-member bench. Ordered accordingly. To be listed in due course.
