Questions and answers on law (Part 86)

Q :-  Whether Sanction for all offences  under corruption  act is required , for which offences  sanction is not required? How sanction for prosecution in proved in cases under prevention of corruption act

Ans:- 1) Is sanction required for all PC Act offences?

No. Sanction under Section 19 PC Act is required only when the accused is a “public servant” and the court is taking cognizance of specified PC Act offences (bribery/criminal misconduct etc.) and the person is still covered as a public servant at the relevant time.

2) For which situations/offences sanction is not required?

Print Page

Questions and answers on law (Part 85)

Q :- explain me procedure  of raid under  prevention of corruption  Act? 

Ans:-  A “raid” under the Prevention of Corruption Act is usually a trap/raid for bribe (Sections 7/8/12 PC Act) conducted by ACB/CBI, and the procedure is essentially the standard trap protocol plus statutory requirements on investigation and sanction.

Trap/Raid procedure (stepwise)

1. Complaint & verification

Print Page

Bombay HC: Whether prosecution must prove sanction for prosecution even though advocate for accused has admitted it?

 The defence has admitted the sanction to prosecute the appellant. However, even though the sanction order passed by the sanctioning authority to prosecute the appellant is admitted, the prosecution is still duty-bound to prove that the sanctioning authority had applied its mind while according sanction. It is against the safeguard of Article 311 of the Constitution of India and also against Section 19 of the PC Act. Even though the said sanction order has been admitted by the defence, it is well established that an Advocate appearing for the accused has no authority to admit any document contrary to the interest of the accused. Advocate is not appointed to give admission on behalf of accused contrary to law. As per provision of Section 58 of the Indian Evidence Act, 1872, now Section 53 of the Bharatiya Sakshya Adhiniyam, 2023, though there is admission of fact, the Court may require proof of it. The prosecution in such case is duty-bound prove a mandatory requirement of Section 19 that sanctioning authority applied mind while according sanction and such admission of document is not substitute to it. Mere admitting the document is not sufficient and proving the fact that the mind was applied by the sanctioning authority while according sanction, is mandatory requirement of law. Such admission does not dispense with proof. It must be fulfilled. In this case, the prosecution has failed to prove that the sanctioning authority applied its mind and then accorded the sanction to prosecute the appellant. Thus, sanction to prosecute the appellant is not proved. {Para 9}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 76 of 2018

Decided On: 05.12.2025

Sharad Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Sanjay A. Deshmukh, J.

Citation: MANU/MH/9292/2025.

Print Page

Delhi HC: Chargesheet Filed under S.187(3) BNSS Without Obtaining Sanction To Prosecute Under Arms Act Not Incomplete, No Default Bail

 Further, the Supreme Court in the case of Judgebir Singh v. NIA, MANU/SC/0501/2023 : 2023:INSC:472 : (2023) 17 SCC 48 referred to the judgment in Suresh Kumar (supra) and held that a chargesheet filed without sanction cannot be treated as an incomplete chargesheet and does not entitle an accused to a default bail as contemplated under Section 167(2) of the CrPC [now Section 187(3) of the BNSS]. 

"45. We find no merit in the principal argument canvassed on behalf of the appellants that a charge-sheet filed without sanction is an incomplete charge-sheet which could be termed as not in consonance with sub- section (5) of Section 173CrPC. It was conceded by the learned counsel appearing for the appellants that the charge-sheet was filed well within the statutory time period i.e. 180 days, however, the court concerned could not have taken cognizance of such charge-sheet in the absence of the orders of sanction not being a part of such charge-sheet. Whether the sanction is required or not under a statute, is a question that has to be considered at the time of taking cognizance of the offence and not during inquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that cognizance is taken of the offence and not of the offender. It cannot be said that obtaining sanction from the competent authorities or the authorities concerned is part of investigation. Sanction is required only to enable the court to take cognizance of the offence. The court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed. Taking cognizance is entirely different from completing the investigation. To complete the investigation and file a final report is a duty of the investigating agency, but taking cognizance of the offence is the power of the court. The court in a given case, may not take cognizance of the offence for a particular period of time even after filing of the final report. In such circumstance, the accused concerned cannot claim their indefeasible right under Section 167(2)CrPC for being released on default bail. What is contemplated under Section 167(2)CrPC is that the Magistrate or Designated Court (as the case may be) has no powers to order detention of the accused beyond the period of 180 days or 90 days or 60 days as the case may be. If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on bail under the proviso to Section 167(2)CrPC. {Para 36}

46. Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the court. Section 173CrPC does not speak about the sanction order at all. Section 167CrPC also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order.

 IN THE HIGH COURT OF DELHI

Bail Appln. 1713/2025

Decided On: 25.06.2025

Suraj Kanojia Vs. State Govt of Nct of Delhi

Hon'ble Judges/Coram:

Tejas Karia, J.

Citation: MANU/DE/4621/2025.

Print Page

Bombay HC: Right to seek default bail in MCOCA case will arise next day after sanction to prosecute is refused by competent authority

 The issue can be examined from a different angle. If we assume for the sake of argument that the effect of the order refusing sanction to prosecute the accused as amounting to not disclosing of any offence under the MCOC Act, the further consequence thereof would, at the most, be that the custody extension order will cease to have any effect at the end of the day on which sanction is refused and till that day, the extension order would have to be held as valid. Even from this view point, the petitioners are not entitled to be released on default bail as the essential condition required for accrual of indefeasible right under Section 167(2) of Cr.P.C. to the petitioners is not fulfilled. This can be seen from the facts available on record, which show that charge-sheet has been filed on 22/08/2022 and on the same day, the application under Section 167(2) of Cr.P.C. was moved by the petitioners. Of course, it is the contention of the learned Counsel for the petitioners that the application of the petitioners was filed about 30 minutes before the charge-sheet was filed and, therefore, their application was first in point of time and as such there was an accrual of right of default bail to the petitioners. The argument, in our view, is really not relevant for deciding the controversy involved in the petition. The reason being that, the day on which sanction was refused by the authority, would have to be considered to be the day on which the extended period of custody expired and, therefore, the right to seek default bail would arise on the immediate next day. It also means that when sanction is refused, as for example on Monday, this day of Monday would be the last day on which extended period of custody would come to an end, though in normal circumstances it would have expired later, and therefore, the Investigating Officer would have to take care that he files the final report on that day or otherwise he risks the grant of default bail to the accused. This is because of the fact that the provisions made under Section 167(2) of Cr.P.C. speak not in terms of hours, minutes and seconds, but only in terms of number of days completed. For the purpose of ascertaining as to when the period of authorized custody comes to an end, it is only the number of completed days, which is relevant and not the time at which the event having the effect of rendering the custody as unauthorized took place. {Para 21}

22. If we examine the issue from the above alternative, which we have proposed only by way of assumption and for the sake of argument, still the petitioners cannot be said to be fulfilling the essential requirement of Section 167(2) of Cr.P.C. in order to avail of right of default bail. The application under Section 167(2) of Cr.P.C. was filed by them on 22/08/2022 and that was the day when the sanction to prosecute the petitioners was refused. It was thus the day which became the last day of their authorized custody, which was otherwise extended up to 23/08/2022. Therefore, the right to avail of default bail in terms of Section 167(2) of Cr.P.C. really arose in their favour only from 23/08/2022.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 817 of 2022

Decided On: 23.12.2022

Naresh and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.B. Shukre and M.W. Chandwani, JJ.

Author: M.W. Chandwani, J.

Citation: MANU/MH/4539/2022.

Read full judgment here: Click here.

Print Page

Bombay HC: Refusal Of Sanction To Prosecute under MCOCA Does Not Invalidate Extension Of Judicial Custody Given By Special Court

A question remains, whether or not refusal of sanction by the A.D.G.P. under the provisions of the MCOC Act by itself will invalidate the grant of extension of period up to 180 days and would automatically reduce the judicial custody remand to it's original period of 90 days, especially when the extension had been granted under a judicial order, not challenged by the petitioners. It is to be noted the investigation for an offence and cognizance of the offence under the provisions of MOCC Act are governed by Section 23 of the MCOC Act, which are reproduced here. {Para 6}

"23. Cognizance of, and investigation into, an offence-

(1) Notwithstanding anything contained in the Code,-Section 167

(a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.

(2) No. Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police."

17. It is worthy to note here that the power to extend the period to complete the investigation up to 180 days is exercised under Section 167(2) of Cr.P.C. by invocation of provisions made under Section 21 of the MCOC Act and whereas power to grant or refuse sanction to prosecute has it's source in Section 23 of the MCOC Act. Former power is exercised by the Court and latter power by a Police Officer. Objects of both kinds of powers are different. Custody extension is done for, inter alia, ensuring effective and speedy investigation, without any hindrance, while sanction is necessary to enable the Special Court to take cognizance of an offence under the MCOC Act, which is disclosed by the charge-sheet. In other words, former power exists for facilitating the investigation, while the latter power is to facilitate trial of the accused. Thus, both these powers operate in different fields. After considering the magnitude of the investigation required in a particular case, the Special Judge enables in depth investigation by extending custody period, and whereas, there is an embargo created by Section 23(2) of the MCOC Act on the cognizance taking by the Special Court without previous sanction of the A.D.G.P. The purpose of incorporating such embargo is to provide double filter before roping in anybody under the stringent provisions of law.

18. Thus, extending further time of 90 days for completing the investigation by the Special Judge is one thing and giving sanction by the A.D.G.P. is a different thing. Once, the Special Court after giving reasons has extended the period of investigation up to 180 days, the refusal of sanction will not take away the extended period of 90 days granted by the Special Court or even curtail the extended period granted by the Special Court. The detention here was authorized by a legal order of the Court under Section 21(2)(b) of the MCOC Act, after considering the material then available with police and with reasoned order and it was never challenged and, therefore, it became a final order. The detention of the petitioners after 90 days thus can not be said to be unauthorized detention.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 817 of 2022

Decided On: 23.12.2022

Naresh and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.B. Shukre and M.W. Chandwani, JJ.

Author: M.W. Chandwani, J.

Citation: MANU/MH/4539/2022

Print Page

Supreme court: Sanction U/S S. 19 PC Act is Not Vitiated Due To Minor Edits In Draft Sanction Order Without Affecting Substance

 If a draft order is placed before the sanctioning authority and he is satisfied that nothing needs to be added/deleted therefrom, the grant of sanction cannot be faulted merely on the ground of absence of addition of words to/deletion of words from the draft. We have noticed that PW-3 made four minor corrections to ensure that the substance conforms to the form in which the sanction was required to be given, without altering the substance (i.e. the contents). That there has been a complete absence of application of mind by PW-3 is, thus, not proved; also, that there has been a failure of justice, has not been shown. On facts, we are satisfied that there has been no irregularity, far less illegality, in grant of sanction. We are, thus, not even required to invoke provisions of Section 465, Cr. PC.

 {Para 14}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2025

[ARISING OUT OF SLP (Crl.) NO. 13997 OF 2024]

DASHRATH Vs THE STATE OF MAHARASHTRA 

Author: DIPANKAR DATTA, J.

Dated: APRIL 24, 2025.

Citation: 2025 INSC 654.

Print Page

Supreme Court: What is Reasonable Connection Test with reference to S.197 CrPC?

 Interpretation of "Official Duty" - Reasonable Connection Test - Excess of Duty - Quality of the Act - The expression “acting or purporting to act in the discharge of official duty” must be interpreted to strike a balance—construing strictly for the scope of duties but liberally for the nature of the act once connected to official responsibilities. For Section 197 to apply, there must be a direct and reasonable connection between the alleged act and the official duty, such that the public servant can reasonably claim the act was performed in virtue of their office. Acts exceeding official duties may still attract protection if a reasonable nexus exists between the act and the official capacity. The quality of the act must be evaluated. An opportunity provided by an official position does not suffice unless the act is integrally connected to official duties.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 5267-5268 of 2024.

Decided On: 13.12.2024

Om Prakash Yadav Vs. Niranjan Kumar Upadhyay and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/1335/2024

Print Page

Supreme Court set aside quashing of proceeding under Prevention of Corruption Act due to error in sanction for prosecution saying it is matter of evidence

 In the instant case, it appears that the petition for quashing of Sanction Order was filed by the Respondent after the trial court framed the charge and commenced the trial, rather after the prosecution examined five witnesses. It is pertinent to note that whether the Sanction has been granted by the competent authority or not, would be a matter of evidence. Further, as per the Explanation to Sub-section (4), for the purpose of Section 19, error includes "competency of the authority to grant Sanction." Therefore, in view of the settled legal position, the High Court should not have quashed the Sanction Order and the consequent proceedings, unless it was satisfied that the failure of justice had occurred by such error or irregularity or invalidity. There is not a whisper in the impugned order about any failure of justice having occurred on account of the impugned Sanction Order. The High Court also should not have entertained the petition for quashing the Sanction Order when the prosecution had already examined seven witnesses. {Para 8}

9. In that view of the matter, we are of the opinion that the High Court has committed gross error in quashing the Sanction Order and the consequent proceedings vide the impugned order.

11. As stated earlier, whether the Sanction Order was passed by the competent authority or not, would be a matter of evidence to be proved by the prosecution during the course of trial.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 104 of 2025 (Arising out of SLP (Criminal) No. 9114/2019)

Decided On: 07.01.2025

The State of Punjab Vs. Hari Kesh

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Citation:  MANU/SC/0045/2025,2025 INSC 50.

Print Page

Bombay HC: The Magistrate and Sessions courts must apply their mind before taking cognizance of offence against an accused

 The orders are not required to be passed without application of mind and mechanically even by a Sessions Judge. Thereafter, in the present matter on 04.04.2019 there is order by learned District Judge-4/Additional Sessions Judge for issuance of process against the accused. It is to be noted that Section 14 of the Atrocities Act came to be amended with effect from 26.01.2016 and it made provision for power to take cognizance of the offence directly to the Special Court. Meaning thereby, there was no necessity of committal of the case by Judicial Magistrate First Class. In other words, the Investigating Officer was supposed to file the charge sheet directly before the Special Court established under the Atrocities Act and thereupon such Court was empowered to take cognizance directly of the offences under the Atrocities Act. Here, in this case, no such procedure has been adopted. In fact, we deprecate use of stamp for the orders of taking cognizance. Because taking of cognizance of an offence, involves the process of application of mind and it should be specifically mentioned for which offences the cognizance has been taken. There might be such circumstances that some of the offences are not made out though the Investigating Officer mentions it in charge sheet. Here, there is no such detailed order, but we take that the cognizance has been taken in respect of offence under Section 295-A, 153-A of the Indian Penal Code and Section 3(v) of the Atrocities Act. Learned District Judge-4 (it ought to have been ‘Special Judge, under the S.C. & S.T. Act’) had not even considered the point of sanction under Section 196 of the Code of Criminal Procedure at the time of taking cognizance. 

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 CRIMINAL APPLICATION NO.2375 OF 2019

Dnyaneshwar Rohidas Wakale, Vs   The State of Maharashtra

CORAM : SMT. VIBHA KANKANWADI &

S.G. CHAPALGAONKAR, JJ.

DATE : 19th SEPTEMBER, 2024

Citation: 2024:BHC-AUG:22690-DB

ORDER : (PER : SMT. VIBHA KANKANWADI, J.).

Read full Judgment here: Click here.

Print Page

Bombay HC: Officers Appointed To Assess Electricity Theft Are 'Public Servants', Court Can't Issue Process Against Them Without Sanction U/S 197 CrPC

 Section 169 of the Electricity Act, 2003 which defines the term public servants in pursuance to Section 21 of the Indian Penal Code includes the servants or the employees under Section 126 of the Electricity Act, 2003. As discussed above, the Board has authorized various officers including the Junior Engineers and linemen to detect the theft. Hence, they are covered under the definition of public servants in Section 169 of the Electricity Act, 2003. Therefore, the Court is of the view that the learned Judicial Magistrate First Class erred in issuing the process against the petitioners without sanction as required under Section 197 of the Criminal Procedure Code. This issue was not dealt with at all. The impugned order also does not reflect the application of mind. Hence, the petition deserves to be allowed. {Para 22}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 744 OF 2008

 Syed Naeemuddin S/o Syed Khaja, Vs The State of Maharashtra.

 CORAM : S.G. MEHARE, J.

PRONOUNCED ON : SEPTEMBER 12, 2024.

Print Page

Important provisions of Maharashtra Control of Organised Crime Act, 1999

 1. Short title, extent and commencement.—(1) This Act may be called the Maharashtra Control of Organised Crime Act, 1999.

 Received the assent of the Governor on 23rd April, 1999 and published in the Maharashtra Government Gazette Extraordinary, Part-IV, dated 24th April, 1999.

(2) It extends to the whole of the State of Maharashtra.

2. Definitions.—(1) In this Act, unless the context otherwise requires,—

(d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge-sheets have been field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

Print Page

Bombay HC: Bar contained in S. 197, CrPC cannot be read into the provisions of a special legislation like SC/ST Atrocities Act

 The net result would be that when by virtue of explanation to Sub-Section 1 of Section 197 of the Code of Criminal Procedure, no previous sanction is required in respect of the offence punishable under Section 509 and when even no such sanction is required in respect of offence under the Atrocities Act, the perception of the Investigating Officer in treating the impugned decision as preventing him from filing any report and the stand of the State to that effect is grossly erroneous and unsustainable in law. When no previous sanction is required for carrying out investigation and filing a final report in respect of offence punishable under Section 509 of the Indian Penal Code and Section 3 of the Atrocities Act, the Investigating Officer is under statutory duty to submit a final report before the Special Court and the latter would not be debarred from taking cognizance thereof for want of sanction or because of the decision, not to accord the sanction. {Para 21}

24. In view of the above, we allow the writ petition partly as

under :

i. It is declared that no previous sanction as contemplated

under Section 197 would be necessary for carrying out

investigation and filing a final report in respect of offence

punishable under Section 509 of the Indian Penal Code and

Section 3 of the Atrocities Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.1401 OF 2021

Dr. Rekha w/o Gowardhan Gaikwad Vs  The State of Maharashtra

CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.

PRONOUNCED ON: 11.06.2024

Print Page

Whether the appellate or revisional court should reverse any finding on account of any irregularity in sanction for prosecution if accused has not raised objection in that respect in the trial court?

 Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as if the Accused can, after an unreasonable delay, raise an issue about the sanction; but if that Accused does so, the court may not decide that issue both at the appellate stage as well as for the purposes of stay of the proceedings. {Para 66}

67. In Central Bureau of Investigation v. V.K. Sehgal   MANU/SC/0650/1999 : (1999) 8 SCC 501 it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the Accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. It was held in paragraphs 10 and 11 of the Report as under:

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......

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 a 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

Print Page

Whether the court should acquit an accused for an offence under the Prevention of Corruption Act if there is not valid sanction for prosecution?

 The respondent/accused was appointed by the Secretary to the Government of Maharashtra vide appointment letter dated 27th September 1995. The sanction for prosecution has been granted by PW4, Under Secretary to the State of Maharashtra. PW4 in his cross-examination has admitted that he was 5th in the hierarchy after Principal Secretary, Secretary, Joint Secretary and Deputy Secretary. He also admitted that as per the Government Rules, only the appointing authority is empowered to remove the Government Servant. He admitted that he has not seen the appointment letter by which the respondent/accused was appointed by the Secretary to the State of Maharashtra. He in his cross-examination also admitted that in case of minor offences, sanction of prosecution should not be granted and departmental inquiry should be ordered. He admitted that he did not call for any papers relating to the matter nor did he put the note to the superior officer before granting the sanction to prosecute the respondent/accused. Let me now examine based on these facts, whether sanction was obtained from competent authority under Section 19 of the P. C. Act. Section 19(1)(b) of the P. C. Act provides that in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the State Government, the sanction for prosecution should be granted by the State Government and Section 19(1)(c) provides that in the case of any other person, the sanctioning authority would be the authority competent to remove the accused from his office. In the instant case, PW4-Under Secretary has admitted that the appointing authority of the respondent/accused is the Principal Secretary. If that be so, then under Section 19, the power to remove the respondent/accused would be with the Principal Secretary and, therefore, it is the Principal Secretary, who was supposed to sanction the prosecution under Section 19 and not the Under Secretary and, therefore, on this count, the prosecution should not have been initiated under the P. C. Act without obtaining the sanction of the appropriate authority. Therefore, the sanction having not been obtained by the competent authority, the impugned judgment acquitting respondent/ accused does not call for any interference. The view taken by me is supported by a decision of the Co-ordinate Bench of this Court in the case of State of Maharashtra Vs. Ramchandra Sudam Ingale 2008 SCC Online Bom 1765 and Gopal Vs. State of Maharashtra 2010 SCC Online Bom 600.

{Para 5}

6. PW4 in his cross-examination has also admitted that he did not call for any papers relating to the matter nor had he discussed this issue with his superior before granting the sanction. PW4 has thereby admitted that he has not applied his mind to the facts of the case before granting the sanction. Therefore, even on this count, the sanction granted by the Under Secretary (assuming he is empowered) is without application of mind and, therefore, such a mechanical sanction does not pass the test of Section 19 of the P. C. Act for launching the prosecution.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1301 of 2012

Decided On: 03.10.2023

The State of Maharashtra Vs. Anil Kacharu Shinde

Hon'ble Judges/Coram:

Jitendra Jain, J.

Citation: MANU/MH/3982/2023.

Read full Judgment here: Click here

Print Page

Whether the court can refuse to draw presumption of Corruption if sum involved is trivial?

The Advocate for the respondent/accused brought to my attention the evidence of PW3, Inspector ACB, wherein, PW3 in her cross-examination has stated that she was aware that there is a Government G.R., which states that if the bribe amount is up to Rs. 100/-, it is considered as trivial amount. On a query raised by me to produce such a G.R., neither the Advocate for the respondent/accused nor the Advocate for the appellant could produce the same. However, provisions of Section 20 of the P. C. Act gives an indication about dealing with trivial matters. Section 20(1) of the P. C. Act provides that if in trial punishable under Sections 7, 11, 13(1)(a) or 13(1)(b) the charges are proved then it shall be presumed that the accused with a motive or reward or for inadequate consideration has accepted gratification etc. Similar presumption appears in Section 20(2) with regard to trial of offence under Sections 12 or 14(b) of the P. C. Act. However, Section 20(3) of the P. C. Act provides that if gratification etc. is trivial then no interference of corruption may be drawn. Section 20(3) of the P. C. Act gives a clue that in case of trivial matter, the court may refuse to draw the presumption of corruption. Therefore, the issue to be examined is whether the offence in the facts of the present case is trivial. In the instant case, the allegation is acceptance of bribe of Rs. 100/-in the year 2007. The amount appears to be too small in the year 2007 and moreso, in the year 2023 when the appeal is being heard against the acquittal. Therefore, assuming that the appellant-complainant is able to prove the charges, (although, I have already held that they have failed to prove the charges), in my view after considering quantum at the relevant time this could be a fit case to be treated as a trivial matter to uphold the acquittal order. In this connection, it is relevant to note the decision of this High Court in Bhagwan Jathya Bhoir Vs. State of Maharashtra MANU/MH/0144/1991 : 1992 (11) L.L.N 505 (Criminal Appeal No. 253 of 1984). Wherein, the Court observed that in case of trivial matter, the provisions of the P. C. Act should not be invoked, but a departmental proceeding could have been initiated. In the said case before the Coordinate Bench, the amount involved was Rs. 30/-and the appeal came to be decided in the year 1991. Applying the ratio of the said decision to the facts of the present appeal before me, the amount of Rs. 100/-can be considered as a trivial amount, so as to not to call for any interference in the order of acquittal. I, further draw support from the decision of Coordinate Bench of this Court in Hanmantappa Murtyappa Vijapure through L.R. Vs. State of Maharashtra MANU/MH/0297/2004 : 2004 (3) M.L.J. 410, where the Court considered bribe of Rs. 150/-as trivial for launching criminal prosecution and the appropriate action could have been departmental inquiry. The discussion made herein is only for the purpose of non-interference in acquittal order and not to be construed that the charges have been proved against the respondent/accused. {Para 10}

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1301 of 2012

Decided On: 03.10.2023

The State of Maharashtra Vs. Anil Kacharu Shinde

Hon'ble Judges/Coram:

Jitendra Jain, J.

Citation: MANU/MH/3982/2023.

Print Page

Is it possible for the court to convict the accused based on a signature comparison if the original signature is not available?

The High Court fortunately realised the pitfall in the reasoning of the Trial Court. But in an over-anxiety to somehow convict A-7, the High Court adopted a very peculiar route, namely that of undertaking the task of comparing the admitted signatures/ handwritings with the disputed ones Under Section 73 of the Evidence Act. {Para 130}

131. For invoking Section 73, there must first have been some signature or writing admitted or proved to the satisfaction of the Court, to have been written or made by that person. The Section empowers the Court also to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures.

132. There was no signature or writing available before the High Court, which had been admitted or proved to the satisfaction of the Court to have been written or made. The High Court did not also direct A-7 to write any words or figures for the purpose of enabling a comparison. Without following the procedure so prescribed in Section 73, the High Court invented a novel procedure, to uphold the conviction handed over by the Trial Court through a wrong reasoning.

133. In fact, the High Court considered Exhibit P-75 to be the document containing the admitted handwritings and signatures of A-7 and compared what was found therein with the handwritings/signatures found in Exhibits P-66, P-76, P-90 and P-92.

134. But what was contained in Exhibit P-75 was never admitted by A- 7 to be in his handwriting. Exhibit P-75 was marked through PW-30, the handwriting expert, and not even by the I.O. At least if the I.O. had identified and marked the specimen writings and signatures of A-7 as Exhibit P-75, it was possible for the prosecution to contend that the specimen signatures stood proved. But the I.O. did not identify Exhibit P-75. PW-30 through whom Exhibit P-75 was marked did not directly obtain the specimen writings of A-7. The statement of PW-30 that the specimen writings of A-7 are in Exhibit P-75 was only hearsay evidence, as he did not directly obtain those specimen signatures. Thus, Exhibit P- 75 never stood proved.

135. Even in the questioning Under Section 313 of the Code, no specific question was put to A-7 whether Exhibits P-66, P-76, P-90, P-92 and P- 75 were in his handwritings and whether they contained his signatures. Therefore, what was contained in Exhibit P-75 was not even admitted signatures.

136. In the absence of either admission or proof of the admitted signatures, the High Court could not have resorted to Section 73 of the Evidence Act.

137. In view of the above, the finding recorded by the Trial Court and the High Court as though A-7 committed forgery and cheating by making applications for the issue of demand drafts in the names of bogus firms is wholly unsustainable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu  Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation: MANU/SC/0723/2023.

Read full Judgment here: Click here

Print Page

Whether Magistrate should examine approver if special court has directly taken cognizance of an offence under the Special Act?

 But in cases where a Special Court itself is competent to take cognizance and also empowered to grant pardon, the procedure Under Section 306 of the Code gets by-passed, as held by this Court in State through CBI v. V. Arul Kumar MANU/SC/0632/2016 : (2016) 11 SCC 733. An argument was advanced in Arul Kumar (supra) (as seen from paragraph 20 of the Report) that Section 306 of the Code has no application to cases relating to offences under the PC Act. In support of the said argument, the decision in P.C. Mishra v. State (CBI) MANU/SC/0232/2014 : (2014) 14 SCC 629 was also relied upon. While dealing with the said contention, this Court held in Arul Kumar as follows:

21. Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the Accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed Under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable. Sub-section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned Counsel for the Respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N., MANU/SC/1851/1997 : (1997) 11 SCC 720 : 1998 SCC (Cri) 220]. In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment.{Para 74}

75. In other words, this Court recognised in Arul Kumar two types of cases, namely (i) those which come through the committal route; and (ii) those where cognizance is taken directly by the Special Judge Under Section 5(1) of the PC Act. In the second category of cases, the Court held that Section 306 of the Code would get by-passed.

76. Therefore, it is clear that when the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306(4)(a) does not arise. Shri Padmesh Mishra, learned Counsel for the Respondent is therefore right in relying upon the decisions of this Court in Sardar Iqbal Singh v. State (Delhi Administration) MANU/SC/0131/1977 : (1977) 4 SCC 536 and Yakub Abdul Razak Memon v. State of Maharashtra MANU/SC/0268/2013 : (2013) 13 SCC 1.

77. In Sardar Iqbal Singh (supra) the offence was triable by the Special Judge who also took cognizance. Therefore, there were no committal proceedings. Though Sardar Iqbal Singh arose under the 1898 Code, Sub-section (2) of Section 337 of the 1898 Code was in pari materia with Section 306(4)(a) of the 1973 Code. Therefore, the ratio laid down in Sardar Iqbal Singh was rightly applied in Yakub Abdul Razak Memon (supra) for coming to the conclusion that where a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu  Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation: MANU/SC/0723/2023.

Read full Judgment here: Click here

Print Page

Whether the Magistrate can take cognizance of the offence triable by the Special Court?

 Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the Accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed Under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable.{Para 21}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu  Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation: MANU/SC/0723/2023.

Read full Judgment here: Click here

Print Page

Sanction for Prosecution of Public Servants: Basic Principles from the Supreme Court

The principles emerging from the aforesaid decisions are summarised hereunder:

39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner.

39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection Under Section 197 Code of Criminal Procedure. There cannot be a universal Rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.

39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary Under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Code of Criminal Procedure would apply. {Para 39}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu  Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation: MANU/SC/0723/2023.

Print Page