Prosecution Sanction – A Former Judge Pleads Guilty

What prompted me to make this unusual confession is the painful realization that a past verdict of mine in Antony Cardoza V. State of Kerala 2011 (1) KHC 377=2011(1) KLT 946=ILR 2011 (1) Kerala 503, has unfortunately been responsible for several unmerited acquittals at various levels of the judiciary including in the High Court of Kerala. Antony Cardoza, the first accused in that case along with another was prosecuted for offences punishable under Sections 13(2) read with 13(1)(c) of the Prevention of Corruption Act 1988 (“P.C Act for short”) and Sections 403 and 409 read with 34 IPC. The Special Judge (Vigilance) had convicted the first accused of the offences under the P.C. Act and Section 409 IPC. For the conviction under the P.C. Act, the first accused was sentenced to undergo rigorous imprisonment for two years and to pay a fine of rupees 10,000 and on failure to pay the fine, to suffer a default sentence. No separate sentence was awarded for the conviction under Section 409 IPC.

2. In the appeal before the High Court of Kerala Antony Cardoza challenged the conviction entered and the sentenced passed against him. The reported verdict of acquittal was passed by me. Besides the existence of other grounds for acquittal, the ground of want of proof of prosecution sanction was also highlighted by me in the said verdict. It was observed that the Under Secretary (of the Vigilance Department) who was examined as a witness in the case was incompetent to prove both the prosecution sanction as well as the independent application of mind by the Principal Secretary (Vigilance) who had issued the order of sanction in that case. The fact that the Principal Secretary (Vigilance) had not mounted the witness box, was a circumstance which was held against the prosecution. In this article I am concerned with the ground of acquittal recorded by me with regard to the prosecution sanction. Of late, I have perturbingly discovered that the observations of mine regarding prosecution sanction have unfailingly and pointedly been made use of by the Bar and sincerely upheld and followed by the Bench for recording unmerited acquittals in several cases. This has impelled me to reveal to the legal fraternity the misconception which I was laboring under when the above verdict was pronounced, so that, in future, the above aspect of the verdict should not be profitably used by the Bar or indiscreetly applied by the Courts to justify unmerited acquittals.

WHAT IS INDEPENDENT APPLICATION OF MIND ?

3. It is very often argued before Courts that there was no independent application of mind by the Sanctioning Authority. The application of mind by the appropriate Sanctioning Authority should be to the facts constituting the offence on which the proposed prosecution is to be based. What the Court has to examine is whether or not the Sanctioning Authority, at the time of giving sanction was aware of the facts constituting the offence and had applied its mind to the same. This could be proved in the Court by the prosecution in two ways; either

i) by producing the original sanction order which itself may contain the facts constituting the offence and the ground of satisfaction, or

ii) by producing evidence aliunde (from another source or from elsewhere) to show that the facts constituting the offence were in fact placed before the Sanctioning Authority and the requisite satisfaction was arrived at with reference to those facts. (vide- Madan Mohan Singh V. State of U.P AIR 1954 SC 637 ; Mohd. Iqbal Ahmed V. State of A.P (1979) 4 SCC 172=AIR 1979 SC 677; Ramesh Lal Jain V. Naginder Singh Rana (2006) 1 SCC 294=AIR 2006 SC 336)

In cases where the application of mind by the Sanctioning Authority to the facts constituting the offence is not discernible ex facie from the sanction order itself, I was under the mistaken impression that the Sanctioning Authority should himself come to the witness box and depose before Court with regard to the satisfaction arrived at by him in the case. I am afraid that I was wrong in my view. In law, it would be enough for the prosecution to show that the Sanctioning Authority had gone through all the relevant papers placed before him and he was satisfied that it was necessary in the ends of justice to accord prosecution sanction. While granting sanction it is not for the Sanctioning Authority to judge the truth of the allegations made against the accused by insisting on or calling for the records of the case. (vide- Indu Bhushan Chatterjee V. State of W.B AIR 1958 SC 148).

NO NEED TO EXAMINE THE SANCTIONING AUTHORITY

4. In paragraph 8 of State of M.P V. Jiyalal (2009) 15 SCC 72=AIR 2010 SC 1451 the Apex Court held as follows;

“ 8. It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the respondent to question the genuineness or the validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution”

(emphasis supplied)

Therefore, neither the defence nor the Court can insist that the prosecution should examine the Sanctioning Authority as a witness except probably in those rare cases where the identity of the Sanctioning Authority itself is in dispute. Resultantly, the non-examination in Court of the Authority who issued the sanction order cannot be a ground which can be raised against the prosecution. I was, therefore, wrong in finding fault with the prosecution for not examining the Sanctioning Authority as a witness in Court.

PROSECUTION SANCTION IS AN ADMINISTRATIVE ACT 

5. Grant of prosecution sanction is only an administrative act and is not a quasi-judicial function although it may result in the consequence of the accused being saddled with the liability to be prosecuted in a Court of law. That is why the Sanctioning Authority is not bound to give an opportunity of being heard to the delinquent / accused. (vide- K. Veeraswamy V. Union of India (1991) 3 SCC 655 -5 Judges; State of Bihar V. P.P. Sharma 1992 Supp (1) SCC 222=AIR 1991 SC 1260 ; State of Maharashtra V. Ishwar Piraji Kalpatri (1996) 1 SCC 542=AIR 1996 SC 722; Supdt.of Police (CBI) V. Deepak Chowdhary (1995) 6 SCC 225=AIR 1996 SC 186). 

DEFECTIVE SANCTION OR ABSENCE OF SANCTION NOT A VALID GROUND IN APPEAL OR REVISION AGAINST CONVICTION UNDER THE P.C. ACT 

6. Sub-sections (3) and (4) of Section 19 of the P.C.Act read as follows;

“ (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

• no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact being occasioned thereby;


• no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;


• no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. 

 (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

      Explanation – For the purposes of this section,-

• error includes competency of the authority to grant sanction;


• a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature ”

In State V. T. Venkatesh Murthy (2004) 7 SCC 763 ; CBI V. V.K. Schgal (1999) 8 SCC 501=AIR 1999 SC 3706 and in Ashok Tshering Bhutia V. State of Sikkim (2011) 4 SCC 402 the Hon’ble Supreme Court of India adverted to the above provisions of law to hold that in the absence of proof of any failure of justice or any error or illegality in the grant of sanction or even an omission to grant sanction shall not vitiate the conviction recorded by the Court below.

This aspect of the matter was also lost sight of by me while disposing of the appeal by Mr. Antony Cardoza.

THE DEFENCE OF DEFECTIVE SANCTION OR ABSENCE OF SANCTION IS A WEAK DEFENCE BOTH BEFORE THE TRIAL COURT AND THE APPELLATE OR REVISIONAL COURT 

7. The essentials of a valid sanction have been succinctly enumerated in paragraph 16 of Central Bureau of Investigation V. Ashok Kumar Aggarwal (2014) 14 SCC 295=AIR 2014 SC 827. A trial without prosecution sanction amounts to a trial without jurisdiction (vide- R.S. Nayak V. A.R. Antulay (1984) 2 SCC 183=AIR 1984 SC 684-5 Judges). When the cognizance itself is without jurisdiction for want of a valid sanction, the resultant trial also would be without jurisdiction. The absence of a valid sanction can be raised either before the trial Court or before the Appellate or Revisional Court and that too at any stage of the proceedings.

But where cognizance has already been taken and process issued under Section 204 Cr.P.C, the want of sanction cannot thereafter be raised before the trail court. The aggrieved person cannot at that stage obtain relief from the trial court by calling into his aid Section 204 Cr.P.C. His remedy, at that stage, lies in invoking the inherent power of the High Court under Section 482 Cr.P.C. (vide- Sharma V. Abhimanyu (2005) 13 SCC 213=AIR 2005 SC 4303=2005 (4) KLT 738). If the want of a valid sanction is raised in an appeal against conviction and if the same is entertained for the reason that the error, omission or irregularity in the sanction has occasioned a failure of justice, then the order which can validly be passed is one dropping the proceedings and not an order of acquittal. Such termination of the proceedings will not preclude a fresh prosecution after obtaining a valid sanction. Even if the Court were to record an acquittal for want of a valid sanction, the said acquittal will have to be treated as one of dropping the proceedings (vide- State of T.N V. M.M. Rajendran (1998) 9 SCC 268; State of Karnataka V. C. Nagarajaswamy (2005) 8 SCC 370=AIR 2005 SC 4308). Where the trial has been quashed for want of sanction, subsequent trial for the same offence after obtaining the necessary sanction is not barred under Article 20 of the Constitution of India (vide- Baij Nath Prasad Tripathi V. State of Bhopal AIR 1957 SC 494=1957 Cri. L.J. 597-5 Judges). This case demonstrates the danger of Judges laying down the law without adequate research and then marking their judgments for reporting in the law journals. This also explains the need for the Judges to be more circumspect.

My humble request to my black-robed brethren at the Bench and the Bar, therefore, is that Antony Cardoza so far as it relates to the question of prosecution sanction, may not be followed or cited as a judicial precedent.

Justice V Ramkumar is a former Judge of the High Court of Kerala.

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