TaxTMI 
TaxTMI 
2015 (7) TMI 1339
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.... that the complainant who was examined at the trial as PW-1, appeared before the Lokayukta Police to allege that the Appellant had demanded a bribe of Rs. 500/- from him for issue of a copy of a certain resolution dated 13th March, 1998 passed by the Sabbanakruppe Grama Panchayath. Since the complainant was unwilling to pay the bribe amount, he prayed for action against the Appellant. The Lokayukta Police appears to have secured panch witnesses, prepared an entrustment memo and handed over the intended bribe amount to the complainant after applying phenolphthalein powder to the currency notes for being paid to the Appellant upon demand. The prosecution case is that the bribe amount was demanded by the Appellant and paid to him by the complainant whereupon the raiding party on a signal given by the complainant arrived at the spot and recovered the said amount from his possession. The Appellant's hands were got washed in sodium carbonate solution which turned pink, clearly suggesting that the bribe money had been handled by the Appellant. On completion of the investigation, the police filed charge-sheet before the jurisdictional court where the prosecution examined as many as 5 w....
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...., the High Court held that the depositions of PWs 1 and 2, who were none other than the complainant and the shadow witness had sufficiently proved that the Appellant had demanded bribe amount and received the same. The High Court held that the discrepancies in the evidence regarding the manner of giving the amount were inconsequential. The High Court also placed reliance upon the explanation of the Appellant as recorded in the trap mahazar to hold that the Appellant had admitted the receipt of the amount, no matter he had offered an explanation according to which the amount represented "tap charges", which explanation was not supported by any defence. The High Court has, on those findings, held the charges framed against the Appellant to have been proved. He was accordingly convicted for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act and sentenced to imprisonment for six months and one year respectively besides a fine of Rs. 3,000/- Under Section 7 and Rs. 5,000/- Under Section 13(1)(d) read with Section 13(2) of the P.C. Act with a default sentence of one month and two months respectively. The sentences were directed to run concurrent....
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....tory 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,- (a) error includes competency of the authority to grant sanction; (b) 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. 5. We may also, at the outset, extract Section 465 of the Code of Criminal Procedure which is a cognate provision dealing with the effect of any error, omission or irregularity in the grant of sanction on the prosecution. Section 465 Code of Criminal Procedure runs thus: 465. Finding or sentence when reversible by reason of error, omission or irregularity. (1) Subject to the provisions hereinbefore contained, on finding sentence or order passed by a Court of comp....
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.... [a State] and is not removable from his office save by or with the sanction of the State Government............, [of the] State Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) where for any reason whatsoever any doubt arises whether the previous sanction as required Under Sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. 7. In Baij Nath Tripathi v. The State of Bhopal and Anr. (AIR 1957 SC 494), a Constitution Bench of this of Court was dealing with the case of a sub-inspector of police from the then State of Bhopal, who was prosecuted by the Special Judge, Bhopal and convicted of offences punishable Under Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act, 1947. He was sentenced by the Trial Court to undergo nine months' rigorous imprisonment on each count. In an appeal before the Judicial Commissioner against the said conviction and ....
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....on which learned Counsel for the Petitioners relied have really no bearing on the matter. Section 530 of the Code is really against the contention of learned Counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall be void. Section 529(e) is merely an exception in the matter of taking cognizance of an offence Under Section 190, Sub-section (1), cls. (a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained. 8. In Yusofalli Mulla's case (supra), the Privy Council was examining whether failure to obtain sanction affected the competence of the Court to try the accused. The contention urged was that there was a distinction between a valid institution of a prosecution on the one hand and the competence of the Court to hear and determine the prosecution, on the other. Rejecting the contention that any such distinction existed, this Court observed: The next contention was that the failure to obtain a sanction at the most prevented the valid institution of a prosecution, but did not affect the competency of the Court to hear and d....
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....h may have been done by the initiation of the first stages of a prosecution. Moreover in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started. 10. So also the decision of this Court in Budha Mal v. State of Delhi [Criminal Appeal No. 17 of 1952 disposed of on 3/10/1952], this Court had clearly ruled that absence of a valid sanction affected the competence of the Court to try and punish the accused. This Court observed: We are satisfied that the learned Sessions Judge was right in the view he took. Section 403 Code of Criminal Procedure applies to cases where the acquittal order has been made by a court of competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the Appellant in the first instance was by a Magistrate who had no jurisdiction to try him....
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....ng to this Court, could be raised at the stage of final arguments after the trial or even at the appellate stage. This Court observed: Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court. 14. In B. Saha and Ors. v. M.S. Kochar (1979) 4 SCC 177, this Cour....
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....e effect of Sub-section (3) to Section 19, which starts with a non-obstante clause. Also relevant to the same aspect would be Section 465 of the Code of Criminal Procedure which we have extracted earlier. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of explanation to Section 4, "error includes competence of the authority to grant sanction". The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny. A careful reading of Sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such erro....
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....concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision. 17. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial Court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial Court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi's case (supra), the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent Court was bound to....