It was only now that I chanced to browse through the Judgment dated 15-06-2023 rendered by the Supreme Court of India in A. Srinivasulu v. The State represented by the Inspector of Police, CBI (Criminal Appeal No: 2417/ 2010) and authored by Justice V. Ramasubramanian. It is a well written judgment. The primary facts leading to the prosecution of the accused in the case have...
It was only now that I chanced to browse through the Judgment dated 15-06-2023 rendered by the Supreme Court of India in A. Srinivasulu v. The State represented by the Inspector of Police, CBI (Criminal Appeal No: 2417/ 2010) and authored by Justice V. Ramasubramanian. It is a well written judgment. The primary facts leading to the prosecution of the accused in the case have been meticulously stated.
2. After reading the well-reasoned judgment I am penning down a few doubts which, I am sure, will be clarified by the erudite members of the legal fraternity. But, before raising my doubts, let me state the bare facts as discernible from the verdict itself :
- Altogether 7 accused persons faced trial, inter alia, for offences punishable under Sections 120 B r/w 420, 109, 468, 471, 193 IPC and Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (“P. C. Act, 1988” for short).
- A1 to A4, being officers of the Bharath Heavy Electricals Ltd. (BHEL), Tiruchirappilly, were “public servants” both under Section 21 (Clause twelfth) of IPC and Section 2 (c) (Clause (iii) of P. C. Act, 1988 and, therefore, prima facie, they could be prosecuted for the IPC offences only after obtaining sanction under Section 197 Cr.P.C. and for the offence under the P. C. Act, 1988 only after obtaining sanction under 19 (1) of P. C. Act, 1988.
- A5 to A7 were alleged to be persons who obtained wrongful gain from the BHEL out of the transactions in question.
- The offences were allegedly committed during the period between 1994 and 1996.
- During the stage of investigation one K. Bhaskara Rao (Former DGM of BHEL, Tiruchirappalli) who was originally A1 in the FIR, was made an approver. His confession under Section 164 Cr.P.C. was recorded by the XVIII Metropolitan Magistrate, Chennai. Pardon was subsequently tendered to him by the Addl. CJM, Madurai on 18-07-2000. He was later examined as PW 16 during the trial of the case.
- On 16-07-2002 the CBI filed the charge sheet before the Court of the Principal Special Judge for CBI cases, Chennai, against A1 to A7 for the aforementioned offences.
- A5 and A6 died pending trial and hence the charge against them abated.
- On 08-09-2006, the Trial Court (the Principal Special Judge for CBI cases, Chennai) acquitted A2, but convicted A1, A3, A4 and A7 of most of the IPC offences. A1 was additionally found guilty of the offence under Section 13 (1) (d) r/w Section 13 (2) of the P. C. Act, 1988. A4 must have been acquitted of the charge for the offence under the P.C. Act, 1988 by the Trial Court itself. As against the charge under Sections 13 (1) (d) r/w 13 (2) of the P. C. Act, 1988, A7 was convicted of an offence punishable under Section 13 (2) r/w Section 13 (1) (e) of the P. C. Act, 1988 for which there was no charge.
- For the above conviction A1, A3, A4 and A7 were sentenced to different terms of imprisonment and also fine.
- A1, A3, A4 and A7 filed appeals before the Madurai Bench of the Madras High Court.
- A3 died pending his appeal before the High Court and accordingly his appeal was dismissed as abated.
- As per common Judgment dated 17-09-2010 the High Court dismissed the surviving 3 appeals by A1, A4 and A7, confirming the conviction entered and sentence passed against them.
- Aggrieved by the common judgment passed by the High Court, A1, A4 and A7 preferred a further appeal to the Supreme Court of India.
- Para 28 of the verdict in question shows that the Apex Court divided the discussion and analysis of the matter under 3 different heads, namely –
i. The question of prosecution sanction under Section 197 Cr.P.C. (Considered in paras 28 to 53 of the verdict in question.)
ii. The correctness of the procedure adopted while granting pardon under Section 306 Cr.P.C. to the accomplice (K. Bhaskara Rao, former DGM of BHEL, Tiruchirappalli) who was examined as PW 16. (Considered in paras 54 to 79 of the verdict in question.)
iii. The merits of the case qua the culpability of each of the 3 appellants before the Supreme Court. (Considered in paras 80 to 138 of the verdict in question.)
- The Supreme Court disposed of the aforesaid appeal on 15-06-2023 acquitting all the 3 appellants of all the charges. (A4 was already acquitted of the charge under the P. C. Act, 1988 by the Trial Court itself.)
3. This was considered in paragraphs 28 to 52 of the verdict. While discussing the expressions “acting” and “purporting to act” in discharge of “official duty”, the Bench has (in my view rightly) observed in paragraph 50 that the extreme view taken in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1, is too wide. It was concluded in paragraphs 53 of the verdict that the prosecution ought to have taken previous sanction under Section 197 (1) Cr.P.C. for prosecuting A1 for the IPC offences. (In fact, A4 also stood in the same position since the authority competent to grant sanction, had refused to accord sanction to prosecute A3 and A4).
4. This was considered in paragraphs 54 to 78. In the course of the discussion, the Bench has in paragraph 61 enumerated some of the steps in the grant of pardon. In paragraph 64 of the verdict the Bench has noticed the Courts which are empowered to tender pardon at the stage of “investigation”, “inquiry” and “trial”. In paragraph 75 and 76 of the verdict the Bench taking note of State though CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 observed (according to me very rightly) that it is only in those cases where the Special Court decides to tender pardon to an accomplice after taking cognizance of the offence that the procedure under Section 306 Cr.P.C. is by-passed. In this context, the Bench adverted to Harshad S. Mehta v. State of Maharashtra (2001) 8 SCC 257, Bangaru Laxman v. State though CBI (2012) 1 SCC 500, and P. C. Mishra v. State (CBI) (2014) 14 SCC 629 and State though CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733. In paragraph 54 of the verdict the Bench noted that Exhibit P44 confession of the accomplice (K. Bhaskara Rao – subsequently examined as PW16) under Section 164 Cr.P.C. was recorded by the XVIII Metropolitan Magistrate, Chennai on 16-11-1998, that Exhibit P 51 application (M. P. No: 502/ 2000) was filed by the CBI on 22-06-2000 before the CJM, Madurai under Section 306 Cr.P.C. for granting pardon to the accomplice and the said CJM made over the case to the Addl. CJM, Madurai and as evidenced by Exhibit P 52 proceedings it was the additional CJM, Madurai, who granted pardon to the accomplice on 18-07-2000, that the final report was filed by the CBI, directly before the Special Court for CBI cases, Chennai on 16-07-2002 and cognizance of the offences was taken by the Special Court on 04-07-2003. Finally, in paragraph 79 it was concluded that there was no violation of the procedure prescribed under Section 306 Cr.P.C.
(iii) Merits of the culpability of A1, A4 and A7.
5. This was in paras 80 to 138 of which paras 80 to 295 dealt with the evidence of PW 16 (the approver) to conclude that he was unworthy of credit. The above consideration of the case on merits was in spite of the finding that A1 could not have been prosecuted for the IPC offences without a sanction under Section 197 Cr.P.C. and that A4 could not have been prosecuted for all the offences without sanction both under Section 197 Cr.P.C. and under Section 19 of P. C. Act, 1988. (Here, no sanction under Section 19 of the P. C. Act, 1988 was necessary at the relevant time to prosecute A1 for the P. C. Act offence since A1 had already retired from service long before the filing of the final report). Finally in paragraph 139 the Bench dislodged the conviction recorded against all the appellants (A1, A4 and A7) of all the offences and acquitted them of all the charges.
Now, my doubts arising from the verdict
(i) On the question of “SANCTION”
6. Having held that A1 and A4 could not have been prosecuted for the IPC offences without a prosecution sanction under Section 197 (1) Cr.P.C., was the Bench justified in entering into the merits of the case and recording an acquittal on merits ?
This doubt of mine is on account of the following settled principles of law –
a) Prosecution launched without sanction is null and void. (Vide para 9 of Basdeo Agarwalla v. Emperor AIR 1945 PC 16 - Patrick Spens, Kt.- C.J., Varadachariar, Z Khan – JJ.) – approved in para 16 of Yusofally Mulla Noorbhoy v. King AIR 1949 PC 264 - Oaksey, M Nair, John Beaumont, M Macnaghten – JJ, to hold that a prosecution launched without a valid sanction is a nullity. In para 18 of the judgment the Privy Council further held that the principle of “double jeopardy” and “autre fois acquit, autre fois convict” can only be raised where the first trial was before a Court competent to pass a valid order of acquittal or conviction.)
b) If the Court cannot take cognizance of the offences without a legal sanction, then the Court cannot be said to be a Court of competent jurisdiction to try the offences and consequently any trial in the absence of a valid sanction must be null and void. (Vide para 6 of Baija Nath Prasad Tripathi v. State of Bopal AIR 1957 SC 494 = 1957 Cri.L.J. 597 – 5 Judges – S.R. Das – CJI, T. L. Venkatarama Ayyar, B. P. Sinha, S. K. Dasb, P. B. Gajendragadkar – JJ - Basdeo Agarwalla (Supra) and Yusofally Mulla Noorbhoy (Supra) followed)
c) Trial without sanction renders the proceedings void ab initio. (Vide para 3 of Mohd. Iqbal Ahmed v. State of A. P. AIR 1979 SC 677 = (1979) 4 SCC 172 - S. Murtaza Fazl Ali, A. D. Koshal - JJ.; Para 19 of R. S. Nayak v. A. R. Antulay AIR 1984 SC 684 = (1984) 2 SCC 183 – 5 Judges – D. A. Desai, R. S. Pathak, O. Chinnappa Reddy, A. P. Sen, V. Balakrishna Eradi - JJ.)
d) In a case where the accused was prosecuted under the P. C. Act, 1988 on the strength of sanction granted by the Secretary (Vigilance) of the Government of Kerala, it was held by the Supreme Court that the Secretary (Vigilance) was invested with the power to grant sanction only with effect from 23-04-1994 and hence the sanction accorded in that case by the Secretary (Vigilance), prior to 23-04-1994, was without jurisdiction to grant sanction and consequently the Court had no power to take cognizance of the offence. The proceedings were accordingly quashed.
e) Even in a case where a Court says, though erroneously , that it was not competent to take cognizance of the offence, it has no power to acquit the person of the offence. An order of acquittal made by such a Court is in fact a nullity. (Vide para 6 of Mohammad Safi v. State of W. B. AIR 1966 SC 69 - 3 Judges – A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat - JJ.)
f) “Section 403 of the Criminal Procedure Code, 1898 (corresponding to Section 300 of the 1973 Code) applies to cases where the acquittal order has been made by a Court of competent jurisdiction, but it does not bar a re-trial 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.” (Vide Budha Mal v. State of Delhi (Criminal Appeal No: 17/1952 decided on 03-10-1952 referred to in paragraph 5 of Baij Nath Prasad Tripathi (Supra – AIR 1957 SC 494 and in para 21 of State of Karnataka though CBI v. C. Nagarajaswamy AIR 2005 SC 4308 = (2005) 8 SCC 370 – S. B. Sinha, R. V. Raveendran – JJ.)
g) Once the Court finds that the order granting prosecution sanction is invalid, the proper order that should be passed is one dropping the proceedings. In such a case the trial Court as well as the High Court went wrong in proceeding on the merits of the case. (Vide para 1 of State of T. N. v. M. M. Rajendran (1998) 9 SCC 268 – G. N. Ray, G. T. Nanavati - JJ; The Order of the High Court dropping the proceedings for want of prosecution sanction was upheld by the Supreme Court. (Vide State through CBI v. B. L. Verma (1997) 10 SCC 772 - Dr A. S. Anand, S. B. Majmudar - JJ.)
15. 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 regards sanction may be determined at an early stage. (See Ashok Sahu v. Gokul Saikia (1990 Supp SCC 41 : 1990 SCC (Cri) 611 ) and Birendra K. Singh v. State of Bihar ( 2000 (8) SCC 498 : 2001 SCC (Cri) 17 : JT 2000 (8) SC 248 ).
16. 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. (See B. Saha v. M. S. Kochar ( 1979 (4) SCC 177 : 1979 SCC (Cri) 939 ) and K. Kalimuthu v. State ( 2005 (4) SCC 512 : 2005 SCC (Cri) 1291 ). (Vide State of State of Karnataka though CBI v. C. Nagarajaswamy AIR 2005 SC 4308 = (2005) 8 SCC 370 – S. B. Sinha, R. V. Raveendran – JJ.)
i) Where trial is quashed for want of sanction, subsequent trial for the same offence after obtaining the necessary sanction is not barred under Article 20 (2) of the Constitution of India or under Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 of the 1973 Code). (Vide para 6 of Baija Nath Prasad Tripathi v. State of Bopal AIR 1957 SC 494 = 1957 Cri.L.J. 597 – 5 Judges – S. R. Das – CJI, T. L. Venkatarama Ayyar, B. P. Sinha, S. K. Das, P. B. Gajendragadkar – JJ.)
j) The direction of the High Court to drop the proceedings against the accused on account of want of sanction under Section 197 (1) Cr.P.C. will not preclude the CBI from activating the prosecution against the accused after obtaining a valid order of sanction. (Vide para 7 of State through CBI v. B. L. Verma (1997) 10 SCC 772 - Dr A. S. Anand, S. B. Majmudar - JJ.)
k) The contention of the accused that they having faced the ordeal of trial for a long time, it would not be in the interests of justice to put them on trial once again, repelled by the Supreme Court. (Vide para 26 of State of State of Karnataka though CBI v. C. Nagarajaswamy AIR 2005 SC 4308 = (2005) 8 SCC 370 – S. B. Sinha, R. V. Raveendran – JJ.)
My questions on “Sanction”
Q.1 Is trial held without prosecution sanction under Section 197 (1) Cr.P.C. void ab initio ?
Q.2 If trial without prosecution sanction is void ab initio and non est in the eye of law, was the Apex Court justified in entering into the merits of the case and acquitting A1 and A4 on merits ?
Q.3 Where trial of the public servants (A1 and A4) for the IPC offences committed by them while acting or purporting to act in discharge of their official duties without a sanction to prosecute them under Section 197 (1) Cr.P.C. and so held by the Court, was it not an exercise in futility for the Court to thereafter enter into the merits of the case and record an acquittal of the accused public servants ?Q.4 In the absence of a sanction under Section 19 (1) of the P. C. Act, 1988, was the “prosecution”, “trial” and “acquittal” of A4 by the trial Court for the offence punishable under the P. C. Act, 1988 sustainable in law ?
(ii) My doubt on the correctness of the grant of pardon to the accomplice, K. Bhaskara Rao.
7. In the verdict under discussion, the request for tendering pardon to the accomplice was given by the CBI to the CJM, Madurai, who, however, made over the case to the Addl. CJM, Madurai and it was the said Addl. CJM who tendered pardon to the accomplice who was examined as PW16. Here the pardon was granted during the stage of investigation. Hence, the provision which was applicable was Section 306 Cr.P.C. and not Section 307 Cr.P.C. In this context, it is important to notice the wording of Section 306 (1) Cr.P.C. The only Court which can tender pardon to an accomplice during the stage of investigation of a case is “the Chief Judicial Magistrate” or “a Metropolitan Magistrate”. The expression “the Chief Judicial Magistrate” cannot obviously include an Addl. Chief Judicial Magistrate. It is just as saying that the expression “the Sessions Judge” cannot include an Addl. Sessions Judge. If the framers of the Code wanted to empower an Addl. Chief Judicial Magistrate also, then they could have used the expression “a Chief Judicial Magistrate”. The view taken by the Supreme Court in paragraph 54 of State of A. P. v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 = 1963 (2) Cri.L.J. 671 – 3 Judges – K. Subba Rao, Raghubar Dayal, J. R. Mudholkar – JJ, is clearly distinguishable. There the provision of law which fell for consideration before the Apex Court was the proviso to Section 337 (1) of the 1898 Code. As per the said proviso “the District Magistrate” was the competent officer having the authority to grant pardon in a case pending before another Magistrate. The argument advanced before the Supreme Court that “the District Magistrate” occurring in the said proviso could not include an Addl. District Magistrate was repelled by the Supreme Court holding that Serial No: 37 of Schedule III of the Government Order produced in that case had specifically conferred the power of the District Magistrate on an Addl. District Magistrate as well. The above verdict virtually reinforces my submission that “the CJM” occurring in Section 306 (1) Cr.P.C. cannot include an Addl. CJM. Hence, the pardon tendered by the Addl. CJM in this case was, strictly speaking, without any statutory authority. Of course, the grant of pardon in good faith by an Addl. Chief Judicial Magistrate in this case may not be so fatal as to vitiate the proceedings. But the Investigating Officers and Chief Judicial Magistrates exercising their respective powers should be conscious of the intendment of the law-maker. Here, the CBI had correctly approached the CJM, Madurai and it was the CJM who abdicated his statutory duty.
8. Yet another aspect which has come to my notice is mentioned here. The view taken in Harshad Mehta’s case AIR 2001 SC 3774, Bangaru Lakshman’s case AIR 2012 SC 873 and P. C Mishra’s case AIR 2014 SC 1921 to the effect that the Special Court can grant pardon at all stages of the case, is clearly wrong, at least in the case of a prosecution under the P. C. Act, 1988. Harshad Mehta’s case was not one under the P. C. Act, 1988. But the other two rulings which blindly followed Harshad Mehta were rendered under the P. C. Act, 1988 as per which if the pardon is granted during the stage of investigation, it has to come through the committal route as mandated by Section 306 (5) (a) (ii) Cr.P.C. and as rightly held in Arul Kumar’s case AIR 2016 SC 2551. What the CBI ought to have done in this case was to file the charge-sheet before the Committal Magistrate and not before the Special Judge directly since this case ought to have taken the committal route as enjoined by Section 306 (5) (a) (ii) Cr.P.C. and as emphasized in Arul Kumar’s case. There is not even the slightest disagreement expressed by the Bench against Bangaru Laxman and Mishra P. C. in this behalf even though Arul Kumar is seen followed.
[It was noticing various procedural errors committed by investigating agencies and the Courts at various levels that I was constrained to write a book titled “Tendering Pardon to an Accomplice” published by “Law and Justice Publishing Company”. The purpose of that book was not to promote my name or fame but to ensure that all the authorities and Courts concerned adhere to the provisions of law properly to avoid fatal consequences. But alas, I doubt whether the correct principles of law are still being followed by all concerned.]
My questions on “Pardon”
Q.5 Was there any defect in the Addl. CJM tendering pardon to the accomplice, K. Bhaskara Rao ?
Q.6 Was there any impropriety on the part of the CBI in filing the charge-sheet before the Special Court ?
Q.7 Was the Sessions Judge in Suresh Chandra Bahri v. State of Bihar, 1995 Supp. (1) SCC 80, right in setting aside the committal order and directing the committal Magistrate to commit the case again after rectifying the defect of non-examination of the approver under Section 306 (4) (a) Cr.P.C., as noted in paras 70 to 73 of the verdict in question ?
Q.8 By relying on the decisions in A. Devendran v. State of T. N. (1997) 11 SCC 730 and Suresh Chandra Bahri (Supra) 1995 Supp. 1 SCC 80 and State Of T. N. v. V. Arul Kumar (2016) 11 SCC 733 in paras 69, 70 and 75 of the verdict in question, was not the Bench going against the ratio in Bangaru Laxman v. State AIR 2012 SC 873, Mishra P. C. v. State through CBI AIR 2014 SC 1921 both of which had held that the Special Court under the P. C. Act, 1988 has got the power to tender pardon at all stages ?
(iii) My doubt on the verdict given on the merits
9. Except in the case of A7, whatever said on the merits against A1 and A4 (Public Servants) with regard to the IPC offences cannot, in my view, bind them in the absence of a sanction under Section 197 Cr.P.C. ? Will not the the position be different if they were to be prosecuted again for the IPC offences after obtaining a valid sanction order ?
10. In the absence of a sanction under Section 19 (1) of the P.C. Act, 1988 was it permissible to prosecute A4 for the offence under the P. C. Act and what will be the impact of any finding rendered in the verdict in question if A4 were to be prosecuted again for the P. C. Act offence after obtaining a valid sanction under Section 19 (1) of the P. C. Act, 1988 ?
In the case of A1, it is true that he had retired from service long before the Special Court took cognizance of the offences. As per the law which stood then, A1 could be prosecuted without a sanction under Section 19 of the P. C. Act, 1988.
11. In the case of A7, even though the charge against him was for the offence punishable under Section 13 (1) (d) r/w Section 13 (2) of the P. C. Act, he was convicted by the Trial Court for an offence under Section 13 (1) (e) r/w Section 13 (2) of the P. C. Act, 1988 even without a charge. The said conviction was confirmed by the High Court. This aspect of the matter does not appear to have been considered by the Apex Court in paragraphs 116 to 138 even though the Counsel for A7 had specifically raised this point.
My questions on the merits
Q.9 If trial without prosecution sanction is ab initio void and non est in the eye of law, can A1 avoid a fresh prosecution and trial for IPC offences on the basis of a fresh prosecution sanction taken against him ?Q.10 Will the acquittal of A4 (by the Trial Court) for the offence punishable under the P. C. Act, 1988 without a prosecution sanction under Section 19 (1) of the P. C. Act, 1988, be binding on the prosecution if A4 were to be prosecuted again for the said offence after obtaining a valid sanction (even assuming that the CBI did not assail the acquittal of A4 by filing an appeal before the High Court) ?
Author is Former Judge, High Court of Kerala
Views Are Personal