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.
WHAT IS INDEPENDENT APPLICATION OF MIND ?
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
“ 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”
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
DEFECTIVE SANCTION OR ABSENCE OF SANCTION NOT A VALID GROUND IN APPEAL OR REVISION AGAINST CONVICTION UNDER THE P.C. ACT
“ (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(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,-
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
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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