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2003 DIGILAW 1045 (AP)

M. CHINA GOPALAKRISHNA v. State Of A. P.

2003-08-14

BILAL NAZKI, K.C.BHANU

body2003
( 1 ) THE sole accused in C. C. No. 13/1993 on the file of the iii Additional District and Sessions Judge-cum-Special judge for SPE and ACB Cases, visakhapatnam, was convicted by the judgment, dated 28. 4. 1997, of the trial Court, and sentenced to imprisonment and fine for the offences under Sections 7 and 13 (l) (d) read with Section 13 (2) of the Prevention of corruption Act, 1988, challenging which the accused filed this appeal. The appeal came up before a learned Single Judge of this court (LNR. J ). The learned Single Judge has held that in CBI v. V. K. Sehgal, 1999 (8) Supreme 490 , the Supreme Court has observed that 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 occasioned on account of such error or irregularity, and to determine whether such failure had occasioned or not, the fact whether the accused had raised any objection at the trial stage has to be considered. A learned Single Judge of this court, in Crl. A. Nos. 1618 and 1629 of 1999, dated 26. 4. 2000, has held that non- proof of order of sanction to prosecute the accused itself amounts to failure of justice. Since in the present case the accused did not raise any objection at the trial stage that the sanction order was not properly proved, justice L. Narasimha Reddy has felt that it desirable that the following questions need authoritative pronouncement by a Division bench since in several cases these questions are falling for consideration, and directed the matter to be placed before the Hon ble the Chief Justice for necessary directions. The Reference has been directed to be posted before us. Thus it has been listed before us. The questions sought to be answered under Reference are: (A) Whether the proceedings according sanction as provided under Section 19 of the Act can be treated and proved as public documents as defined in the evidence Act; (B) Whether non-examination of the authority who accorded the sanction or some one connected therewith by itself can be said to have resulted in failure of justice thereby vitiating the entire proceedings. ( 2 ) LEARNED Standing Counsel appearing for the C. B. I. , submitted that since the accused did not raise any objection with regard to the sanction, the presumption as provided in illustration (e) in Section 114 of the Evidence Act can be drawn that the sanction was validly accorded, and that whether failure of justice had occasioned on account of any error or irregularity in the sanction is purely a question of fact to be decided on the facts of each case. On the other hand, learned Counsel for the accused contended that as the sanction order was not proved in accordance with law, the entire trial is vitiated. He relied upon a decision in Mohd. Iqbal ahmed v. State of Andhra Pradesh, AIR 1979 SC 677 , in support of his contention. ( 3 ) WITH regard to the first question whether the proceedings according sanction under Section 19 of the Prevention of corruption Act are public documents, this question need not be answered, because whether a document is a public document or a private document is to be decided in accordance with the provisions in sections 74 and 75 of the Evidence Act, and in view of the decisions of the Apex court referred to infra. ( 4 ) AS regards the second question, in Mohd. Iqbal Ahmed v. State of Andhra pradesh (supra), it is held in paragraph 3 as follows:"it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituing the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, and (2) by adducing evidence aliunde to show that the facts placed before the sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. " ( 5 ) IN CBI v. V. K. Sehgal (supra), it is held in paragraphs 10 and 11 it is held 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 substain such a plea made for the first time in the appellate Court. In Kalpanath rai v. State through CBI, 1997 (8) SCC 732 , this Court has observed in paragraph 29 thus: "sub-section (2) of Section 465 of the code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that the Court shall have regard to the fact that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if the objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial. " 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 judicial scrutiny of the entire materials. " 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 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. " ( 6 ) A perusal of the above decision shows that the High Court is debarred from reversing a finding or even an order of conviction and sentence on account of any error or irregularity in the sanction of prosecution unless failure of justice had been occasioned on account of such error or irregularity. It is also clear that when the accused did not take any objection regarding the validity of the sanction before the trial court, the Appellate or Revisional Court should not allow that objection to be raised for the first time in the appeal or the revision, as the case may be. ( 7 ) LEARNED Standing Counsel also relied upon a decision in M. S. Reddy v. State Inspector of Police, 1993 Crl. LJ 558, wherein a learned Single Judge of this court has held as follows:"when the Government accords sanction, section 114 (3) of the Evidence Act raises a presumption that the official acts have been regularly performed. The burden is heavier on the accused to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject and grant or refusing to grant sanction was made by the appropriate authority. The burden is heavier on the accused to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject and grant or refusing to grant sanction was made by the appropriate authority. " ( 8 ) IN State v. Jangir Singh, it is held that Sections 47 and 74 of the Evidence act do not insist upon formal proof in support of the genuineness of a sanction and Section 57 of that Act permits a Court to take judicial notice of the signatures of the District Magistrate. ( 9 ) A joint reading of the above decision and the decision in Mohd. Iqbal ahmed v. State of Andhra Pradesh, (supra) shows that a sanction has to be proved in two ways as provided in Mohd. Iqbal. It is also clear that an Appellate or a Revisional court is debarred from reversing any finding or an order of conviction and sentence on account any error or irregularity in the sanction of the Prosecution, unless failure of justice had been occasioned on account of such error or irregularity. Whether such failure of justice has occasioned or not is a question of fact to be decided in each case with reference to the evidence adduced by the parties. Since the Supreme court has already laid down authoritative pronouncement on the questions under reference, there is no need for us to answer the questions. The Reference is accordingly answered.