IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.27670 of 2010 DINESH PRASAD son of Late Nathuni Mahto, resident of village- Mustafapur, P.S. Bibhutipur, District- Samastipur, presently his posting in the district of Darbhanga …Petitioner Versus THE STATE OF BIHAR THROUGH VIGILANCE COMMISSIONER (CABIENT VIGILANCE), BIHAR ….OP With Cr. Misc. No. 17960 of 2010 BINONAND GIRI, son of Late Harikant Giri, resident of village- Kalyanpur, P.S. Bibhutipur, District- Samastipur …Petitioner Versus THE STATE OF BIHAR THROUGH DEPARTMENT OF VIGILANCE …OP With Cr. Misc. No. 17518 of 2010 MANOJ KUMAR SINGH, son of Sri Jwala Prasad, resident of village- Harigaon, P.O. Saniya, Barahata, P.S.-Jagdishpur, District- Bhojpur …Petitioner Versus THE STATE OF BIHAR THROUGH VIGILANCE …OP With Cr. Misc. No. 30877 of 2010 MANJU KUMARI, wife of Sunil Kumar Bhartiya, Resident of Bhitta Bazar, P.S. Sursand, District- Sitamarhi …Petitioner Versus THE STATE OF BIHAR THROUGH CABINET VIGILANCE BUREAU …OP ----------- For the petitioners : In Cr. Misc. No.27670 of 2010: Mr. Chitranjan Sinha, Sr. Advocate with Mr. Tuhin Shankar, Advocate In Cr. Misc. No.17960 of 2010: Mr. Laxmi Narayan Das, Advocate Mr. Akhilesh Dutta Verma, Advocate In Cr. Misc. No.17518 of 2010: Mr. Arun Kumar, Advocate Mr. Md. Hussamuddin Azad, Advocate In Cr. Misc. No.30877 of 2010: Mr. Ashwani Kumar Singh, Sr. Advocate with Mr. Dhananjay Kumar, Advocate 2 For the Vigilance : Mr. Ramakant Sharma, Sr. Advocate with Mr. Arvind Kumar, Advocate (In all Cases) -------- P R E S E N T HON‟BLE JUSTICE SMT. ANJANA PRAKASH ------------- O R D E R 3/ 19 .05.2011 Petitioner Dinesh Prasad (Cr. Misc. No. 27670 of 2010) has sought quashing of the order dated 18.2.2009 by which the Special Judge, Vigilance, Muzaffarpur, has taken cognizance under sections 7/13(2) read with section 13(1) (d) of the Prevention of Corruption Act in Special Case No. 61 of 2008. He was the Officer-in-charge of Sonaki P.S. and was allegedly arrested by a trap party when he had accepted a sum of Rs.4000/- as illegal gratification. 2. Petitioner Binonanand Giri (Cr. Misc. No.17960 of 2010) has sought quashing of the order of cognizance dated 16.12.2006 passed by the Special Judge, Vigilance I, Patna, in Special Case No.27 of 2006 by which it has taken cognizance under sections 7/13(2) read with section 13(1) (d) of the Prevention of Corruption Act. The prosecution case was that the petitioner, who was the Officer-in-charge of Jurawanpur Police Station in the district of Vaishali, had been arrested by a trap party having accepted Rs.10,000/- as bribe. 3. Petitioner Manoj Kumar Singh (Cr. Misc. No.17518 of 2010), who has been charged with having accepted illegal gratification of Rs.10,000/-, is aggrieved with the order dated 22.05.2009 passed in Special Case No.21 of 2009 by the Special Judge, Vigilance 1, Patna,, by which he has taken cognizance under sections 7/13(2) read with section 13(1) (d) of the Prevention of 3 Corruption Act. 4. Petitioner Manju Kumari (Cr. Misc. No.30877 of 2010) is aggrieved with the order dated 17.07.2010 passed by the Special Judge, Vigilance in Special Case No. 20 of 2007 by which it has refused to discharge the petitioner in a case in which cognizance has been taken under sections 7/13(2) read with section 13(1) (d) of the Prevention of Corruption Act as well as section 324 and 353 of the Indian Penal Code. She was the Child Development Project Officer, Sitamarhi, and was allegedly arrested by the raiding team accepting a sum of Rs.10,000/- as illegal gratification. 5. The petitioner Dinesh Prasad has contended that in his case the sanctioning authority was not empowered to grant sanction since he was not the appointing authority. 6. The petitioners Binonanand Giri and Manju Kumari have alleged that sanction order shows that the sanctioning authority purportedly in exercise of his jurisdiction under section 197 Cr.P.C. granted sanction for prosecution under the provisions of the Prevention of Corruption Act. 7. The petitioner Manoj Kumar Singh assailed the order of sanction on the ground that the sanctioning authority has merely stated that he was granting sanction for prosecution under section 409 Indian Penal Code in exercise of its power under section 197 Cr. P. C. 8. The main and common argument advanced on behalf of the petitioners are : (i) The sanction is not proper, (ii) Many irregularities have been committed by the 4 investigating agency which renders the subsequent proceedings bad. 9. In support of their contentions, learned counsel for the petitioners have mainly relied on the decision reported in (2005) 8 SCC 130 (State of Goa Vs. Babu Thomas), (2005) 8 SCC 370 (State of Karnataka through CBI Vs. C. Nagarajaswamy), 2006 (4) PLJR SC 73 (State Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karii), 2006 (1) PLJR 401 SC (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr.), 1998 (3) PLJR 584 (Ramashankar Tiwary Vs. The Union of India & ors.) 10. On the submissions advanced, this Court has, therefore, to consider as to whether a judicial order is open to challenge on account of (i) lacunae in the sanction order and whether it goes to the root of the jurisdiction or is it a mere irregularity and (ii) irregularities committed during investigation. 11. For an appropriate answer to these two problems posed in the present context, there is a need to go through the history of the Act promulgated to control instances of corruption. 12. Before the present Prevention of Corruption Act, 1988, came into existence by way of consolidation and amending the law relating to prevention of corruption and for matters connected there with, the Prevention of Corruption Act, 1947, prevailed. The statements and the objects for framing such a law which came into existence by Act No. II of 1947 was that “the scope for bribery and corruption of public servants had been enormously increased by war conditions and though the war is now over, opportunities for corrupt practices will remain for considerable time to come. Contracts are being terminated; large amounts of 5 Government surplus stores are being disposed of; there shall be shortage of various kinds requiring imposition of controls, and extensive schemes of post war re-construction, involving the disbursement of very large sums of government money. All these activities offer wide scope of corrupt practices and seriousness of the evil and possibility of its continuance of extension in future are such as to justify immediate and drastic action to stamp it out”. 13. Subsequently, this Act was repealed and replaced with the present Prevention of Corruption Act, 1988, which came into existence through Act No. 49 of 1988. The prefatory note of the Act which contains the statement of objects and reasons proclaimed that the Bill was intended to make the existing anti-corruption laws more effective by widening its coverage and by strengthening the provisions. It sought to incorporate all those provisions with modifications brought in by a previous amendment of 1964 as well as attempted to incorporate provisions of The Criminal Law (Amendment) Ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth so as to make the provisions more effective in controlling corruption amongst public servants. 14. Therefore to understand the complex question of requirement of sanction, it is necessary to keep in mind the developments/ amendments made in the new Act especially formulated to reign in corruption. Common sense and previous decisions point out that sanction is essential since it is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous allegation by interested persons, but it is not to condone the commission of an offence by a public 6 servant. Thus, importantly, the procedure of sanction is a safeguard for an innocent but not a shield for guilty. Also, sometimes working of a government machinery may be so complex that for an outsider a certain act/ omission may give rise to an impression that an illegal act has been committed, but a person, who understands the said working could opine correctly as to whether it is an illegal act or a mere irregularity which may be blameworthy conduct but not fit for prosecution in a criminal court. Thus, the sanctioning authority acts as a sentinel to weed out vexatious or misplaced allegations and decides accordingly to grant/ refuse sanction. It is a purely administrative action. 15. Both in the old as well as in new Act, seeking sanction for prosecution was/is mandatory and the Courts were/are barred from taking cognizance without sanction. However, a major departure in the present Act is by way of introduction of Section 19 (3) and 19(4) which are reproduced here for better understanding: “(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) 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 been occasioned thereby; (b) 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; (c) 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 7 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.” 16. It appears that Section 19(3) of the Prevention of Corruption Act, to a large extent, is a reproduction of Section 465 Cr. P. C. quoted below: “465. Finding or sentence when reversible by reason or error, omission or irregularity- (1) Subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation, or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code or any error or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” 17. The key words, therefore, are “failure of justice”. In any event while exercising the powers under section 397 Cr. P. C. the Courts are required to satisfy itself “as to the correctness, legality of any finding” whereas under section 482 Cr. P. C. “to prevent the abuse of the process of any Court or otherwise to secure 8 the ends of justice” 18. Undisputedly, under section 19(3) a trammel has been imposed on a court of appeal and revision. In fact, the legislation has provided a further stricture by introducing Section 19 (4) which says that the court for determining the failure of justice shall have regard to the fact whether the objections could and should have been raised at any earlier stage of the proceedings. Thus, indicating that even if there has been a failure of justice, the Court would have to further determine the validity of such a challenge at a belated stage. 19. Since the Act of 1988 is a special enactment and substantive law, having its own independent procedural provisions, and the Code of Criminal Procedure, 1973, being merely procedural, evidently the Act of 1988 would prevail and would be subject to the trammel imposed on the revisional power of the Courts. In view of a prima facie examination of the provisions of the Prevention of Corruption Act, 1988, in my opinion, in all cases, where the question of invalid/no sanction is raised before the High Court, it would have to necessarily adjudicate as to whether it has resulted in failure of justice before setting aside the finding/ sentence or order passed by the Special Judge and also arrive at a finding that the explanation for belated challenge was acceptable. 20. Now to examine the authorities in this regard. On tracing the history of the judicial orders having been set aside for want of/improper sanction, one finds that the consistent earlier view was that lack of sanction goes to the root of the exercise of jurisdiction of the Courts. However, later this view was materially departed from considering the newly introduced provision of section 9 19(3) Cr. P. C. and in fact in the latest decision reported in (2011) 4 SCC 402 (Ashok Tshering Bhutia Vs. State of Sikkim) it has been concluded that mere omission/error or irregularity in sanction is not considered to be fatal unless it has resulted in failure of justice. This trend begins from the case P. V. Narasimha Rao Vs. State (CBI/SPE) [(1998) 4 SCC 626], where amongst other issues a ticklish question arose as to whether, when there was no authority competent to remove a public servant (here an MP) to grant sanction he could be prosecuted in absence of sanction. The Apex Court placed its reliance on the decision of S.A. Venkataraman Vs. The State (AIR 1958 SC 107) where the general powers of a Criminal Court to take cognizance had been examined and held as follows: “In our opinion, if a general power to take cognizance of an offence is vested in a court, any prohibition to the exercise of that power, by any provision of law, must be confined to the terms of the prohibition…..” It then concluded thus: “The requirement of sanction under section 19(1) is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous allegations by the interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant. The inapplicability of the provisions of Section 19(1) to a public servant would only mean that the intended safeguard was not intended to be made available to him. The rigour of the prohibition contained in sub- section (1) is now reduced by sub-section (3) of Section 19 because under clause (a) of sub-section (3) it is provided that 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 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 10 of justice has in fact been occasioned thereby. This would show that the requirement of sanction under sub-section (1) of Section 19 is a matter relating to the procedure and the absence of the sanction does not go the root of the jurisdiction of the court.” In the case of Central Bureau of Investigation Vs. V. K. Sehgal and another [(1999) 8 SCC 501], the Apex Court at paragraph 10 held as follows: “10. 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 trail stage. Even if he had raised any 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.” This view was followed in the case of State by Police Inspector Vs. T. Venkatesh Murthy (2004) 7 SCC 763 where the Hon‟ble Supreme Court in effect went to the extent of holding that even assuming that sanction was not granted by the competent authority yet the order passed by the authority was saved under section 19(3) of the Prevention of Corruption Act. The said legal position was further clarified in the case of Parkash Singh Badal (2007) 1 SCC 1 paragraph 29 of which is reproduced below: 29. The effect of sub-section (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on „failure of justice‟ and that too „in the opinion of the court‟. In sub-section (4), 11 the stress is on raising the plea at the appropriate time. Significantly, the failure of justice is relatable to error, omission, or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby.” 21. In line with the same trend, the Apex Court, in a case reported in AIR 2007 SC 2618 (Paul Varghese Vs. State of Kerala & Anr) followed the same proposition. Therefore, in my opinion, the issue is no longer res integra. 22. As for the cases cited by the petitioners, on going through the judgment reported in (2005) 8 SCC 130 (State of Goa Vs. Babu Thomas), I find that in paragraph 11 a reference has been made to an earlier decision reported in (2004) 7 SCC 763 (State by Police Inspector Vs. T. Venkatesh Murthy) Supra, wherein, it was held that a mere omission or irregularity in the matter according sanction would not effect the validity of the proceeding unless the courts record and is satisfied that such error or omission has resulted in failure of justice and that the said logic will apply to the appellate or revisional court also, but disagreed with this proposition since it was of the considered opinion that in the facts of the case, sanction order was not merely irregular but it went to the root of the prosecution case. It does not decide any proposition of law. 23. In the same volume i.e. (2005) 8 SCC 370 (State of Karnataka through CBI Vs. C. Nagarajaswamy) relied upon by the petitioners, the Hon‟ble Supreme Court has, no doubt, said in paragraph 15 that grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. But it appears to have been stated in a totally different context while considering 12 the cases of two accused persons, who had been discharged without a full-dressed trial on question of sanction. In fact, the Hon‟ble Supreme Court after saying this, went ahead and set aside the order of the High Court by which it had upheld the discharge of the accused on account of defect in sanction and ordered re-trial in the matter. 24. The next case relied upon by petitioners and reported in 2006 (4) PLJR SC 73 (State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri) the facts were that the State had moved the Hon‟ble Supreme Court against the acquittal of an Assistant Station Master, who had been acquitted by the High Court on ground of illegal investigation and invalid sanction. The Hon‟ble Court in paragraph 20 held that the courts are obliged to go into the question of prejudice to the accused when the main investigation is concluded without a valid sanction. So, this decision also does not support the petitioners. Similarly in the judgment reported in 1998(3) PLJR 584 (Ramashankar Tiwary Vs. The Union of India & Ors.), I find that the facts were quite different and there the Court had taken cognizance under the Prevention of Corruption Act even though the State Government had refused sanction for prosecution of the petitioner. Such is not the position in the cases in hand. As far the decision reported in 2006(1) PLJR 401 SC (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr.), it appears that the facts of the case was that the petitioner had been summoned to face trial under section 319 Cr. P.C. even though there was no sanction obtained for his prosecution which under the circumstances was held sine qua non. Thus, this case is also distinguishable. 25. Under the circumstances, there is no doubt that a 13 judicial order is not be set aside whenever a plea of illegal investigation or invalid sanction is raised, unless the Court concludes that failure of justice has occasioned thereby. Being thus clear on the principle of law, I must proceed to examine the facts of the cases in hand. Admittedly, all the petitioners herein were allegedly arrested while accepting bribe and are sought to be prosecuted for such an act. In the facts of the case this Court has now to judge whether the order of cognizance/non discharge despite the flawed sanction orders amounts to failure of justice. 26. After having considered that the dominant intent or the objective of the amended Act is to book the corrupt and the amendment in the Act by way of introduction of Section 19 (3) (4) is evidently to strengthen the provisions and ensure that the prosecution is not scuttled on grounds of technicalities, it is difficult to appreciate how a Court can absolve a person arraigned before it where it finds that the accused has blatantly done something which is punishable in law and, that too, merely on the basis of a procedural lapse, such as omission in mentioning provisions of law, or sanction by a delegated authority. In my opinion, in the background facts, no failure of justice will occasion on the prosecution of the present petitioners. On the contrary, justice and rule of law will suffer, if they are not prosecuted. 27. The next ancillary argument on behalf of the petitioners is that from reading of section 19(3) of the Prevention of Corruption Act, it appears that when section 19 sub clause (3) was amended, by saying “no finding, sentence or order”, it means trammel is imposed on the Courts only after a conviction is recorded while exercising powers of Appeal or Revision. However, I am not 14 inclined to accept such a simplistic argument since finding sentence or order is relatable to “appeal, confirmation or revision” and here the word „revision‟ is not used in a restrictive manner as revision against conviction alone and, in my, understanding it relates to any order including order of cognizance or an order of non-discharge. 28. As for the next contention that the prosecution of the petitioners is bad on account of the irregular investigation is also no longer res integra as held in Ashok Tshering Bhutia Vs. State of Sikkim (2011) 4 SCC 402. For convenience, paragraph 20 is reproduced below: “20. The issues raised hereinabove are no more res integra. The matter of investigation by an officer not authorized by law has been considered by this Court time and again and it has consistently been held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance