An interesting question as to whether an accused, who has been facing charges under the provisions of the Prevention of Corruption Act , can be discharged after the commencement of the trial on the ground that the sanction issued under Section 19 of the said Act is wholly without jurisdiction and on that score, the very order taking cognizance itself is bad, has come up for consideration in this revision.

2. The petitioner is the sole accused in C.C.No.20/2004 on the file of the Additional Special Judge for CBI Cases, Chennai. Long before, based on the materials placed before the Court and after affording sufficient opportunity to either side, the trial court framed charges against the petitioner under Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 .

3. One Mr.S.S.Shetty, who was the then General Manager of the Reserve Bank of India was cited as one of the witnesses. Cognizance was taken initially, also on the basis of the sanction order issued by the said witness under Section 19 of the Act for launching prosecution. During the relevant period, the petitioner was holding the post of "Coin and Note Examiner" in Reserve Bank of India. During the trial of the case, Mr.S.S.Shetty was examined as P.W.1 on 6.6.2005. He was cross examined on 21.12.2005, during which, his very authority to issue valid sanction was challenged. Based on certain documents, an incisive cross examination was done. Though P.W.1 has withstood the said cross examination to maintain that he is the competent authority to issue sanction for the prosecution of the petitioner, it was suggested to him by the petitioner that the competent authority to issue sanction is only, the Chief General Manager and not the General Manager. According to the petitioner, P.W.1 has in a way admitted the said position also.

4. Thereafter, the petitioner filed Crl.M.P.No.15/2006 before the trial Court purportedly under Section 19 of the Prevention of Corruption Act seeking to discharge him from the case. The learned Judge by order dated 10.1.2007 dismissed the said application. Challenging the same, the petitioner is before this Court with this revision.

5. At the outset, when a question was posed as to how the trial court could discharge the accused during the trial of the case, the learned Counsel appearing for the petitioner submitted that he is supported by the law laid down by the Honourable Apex Court in State of Karnataka through CBI vs. C.Nagarajaswamy reported in 2005 (7) Supreme 121. Since such an important question has arisen for consideration, this Court requested the learned Additional Public Prosecutor Mr.N.R.Elango to assist this Court as Amicus Curiae.

6. Today, I have heard the learned Counsel for the petitioner, the learned Special Public Prosecutor for CBI Cases and Mr.N.R.Elango, learned Additional Public Prosecutor, the Amicus Curiae on behalf of the legal position.

7. The learned Counsel appearing for the petitioner would submit that in general, as per the provisions of the Criminal Procedure Code , in respect of the offences tried, a trial Judge lacks jurisdiction to pass an order of discharge after framing of charges. He would, however, contend that in so far as the cases under the Prevention of Corruption Act are concerned, the said act is both substantive as well as procedural, inasmuch as, in Section 19 of the Act there is an inbuilt provision which enables the trial court to discharge the accused, even after framing of the charges and that too, after examination of some witnesses. The learned Counsel has taken me through the judgment of the Honourable Supreme Court in Nagarajaswamy's case cited supra. More particularly, the learned Counsel relied on paragraphs 16, 23 and 24 of the said judgment to substantiate his contention that the Honourable Supreme Court in the said judgment has held that the trial court has got such power to discharge an accused even after framing of charges.

8. In this regard, the learned Amicus Curiae Mr.N.R.Elango, the State Additional Public Prosecutor would submit that if once charges have been framed and the accused has been put on trial, the question of discharge does not arise at all. For this proposition, he would rely on a judgment of the Honourable Supreme Court in Ratilal Bhanji Mithani vs. State of Maharashtra and Others reported in 1979 Supreme Court Cases (Crl) 405 followed in yet another judgment in Bharat Parikh Vs. Central Bureau of Investigation and Another reported in (2008) 3 Supreme Court Cases (Crl) 609. The learned Counsel would rely on paragraphs 28, 34 and 35 of the judgments in 1979 SCC Criminal 405 and paragraph 17 of the judgment in (2008) 3 Supreme Court Cases (Crl) 609 to substantiate his contention.

9. The learned Amicus Curiae would further submit that in so far as the power to discharge an accused is concerned, absolutely, there is no difference between the cases falling under the provisions of the Prevention of Corruption Act and under any other penal enactment. He would further submit that the judgment in Nagarajaswamy's case relied on by the learned Counsel for the petitioner has no application to the facts of the present case as the law laid down in the said case was in a total different context. He would point out that the consideration before the Supreme Court in the said case was, as to whether the acquittal of an accused on the ground that the very taking of cognizance is bad in law for want of sanction would be a bar to take fresh cognizance on the basis of fresh valid sanction order. In those circumstances, according to the learned Counsel, the Supreme Court had to say that though, technically, the court has acquitted the accused for want of valid sanction, it should be construed to be a nullity and therefore, there was no bar for taking fresh cognizance. The learned Amicus Curiae would bring to the notice of this Court two more judgments of the Honourable Supreme Court in Romesh Lal Jain vs. Naginder Singh Rana and others reported in 2006 (1) SCC 294 and in S.K.Shukla and Others vs. State of U.P. And Others reported in 2006(1) SSC 314 wherein the judgment in Nagarajaswamy's case has been followed.

10. The learned Special Public Prosecutor for CBI would adopt the submissions made by the Amicus Curiae. Further, he would submit that on facts, it cannot be now safely concluded at this stage, P.W.1 lacks jurisdiction to issue a valid sanction.

11. The learned counsel for the petitioner would further submit that the order under challenge cannot be termed as an interlocutory order in terms of Section 397 of Cr.P.C. and therefore, this revision is maintainable. For this proposition, he relies on the judgment of the Honourable Supreme Court in Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Limited and Others reported in (2001) 7 SCC 401 wherein in paragraph 8 of the judgment, the Honourable Apex Court has dealt with the term as to what is an interlocutory order. I do agree that the impugned order is revisable as per the law laid down in the said judgment .

12. Now reverting back to the question of power of the learned trial Judge to discharge the accused, I have to state the following. As held by the Honourable Supreme Court in Ratilal Bhanji Mithani 's case reported in 1979 Supreme Court Cases (Crl.) 405 that after framing of charges, the question of discharge of an accused does not arise, is the view consistently taken by the Honourable Supreme Court in several judgments. Before the said judgment as well as after, the law stands well settled that when once charges have been framed, the question of discharging an accused does not arise at all. In paragraph 34 of the said judgment , the Honourable Supreme Court has stated as follows:

The said view has been followed in Bharat Parikh Vs. Central Bureau of Investigation and another reported in (2008) 3 Supreme Court Cases (Crl) 609 wherein in paragraph 17 of the judgment, the Honourable Supreme Court has held as follows:

13. I do not want to burden this judgment by citing many more judgments on this aspect. It would be suffice to say that it has been well settled by the Honourable Apex Court that after framing of charges, the trial Court has got no power at all to discharge the accused.

14. But the learned Counsel for the petitioner, as I have already stated, tries to distinguish the procedure for trial of the cases falling under the prevention of Corruption Act from the cases falling under any other penal enactment. His contention is that the Prevention of Corruption Act has got an inbuilt provision in Section 19 which bars taking of cognizance unless there is a valid sanction. He would further submit that if once it is found that the sanction is bad in law, the very taking of cognizance itself is bad and so, there would be no purpose in allowing the accused to undergo further trial. For this proposition, he again relies on Nagarajaswamy's case. I have also gone through the judgment in Nagarajaswamy's case carefully, wherein I find that the Honourable Apex Court has only held that the question of validity of the sanction should be raised at the earliest point of time.

15. The learned Counsel would further submit that in the case on hand, as soon as P.W.1 was put in the box, at the earliest point of time, during cross examination, the question of sanction was raised and therefore, as per the said judgment, there would be no purpose in allowing the petitioner to undergo the ordeal of trial and so he should be discharged. In this regard, I have to state that in the Code of Criminal Procedure , there is no provision enabling the trial Court to discharge the accused after the trial has commenced. Though it is claimed by the learned Counsel for the petitioner that Section 19 of the Prevention of Corruption Act has got an inbuilt provision under which such discharge, even after framing of charges, is possible, I do not find any merit in the said submission. Section 19 of the Prevention of Corruption Act reads as follows:

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 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."

16. A close reading of Section 19 of the Act would make anyone to understand that it does not empower the trial court to discharge an accused after the framing of charges. In this regard, I have to refer to a judgment of larger Bench of the Supreme Court in Adalat Prasad Vs. Rooplal Jindal and Others reported in (2004) 7 Supreme Court Cases 338. That was a case where the earlier view of the Honourable Supreme Court in K.M.Mathew Vs. State of Kerala reported in (1992) 1 SCC 217 was overruled. It is needless to say that in Mathew 's case, while dealing wit the power of a Magistrate to discharge an accused in a summons case, the Honourable Supreme Court held that though there is no specific provision contained in the Code enabling the trial court to discharge an accused in a summons case, the Court can still do the exercise of dropping an accused. In effect, the Honourable Supreme Court had held that absence of provision in the Code enabling the court to discharge the accused is immaterial. This view was not agreeable to the larger Bench in Adalat Prasad case. In that case, in paragraph Nos.15 and 16, the Honourable Supreme Court has held as follows:

From this, it is clear, that now the Honourable Supreme Court has categorically held that if there is no specific provision in the procedure code empowering the trial court to discharge an accused, the trial court cannot assume such power on the ground that there would be no purpose in allowing the accused to undergo the ordeal of trial.

17. Now, coming to the law laid down in Nagarajaswamy's case, I have to state, as rightly pointed out by Mr.N.R.Elango, the Amicus Curiae, the principles laid down therein have got no application to the facts of the present case. We have to see under what circumstances, under what context and on what question which was posed before the Honourable Supreme Court in the said case, the principles were stated. In that case, factually, cognizance was taken on the basis of a sanction order, charges were framed, the accused was tried and finally, he was acquitted by the trial court on the ground that the sanction order was without jurisdiction and therefore, the very taking of cognizance as against the said accused was bad in law. Subsequently, after getting fresh valid sanction, proceedings were again initiated on which cognizance was once again taken by the trial court. The accused sought for quashing the latter proceedings. The matter ultimately came before the Honourable Supreme Court. In those circumstances, the question before the Honourable Supreme Court was, whether the order of acquittal recorded in the earlier proceedings for want of valid sanction would be a bar for the fresh proceedings in terms of Section 300 of Cr.P.C.

18. After having considered various earlier judgments of the Honourable Supreme Court on that subject, the Honourable Supreme Court had to ultimately say that though technically what was recorded by the trial court was acquittal for want of valid sanction, it cannot be considered to be acquittal in terms of Section 300 as the entire proceeding is vitiated as null and void for want of jurisdiction. Therefore, the Supreme Court stated that the second proceeding on which cognizance was taken is perfectly valid in law. In this regard, it may be useful to refer to the paragraphs 5, 16, 23, 24 and 26 of the judgment in Nagarajaswamy's case which are relied on by the counsels on either side.

A close reading of the above would go to clearly substantiate my understanding of the judgment of the Honourable Supreme Court that it was not at all the question before the Honourable Supreme Court as to whether an accused can be discharged after the framing of charges. Therefore, the principles stated in the said judgment have got no application to the facts of the present case.

19. In Bharat Parikh Vs. Central Bureau of Investigation and another reported in (2008) 3 Supreme Court Cases (Crl.) 609, in paragraph No.19, the Honourable Supreme Court has held as follows:

This is, more particularly, a case falling under the provisions of the Prevention of Corruption Act instituted by the Central Bureau of Investigation. Therefore, the argument of the learned Counsel for the Petitioner that in so far as the power of the trial court to discharge after the trial has commenced, there is vast difference between the cases falling under the Prevention of Corruption Act and the cases falling under any other penal enactment is only to be rejected. There can be no doubt that the Prevention of Corruption Act , being a special enactment will override the provisions of the Code of Criminal Procedure . Of course, it is also true that the Prevention of Corruption Act is both substantive as well as procedural. In so far as Section 19 of the Act is concerned, it is purely procedural. If I find any conflict between the procedure contemplated under Section 19 of the Prevention of Corruption Act and the procedure contemplated under the Code of Criminal Procedure , then this Court can hold Section 19 can only prevail upon.

20. In so far as the power to discharge an accused after the framing of charges is concerned, I find no provision in Section 19 of the Act or in any other provisions of the said Act to empower the Magistrate to do so. Similar provision is not found in the Code of Criminal Procedure also. Therefore, Section 19 of the Act cannot be interpreted in such a manner to empower the Magistrate to discharge an accused after the trial has commenced.

21. At this juncture, we may visualise a situation. Suppose, if there are 10 accused in a case under the Prevention of Corruption Act and for each accused there are separate Sanctioning Authority and at every stage, as soon as one Sanctioning Authority is examined, if a petition is filed seeking to discharge, then the proceedings will be endlessly going on. No statute can be interpreted in such a way as it is sought to be made in this case by the petitioner. For all these reasons, I firmly hold that the petition for discharge after the trial has commenced, even in respect of the accused falling under the provisions of the Prevention of Corruption Act , is not at all maintainable and therefore, the lower Court was right in dismissing the petition.

22. It is submitted by the learned Counsel for the petitioner that P.W.1 himself has admitted that he has got no power to sanction. But the said fact is disputed by the learned Special Public Prosecutor for CBI. In my considered opinion whether P.W.1 has got power to issue sanction, whether the sanction order is valid and whether the petitioner is entitled for acquittal and how to appreciate the evidence of P.W.1 in this regard are all matters to be considered by the trial court only at the time of judgment and not at this stage. It is highly premature on the part of the petitioner to raise all these questions.

23. The learned Counsel for the Petitioner would rely on a decision in State of Goa Vs. Babu Thomas reported in 2005(6) Supreme 547 to substantiate his contention that the sanction is bad in law if the authority who issued the sanction is not the authority competent to remove the Public Servant from office. Regarding this legal proposition, there can be no doubt at all. Once it is held that the authority who issued sanction lacks jurisdiction, there can be no difficulty in holding that the sanction is bad. But, whether the sanction in this case is bad or not is a matter to be appreciated by the trial court at the stage of judgment and not at this stage.

24. It was brought to the notice of this Court that this petition was pending before the trial Court for some time and though the revision is pending before this Court from 2007, the trial is going on and almost 20 witnesses have been examined already. Having regard to the fact that this case is of the year 2004 and since speedy trial is the fundamental right of the petitioner, the trial Court shall expedite the trial.

25. In the result, the revision fails and the same is accordingly dismissed with a direction to the trial court to expedite the trial. Consequently, connected Miscellaneous Petition is closed.

26. Before parting with the case, I record the appreciation of this Court for the excellent assistance rendered by Mr.N.R.Elango, the learned Amicus Curiae, who has taken much pains to go through various provisions to find out number of authorities on this subject.

09.02.2010 Index : Yes/No Internet:Yes/No tsi To

1. The Inspector of Police, Special Police Establishment, Central Bureau of Investigation, Anti Corruption Branch, Chennai-600 006.

2. The Additional Special Judge for CBI Cases, Chennai-600 104 S.NAGAMUTHU,J.

tsi Crl.R.C. No.583 of 2007 09.02.2010 Crl.R.C.No.53 of 2010 Dt.19.01.2010 01.02.2007