2023 INSC 669 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1598 OF 2023

STATE OF KARNATAKA LOKAYUKTA POLICE .....APPELLANT

VERSUS

S. SUBBEGOWDA ....RESPONDENT

J U D G M E N T

BELA M. TRIVEDI, J.

1.The appellant – State of Karnataka Lokayukta Police by way of

instant appeal has assailed the judgment and order dated

16.08.2018 passed by the High Court of Karnataka at Bengaluru in

Criminal Petition No. 4463 of 2018 whereby the High Court has

allowed the said petition by discharging the respondent (original

petitioner-accused) from the offences charged under Section 13(1)

(e) read with Section 13(2) of the Prevention of Corruption Act, 1988

(hereinafter referred to as the said Act), on the ground that the

sanction accorded to prosecute the respondent-accused by the

Government was illegal and without jurisdiction.

2.The respondent was working as an Executive Engineer in the

Karnataka Urban Water Supply and Drainage Board, Mandya

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Division, Mandya during the period 1983 to 2007. On the basis of

the Source Report dated 17.12.2007 submitted by the then Deputy

Superintendent of Police, Bengaluru Rural Division, Karnataka

Lokayukta, Bengaluru, a case being Crime No. 22 of 2007 (later

numbered as Crime No. 62 of 2008) came to be registered against

the respondent for the offence under Section 13(1)(e) read with

Section 13(2) of the said Act. It was alleged, inter alia, that the

respondent-accused during his tenure in the office as an Executive

Engineer had amassed the wealth disproportionate to his known

sources of income. On the completion of the investigation, the

Investigating Officer had sent the papers to the State Government

seeking sanction to prosecute the respondent as required in Section

19(1) of the said Act. The Government of Karnataka on the basis of

the material placed before it, had accorded the requisite sanction by

issuing the Government order dated 13.09.2010. Thereafter the

chargesheet came to be filed in the Court of Principal District and

Sessions Judge, Bengaluru Rural District at Bengaluru wherein it

was alleged that respondent had abused his position as a public

servant, had indulged into corrupt practices and had amassed

wealth disproportionate to his known sources of income. The said

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case was registered as Special Case No. 488 of 2011 before the

said Court.

3.The respondent-accused filed an application under Section 227 read

with 239 of CrPC on 12.10.2011, seeking his discharge from the

case contending, inter alia, that neither the contents of the Source

Report nor the other documents constituted any offence as alleged,

and that the sanction under Section 19(1) of the said Act was issued

by the Government without any application of mind. The said

application came to be dismissed by the trial court by passing a

detailed order on 01.02.2013. Being aggrieved by the said order, the

respondent preferred a Criminal Revision Petition being no. 287 of

2013 before the High Court. The said petition came to be disposed

of by the High Court vide the order dated 05.07.2013 directing the

trial court to consider the documents made available by the

respondent during the investigation and produced by the

prosecution with the chargesheet, while framing the charge without

being influenced by the order dated 01.12.2013.

4.It appears that in view of the said order passed by the High Court,

the respondent-accused again filed an application under Sections

227 and 239 of CrPC before the trial court seeking his discharge

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from the case by contending, inter alia, that the sanction order

passed by the Government lacked application of mind and was

given mechanically and that the Investigating Officer had

suppressed the material produced by the respondent offering

satisfactory explanations to the assets acquired, income derived and

expenditure incurred by the respondent during period in question.

Pertinently, the respondent did not press for the said application by

submitting a memo on 02.12.2014 and stating therein that the Court

may proceed to frame charge against him. The said memo reads as

under-

“IN THE COURT OF THE PRINCIPAL DISTRICT AND

SESSIONS JUDGE BANGALORE RURAL AT BANGALORE

Spl.C.C. No.488 of 11

BETWEEN:

State by Lokayktha Police,

Bangalore Rural. ... Complainant

AND:

Subbegowda. … Accused

MEMO FILED ON BEHALF OF THE ACCUSED

The above named Accused humbly submits that he will not

press the application filed under Sections 227 and 239 of

Cr.P.C., 1973 seeking discharge in the case. It is further

submitted that the Hon'ble Court may proceed to frame charges

against the Accused.

02.12.2014

Bangalore. Sd/-

Advocate for Accused.”

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5.The trial court thereafter framed the charge against the respondent-

accused on 23.12.2014 for the offence of criminal misconduct under

Section 13(1)(e) punishable under Section 13(2) of the said Act in

Special Case No. 488 of 2011. The prosecution thereafter examined

as many as 17 witnesses in support of its case, and in the midst of

the trial the respondent-accused again filed third application under

Section 227 of CrPC seeking his discharge from the case on the

ground that the respondent was an employee of the Karnataka

Urban Water Supply and Drainage Board and could be removed

only by the said Board in view of Rule 10 of Karnataka Civil Services

(Classification, Control and Appeal) Rules, 1957. The State

Government therefore had no jurisdiction to accord the sanction to

prosecute the respondent under Section 19(1) of the said Act. The

trial court vide the order dated 05.06.2018 dismissed the said

application by passing a detailed order holding, inter alia, that the

third successive application filed by the respondent-accused for the

discharge from the case, when the evidence of 17 witnesses had

been recorded and when the contention based on the sanction was

already rejected by the Court earlier, was liable to be dismissed. The

aggrieved respondent filed the Criminal Petition being no. 4463 of

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2018 under Section 482 of CrPC before the High Court, which came

to be allowed by the High Court vide the impugned order.

6.In view of the afore-stated undisputed facts the following questions

arise for consideration before this Court:

(i)Whether the High Court in exercise of its powers under

Section 482 of CrPC could have discharged the respondent-

accused from the charges levelled against him for the offences

under Section 13(1)(e) punishable under Section 13(2) of the

said Act, despite the fact that the accused had not pressed for

his second application for discharge by submitting the Memo

dated 02.12.2014 and despite the fact that after framing of the

charge by the Special Court on 23.12.2014, the trial had

proceeded further and the prosecution had examined 17

witnesses in support of its case?

(ii)Whether the High Court in the criminal petition filed under

Section 482 of the CrPC could reverse the findings recorded

by the Special Court with regard to the validity of sanction,

ignoring the bar contained in sub-section (3) read with sub-

section (4) of Section 19 of the said Act?

7.As stated earlier, after having not succeeded in the first application

seeking discharge under Section 227 of CrPC, in which the

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petitioner had raised the issue of sanction by contending that the

sanction was accorded by the Government under Section 19(1) of

the said Act without any application of mind, the respondent-

accused had filed the second application again seeking his

discharge under Section 227 of CrPC by raising the issue of

sanction by contending, inter alia, that the sanction order was

passed mechanically by the Government and that the Investigating

Officer had suppressed the material produced by the respondent

offering satisfactory explanations to the assets acquired by him.

Admittedly, the second application was not pressed for by the

respondent by submitting the Memo on 02.12.2014, wherein it was

stated that the Court may proceed to frame charge against him.

Thus, by submitting the said Memo, the respondent-accused had

specifically not pressed for his contention with regard to the validity

of sanction or error in granting the sanction by the Government, and

he specifically requested the Court to proceed further with the

framing of charge. Considering the said memo, the trial court framed

the charge, and the prosecution examined as many as 17 witnesses

in support of its case. At that stage, the respondent submitted the

third application which was in the nature of interlocutory application

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again seeking the discharge under Section 227 of CrPC on the

ground that there was an error in the sanction order, the

Government being not competent to grant the sanction under

Section 19(1) of the said Act. The said application having been

dismissed by the trial court, the High Court could not and should not

have entertained the petition under Section 482 of CrPC, which was

in the nature of revision application, and reversed the findings

recorded by the trial court, in view of sub-section (3) read with sub-

section (4) of Section 19 of the said Act.

8.For the ready reference, the relevant part of sub-section (1), (3) and

(4) of Section 19 are reproduced herein below:

“19. Previous sanction necessary for prosecution. —

(1)No court shall take cognizance of an offence punishable

under sections 7, 11, 13 and 15 alleged to have been

committed by a public servant, except with the previous

sanction save as otherwise provided in the Lokpal and

Lokayuktas Act, 2013 (1 of 2014)—

(a) in the case of a person who is employed, or as the

case may be, was at the time of commission of the

alleged offence employed in connection with the

affairs of the Union and is not removable from his

office save by or with the sanction of the Central

Government, of that Government;

(b)in the case of a person who is employed, or as the

case may be, was at the time of commission of the

alleged offence employed in connection with the

affairs of a State and is not removable from his office

save by or with the sanction of the State Government,

of that Government;

(c) in the case of any other person, of the authority

competent to remove him from his office.

(2)----------

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(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 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.”

9.Similar provision is contained in Section 465 of CrPC on whether

finding or sentence is reversible by reason of error, omission or

irregularity. It reads as under: -

“465. Finding or sentence when reversible by reason of

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,

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confirmation of 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.”

10.Having regard to the afore-stated provisions contained in Section 19

of the said Act, there remains no shadow of doubt that the statute

forbids taking of cognizance by the Court against a public servant

except with the previous sanction of the Government/authority

competent to grant such sanction in terms of clauses (a), (b) and (c)

to Section 19(1). It is also well settled proposition of law that the

question with regard to the validity of such sanction should be raised

at the earliest stage of the proceedings, however could be raised at

the subsequent stage of the trial also. In our opinion, the stages of

proceedings at which an accused could raise the issue with regard

to the validity of the sanction would be the stage when the Court

takes cognizance of the offence, the stage when the charge is to be

framed by the Court or at the stage when the trial is complete i.e., at

the stage of final arguments in the trial. Such issue of course, could

be raised before the Court in appeal, revision or confirmation,

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however the powers of such court would be subject to sub-section

(3) and sub-section (4) of Section 19 of the said Act. It is also

significant to note that the competence of the court trying the

accused also would be dependent upon the existence of the validity

of sanction, and therefore it is always desirable to raise the issue of

validity of sanction at the earliest point of time. It cannot be gainsaid

that in case the sanction is found to be invalid, the trial court can

discharge the accused and relegate the parties to a stage where the

competent authority may grant a fresh sanction for the prosecution

in accordance with the law.

11.The combined reading of sub-section (3) and (4) of Section 19

makes it clear that notwithstanding anything contained in the Code,

no finding, sentence or order passed by the 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

the Court, a failure of justice has in fact been occasioned thereby.

sub-section (4) further postulates that in determining under sub-

section (3) whether the absence of, or any error, omission or

irregularity in the sanction has occasioned, or resulted in failure of

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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. The explanation to sub-section (4) further provides that

for the purpose of Section 19, error includes “competency of the

authority to grant sanction”. Thus, it is clear from the language

employed in sub-section (3) of Section 19 that the said sub-section

has application to the proceedings before the Court in appeal,

confirmation or revision, and not to the proceedings before the

Special Judge. The said sub-section (3) clearly forbids the court in

appeal, confirmation or revision, the interference with the order

passed by the Special Judge on the ground that the sanction was

bad, save and except in cases where the appellate or revisional

court finds that the failure of justice had occurred by such invalidity.

12.This Court in case of Nanjappa Vs. State of Karnataka

1

has very

aptly dealt with the intricacies of Section 19(1) as also Section 19(3)

and 19(4) of the said Act as to at what stage the question of validity

of sanction accorded under Section 19(1) of the said Act could be

raised, and what are the powers of the court in appeal, confirmation

or revision under sub-section (3) of Section 19 of the said Act.

“22. The legal position regarding the importance of sanction

under Section 19 of the Prevention of Corruption Act is thus

much too clear to admit equivocation. The statute forbids

1 (2015) 14 SCC 186

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taking of cognizance by the court against a public servant

except with the previous sanction of an authority competent

to grant such sanction in terms of clauses (a), (b) and (c) to

Section 19(1). The question regarding validity of such

sanction can be raised at any stage of the proceedings. The

competence of the court trying the accused so much

depends upon the existence of a valid sanction. In case the

sanction is found to be invalid the court can discharge the

accused relegating the parties to a stage where the

competent authority may grant a fresh sanction for the

prosecution in accordance with law. If the trial court

proceeds, despite the invalidity attached to the sanction

order, the same shall be deemed to be non est in the eyes of

law and shall not forbid a second trial for the same offences,

upon grant of a valid sanction for such prosecution.

23. Having said that there are two aspects which we must

immediately advert to. The first relates to the effect of sub-

section (3) to Section 19, which starts with a non obstante

clause. Also relevant to the same aspect would be Section

465 CrPC which we have extracted earlier.

23.1. It was argued on behalf of the State with considerable

tenacity worthy of a better cause, that in terms of Section

19(3), any error, omission or irregularity in the order

sanctioning prosecution of an accused was of no

consequence so long as there was no failure of justice

resulting from such error, omission or irregularity. It was

contended that in terms of Explanation to Section 4, “error

includes competence of the authority to grant sanction”. The

argument is on the face of it attractive but does not, in our

opinion, stand closer scrutiny.

23.2. A careful reading of sub-section (3) to Section 19

would show that the same interdicts reversal or alteration of

any finding, sentence or order passed by a Special Judge,

on the ground that the sanction order suffers from an error,

omission or irregularity, unless of course the court before

whom such finding, sentence or order is challenged in

appeal or revision is of the opinion that a failure of justice

has occurred by reason of such error, omission or

irregularity. Sub-section (3), in other words, simply forbids

interference with an order passed by the Special Judge in

appeal, confirmation or revisional proceedings on the ground

that the sanction is bad save and except, in cases where the

appellate or revisional court finds that failure of justice has

occurred by such invalidity. What is noteworthy is that sub-

section (3) has no application to proceedings before the

Special Judge, who is free to pass an order discharging the

accused, if he is of the opinion that a valid order sanctioning

prosecution of the accused had not been produced as

required under Section 19(1).

23.3. Sub-section (3), in our opinion, postulates a prohibition

against a higher court reversing an order passed by the

Special Judge on the ground of any defect, omission or

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irregularity in the order of sanction. It does not forbid a

Special Judge from passing an order at whatever stage of

the proceedings holding that the prosecution is not

maintainable for want of a valid order sanctioning the same.

23.4. The language employed in sub-section (3) is, in our

opinion, clear and unambiguous. This is, in our opinion,

sufficiently evident even from the language employed in sub-

section (4) according to which the appellate or the revisional

court shall, while examining whether the error, omission or

irregularity in the sanction had occasioned in any failure of

justice, have regard to the fact whether the objection could

and should have been raised at an early stage. Suffice it to

say, that a conjoint reading of sub-sections 19(3) and (4)

leaves no manner of doubt that the said provisions envisage

a challenge to the validity of the order of sanction or the

validity of the proceedings including finding, sentence or

order passed by the Special Judge in appeal or revision

before a higher court and not before the Special Judge trying

the accused.

23.5. The rationale underlying the provision obviously is that

if the trial has proceeded to conclusion and resulted in a

finding or sentence, the same should not be lightly interfered

with by the appellate or the revisional court simply because

there was some omission, error or irregularity in the order

sanctioning the prosecution under Section 19(1). Failure of

justice is, what the appellate or revisional court would in

such cases look for. And while examining whether any such

failure had indeed taken place, the Court concerned would

also keep in mind whether the objection touching the error,

omission or irregularity in the sanction could or should have

been raised at an earlier stage of the proceedings meaning

thereby whether the same could and should have been

raised at the trial stage instead of being urged in appeal or

revision.”

13.In State of M.P. vs. Bhooraji and Others

2

, this Court had an

occasion to deal with the various aspects contained in Section 465

of CrPC more particularly to deal with the expression “A failure of

justice has in fact been occasioned” as contained therein. Since, the

provisions contained in Section 19(3) of the Prevention of Corruption

2 (2001) 7 SCC 679

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Act and in Section 465(1) of CrPC are pari materia, the observations

made in the said decision would be relevant.

“14. We have to examine Section 465(1) of the Code in the

above context. It is extracted below:

“465. (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 enquiry 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.”

15. A reading of the section makes it clear that the error,

omission or irregularity in the proceedings held before or

during the trial or in any enquiry were reckoned by the

legislature as possible occurrences in criminal courts. Yet

the legislature disfavoured axing down the proceedings or to

direct repetition of the whole proceedings afresh. Hence, the

legislature imposed a prohibition that unless such error,

omission or irregularity has occasioned “a failure of justice”

the superior court shall not quash the proceedings merely on

the ground of such error, omission or irregularity.

16. What is meant by “a failure of justice” occasioned on

account of such error, omission or irregularity? This Court

has observed in Shamnsaheb M. Multtani v. State of

Karnataka [(2001) 2 SCC 577: 2001 SCC (Cri) 358] thus:

(SCC p. 585, para 23)

“23. We often hear about ‘failure of justice’ and quite

often the submission in a criminal court is accentuated

with the said expression. Perhaps it is too pliable or

facile an expression which could be fitted in any

situation of a case. The expression ‘failure of justice’

would appear, sometimes, as an etymological

chameleon (the simile is borrowed from Lord Diplock

in Town Investments Ltd. v. Deptt. of the

Environment [(1977) 1 All ER 813 : 1978 AC 359 :

(1977) 2 WLR 450 (HL)] ). The criminal court,

particularly the superior court should make a close

examination to ascertain whether there was really a

failure of justice or whether it is only a camouflage.”

14.In the instant case, the Special Judge proceeded with the trial, on

the second application for discharge filed by the respondent having

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not been pressed for by him. The Special Judge, while dismissing

the third application filed by the respondent seeking discharge after

examination of 17 witnesses by the prosecution, specifically held

that the sanction accorded by the government which was a superior

authority to the Karnataka Water Supply Board, of which the

respondent was an employee, was proper and valid. Such findings

recorded by the Special Judge could not have been and should not

have been reversed or altered by the High Court in the petition filed

by the respondent challenging the said order of the Special Judge,

in view of the specific bar contained in sub-section (3) of Section 19,

and that too without recording any opinion as to how a failure of

justice had in fact been occasioned to the respondent-accused as

contemplated in the said sub-section (3). As a matter of fact, neither

the respondent had pleaded nor the High Court opined whether any

failure of justice had occasioned to the respondent, on account of

error if any, occurred in granting the sanction by the authority.

15.As a matter of fact, such an interlocutory application seeking

discharge in the midst of trial would also not be maintainable. Once

the cognizance was taken by the Special Judge and the charge was

framed against the accused, the trial could neither have been stayed

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nor scuttled in the midst of it in view of Section 19(3) of the said Act.

In the instant case, though the issue of validity of sanction was

raised at the earlier point of time, the same was not pressed for. The

only stage open to the respondent-accused in that situation was to

raise the said issue at the final arguments in the trial in accordance

with law.

16.In that view of the matter, the impugned order passed by the High

Court is set aside. It will be open for the respondent to raise the

issue of validity of sanction if he desires to do so, in accordance with

law at the final stage of arguments in the trial. Special Judge is

directed to proceed with the trial from the stage it had stopped, in

accordance with the law and as expeditiously as possible.

17.Appeal stands allowed accordingly.

…..................................J.

[ANIRUDDHA BOSE]

…..................................J.

[BELA M. TRIVEDI]

NEW DELHI;

03.08.2023

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