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CASE NO.:

Appeal (crl.) 1279 of 2002

PETITIONER:

State of Karnataka through CBI

RESPONDENT:

C. Nagarajaswamy

DATE OF JUDGMENT: 07/10/2005

BENCH:

S.B. Sinha & R.V. Raveendran

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NO. 137 OF 2003

State of Karnataka through CBI \005Appellant

Versus

M.K. Vijayalakshmi \005Respondent

S.B. SINHA, J :

Interpretation of Section 300 of the Code of Criminal Procedure (for

short "the Code") is in question in these appeals which arise out of

judgments and orders dated 9.1.2002 and 10.4.2002 in Criminal Petition

Nos. 330 of 2000 and 4007 of 2001 respectively passed by the High Court of

Karnataka at Bangalore.

We will notice the fact of both the appeals separately.

Criminal Appeal No. 1279 of 2002

The Respondent herein was working as a Junior Telecom Officer in

Shankarapuram Telecom Exchange. One R. Veera Prathap made a

complaint that he had demanded an illegal gratification for showing official

favour whereupon a case in Crime No. R.C. 34A/1994 was registered. A

charge sheet was filed therein and the Special Judge for CBI cases,

Bangalore by an order dated 16.7.1999 took cognizance of an offence under

Section 7 of the Prevention of Corruption Act, 1988 (for short "the Act"). In

the trial, 12 witnesses were examined. The statement of Respondent under

Section 313 of the Code was also recorded.

The learned Special Judge formulated two points for his

determination:

"1. Whether the prosecution has proved that the

sanction accorded for the prosecution of the

accused in this case is a valid sanction?

2. Whether the prosecution has further proved

beyond any reasonable doubt that the accused has

committed the offences punishable under S.7 and

under S. 13(1)(d) R/w. S 13(2) of the Prevention of

Corruption Act, 1988?"

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In regard to point No. 1, the learned Special Judge was of the opinion

that the sanction for prosecution accorded by PW11 was illegal and in that

view of the matter, the same was determined in favour of the Respondent.

In view of his findings as regard point No. 1, the learned Special Judge did

not record any finding on point No. 2 and directed as under:

"Accused C. Nagarajaswamy is hereby discharged

from the proceedings and his bail bonds stand

cancelled."

A fresh charge sheet was filed after obtaining an order of sanction

which came to be challenged before the High Court by the Respondent in an

application filed under Section 482 of the Code.

Criminal Appeal No. 137 of 2003

The Respondent herein was working as a Manager in State Bank of

Mysore, 4th Block, Rajajinagar, Bangalore. She had dominion and control

over the management of the accounts of the Bank. She allegedly

misappropriated a sum of Rs. 40,000/- wherefor a chargesheet was filed on

27.12.1984. While the criminal proceedings were pending, she was

dismissed from service by an order dated 1.6.1985. She faced a full-fledged

trial. She was examined under Section 313 of the Code and also laid

defence evidence. The question as regard sanction accorded by the

Managing Director of the Bank was raised by the Respondent herein before

the learned XXI Addl. City Civil and Sessions and Special Judge,

Bangalore, contending that only the Board of Directors was the competent

authority therefor. By a judgment and order dated 14.11.1991, the learned

XXI Addl. City Civil and Sessions and Special Judge while accepting the

said plea directed:

"The sanction order (Ex. P28) is invalid. The

sanctioning authority was not competent to issue

the said sanction order. Further proceedings of the

case is stopped and the accused is released. The

Bail bond of the accused is cancelled\005"

A second chargesheet was filed after years on 18.8.1995 on the

ground that as the Respondent has been dismissed from the service, no

sanction was required for her prosecution. Cognizance was taken by an

order dated 31.8.2001. The Respondent herein filed an application under

Section 482 of the Code for quashing the criminal proceedings as also the

said order dated 31.8.2001.

The High Court allowed the first application under Section 482 of the

Code filed by the Respondent herein on the ground that when an accused

faces a full-fledged trial, having regard to the provisions of the Code, the

Trial Court must either record a judgment of conviction or acquittal and the

accused cannot be discharged in terms of Section 227 of the Code after a

full-fledged trial. In the second matter, the High Court was of the opinion

that no fresh trial is permissible in law.

Mr. A. Sharan, learned Additional Solicitor General appearing on

behalf of the Appellant would contend that the High Court committed a

manifest error in passing the impugned orders insofar as it failed to take into

consideration the ingredients of the provisions of Section 300 of the Code.

Relying on the decisions of this Court in Baij Nath Prasad Tripathi

Vs. the State of Bhopal [(1957) SCR 650] and Mohammad Safi Vs. The

State of West Bengal [AIR 1966 SC 69], Mr. Sharan would submit that in a

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case where a proper order of sanction was not passed, the court will have no

jurisdiction to take cognizance thereof and as such a judgment passed therein

shall be illegal and of no effect and in that view of the matter, subsequent

trial with proper sanction is not barred.

Mr. Basava Prabhu S. Patil, learned counsel appearing on behalf of

the Respondents would submit that Chapter XVIII of the Code does not

envisage an order of discharge or dropping of the proceedings after a charge

has been framed, witnesses are examined, the statement of the accused under

Section 313 of the Code is taken and defence witnesses are examined.

Chapter XIX of the Code provides for trial of warrant-cases by

Magistrates. An accused can be discharged in the cases instituted under

Section 173 in terms of Section 239 of the Code in the event, the Magistrate

considers the charge against the accused to be groundless wherefor reasons

are required to be recorded. However, if charge is framed whereto the

accused pleads not guilty, the prosecution and defence may lead their

respective evidence. Section 248 provides for recording of a judgment of

acquittal or conviction.

The Appellant was proceeded against the Respondents under the Act.

Section 5 of the Act provides for the procedure and powers of the Special

Judge. Section 19 of the Act mandates that no court shall take cognizance of

offence punishable under the provisions specified therein except with the

previous sanction by the authorities specified therein.

Ordinarily, the question as to whether a proper sanction has been

accorded for prosecution of the accused persons or not is a matter which

should be dealt with at the stage of taking cognizance. But in a case of this

nature where a question is raised as to whether the authority granting the

sanction was competent therefor or not, at the stage of final arguments after

trial, the same may have to be considered having regard to the terms and

conditions of service of the accused for the purpose of determination as to

who could remove him from service.

Grant of proper sanction by a competent authority is a sine qua non

for taking cognizance of the offence. It is desirable that the question as

regard sanction may be determined at an early stage. [See Ashok Sahu Vs.

Gokul Saikia and Another, 1990 (Supp) SCC 41 and Birendra K. Singh Vs.

State of Bihar, JT 2000 (8) SC 248]

But, even if a cognizance of the offence is taken erroneously and the

same comes to the court's notice at a later stage a finding to that effect is

permissible. Even such a plea can be taken for the first time before an

appellate court. [See B. Saha and Others Vs. M.S. Kochar, (1979) 4 SCC

177, para 13 and K. Kalimuthu Vs. State by DSP, (2005) 4 SCC 512]

It is true that in terms of Clause (2) of Article 20 of the Constitution of

India no person can be prosecuted and punished for the same offence more

than once. Section 300 of the Code was enacted having regard to the said

provision. Sub-section (1) of Section 300 of the Code reads as under:

"Persons once convicted or acquitted not to be

tried for same offence \026 (1) A person who has once

been tried by a Court of competent jurisdiction for

an offence and convicted or acquitted of such

offence shall, while such conviction or acquittal

remains in force, not be liable to be tried again for

the same offence, nor on the same facts for any

other offence for which a different charge from the

one made against him might have been made under

sub-section (1) of section 221, or for which he

might have been convicted under sub-section (2)

thereof."

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The essential conditions for invoking the bar under said provision are:

(i) the court had requisite jurisdiction to take cognizance and tried the

accused; and

(ii) the court has recorded an order of conviction or acquittal, and such

conviction/ acquittal remains in force.

The question came up for consideration before the Federal Court in

Basdeo Agarwalla Vs. King Emperor [(1945) F.C.R. 93] wherein it was held

that if a proceeding is initiated without sanction, the same would be null and

void.

In Yusofalli Mulla Noorbhoy Vs. the King [AIR 1949 Privy Council

264], it was held:

"16\005A court cannot be competent to hear and

determine a prosecution the institution of which is

prohibited by law and S. 14 prohibits the

institution of a prosecution in the absence of a

proper sanction. The learned Magistrate was no

doubt competent to decide whether he had

jurisdiction to entertain the prosecution and for

that purpose to determine whether a valid sanction

had been given, but as soon as he decided that no

valid sanction had been given the Court became

incompetent to proceed with the matter. Their

Lordships agree with the view expressed by the

Federal Court in Agarwalla's case: (A.I.R. (32)

1945 F.C. 16: Cr. L.J. 510) that a prosecution

launched without a valid sanction is a nullity."

The matter came up before this Court in Budha Mal Vs. The State of

Delhi [Criminal Appeal No. 17 of 1952] disposed of on 3rd October, 1952

wherein a trial of the Appellant therein for alleged commission of an offence

under Section 161 of the Indian Penal Code resulted in conviction but an

appeal therefrom was accepted on the ground that no sanction for the

prosecution of the Appellant was accorded therefor. The police prosecuted

the Appellant again after obtaining fresh sanction whereupon a plea of bar

thereto in terms of Section 403 of the Code was raised. Mahajan, J.

speaking for a Division Bench opined:

"We are satisfied that the learned Sessions Judge

was right in the view he took. Section 403,

Cr.P.C. applies to cases where the acquittal order

has been made by a court of competent jurisdiction

but it does not bar a retrial of the accused in cases

where such an order has been made by a court

which had no jurisdiction to take cognizance of the

case. It is quite apparent on this record that in the

absence of a valid sanction the trial of the

appellant in the first instance was by a magistrate

who had no jurisdiction to try him."

The aforementioned cases were noticed by a Constitution Bench of

this Court in Baij Nath Prasad Tripathi (supra) wherein a similar plea was

repelled stating:

"\005The Privy Council decision is directly in point,

and it was there held that the whole basis of

Section 403(1) was that the first trial should have

been before a court competent to hear and

determine the case and to record a verdict of

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conviction or acquittal; if the court was not so

competent, as for example where the required

sanction for the prosecution was not obtained, it

was irrelevant that it was competent to try other

cases of the same class or indeed the case against

the particular accused in different circumstances,

for example if a sanction had been obtained."

In Mohammad Safi (supra), this Court held:

"6. It is true that Mr Ganguly could properly take

cognizance of the offence and, therefore, the

proceedings before him were in fact not vitiated by

reason of lack of jurisdiction. But we cannot close

our eyes to the fact that Mr Ganguly was himself

of the opinion \027 and indeed he had no option in

the matter because he was bound by the decisions

of the High Court \027 that he could not take

cognizance of the offence and consequently was

incompetent to try the appellant. Where a court

comes to such a conclusion, albeit erroneously, it

is difficult to appreciate how that court can absolve

the person arraigned before it completely of the

offence alleged against him. Where a person has

done something which is made punishable by law

he is liable to face a trial and this liability cannot

come to an end merely because the court before

which he was placed for trial forms an opinion that

it has no jurisdiction to try him or that it has no

jurisdiction to take cognizance of the offence

alleged against him. Where, therefore, a court says,

though erroneously, that it was not competent to

take cognizance of the offence it has no power to

acquit that person of the offence. An order of

acquittal made by it is in fact a nullity.

Relying upon Yusofalli Mulla Noorbhoy (supra), it was

held:

"The principle upon which the decision of the

Privy Council is based must apply equally to a

case like the present in which the court which

made the order of acquittal was itself of the

opinion that it had no jurisdiction to proceed with

the case and therefore the accused was not in

jeopardy."

[See also State of Goa vs. Babu Thomas \026 (2005) 7 SCALE 659]

In view of the aforementioned authoritative pronouncements, it is not

possible to agree with the decision of the High Court that the Trial Court

was bound to record either a judgment of conviction or acquittal, even after

holding that the sanction was not valid. We have noticed hereinbefore that

even if a judgment of conviction or acquittal was recorded, the same would

not make any distinction for the purpose of invoking the provisions of

Section 300 of the Code as even then, it would be held to have been

rendered illegally and without jurisdiction.

The learned counsel for the Respondent next contended that having

regard to the fact that the Respondents herein have faced ordeal of trial for a

long time, it would not be in the interest of justice to put them on trial once

over. In this behalf he relied on the decision of this Court in State of

Madhya Pradesh Vs. Bhooraji and Ors. [JT 2001 (7) SC 55] wherein it is

observed that fresh trial should be ordered only in exceptional cases of

'failure of justice'. In Bhooraji (supra), the specified court being a Sessions

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Court took cognizance of the offence under the SC & ST (Prevention of

Atrocities) Act without the case being committed to it. It convicted and

sentenced the accused. During pendency of appeal by the accused before

High Court, this court took the view that committal proceedings are

necessary for a specified court, to take cognizance of offences to be tried

under the Act. The High Court, therefore, quashed the entire proceedings

and directed trial de novo. In that context this Court held that ordering de

novo trial was not justified and as the trial was conducted by a 'competent

court', the same cannot be erased merely on account of a procedural lapse.

We may notice that in a case where the trial was conducted by a court of

competent jurisdiction ending in conviction or acquittal, a retrial may not be

directed. Interpreting Section 465 of the Code, this Court in Bhooraji

(supra) held:

"22. The bar against taking cognizance of certain

offences or by certain courts cannot govern the

question whether the court concerned is "a court of

competent jurisdiction", e.g. courts are debarred

from taking cognizance of certain offences without

sanction of certain authorities. If a court took

cognizance of such offences, which were later

found to be without valid sanction, it would not

become the test or standard for deciding whether

that court was "a court of competent jurisdiction".

It is now well settled that if the question of

sanction was not raised at the earliest opportunity

the proceedings would remain unaffected on

account of want of sanction. This is another

example to show that the condition precedent for

taking cognizance is not the standard to determine

whether the court concerned is "a court of

competent jurisdiction".

However, the learned counsel appearing on behalf of the Respondents

may be right in his submissions as regards the right of an accused for a

speedy trial having regard to the provisions contained in Article 21 of the

Constitution of India that a person's fate may not be kept hanging for a long

time.

In Mahendra Lal Das Vs. State of Bihar and Others [(2002) 1 SCC

149], this Court opined:

"5. It is true that interference by the court at the

investigation stage is not called for. However, it is

equally true that the investigating agency cannot

be given the latitude of protracting the conclusion

of the investigation without any limit of time. This

Court in Abdul Rehman Antulay v. R.S. Nayak

while interpreting the scope of Article 21 of the

Constitution held that every citizen has a right to

speedy trial of the case pending against him. The

speedy trial was considered also in public interest

as it serves the social interest also. It is in the

interest of all concerned that guilt or innocence of

the accused is determined as quickly as possible in

the circumstances. The right to speedy trial

encompasses all the stages, namely, stage of

investigation, enquiry, trial, appeal, revision and

retrial. While determining the alleged delay, the

court has to decide each case on its facts having

regard to all attending circumstances including

nature of offence, number of accused and

witnesses, the workload of the court concerned,

prevailing local conditions etc. Every delay may

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not be taken as causing prejudice to the accused

but the alleged delay has to be considered in the

totality of the circumstances and the general

conspectus of the case. Inordinate long delay can

be taken as a presentive proof of prejudice."

In that case, however, the prosecution had miserably failed to explain

the delay of more than 13 years in granting the sanction for prosecution of

the Appellant therein of possessing disproportionate wealth of about Rs.

50,600/-. The State was also not satisfied about the merit of the case and the

authorities were convinced that despite granting of sanction the trial would

be a mere formality and an exercise in futility.

Yet again in P. Ramachandra Rao Vs. State of Karnataka [(2002) 4

SCC 578] this Court while categorically holding that no period of limitation

can be prescribed on which the trial of a criminal case or criminal

proceeding cannot continue and must mandatorily be closed followed by an

order acquitting or discharging the accused observed:

"(4) It is neither advisable, nor feasible, nor

judicially permissible to draw or prescribe an outer

limit for conclusion of all criminal proceedings.

The time-limits or bars of limitation prescribed in

the several directions made in Common Cause (I),

Raj Deo Sharma (I) and Raj Deo Sharma (II) could

not have been so prescribed or drawn and are not

good law. The criminal courts are not obliged to

terminate trial or criminal proceedings merely on

account of lapse of time, as prescribed by the

directions made in Common Cause case (I), Raj

Deo Sharma case (I) and (II). At the most the

periods of time prescribed in those decisions can

be taken by the courts seized of the trial or

proceedings to act as reminders when they may be

persuaded to apply their judicial mind to the facts

and circumstances of the case before them and

determine by taking into consideration the several

relevant factors as pointed out in A.R. Antulay

case and decide whether the trial or proceedings

have become so inordinately delayed as to be

called oppressive and unwarranted. Such time-

limits cannot and will not by themselves be treated

by any court as a bar to further continuance of the

trial or proceedings and as mandatorily obliging

the court to terminate the same and acquit or

discharge the accused."

Keeping in view of the aforementioned principles and having regard

to the facts and circumstances of this case, however, we are of the opinion

that the interest of justice shall be sub-served if while allowing these appeals

and setting aside the judgments of the High Court, the trial court is requested

to dispose of the matters at an early date preferably within six months from

the date of communication of this order, subject, of course, to rendition of all

cooperation of the Respondents herein. In the event, the trial is not

completed within the aforementioned period, it would be open to the

Respondents to approach the High Court again. These appeals are disposed

of with the aforementioned directions. No costs.