Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2345 OF 2009

State of Maharashtra Through C.B.I.

...Appellant

Versus

Mahesh G. Jain ...Respondent

J U D G M E N T

Dipak Misra, J.

The singular question that emanates for

consideration in this appeal is whether the High Court of

Judicature at Bombay in Criminal Application No. 2648 of

2007 is justified in refusing to grant leave to file an appeal

by the Central Bureau of Investigation, Anti Corruption

Branch, Mumbai (for short “the CBI”) to assail the

judgment and order dated 8

th

September, 2006 in Special

Page 2 Case No. 62 of 2000 by the Court of Special Judge for

Greater Bombay whereby the learned Special Judge had

acquitted the respondent No. 1 under Sections 7, 13 (1)

(d) read with 2 of the Prevention of Corruption Act, 1988

(For brevity “the Act”) principally on the foundation that

the sanction granted by the competent authority was

defective and illegal as there was non-application of mind

which would show lack of satisfaction.

2.At the very outset, it is condign to state that as we

are only dealing with a singular issue it is not

necessary to state the facts in detail. Suffice it to

state one Satish P. Doshi, proprietor of Shree Travels,

the complainant, had given his vehicles to State Bank

of India on contract basis and was entitled to receive

hire charges for his vehicles periodically. The

complainant experienced certain difficulties in

getting his cheques and Tax Deducted at Source

certificates. When he approached the accused-

respondent, he demanded illegal gratification which

was not acceded to by the complainant. Despite

consistent refusal by the complainant, the demand of

2

Page 3 the accused was persistent which constrained the

complainant to approach the CBI with a written

complaint. The CBI took up the investigation and the

raiding party carried out a trap operation, seized the

bribe amount of Rs.1000/-, sent the seized article to

the CFSL, obtained the sanction order and ultimately

on 5.10.2000 filed the charge-sheet before the

learned Special Judge. After the trial was over the

learned Special Judge adverted to all the issues and

answered all of them in the affirmative against the

accused but acquitted him solely on the base that

the sanction order was defective and illegal and that

went to the very root of jurisdiction of the court.

3.Grieved by the aforesaid judgment of acquittal, the

CBI filed an application for grant of leave and the

learned single Judge of the High Court of Bombay

declined to grant leave on the ground that it was

doubtful whether the sanctioning authority had, in

fact, actually applied its mind while granting

sanction. The High Court further opined that the

view taken by the learned Special Judge in that

3

Page 4 regard was a plausible one being not contrary to

material on record and hence, it did not require any

interference.

4.We have heard Mr. Sidharth Luthra, learned

Additional Solicitor General appearing for the

appellant, and Mr. V.N. Bachawat, learned senior

counsel appearing for the respondent.

5.Section 19(1) of the Act postulates that no court shall

take cognizance of an offence punishable under

Sections 7, 10, 11, 13 and 15 alleged to have been

committed by a public servant except with the

previous sanction. The said provision enumerates

about the competent authorities. In the case at

hand, the competence of the authority who has

granted sanction is not in question. The only aspect

that is required to be scrutinized whether the order

granting sanction is valid in law.

6.Grant of sanction is irrefragably a sacrosanct act and

is intended to provide safeguard to public servant

against frivolous and vexatious litigations.

4

Page 5 Satisfaction of the sanctioning authority is essential

to validate an order granting sanction. This Court in

Jaswant Singh v. State of Punjab

1

was

considering the validity and effect of the sanction

given under Section 6(1) of the Prevention of

Corruption Act, 1947. After referring to the decisions

in Basdeo Agarwala v. Emperor

2

and

Gokulchand Dwarkadas Morarka v. The King

3

,

the Court opined as follows: -

“It should be clear from the form of the sanction

that the sanctioning authority considered the

evidence before it and after a consideration of

all the circumstances of the case sanctioned the

prosecution, and therefore unless the matter

can be proved by other evidence, in the

sanction itself the facts should be referred to

indicate that the sanctioning authority had

applied its mind to the facts and circumstances

of the case.”

In the said case, the two-Judge Bench had

reproduced the order of sanction and opined that if the

same, strictly construed, indicated the consideration by

the sanctioning authority of the facts relating to the

receiving of the illegal gratification by the accused. We

1

AIR 1958 SC 124

2

AIR 1945 FC 18

3

AIR 1948 PC 84

5

Page 6 think it apt to reproduce the order of sanction in that case:

-

“Whereas I am satisfied that Jaswant Singh

Patwari son of Gurdial Singh Kamboh of village

Ajaibwali had accepted an illegal gratification of

Rs.50 in 5 currency notes of Rs.10

denomination each from one Pal Singh son of S.

Santa Singh of village Fatehpur Rajputan, Tehsil

Amritsar for making a favourable report on an

application for allotment of an ahata to S. Santa

Singh father of the said S. Pal Singh.

And whereas the evidence available in this

case clearly discloses that the said S. Jaswant

Singh Patwari had committed an offence under

S. 5 of the Prevention of Corruption Act.

Now therefore, I, N.N. Kashyap, Esquire

I.C.S. Deputy Commissioner, Asr, as required by

S. 6 of the Prevention of Corruption Act of 1947,

hereby sanction the prosecution of the said S.

Jaswant Singh Patwari under S. 5 of the said

Act.”

We have quoted the aforesaid order only to highlight

the approach of this Court pertaining to application of

mind that is reflected in the order.

7.In Mohd. Iqbal Ahmed v. State of Andhra

Pradesh

4

this Court lucidly registered the view that

it is incumbent on the prosecution to prove that a

valid sanction has been granted by the sanctioning

authority after being satisfied that a case for sanction

4

AIR 1979 SC 677

6

Page 7 has been made out constituting an offence and the

same should be done in two ways; either (i) by

producing the original sanction which itself contains

the facts constituting the offence and the grounds of

satisfaction and (ii) by adducing evidence aliunde to

show the facts placed before the Sanctioning

Authority and the satisfaction arrived at by it. It is

well settled that any case instituted without a proper

sanction must fail because this being a manifest

defect in the prosecution, the entire proceedings are

rendered void ab initio.

8.In Superintendent of Police (C.B.I.) v. Deepak

Chowdhary and others

5

it has been ruled that the

grant of sanction is only an administrative function,

though it is true that the accused may be saddled

with the liability to be prosecuted in a court of law.

What is material at that time is that the necessary

facts collected during investigation constituting the

offence have to be placed before the sanctioning

authority and it has to consider the material. Prima

5

(1995) 6 SCC 225

7

Page 8 facie, the authority is required to reach the

satisfaction that the relevant facts would constitute

the offence and then either grant or refuse to grant

sanction.

9.In C.S. Krishnamurthy v. State of Karnataka

6

it

has been held as follows: -

“...sanction order should speak for itself and in

case the facts do not so appear, it should be

proved by leading evidence that all the

particulars were placed before the sanctioning

authority for due application of mind. In case

the sanction speaks for itself then the

satisfaction of the sanctioning authority is

apparent by reading the order.”

10.In R. Sundararajan v. State by DSP, SPE, CBI,

Chennai

7

, while dealing with the validity of the order

of sanction, the two learned Judges have expressed

thus: -

“it may be mentioned that we cannot look into

the adequacy or inadequacy of the material

before the sanctioning authority and we cannot

sit as a court of appeal over the sanction order.

The order granting sanction shows that all the

available materials were placed before the

sanctioning authority who considered the same

in great detail. Only because some of the said

materials could not be proved, the same by

itself, in our opinion, would not vitiate the order

6

(2005) 4 SCC 81

7

(2006) 12 SCC 749

8

Page 9 of sanction. In fact in this case there was

abundant material before the sanctioning

authority, and hence we do not agree that the

sanction order was in any way vitiated.”

11.In State of Karnata v. Ameerjan

8

it has been

opined that an order of sanction should not be

construed in a pedantic manner. But, it is also well

settled that the purpose for which an order of

sanction is required to be passed should always be

borne in mind. Ordinarily, the sanctioning authority is

the best person to judge as to whether the public

servant concerned should receive the protection

under the Act by refusing to accord sanction for his

prosecution or not.

12.In Kootha Perumal v. State through Inspector

of Police, Vigilance and Anti-Corruption

9

, it has

been opined that the sanctioning authority when

grants sanction on an examination of the statements

of the witnesses as also the material on record, it can

safely be concluded that the sanctioning authority

has duly recorded its satisfaction and, therefore, the

sanction order is valid.

8

(2007) 11 SCC 273

9

(2011) 1 SCC 491

9

Page 10 13.From the aforesaid authorities the following

principles can be culled out: -

(a) It is incumbent on the prosecution to prove that

the valid sanction has been granted by the sanctioning

authority after being satisfied that a case for sanction

has been made out.

(b) The sanction order may expressly show that the

sanctioning authority has perused the material placed

before him and, after consideration of the

circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the

evidence that the material was placed before the

sanctioning authority and his satisfaction was arrived at

upon perusal of the material placed before him.

(d) Grant of sanction is only an administrative

function and the sanctioning authority is required to

prima facie reach the satisfaction that relevant facts

would constitute the offence.

10

Page 11 (e) The adequacy of material placed before the

sanctioning authority cannot be gone into by the court

as it does not sit in appeal over the sanction order.

(f)If the sanctioning authority has perused all the

materials placed before him and some of them have not

been proved that would not vitiate the order of

sanction.

(g) The order of sanction is a pre-requisite as it is

intended to provide a safeguard to public servant

against frivolous and vexatious litigants, but

simultaneously an order of sanction should not be

construed in a pedantic manner and there should not be

a hyper-technical approach to test its validity.

14.Keeping in view the aforesaid principles it is to be

seen whether the order of sanction granted by the

sanctioning authority withstands scrutiny or not. For

the aforesaid purpose it is necessitous to reproduce

the order of sanction in entirety: -

“WHEREAS, it is alleged that Shri Mahesh

Gandmal Jain, Accounts Clerk working in Office

Administration Department, State Bank of India,

11

Page 12 Corporate Centre, Mumbai while working as

such on 03.04.2000, abused his official position,

in as much as demanded and accepted illegal

gratification from Satish P. Doshi, Proprietor of

Shree Travels, Matunga, Mumbai for handling

over TDS Certificates in the form of 16A of

Income Tax Act, in respect of Shree Travels.

WHEREAS, it is alleged that in pursuance

of aforesaid demand, Shri Mahes Gandmal Jain,

Accourt Clerk, on 03.04.2000 accepted the

illegal gratification of Rs. 1000/- from Shri Satish

P. Doshi for the aforesaid purpose at the office

of Shree Travels situated at 445, Mahilashram

Road, Somaya Building No. 2, Matunga Central

Railway, Mumbai-19, before the panch witness

when Mahesh Gandmal Jain was caught red

handed by the officers of CBI, ACB, Mumbai.

AND WHEREAS, the said acts on the part of

Shre Mahesh Gandmal Jain constitute offences

punishable under Section 7, 13 (2) r/w. 13(1)(d)

of Prevention of Corruption Act, 1988.

AND WHEREAS, I, Shri Yeshwant Balkrishna

Kelkar, Asst. General Manager, Office

Administration Dept., State Bank of India,

Corporate Centre, Mumbai, being the authority

competent to remove the said Shri Mahesh

Gandmal Jain, Accounts Clerk, Office

Administration Dept., State Bank of India,

Corporate Centre, Mumbai from office after fully

examining the material, documents i.e.

Statement of witnesses under the provisions of

Section 161 of Criminal Procedure Code 1973,

FIR, CFSL Opinion and other relevant documents

placed before me in regard to the said above

allegations and the facts and circumstances of

the case, consider that the said Shri Mahesh

Gandmal Jain has committed the offences and

he should be prosecuted in the court of law for

the said offences.

12

Page 13 NOW, therefore, I, Shri Yeshwant

Balkrishna Kelakar, Asst. General Manager,

Office Administration Dept., State of Bank of

India, Corporate Centre, Mumbai, do hereby

accord sanction under Section 19(1)(c) of the

Prevention of Corruption Act, 1988 for the

prosecution of the said Shri Mahesh Gandmal

Jain for the said offences and any other offences

punishable under the provisions of any law in

respect of the acts aforesaid and for taking

cognizance of the said offences by the court of

competent jurisdiction.

Date : 04.10.2000 (Illegible)

(SHRI Y.B. KELKAR)

ASST. GENERAL MANAGER (OAD)

& APPOINTING AUTHORITY”

15.Reserving our opinion on the same for the present we

shall proceed to deal with the reasons for treating the

said order of sanction as invalid and improper by the

learned trial Judge. The learned trial Judge has

referred to the sanction order Ext.13 and the

forwarding letter Ext. 14 and, thereafter, proceeded

to observe that the order of sanction is completely

bereft of elementary details; that though the date is

not mentioned in the FIR, the authority has

mentioned the date in the sanction order; that the

order of sanction is delightfully vague; that the

13

Page 14 amount of bribe that finds place in the sanction order

was told to him and he had no personal knowledge

about it; that the minimum discussion is absent in

the order of sanction; that grant of sanction being not

an idle formality it was incumbent on the competent

authority to ascribe proper reasons on perusal of the

materials; that there is no material to show the

existence of objective material to formulate the

subjective satisfaction; that the authority has granted

sanction in an absolute mechanical manner; and that

the order of sanction does not reflect sincerity of

approach. The High Court, while dealing with the

said reason, has really not discussed anything except

stating that a possible view has been taken by the

learned trial Judge and in appeal it cannot substitute

the findings merely because any other contrary

opinion can be rendered in the facts of the case.

16.Presently, we shall proceed to deal with the contents

of the sanction order. The sanctioning authority has

referred to the demand of the gratification for

handing over TDS certificate in Form 16A of the

14

Page 15 Income-tax Act, the acceptance of illegal gratification

by the accused before the panch witnesses and how

the accused was caught red handed. That apart, as

the order would reveal, he has fully examined the

material documents, namely, the FIR, CFSL report

and other relevant documents placed in regard to the

allegations and the statements of witnesses recorded

under Section 161 of the Code and, thereafter, being

satisfied he has passed the order of sanction. The

learned trial Judge, as it seems, apart from other

reasons has found that the sanctioning authority has

not referred to the elementary facts and there is no

objective material to justify a subjective satisfaction.

The reasonings, in our considered opinion, are

absolutely hyper-technical and, in fact, can always be

used by an accused as a magic trick to pave the

escape route. The reasons ascribed by the learned

trial Judge appear as if he is sitting in appeal over the

order of sanction. True it is, grant of sanction is a

sacrosanct and sacred act and is intended to provide

a safeguard to the public servant against vexatious

15

Page 16 litigation but simultaneously when there is an order

of sanction by the competent authority indicating

application of mind, the same should not be lightly

dealt with. The flimsy technicalities cannot be

allowed to become tools in the hands of an accused.

In the obtaining factual matrix, we must say without

any iota of hesitation that the approach of the

learned trial Judge as well as that of the learned

single Judge is wholly incorrect and does not deserve

acceptance.

17.At this stage, we think it apposite to state that while

sanctity attached to an order of sanction should

never be forgotten but simultaneously the rampant

corruption in society has to be kept in view. It has

come to the notice of this Court how adjournments

are sought in a maladroit manner to linger the trial

and how at every stage ingenious efforts are made to

assail every interim order. It is the duty of the court

that the matters are appropriately dealt with on

proper understanding of law of the land. Minor

irregularities or technicalities are not to be given

16

Page 17 Everestine status. It should be borne in mind that

historically corruption is a disquiet disease for

healthy governance. It has the potentiality to stifle

the progress of a civilized society. It ushers in an

atmosphere of distrust. Corruption fundamentally is

perversion and infectious and an individual perversity

can become a social evil. We have said so as we are

of the convinced view that in these kind of matters

there has to be reflection of promptitude, abhorrence

for procrastination, real understanding of the law and

to further remain alive to differentiate between

hyper-technical contentions and the acceptable legal

proponements.

18.We shall presently deal with the course of action that

is required to be undertaken in the case at hand.

Had the High Court dealt with the appeal on merits,

we would have proceeded to deal with justifiability of

the same. The High Court has declined to grant

leave solely on the ground that the conclusion

reached by the learned trial Judge pertaining to

validity of sanction being justified, the judgment of

17

Page 18 acquittal did not warrant interference. There has

been no deliberation on the merits of the case.

19.At this juncture, we may note that Mr. Luthra

submitted that the matter should be remitted to the

High Court to deal with the application for grant of

leave as per law. Per contra, Mr. Bachawat, learned

senior counsel, submitted that if this Court would

think of remitting the entire matter it should be

remanded to the learned trial Judge as he has not

appropriately dealt with the real issues, for he has

been guided by the impropriety and validity of

sanction. On a perusal of the judgment of the

learned trial Judge we find that he had recorded his

conclusions on every aspect. He has not rested his

conclusion exclusively on sanction. True it is, he has

acquitted the accused on the ground that the order

of sanction is invalid in law but simultaneously he has

dealt with other facets. Thus, remitting the matter to

the trial court is not warranted. If the High Court

thinks it apt to grant leave, it has ample power to

deal with the appeal from all the spectrums. It is well

18

Page 19 settled in law that it is obligatory on the part of the

appellate court to scrutinize the evidence and further

its power is coextensive with the trial court. It has

power to consider all the matters which weighed with

the trial court and the reasons ascribed by it for

disbelieving or accepting the witnesses. This has

been so held in Laxman Kalu v. State of

Maharashtra

10

and Keshav Ganga Ram Navge v.

The State of Maharashtra

11

. Needless to

emphasise that the High Court, while hearing an

appeal against conviction, can scan the evidence and

weigh the probabilities. It is incumbent on the High

Court to analyse the evidence, deal with the legal

issues and deliver a judgment. Thus, there is no

merit in the submission that it should be remanded

to the learned trial Judge. Apart from the aforesaid

reason, we are also not inclined to remit the matter

to the learned trial Judge as there would be another

round of hearing before the learned trial Judge which

is avoidable. It has to be kept uppermost in mind

that remit to the trial court has to be done in very

10

AIR 1968 SC 1390

11

AIR 1971 SC 953

19

Page 20 rare circumstances, for it brings in procrastination in

the criminal justice dispensation system which is not

appreciated.

20.Consequently, the appeal is allowed, the judgment of

the High Court and the conclusion of the learned trial

Judge pertaining to the validity of sanction are set

aside and the matter is remitted to the High Court.

As we have not dealt with any other finding recorded

by the learned trial Judge, it has to be construed that

there has been no expression of opinion on the

merits of the case on those counts. The High Court

shall be well advised to consider all the aspects

barring what has been dealt with in this appeal while

dealing with the application for grant of leave.

…………………………… .J.

[Dr. B.S. Chauhan]

….………………………….J.

[Dipak Misra]

New Delhi;

May 28, 2013.

20