The High Court while hearing a Revision Application u/s 397 read with 401 of the Code of Criminal Procedure, 1973 questioning correctness and legality of the order passed by Additional Sessions Judge held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led.

Facts

The applicant-accused was an employee of Mira Bhaindar Municipal Corporation. Anti-Corruption Bureau prosecuted him for alleged commission of offence u/s 7 r/w 13(1) (d) and 13 (2) of the Prevention of Corruption Act (“P.C. Act” for short). Being a Public Servant, the cognizance offence under the P.C. Act can be taken, only upon prior sanction by the authority competent to remove him from the office, as contemplated u/s 19 (3) of the P.C. Act.

Contentions made

The applicant-accused contended that sanction accorded by the Commissioner, Mira Bhaindar Municipal Corporation, was not a valid sanction as the Commissioner is not an authority to remove the Applicant from the office. Though Section 53 of the Maharashtra Municipal Corporation Act (“said Act” for short) has been amended, there is no corresponding amendment to Section 56 of the said act, which provides for imposition of penalties including the penalty to remove from the office. On this premise, he moved an application and urged before the trial Court, that since issue as to validity of sanction goes to the root of the matter and affects the jurisdiction of the Court to try the accused, it was desirable to decide the issue at the threshold.

A combined reading of Sub-section (3) and (4) of Section 19 of the P.C. Act, 1988, was considered. Applicant contended that since ‘validity of sanction’ can be decided at any stage of the proceedings, it be decided at the threshold, before deciding any other question.

Observations of the Court and Judgment

The Bench dismissed the Criminal Revision Application as it deserved no consideration due to the following reasons:

-> in terms of clause (b) of Section 3 of Section 19 read with explanation ‘error’ includes incompetency of authority to grant sanction and incompetency must result in failure of justice.
-> whether incompetency of authority to grant sanction has resulted in a failure of justice or not, cannot be decided at threshold and therefore more appropriate stage for reaching the said conclusion would be only after evidence in the case, as held in case of State of Bihar & Ors vs Rajmangal Ram.
-> In the case of Prakash Singh Badal vs State of Punjab the Hon’ble Apex Court has held that Section 19(1) of the P.C. Act is a matter of procedure and does not go to the root of jurisdiction.
-> In fact three Judge Bench, in the case of State of M.P. vs Virendra Kumar Tripathi, while considering the issue, namely the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, the Hon’ble Apex Court has held that in view of Section 19(3) of the P.C. Act, interdicting a criminal proceeding midcourse on ground of invalidity of the sanction order will not be appropriate unless the Court reaches the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction.
-> that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led.