State of Mizoram v. Dr. C. Sangnghina
R. BANUMATHI, J. 1. Leave granted.
2. This appeal arises out of the order dated 13.08.2015 passed by
the High Court of Assam in Criminal Revision Petition No.6 of 2014 in
and by which the High Court affirmed the order of the Specia l Court
declining to take on file the charge sheet filed under Section 13(1)(c)(d)(e)
read with Section 13(2) of Prevention of Corruption Act, 1988 on the
ground that it was barred under the principles of “ double jeopardy ”.
3. Brief facts which led to filing of this appeal are that a complaint
was made to the Superintendent of Police, Mizoram, Aizawl against the
accused/respondent on 17.02.2009 by the President of PRISM alleging
misappropriation/mismanagement of public money. On the basis of the
complaint, the Superintendent of Police, ACB conducted an inquiry and
submitted its report on 21.08.2009 with a request for registration of ACB
case against the accused/respondent. During inquiry, it was de tected
that the respondent has acquired his valuable assets disproportionate to
known sources of income. On receipt of the inquiry report and a fter
taking the approval of the Government of Mizoram, V igilance
Department, ACB Case No.3 of 2009 under Section 13(1)(c)(d)(e) read
with Section 13(2) of Prevention of Corruption Act, 1988 (PC Act) and
Section 409 IPC was registered against the accused/responde nt.
STATE OF MIZORAM v. DR. C. SANGNGHINA
4. Charge sheet No.6 of 2013 was filed under Section 409 IPC
and Section 13(1)(c)(d)(e) read with Section 13(2) of PC Ac t. The
Special Court, PC Act found that the prosecution sanction aga inst the
accused/respondent was issued by the Commissioner-S ecretary,
Department of Personnel & Administrative Reforms (DP & AR) directly
without sanction of the Governor. After hearing the parties, the learned
Judge, Special Court, PC Act by an order dated 12.09.2013, discharged
the accused/respondent from the charges levelled against him due to
lack of proper sanction. By its order dated 12.09.2013, Special Judge
closed the criminal case arising out of ACB Case No.3 of 2009 und er
Section 13(1)(c)(d)(e) of the PC Act read with Section 409 I PC.
5. Subsequently, after due consideration of the material s, the
Governor vide order dated 20.12.2013 in supersession of the earlier order
dated 08.04.2013 granted sanction for prosecution of the respondent for
the aforesaid offences and other offence punishable under any ot her
provisions of law. In view of the fresh sanction issued against the
respondent on 20.12.2013, the Inspector, ACB Mizoram on 30.01.2014
submitted fresh/supplementary charge sheet along with fresh prosecution
sanction against the accused/respondent with further request to a ccept
the fresh/supplementary charge sheet and to reopen the ca se.
6. The learned Judge, Special Court vide order dated 26.08.2014
dismissed SR (PCA) No.8 of 2014 holding that there is no provisio n/
scope for review of its own order under Criminal Procedure Code. The
learned Judge found that the second charge sheet is ba rred by the
principles of “ double jeopardy ” and accordingly, the application to take
the fresh charge sheet was dismissed by order dated 26.08.2014.
7. Being aggrieved by the order dated 26.08.2014 as well as the
earlier order dated 12.09.2013, the State has preferred Criminal Revision
Petition No.6 of 2014 before the High Court and the same was dismissed
by the High Court affirming the order of the Special Court that the second
charge sheet with fresh sanction cannot be entertained. The High Court
also held that the revision petition against the order dated 12.09.2013 is
barred by the limitation and there is no proper explanation by the State
as to the delay in filing the revision petition.
8. We have heard learned counsel for the appellant an d the
respondent and perused the impugned judgment and other materials
placed on record.
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9. In ACB P.S.C./No.3/2009 under Section 13(1)(c)(d)(e) read
with Section 13(2) of PC Act, the prosecution sanction was a ccorded
against the respondent vide order dated 08.04.2013 by the Commissioner-
Secretary (DP & AR) to Government of Mizoram. The Commissioner-
Secretary (DP & AR) was not the competent authority to accord sanction
for prosecution and the case came to be closed for want of proper sanction.
Since the earlier sanction accorded was not by the competent authority,
after due consideration of the materials placed before him, the Governor
accorded fresh sanction vide order dated 20.12.2013 in supersession of
the earlier order dated 08.04.2013. In view of the prosecution sanction
against respondent accorded by the Government of Miz oram, the
Inspector of Police made an application on 30.01.2014 to accept fresh/
supplementary charge sheet No.3/2014 under Section 13(1)(c)(d)(e) read
with Section 13(2) of PC Act. Since the earlier order of sa nction was
found to be invalid, there is no bar for the competent authority to issue a
proper order of sanction for prosecution.
10. The courts are not to quash or stay the proceedings under the
Act merely on the ground of an error, omission or irregularity in the
sanction granted by the authority unless it is satisfied tha t such error,
omission or irregularity has resulted in failure of justic e. A combined
reading of sub-sections (3) and (4) of Section 19 of Prevention Act
make the position clear that notwithstanding anything contained in the
Code no finding, sentence and 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 irregulari ty in the
sanction required under sub-section (1), unless in the opini on of that
court, a failure of justice has in fact been occasioned the reby.In the
instant case, of course, the initial sanction was granted by the Secretary,
DP & AR to Government of Mizoram. Having taken cognizance of the
matter, before passing the order dated 12.09.2013, the Special Ju dge
ought to have examined the matter to ascertain whether s uch error or
irregularity in the sanction has resulted in failure of ju stice. No such
reasonings are recorded by the Special Judge or by the High Court that
the initial sanction for prosecution granted by the Secretary has resulted
in failure of justice.
11. This Court in State of Goa v. Babu Thomas (2005) 8 SCC
130 was dealing with a sanction order issued by an authority who was
not competent as is also the position in the case at hand. T he second
STATE OF MIZORAM v. DR. C. SANGNGHINA
[R. BANUMATHI, J.]
sanction order issued for the prosecution of the accused in t hat case
was also held to be incompetent apart from the fact th at the same
purported to be retrospective in its operation. In the said case, the
Supreme Court held that when cognizance was taken by the Spec ial
Judge on 29.03.1995, there was no order sanctioning the prosecuti on
with the result that the court could not have taken cognizance and that
the error was so fundamental that it invalidated the proceedings conducted
by the court. The Court accordingly upheld the order passed by the High
Court but reserved liberty to the competent authority to issue fresh orders
of sanction having regard to the serious allegation made aga inst the
accused.
12. The judgment in Babu Thomas was referred to with approval
in Nanjappa v. State of Karnataka (2015) 14 SCC 186. After referring
to number of judgments and observing that despite invalidity attached to
the sanction order, upon grant of a fresh valid sanction is not forbidden,
in para (22) of Nanjappa case , it was held as under:-
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 taking of cognizance
by the court against a public servant except with the pre vious
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 aut hority
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 t he same
offences, upon grant of a valid sanction for such prosecution.
13. In Nanjappa case , after referring to number of judgments,
this Court summarised the principles in para (23) as under:-
“23. Having said that there are two aspects which we mu st
immediately advert to. The first relates to the effect of sub-section
(3) to Section 19, which starts with a non obstante clause. Also
75
relevant to the same aspect would be Section 465 CrPC which
we have extracted earlier.
…………..
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 th at a
failure of justice has occurred by reason of such error, omission
or irregularity. Sub-section (3), in other words, simply forb ids
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 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
STATE OF MIZORAM v. DR. C. SANGNGHINA
[R. BANUMATHI, J.]
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 t he
appellate or the revisional court simply because there was some
omission, error or irregularity in the order sanctio ning 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 proceedin gs
meaning thereby whether the same could and should have been
raised at the trial stage instead of being urged in appeal or revision.”
14. In light of the above principles, considering the case in hand,
even before commencement of trial, the respondent/a ccused was
discharged due to lack of proper sanction, there was no impediment for
filing the fresh/supplementary charge sheet after obtaining valid sanction.
Unless there is failure of justice on account of er ror, omission or
irregularity in grant of sanction for prosecution, the proceedings under
the Act could not be vitiated. By filing fresh charge sheet, no prejudice is
caused to the respondent nor would it result in failure of justice to be
barred under the principles of “double jeopardy”.
15. Under Article 20(2) of the Constitution of India, no person
shall be prosecuted and punished for the same offence more than once.
Section 300 Cr.P.C. lays down that a person once convicted or acquitted,
cannot be tried for the same offence. In order to bar the tr ial of any
person already tried, it must be shown – (i) that he has been t ried by a
competent court for the same offence or one for which he migh t have
been charged or convicted at that trial, on the same facts; (ii) that he has
been convicted or acquitted at the trial; and (iii) that such conviction
or acquittal is in force. Where the accused has not been tried at all and
convicted or acquitted, the principles of “ double jeopardy ” cannot be
invoked at all.
16. The whole basis of Section 300 (1) Cr.P.C. is that the person
who was tried by a competent court, once acquitted or convicted, cannot
77
be tried for the same offence. As discussed earlier, in the case in hand,
the respondent/accused has not been tried nor was there a full-fle dged
trial. On the other hand, the order of discharge dated 12.09.2013 passed
by the Special Court was only due to invalidity attached to the prosecution.
When the respondent/accused was so discharged due to lack of proper
sanction, the principles of “ double jeopardy ” will not apply. There was
no bar for filing fresh/supplementary charge sheet after obtaining a valid
sanction for prosecution. The Special Court once it found that t here
was no valid sanction, it should have directed the prosecution to do the
needful. The Special Court has not given sufficient opportu nities to
produce valid prosecution sanction from the competent authority. The
Special Court erred in refusing to take cognizance of the cas e even
after production of valid prosecution sanction obtained from the competent
authority and the High Court was not right in affirming the order of the
Special Court. The Special Court and the High Court were not right in
holding that the filing of the fresh charge sheet with pr oper sanction
order for prosecution was barred under the principl es of “ double
jeopardy ”.
17. The learned counsel for the respondent has drawn our attention
to the annexures filed by the respondent and submitted that the respondent
has been exonerated from the departmental proceedings on var ious
charges by order dated 08.07.2013. We are not inclined to go into t he
merits of this contention and all the contentions raised by the respondent
are kept open.
18. In the result, the impugned judgment and order dated 13.08.2015
is set aside and this appeal is allowed. The Special Court, PC Act, Aizawl,
Mizoram is directed to take cognizance of the charge sheet dated
30.01.2014 in ACB P.S.C.No.3/2009 on file and proceed with the same
in accordance with law.
Divya Pandey Appeal allowed.
STATE OF MIZORAM v. DR. C. SANGNGHINA
[R. BANUMATHI, J.]