STATE OF MIZORAM versus DR. C. SANGNGHINA on 30 October 2018

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SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 68

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STATE OF MIZORAM

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DR. C. SANGNGHINA

(Criminal Appeal No. 1322 of 2018)

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OCTOBER 30, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Constitution of India – Art.20(2) – Principle of doublejeopardy – When not applicable – Case registered against therespondent-accused u/s.13(1)(c)(d)(e) r/w s.13(2), 1988 Act andCs.409,IPC– Special Court discharged the accused/respondent dueto lack of proper sanction and closed the case– Subsequently,Governor in supersession of the earlier order granted sanction forprosecution of the respondent – Supplementary charge sheet alongwith fresh prosecution sanction against the respondent submittedDfor reopening the case – Dismissed on the ground that it was barredby the principle of “double jeopardy” – Propriety of – Held: Sincethe earlier order of sanction was found to be invalid, there is nobar for the competent authority to issue a proper order of sanctionfor prosecution – Unless there is failure of justice on account oferror, omission or irregularity in grant of sanction for prosecution,Ethe proceedings under the 1988 Act could not be vitiated – Byfiling fresh charge sheet, no prejudice is caused to the respondentnor would it result in failure of justice to be barred under theprinciple of “double jeopardy” – Under Art.20(2), no person shallbe prosecuted and punished for the same offence more than once –FBasis of s.300(1), CrPC is that the person who was tried by acompetent court, once acquitted or convicted, cannot be tried forthe same offence – However, in the case in hand, the respondentwas not tried as he was discharged due to lack of proper sanctioneven before commencement of trial– Where the accused has notbeen tried at all and convicted or acquitted, the principle of “doubleGjeopardy” cannot be invoked at all – Thus, when the respondentwas so discharged due to lack of proper sanction, the principle of“double jeopardy” will not apply – There was no bar for filingfresh/supplementary charge sheet after obtaining valid sanction forprosecution – Special Court and the High Court were not right in H

holding that the filing of the fresh charge sheet with proper sanctionorder for prosecution was barred under the principle of “doublejeopardy”– Impugned judgment set aside – Special Court to takecognizance of the charge sheet dated 30.01.2014 and proceed inaccordance with law – Prevention of Corruption Act, 1988 –s.13(1)(c)(d)(e) r/w s.13(2) – Penal Code, 1860– s.409– Code ofCriminal Procedure, 1973– s.300(1).

Prevention of Corruption Act, 1988 – s.19(3) and (4) –Discussed.

Allowing the appeal, the Court

Conclusion

HELD: 1.1 Since the earlier order of sanction was found tobe invalid, there is no bar for the competent authority to issue aproper order of sanction for prosecution. The courts are not toquash or stay the proceedings under the Prevention of CorruptionAct, 1988 merely on the ground of an error, omission orirregularity in the sanction granted by the authority unless it issatisfied that such error, omission or irregularity has resulted infailure of justice. A combined reading of sub-sections (3) and (4)of Section 19 of Prevention Act make the position clear thatnotwithstanding anything contained in the Code no finding,sentence and order passed by a Special Judge shall be reversedor altered by a Court in appeal, confirmation or revision on theground of the absence of, or any error, omission or irregularity inthe sanction required under sub-section (1), unless in the opinionof that court, a failure of justice has in fact been occasionedthereby. In the instant case, of course, the initial sanction wasgranted by the Secretary, DP & AR to Government of Mizoram.Having taken cognizance of the matter, before passing thedischarge order, the Special Judge ought to have examined thematter to ascertain whether such error or irregularity in thesanction has resulted in failure of justice. No such reasoningswere recorded by the Special Judge or by the High Court thatthe initial sanction for prosecution granted by the Secretary hasresulted in failure of justice. Unless there is failure of justice onaccount of error, omission or irregularity in grant of sanction forprosecution, the proceedings under the Act could not bevitiated. By filing fresh charge sheet, no prejudice is AB

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Acaused to the respondent nor would it result in failure of justiceto be barred under the principles of “double jeopardy”.[Paras 9, 10 and 14][73-C-G; 76-E]

1.2 The respondent was discharged even beforecommencement of trial due to lack of proper sanction, there wasBno impediment for filing the fresh/supplementary charge sheetafter obtaining valid sanction. Under Article 20(2) of theConstitution of India, no person shall be prosecuted and punishedfor the same offence more than once. Section 300 Cr.P.C. laysdown that a person once convicted or acquitted, cannot be triedfor the same offence. In order to bar the trial of any person alreadyCtried, it must be shown – (i) that he has been tried by a competentcourt for the same offence or one for which he might have beencharged or convicted at that trial, on the same facts; (ii) that hehas been convicted or acquitted at the trial; and (iii) that suchconviction or acquittal is in force. Where the accused has notDbeen tried at all and convicted or acquitted, the principles of“double jeopardy” cannot be invoked at all. The whole basis ofSection 300 (1) Cr.P.C. is that the person who was tried by acompetent court, once acquitted or convicted, cannot be triedfor the same offence. In the case in hand, the respondent/accusedwas not tried nor was there a full-fledged trial. On the other hand,Ethe order of discharge passed by the Special Court was only dueto invalidity attached to the prosecution. When the respondentwas so discharged due to lack of proper sanction, the principlesof “double jeopardy” will not apply. There was no bar for filingfresh/supplementary charge sheet after obtaining a valid sanctionFfor prosecution. The Special Court and the High Court were notright in holding that the filing of the fresh charge sheet withproper sanction order for prosecution was barred under theprinciples of “double jeopardy”. The impugned judgmentis set aside. The Special Court, PC Act, Aizawl, Mizoramis directed to take cognizance of the charge sheetGdated 30.01.2014 and proceed with the same in accordance withlaw. [Para 14-17 and 18][76-D, F-H; 77-A-D, F]

State of Goa v. Babu Thomas (2005) 8 SCC 130 : [2005]3 Suppl. SCR 712 – referred to.

Nanjappa v. State of Karnataka (2015) 14 SCC 186 :H[2015] 8 SCR 685 – relied on.

Case Law Reference

[2005] 3 Suppl. SCR 712referred toPara 11

[2015] 8 SCR 685 relied onPara 12

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1322 of 2018.

From the Judgment and Order dated 13.08.2015 of the High Courtof Assam, Nagaland, Mizoram & Arunachal Pradesh, Aizawl Bench atAizawl in Criminal Revision Petition No. 6 of 2014.

D. Mahesh Babu, A. K. Rokhum, Ms. Suchitra H., B. RamaKrishna Rao, T. V. Bhaskar Reddy,, Advs. for the Appellant.

Manu Mridul, Shalaj Mridul, Ms. Neha Rai, Jitin Chaturvedi, Advs.for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the order dated 13.08.2015 passed bythe High Court of Assam in Criminal Revision Petition No.6 of 2014 inand by which the High Court affirmed the order of the Special Courtdeclining 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 theground that it was barred under the principles of “double jeopardy”.

3. Brief facts which led to filing of this appeal are that a complaintwas made to the Superintendent of Police, Mizoram, Aizawl against theaccused/respondent on 17.02.2009 by the President of PRISM allegingmisappropriation/mismanagement of public money. On the basis of thecomplaint, the Superintendent of Police, ACB conducted an inquiry andsubmitted its report on 21.08.2009 with a request for registration of ACBcase against the accused/respondent. During inquiry, it was detectedthat the respondent has acquired his valuable assets disproportionate toknown sources of income. On receipt of the inquiry report and aftertaking the approval of the Government of Mizoram, VigilanceDepartment, ACB Case No.3 of 2009 under Section 13(1)(c)(d)(e) readwith Section 13(2) of Prevention of Corruption Act, 1988 (PC Act) andSection 409 IPC was registered against the accused/respondent.

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A4. Charge sheet No.6 of 2013 was filed under Section 409 IPCand Section 13(1)(c)(d)(e) read with Section 13(2) of PC Act. TheSpecial Court, PC Act found that the prosecution sanction against theaccused/respondent was issued by the Commissioner-Secretary,Department of Personnel & Administrative Reforms (DP & AR) directlywithout sanction of the Governor. After hearing the parties, the learnedBJudge, Special Court, PC Act by an order dated 12.09.2013, dischargedthe accused/respondent from the charges levelled against him due tolack of proper sanction. By its order dated 12.09.2013, Special Judgeclosed the criminal case arising out of ACB Case No.3 of 2009 underSection 13(1)(c)(d)(e) of the PC Act read with Section 409 IPC.

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5. Subsequently, after due consideration of the materials, theGovernor vide order dated 20.12.2013 in supersession of the earlier orderdated 08.04.2013 granted sanction for prosecution of the respondent forthe aforesaid offences and other offence punishable under any otherprovisions of law. In view of the fresh sanction issued against theDrespondent on 20.12.2013, the Inspector, ACB Mizoram on 30.01.2014submitted fresh/supplementary charge sheet along with fresh prosecutionsanction against the accused/respondent with further request to acceptthe fresh/supplementary charge sheet and to reopen the case.

6. The learned Judge, Special Court vide order dated 26.08.2014Edismissed SR (PCA) No.8 of 2014 holding that there is no provision/scope for review of its own order under Criminal Procedure Code. Thelearned Judge found that the second charge sheet is barred by theprinciples of “double jeopardy” and accordingly, the application to takethe fresh charge sheet was dismissed by order dated 26.08.2014.

F7. Being aggrieved by the order dated 26.08.2014 as well as theearlier order dated 12.09.2013, the State has preferred Criminal RevisionPetition No.6 of 2014 before the High Court and the same was dismissedby the High Court affirming the order of the Special Court that the secondcharge sheet with fresh sanction cannot be entertained. The High Courtalso held that the revision petition against the order dated 12.09.2013 isGbarred by the limitation and there is no proper explanation by the Stateas to the delay in filing the revision petition.

8. We have heard learned counsel for the appellant and therespondent and perused the impugned judgment and other materialsplaced on record.

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9. In ACB P.S.C./No.3/2009 under Section 13(1)(c)(d)(e) readwith Section 13(2) of PC Act, the prosecution sanction was accordedagainst 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 sanctionfor 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 Governoraccorded fresh sanction vide order dated 20.12.2013 in supersession ofthe earlier order dated 08.04.2013. In view of the prosecution sanctionagainst respondent accorded by the Government of Mizoram, theInspector 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) readwith Section 13(2) of PC Act. Since the earlier order of sanction wasfound to be invalid, there is no bar for the competent authority to issue aproper order of sanction for prosecution.

10. The courts are not to quash or stay the proceedings under theAct merely on the ground of an error, omission or irregularity in thesanction granted by the authority unless it is satisfied that such error,omission or irregularity has resulted in failure of justice. A combinedreading of sub-sections (3) and (4) of Section 19 of Prevention Actmake the position clear that notwithstanding anything contained in theCode no finding, sentence and order passed by a Special Judge shall bereversed or altered by a Court in appeal, confirmation or revision on theground of the absence of, or any error, omission or irregularity in thesanction required under sub-section (1), unless in the opinion of thatcourt, a failure of justice has in fact been occasioned thereby.In theinstant case, of course, the initial sanction was granted by the Secretary,DP & AR to Government of Mizoram. Having taken cognizance of thematter, before passing the order dated 12.09.2013, the Special Judgeought to have examined the matter to ascertain whether such error orirregularity in the sanction has resulted in failure of justice. No suchreasonings are recorded by the Special Judge or by the High Court thatthe initial sanction for prosecution granted by the Secretary has resultedin failure of justice.

11. This Court in State of Goa v. Babu Thomas (2005) 8 SCC130 was dealing with a sanction order issued by an authority who wasnot competent as is also the position in the case at hand. The second A

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Asanction order issued for the prosecution of the accused in that casewas also held to be incompetent apart from the fact that the samepurported to be retrospective in its operation. In the said case, theSupreme Court held that when cognizance was taken by the SpecialJudge on 29.03.1995, there was no order sanctioning the prosecutionwith the result that the court could not have taken cognizance and thatBthe error was so fundamental that it invalidated the proceedings conductedby the court. The Court accordingly upheld the order passed by the HighCourt but reserved liberty to the competent authority to issue fresh ordersof sanction having regard to the serious allegation made against theaccused.

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12. The judgment in Babu Thomas was referred to with approvalin Nanjappa v. State of Karnataka (2015) 14 SCC 186. After referringto number of judgments and observing that despite invalidity attached tothe sanction order, upon grant of a fresh valid sanction is not forbidden,in para (22) of Nanjappa case, it was held as under:- D

22. The legal position regarding the importance of sanction underSection 19 of the Prevention of Corruption Act is thus much tooclear to admit equivocation. The statute forbids taking of cognizanceby the court against a public servant except with the previoussanction of an authority competent to grant such sanction in termsEof clauses (a), (b) and (c) to Section 19(1). The question regardingvalidity of such sanction can be raised at any stage of theproceedings. The competence of the court trying the accused somuch depends upon the existence of a valid sanction. In case thesanction is found to be invalid the court can discharge the accusedrelegating the parties to a stage where the competent authorityFmay grant a fresh sanction for the prosecution in accordance withlaw. If the trial court proceeds, despite the invalidity attached tothe sanction order, the same shall be deemed to be non est in theeyes of law and shall not forbid a second trial for the sameoffences, upon grant of a valid sanction for such prosecution.

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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 mustimmediately advert to. The first relates to the effect of sub-section(3) to Section 19, which starts with a non obstante clause. Also H

relevant to the same aspect would be Section 465 CrPC whichwe have extracted earlier.

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23.2. A careful reading of sub-section (3) to Section 19 wouldshow that the same interdicts reversal or alteration of any finding,sentence or order passed by a Special Judge, on the ground thatthe sanction order suffers from an error, omission or irregularity,unless of course the court before whom such finding, sentence ororder is challenged in appeal or revision is of the opinion that afailure of justice has occurred by reason of such error, omissionor irregularity. Sub-section (3), in other words, simply forbidsinterference with an order passed by the Special Judge in appeal,confirmation or revisional proceedings on the ground that thesanction is bad save and except, in cases where the appellate orrevisional court finds that failure of justice has occurred by suchinvalidity. What is noteworthy is that sub-section (3) has noapplication to proceedings before the Special Judge, who is freeto pass an order discharging the accused, if he is of the opinionthat a valid order sanctioning prosecution of the accused had notbeen produced as required under Section 19(1).

23.3. Sub-section (3), in our opinion, postulates a prohibition againsta higher court reversing an order passed by the Special Judge onthe ground of any defect, omission or irregularity in the order ofsanction. It does not forbid a Special Judge from passing an orderat whatever stage of the proceedings holding that the prosecutionis 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 evidenteven from the language employed in sub-section (4) according towhich the appellate or the revisional court shall, while examiningwhether the error, omission or irregularity in the sanction hadoccasioned in any failure of justice, have regard to the fact whetherthe 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 achallenge to the validity of the order of sanction or the validity ofthe proceedings including finding, sentence or order passed by A

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Athe Special Judge in appeal or revision before a higher court andnot before the Special Judge trying the accused.

23.5. The rationale underlying the provision obviously is that ifthe trial has proceeded to conclusion and resulted in a finding orsentence, the same should not be lightly interfered with by theBappellate or the revisional court simply because there was someomission, error or irregularity in the order sanctioning theprosecution under Section 19(1). Failure of justice is, what theappellate or revisional court would in such cases look for. Andwhile examining whether any such failure had indeed taken place,the Court concerned would also keep in mind whether the objectionCtouching the error, omission or irregularity in the sanction could orshould have been raised at an earlier stage of the proceedingsmeaning thereby whether the same could and should have beenraised at the trial stage instead of being urged in appeal or revision.”

14. In light of the above principles, considering the case in hand,Deven before commencement of trial, the respondent/accused wasdischarged due to lack of proper sanction, there was no impediment forfiling the fresh/supplementary charge sheet after obtaining valid sanction.Unless there is failure of justice on account of error, omission orirregularity in grant of sanction for prosecution, the proceedings underEthe Act could not be vitiated. By filing fresh charge sheet, no prejudice iscaused to the respondent nor would it result in failure of justice to bebarred under the principles of “double jeopardy”.

15. Under Article 20(2) of the Constitution of India, no personshall be prosecuted and punished for the same offence more than once.FSection 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 trial of anyperson already tried, it must be shown – (i) that he has been tried by acompetent court for the same offence or one for which he might havebeen charged or convicted at that trial, on the same facts; (ii) that he hasbeen convicted or acquitted at the trial; and (iii) that such convictionGor acquittal is in force. Where the accused has not been tried at all andconvicted or acquitted, the principles of “double jeopardy” cannot beinvoked at all.

16. The whole basis of Section 300 (1) Cr.P.C. is that the personwho was tried by a competent court, once acquitted or convicted, cannotH

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-fledgedtrial. On the other hand, the order of discharge dated 12.09.2013 passedby the Special Court was only due to invalidity attached to the prosecution.When the respondent/accused was so discharged due to lack of propersanction, the principles of “double jeopardy” will not apply. There wasno bar for filing fresh/supplementary charge sheet after obtaining a validsanction for prosecution. The Special Court once it found that therewas no valid sanction, it should have directed the prosecution to do theneedful. The Special Court has not given sufficient opportunities toproduce valid prosecution sanction from the competent authority. TheSpecial Court erred in refusing to take cognizance of the case evenafter production of valid prosecution sanction obtained from the competentauthority and the High Court was not right in affirming the order of theSpecial Court. The Special Court and the High Court were not right inholding that the filing of the fresh charge sheet with proper sanctionorder for prosecution was barred under the principles of “doublejeopardy”.

17. The learned counsel for the respondent has drawn our attentionto the annexures filed by the respondent and submitted that the respondenthas been exonerated from the departmental proceedings on variouscharges by order dated 08.07.2013. We are not inclined to go into themerits of this contention and all the contentions raised by the respondentare kept open.

18. In the result, the impugned judgment and order dated 13.08.2015is set aside and this appeal is allowed. The Special Court, PC Act, Aizawl,Mizoram is directed to take cognizance of the charge sheet dated30.01.2014 in ACB P.S.C.No.3/2009 on file and proceed with the samein accordance with law.

Divya Pandey

Appeal allowed.

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