Madras High Court
K.Muthumuniyandi vs State Through on 12 March, 2024
CRL.A(MD).Nos.419 & 420 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On : 12.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A.(MD)Nos.419 and 420 of 2017
Crl.A.(MD)No.419 of 2017:-
K.Muthumuniyandi ... Petitioner
vs.
State through
The Deputy Superintendent of Police,
Vigilance and Anti Corruption Wing,
Virudhunagar.
(in Cr.No.2 of 2000) ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to call for the records pertaining to the judgment passed
by the learned Chief Judicial Magistrate cum Special Judge for Vigilance
and Anti-Corruption Cases, Virudhunagar District at Srivilliputhur
convicting the appellant in Special C.C.No.49 of 2014 (Old Special
C.C.No.05 of 2004) dated 20.10.2017 and set aside the same.
For Appellant :Ms.A.L.Gandhimathi
Senior Counsel
for Mr.S.Balakarthick
For Respondent :Mr.T.Senthil Kumar
Additional Public Prosecutor
Crl.A.(MD)No.420 of 2017:-
https://www.mhc.tn.gov.in/judis
1/28
CRL.A(MD).Nos.419 & 420 of 2021
I.Yesudasan ... Appellant
vs.
State through
The Deputy Superintendent of Police,
Vigilance and Anti Corruption Wing,
Virudhunagar.
(in Cr.No.2 of 2000) ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to call for the records pertaining to the judgment passed
by the learned Chief Judicial Magistrate cum Special Judge for Vigilance
and Anti-Corruption Cases, Virudhunagar District at Srivilliputhur
convicting the appellant in Special C.C.No.49 of 2014 (Old Special
C.C.No.05 of 2004) dated 20.10.2017 and set aside the same.
For Appellant :Mr.M.Ajmal Khan,
Senior Counsel
for M/s.Ajmal Associates
For Respondent :Mr.T.Senthil Kumar
Additional Public Prosecutor
*****
COMMON JUDGMENT
Since these criminal appeals are arising out of the same crime, these cases are taken up for hearing together and disposed of by way of this common judgment.
https://www.mhc.tn.gov.in/judis 2/28 CRL.A(MD).Nos.419 & 420 of 2021
2.The appellant in Crl.A.(MD)No.419 of 2017 was working as an Overseer in the Rajapalayam Panchayat Union. The appellant in Crl.A. (MD)No.420 of 2017 was working as Panchayat Assistant in the Rajapalayam Panchayat Union Office. In the said Panchayat Union, there was a scheme programme to clean the drainage in Rajapalayam, Krishnapuram, Melapattam and Karisalkulam and other places under the Jawahar Yojana Programme.
3.As per the scheme, the appellants and the remaining accused 3 and 4 are duty bound to carryout the work through workers by preparing NMR list. After completion of the work, the amount would be disbursed to the said workers fund in the NMR list. Before disbursing the amount, appellant/A1 in Crl.A.(MD).No.420 of 2017 has to prepare the NMR list and bills and submit to the remaining accused to verify and confirm the same. Subsequently, the said list and bill would be verified and confirmed by the remaining accused. In the present case, without doing the work, they prepared forged NMR list and forged bills and have misappropriated the amount to the tune of Rs.70,685/-, thereby, they committed the offence of criminal breach of trust under Section 409 of IPC. By way of preparing the forged NMR list and forged bills, they not https://www.mhc.tn.gov.in/judis 3/28 CRL.A(MD).Nos.419 & 420 of 2021 only committed the offences under the IPC, but also committed offence of misconduct under Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Hence, after registering the case in Cr.No.02 of 2000, the Vigilance department completed the investigation and filed the final report before the learned Chief Judicial Magistrate-cum-Special Judge for Vigilance and Anti-Corruption Cases, Virudhunagar District at Srivilliputhur.
4.The learned Special Judge took the case on file in Spl.C.C.No.5 of 2004 and summoned the accused and furnished the copies under Section 207 Cr.P.C. After serving the copies, the learned Trial Judge framed necessary charges and questioned the accused. During the course of trial, A2, A3 and A4 died. After the death of the three accused, the charges were altered on 20.10.2007. The appellant denied the charges and pleaded not guilty. To prove the charges the prosecution examined PW-1 to PW-58 and marked Ex-P1 to Ex-70 and on the basis of the evidence and the documents, the learned Trial Judge questioned the accused under Section 313 Cr.P.C., regarding incriminating materials available in the prosecution evidence, and the accused denied the same as false and hence, the case was posted for examination of witnesses on https://www.mhc.tn.gov.in/judis 4/28 CRL.A(MD).Nos.419 & 420 of 2021 the side of defence. The appellants neither examined any witness nor produced any documents .
5.The learned trial Judge after considering all the facts and particularly, considering the misappropriation of the panchayat funds to the tune of Rs.70,685/-, found A1 and A2 guilty and imposed the sentence against A1 and A2 for the alleged offence under Sections 120(b), 409 r/w 109, 467, 471, 477A of IPC and Sections 13(1)(c) and
(d) and 13(2) of Prevention of Corruption Act. Challenging the same, the appellants filed the above appeals.
6.The learned Senior Counsel appearing for the appellant in Crl.A. (MD)No.419 of 2017 made the following submissions:
6.(i).The appellant was not vested with the duty to prepare the nominal Muster Roll and he has no role in the preparation of NMR list.
According to the learned Senior Counsel, the sanctioning authority, without applying his mind, granted sanction. Hence, the cognizance by the learned Trial Judge is vitiated for the non application of the mind by the Sanctioning authority while granting sanction, for which, he placed reliance on the judgment of Hon’ble Supreme Court in (2007) 11 SCC https://www.mhc.tn.gov.in/judis 5/28 CRL.A(MD).Nos.419 & 420 of 2021 273.
6.(ii).The learned Senior Counsel further submitted that the sanctioning authority specifically admitted that he did not peruse the NMR bills. Hence, without perusal of the NMR bills, the sanctioning authority accorded sanction and hence, there is total non application of mind. The prosecution failed to produce the documents relating to the appellant's involvement in the preparation of Nominal Muster Roll and preparation of forged bills. Without any evidence, the Trial Court convicted the appellants. According to the prosecution, A1 was duty bound to prepare the list and same was overseen by A4 and A5. In this case, the prosecution never produced any documents to show that A1 prepared the list and hence, without any evidence, the conviction and sentence passed against him is not legally maintainable.
6.(iii).The learned Senior Counsel submitted that according to the prosecution, the work was completed as per G.O.Ms.No.70. As per G.O.Ms.No.70, the Block Development Officer is the competent person to grant sanction. But in this case, sanction was granted by the Collector, superior to the Block Development Officer. The said Government Order was not marked and intentionally it was suppressed and hence, adverse inference against the prosecution is to be drawn, for which, he placed https://www.mhc.tn.gov.in/judis 6/28 CRL.A(MD).Nos.419 & 420 of 2021 reliance on the judgment of Honourable Supreme Court in (2006) 7 SCC 172, wherein, it is held that the document in possession of the public functionary must be produced before the Court, otherwise adverse inference can be drawn against him. Hence, the learned Senior Counsel submitted that the prosecution miserably failed to prove the case.
6.(iv).The learned Senior Counsel further submitted that the sanctioning authority is not the competent authority to issue sanction and hence, his sanction is invalid in law, for which, he relied upon the judgment of this Court reported in 2004 1 LW (crl) 274. The leaned Senior Counsel further submitted that the prosecution never produced any evidence to prove that the appellant prepared Nominal Muster Roll with fictitious names and also forged the signatures.
7.The learned Senior Counsel Mrs.Gandhimathi appearing in Crl.A.(MD).No.419 of 2017 and Mr.Ajmal Khan appearing in Crl.A. (MD).No.420 of 2017 submitted that no witnesses stated regarding the involvement of A5. In the entire process of the preparation of the NMR list and preparation of the forged bills, no witness stated that A5 was involved in the above occurrence. No NMR list was signed by A5 and the same was not properly considered by the learned trial Judge. Hence, the https://www.mhc.tn.gov.in/judis 7/28 CRL.A(MD).Nos.419 & 420 of 2021 learned Senior Counsel submitted that the judgment of the Trial Court is perverse.
8.The learned Senior Counsel also reiterated the submissions of the learned Senior Counsel appearing for A1 that the sanctioning authority has granted the sanction without application of mind. The sanctioning authority stated that the signature of A5 was found in number of documents. Per contra, no such signature was found in the documents. Hence, the sanctioning authority has not applied his mind. Hence, the sanction is without application of mind and it is not valid one and on the basis of the invalid sanction, the cognizance taken by the Court below is illegal. Hence, the learned Senior Counsel seeks to set aside the conviction and sentence.
9.In many number of exhibits, the appellant's name is not found, only the A1's signature is found. The learned Senior Counsel has stated that no evidence is adduced to prove the active participation of the appellant in the crime. For proving the conspiracy, no evidence was adduced by the prosecution to prove meeting of minds with the other accused. Hence, the learned Senior Counsel seeks to set aside the judgment passed by the learned Trial Judge. https://www.mhc.tn.gov.in/judis 8/28 CRL.A(MD).Nos.419 & 420 of 2021
10.The learned Additional Public Prosecutor submitted that the preparation of the Nominal Muster Roll with the fictitious persons is proved through the evidence of number of witnesses. The prosecution examined the villagers from the particular villages and they deposed that they did not attend any work and they did not receive any amount. Apart from that, the bills were compared by the Handwriting Expert and the report positively established the handwriting of the accused. Apart from that, there is a specific finding that the work was not done as per the programme of Jawahar Yojana Scheme. In Ex-P5, the signature of the A5 is found. Ex-P65 is the forged Nominal Muster Roll. The same was put to the accused during the questioning under Section 313 Cr.P.C. He has not denied the same.
11.The learned Additional Public Prosecutor further submitted that the learned Trial Judge meticulously analysed the evidence available against each accused in Item Nos.2 and 3 in the tabular column No.4 relating to A5, it is clearly stated that A1 made the counter sign and A5 affixed signature as Overseer. It is the duty of the Overseer to verify the preparation of Muster Roll and also make spot inspection to verify the completion of the work by persons mentioned in the NMR list. The same https://www.mhc.tn.gov.in/judis 9/28 CRL.A(MD).Nos.419 & 420 of 2021 was not done and hence, there is a clear conspiracy between the accused to swindle the amount of Rs.70,685/-. Hence, the prosecution in all aspects proved the case through legal evidence. The learned Trial Judge meticulously discussed about the evidence and correctly came to the conclusion that the appellant committed the offences and hence, seeks no interference in the Judgment of the trial Court.
12.This Court perused the records and also the impugned order and considered the detailed submissions made by both learned Senior Counsel and the learned Additional Public Prosecutor.
13.The following questions arise for consideration of this appeal:
13.1.Whether the prosecution proved the case beyond reasonable doubt against the appellants?
14.Discussion on the preparation of the “forged NMR and bills” The prosecution case in brief is that the appellants and the remaining accused were working in Rajapalayam Panchayat Union Office. A1 was working as an Assistant in the Panchayat Union Office https://www.mhc.tn.gov.in/judis 10/28 CRL.A(MD).Nos.419 & 420 of 2021 and A2 and A3 were working as Block Development Officers of the said Panchayat Union. A4 and A5 were working as Overseers of the said Panchayat Union. As per the Jawahar Yojana Programme, the Panchayat Union entrusted the work of cleaning the drainage channel of four places, namely, Rajapalayam, Krishnapuram, Melapattam and Karisalkulam. As per the scheme, the NMR list of the workers is to be prepared and through NMR workers, the work has to be completed. The same has to be overseen by the appellants and the remaining deceased accused. Here, all the accused prepared the Nominal Muster Roll with fictitious persons, prepared forged bills and misappropriated the funds without doing any work. To prove the same, the prosecution examined the persons, who claimed that their names were falsely included. The persons available in the village but fictitiously added in NMR without being allotted any work, categorically deposed that they were not allotted any work and they did not receive any amount.
15.To strengthen the case of the prosecution, the prosecution examined the Handwriting Expert. The Handwriting Expert also has given the opinion that the signature found in the forged bills and NMR list are the signatures of A1 and A5. Further, the prosecution also proved the duty entrusted to the appellants.
https://www.mhc.tn.gov.in/judis 11/28 CRL.A(MD).Nos.419 & 420 of 2021
16. The official witnesses examined on the side of the department, stated about the duties of the appellants. As per the official witnesses, A1, namely, the appellant in Crl.A(MD)No.420 of 2017, prepared the muster roll with counter sign and submitted to the remaining accused for the approval and grant of the sanction. On the basis of the sanction only, the bill amount was disbursed to the individuals. The muster roll itself was created with fictitious persons and the bill was forged and the amount was misappropriated. Hence, the prosecution proved the case in all aspects by examining the witnesses and also through expert opinion.
17.Apart from that, none of the accused had denied the documents marked, either by way of explanation under section 313 CrPC or through examining any witness. When the prosecution evidence clearly proved the fabrication of the documents, falsification of the records and misappropriation of the amounts entrusted with the said persons, the accused are duty bound to explain the signature found in the forged documents. They did not furnish any explanation. In the said circumstances, the prosecution clearly proved the case against the appellants.
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18.The learned Senior Counsel for A5 stated that no signature is found in any of the documents. The said submission is not correct. As rightly pointed out by the learned Additional Public Prosecutor, the learned Trial Judge segregated the bills relating to the four villagers and A5’s signature is found in the Tabular Column No.4. In the said document, he signed in the forged NMR and also bills. Further, in number of exhibits, his signature is found. The same was disclosed during the examination of 313 Cr.P.C., But A5 did not explain as to how his signature is found in the same and also he has not disputed the signature. In the said circumstances, the learned Senior Counsel's submission that there is no material against A5 in the preparation of the forged document is not accepted.
19.Further, the learned Senior Counsel submitted that there is no evidence to prove the meeting of the minds between the appellants. Conspiracy is made in secrecy. To prove the conspiracy, it is not possible to produce direct evidence, more particularly, in the case of the documentary evidence, when the forged NMR list contains the signature of the appellants. That itself is a strong circumstance to indicate the https://www.mhc.tn.gov.in/judis 13/28 CRL.A(MD).Nos.419 & 420 of 2021 meeting of minds and also the agreement to do an illegal act. Hence, the learned Senior Counsel's submission that to prove the conspiracy, there is no evidence “for meeting of minds” is not correct. The prosecution has proved the same through circumstances and also through documentary evidence.
20.Hence, this Court finds no merits in the contention of the learned Senior Counsel that he has not prepared the NMR list. In the chief examination, the sanctioning authority stated that all the accused prepared the false 148 person in the NMR list and caused loss to the Government to the extent of Rs.70,685/-.
21.Discussion on “Sanction” The learned Senior Counsel submitted that the sanction granted to prosecute Yesudasan, namely, A1, by the superior authority, namely, the District Collector is without jurisdiction. According to the learned Senior Counsel, as per G.O.Ms.70, A1 is an Assistant, his appointing authority is Block Development Officer and he is the competent authority. Hence, sanction granted by the District Collector is without jurisdiction. This Court is not inclined to accept the same. In the case of https://www.mhc.tn.gov.in/judis 14/28 CRL.A(MD).Nos.419 & 420 of 2021 the two officers being involved in the occurrence, nothing is wrong if the higher officer, accorded sanction to prosecute both the officers. Apart from that, the Block Development Officer of the zone is facing the trial and hence, this Court finds no merit in the contention of the learned Senior Counsel for the appellant that the District Collector has no jurisdiction to grant sanction to both the appellants.
21.1. Both the learned Senior Counsel submitted that the sanctioning authority, without application of mind accorded sanction and hence, the sanction is invalid. Consequently, taking of cognizance on the basis of invalid sanction is illegal and hence, they seek for acquittal.
21.2.Before Further elaboration on the submission of Appellant regarding non application mind while according sanction, this Court has a duty to find out the meaning of “sanction” and precedents relating to the according of sanction. The word ‘sanction’ has not been defined in the Code of Criminal Procedure.
Dictionary Meaning https://www.mhc.tn.gov.in/judis 15/28 CRL.A(MD).Nos.419 & 420 of 2021 Webster's Third New Internal Explicit permission or recognition Dictionary by one in authority that gives validity to the act of another person or body; something that authorizes, confirms, or countenances.
The New Lexicon Webster's Explicit permission given by some Dictionary one in authority.
The Concise Oxford Dictionary. Encouragement given to an action etc., by custom or tradition;
express permission, confirmation or ratification of a law etc;
authorize, countenance, or agree to (an action etc.) Stroud's Judicial Dictionary Sanction not only means prior approval; generally it also means ratification.
Words and Phrases— The verb ‘sanction’ has a distinct shade of meaning from ‘authorize’ and means to assent, concur, confirm or ratify. The word conveys the idea of sacredness or of authority.
The Law Lexicon by Ramanath Prior approval or ratification. Iyer Rameshwar Bhartia Vs. State of Sanction is in the nature of Assam reported in 1952 2 SCC permission.
203, the Hon'ble Supreme Court has stated that 21.3.In Om Prakash v. State of U.P., 2001 SCC OnLine All 818 at page 1248. Hon'ble Mr.Justice G.P.Mathur (as he then was) made a https://www.mhc.tn.gov.in/judis 16/28 CRL.A(MD).Nos.419 & 420 of 2021 detailed discussion on this aspect and finally has held that
6..... The word ‘sanction’ has been used as a “verb” and therefore it will mean to assent, to concur or approval.
21.4. Therefore, in the considerable opinion of this Court, sanction is the independent act of sanctioning authority with due application of mind over the material forwarded by the investigating agency to prosecute the accused before the Court of law under the penal provision constituting the offence.
21.5.The Hon'ble Supreme Court in State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119 after considering the earlier various decisions of the Hon'ble Supreme Court reported in AIR 1958 SC 124, AIR 1979 SC 677, 1995 6 SCC 225, 2005 4 SCC 81, 2006 12 SCC 749, 2007 11 SCC 273, 2011 1 SCC 491, has expounded the following detailed principles of law governing the validity of sanction:
“14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after https://www.mhc.tn.gov.in/judis 17/28 CRL.A(MD).Nos.419 & 420 of 2021 being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. 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.
14.5. 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.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
https://www.mhc.tn.gov.in/judis 18/28 CRL.A(MD).Nos.419 & 420 of 2021 14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a 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 hypertechnical approach to test its validity.” 21.6.The sanctioning authority has perused the documents produced by the Investigation Authority. The sanctioning authority applying his mind granted sanction and also deposed before the Court as follows:
“Nkw;fz;l midj;J Mtzq;fs;
rhl;rpapd; thf;F %yq;fs; Mfpatw;iw ftdKld; jPu ghprPypj;J Nkw;Fwpg;gpl;l 5 egh;kPJk; Fw;wtpay; eltbf;if njhlu mDkjp mspj;Njd;.
21.7.In this case the investigating officer, after collecting the material documents and recording the statements of the witnesses recorded under Section 161 of Cr.P.C, produced the same before P.W.1 to accord sanction. P.W.1 after considering and applying his mind granted https://www.mhc.tn.gov.in/judis 19/28 CRL.A(MD).Nos.419 & 420 of 2021 sanction under Ex.P1 to Ex.P4. The material portions of the sanction order/Ex.P1, Ex.P4 are as follows:
Ex.P1 Ex.P4 And whereas I A.Mohamed Aslam, And whereas, I A.Mohamed I.A.S, Collector, Virudhunagar Aslan, I.A.S, Collector, District, Virudhunagar, being the Virudhunagar District being the authority competent to remove the authority competent to remove said Thiru I.Yesudasan from the the said accused office, after carefully and Thiru.K.Muthumuniyandi thoroughly examining the relevant (Accused) from the office, after materials placed before me with carefully and thoroughly regard to the said allegations such examining the relevant materials, as FIR statement of witnesses of palced before me in regard to the Thiru.I.Yesudasan, document said allegations such as FIR expert's report and the report of statement of witnesses and Director, Vigilance and Anti statement of accused Corruption and the connected Thiru.K.Muthumuniyandi, expert documents placed before me with opinion and connected regard to the said allegation, am documents and report of satisfied that it is necessary in the Director, Vigilance and Anti interest of justice Corruption relating to the Thiru.I.Yesudasan Panchayat allegation and in the facts and Assistant, Rajapalayam Panchayat circumstances of the case, am Union should be prosecuted before satisfied that it is necessary in the the Court of Law for the above interest of justice that the above said offences. accused Thiru.K.Muthumuniyandi (Accused), fly. Union Overseer, Rajapalayam Panchayat Union should be prosecuted before the Court of Law for the said offences.
https://www.mhc.tn.gov.in/judis 20/28 CRL.A(MD).Nos.419 & 420 of 2021 The sanctioning authority was examined as P.W.1 and he also deposed before the Court that he accorded sanction under Ex.P1 after applying his mind in the following words:
ehd; jw;rkak; brd;idapy;
nghf;Ftuj;J Jiwapy; ,izr;
brayhsuhf gzpg[hpe;J tUfpnwd;/
22/07/2003 Kjy; 25/05/2006 tiu
tpUJefh; khtl;lj;jpy; khtl;l
Ml;rpaj; jiytuhf gzpg[hpe;J
te;njd;/ mg;nghJ CHy; kw;Wk;
fz;fhzpg;g[j;jiwapy; ,Ue;J bgwg;gl;l
mwpf;ifapd; mog;gilapy; fpUc&;zhg[uk;
kw;Wk; nkyg;ghl;lk; fhpry;Fsk; Mfpa
Cuhl;rpfspy; g";rhaj;J cjtpahsuhf
gzpg[hpe;j n$Rjhrd; vd;gth.; jpU/
Kj;JKdpahz;o jpU/ghyRg;gpukzpad;
Mfpa ,uz;L Cuhl;rp xd;wpa
Xth;rPah;!;fs; kw;Wk; uh$;Fkhh;.
ma;ad;gps;is vd;fpw ,uz;L gpoXf;fs;
,th;fSld; Tl;L ,ize;J bgha;ahd
Kiwapy; 148 vd; vk; Mh; gpy;fis
jahhpj;J ,jd; K:ykhf muRf;F
70.685 U:gha; ,Hg;gPL Vw;gl fhuzkhf
,Ue;jhh; vd;W Fwpg;gplg;gl;L
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CRL.A(MD).Nos.419 & 420 of 2021
nkw;Fwpg;gpl;l 5 egh; kPJk; Fw;wtpay;
eltof;if bjhlu mDkjp ntz;Lk;
vd;W nfhhpapUe;jjd; nghpy; me;j
tHf;F rk;ke;jg;gl;l midj;J
Mtz';fs; rhl;rpapd; thf;FK:y';fs;
Mfpatw;iw ftdKld; jPu ghprPypj;J
nkw;Fwpg;gpl;l 5 egh; kPJk; Fw;wtpay;
eltof;if bjhlu mDkjp mspj;njd;/
21.8.From the above, this Court finds that the sanction order itself is eloquent about the fact that the accused had prepared forged NMR list and misappropriated the amount. The sanctioning authority also came into the witness box and he deposed that he accorded sanction for prosecution after due application of mind. Therefore, this Court finds that the sanctioning authority has applied his mind to the fact that the appellants forged the Nominal Muster Roll and bills and misappropriated the funds.
22. Further, Section 19 of the Prevention of Corruption Act 1988 and Section 465 of Cr.P.C., specifically state that the conviction cannot be set aside on the ground that there was an error in granting sanction https://www.mhc.tn.gov.in/judis 22/28 CRL.A(MD).Nos.419 & 420 of 2021 unless accused established failure of justice. For better appreciation, the relevant portions of the Sections are extracted as follows:
Section 19 of the Under Section 465 of Cr.P.C. Prevention of Corruption act 1988 19.3...(3) Notwithstanding 465. Finding or sentence when reversible by anything contained in the Code reason of error, omission or irregularity.—(1) of Criminal Procedure, 1973 (2 Subject to the provisions hereinbefore contained, of 1974),— no finding, sentence or order passed by a court
(a) no finding, sentence or order of competent jurisdiction shall be reversed or passed by a Special Judge shall altered by a court of appeal, confirmation or be reversed or altered by a court revision on account of any error, omission or in appeal, confirmation or irregularity in the complaint, summons, warrant, revision on the ground of the proclamation, order, judgment or other absence of, or any error, proceedings before or during trial or in any omission or irregularity in, the inquiry or other proceedings under this Code, or sanction required under sub- any error, or irregularity in any sanction for the section (1), unless in the opinion prosecution, unless in the opinion of that court, a of that court, a failure of justice failure of justice has in fact been occasioned has in fact been occasioned thereby.
thereby;
22.1.The Hon'ble Supreme Court has held as follows in State v. T. Venkatesh Murthy, (2004) 7 SCC 763 at page 765,
14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding “failure of https://www.mhc.tn.gov.in/judis 23/28 CRL.A(MD).Nos.419 & 420 of 2021 justice”. Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice.
22.2.In State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533 at page 536
9. Further, the High Court has failed to consider the effect of Section 19(3) of the Act. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the court a failure of justice has in fact been occasioned thereby.
29.3.The Hon'ble Supreme Court in Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402 referring to the earlier precedents has https://www.mhc.tn.gov.in/judis 24/28 CRL.A(MD).Nos.419 & 420 of 2021 observed that ...A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby...
22.3.These two foundational facts to prosecute the appellants under Section 7 and 13(1)(d) r/w 13(2) and 12 of the Prevention of Corruption Act 1988 are found in the sanctioning order/Ex.P1 and in P.W.1's deposition. Further, in the case of State of Bihar v. P.P. Sharma, reported in AIR 1991 SC 1260, the Hon'ble Supreme Court has held as follows:
When the Government accorded sanction, Section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption.
23.In this case also as discussed above, the sanctioning authority accorded sanction by applying his mind and hence, the presumption under Section 114(e) of the Indian Evidence Act comes into play that the sanctioning authority properly discharged his duty. The accused is duty bound to rebut that statutory presumption by preponderance of https://www.mhc.tn.gov.in/judis 25/28 CRL.A(MD).Nos.419 & 420 of 2021 probability and also to establish the failure of justice. In this case, the accused never established both these requirements.
24. According to the above judgment of the Hon'ble Supreme Court if the sanctioning authority deposed before the Court that he granted sanction after applying his mind, the same is sufficient compliance of the Section 19 of the Prevention of Corruption Act and hence, this Court does not accept the contention of the learned counsel for the appellant.
25.Hence, this Court finds no merits in the contention of the learned Counsel for the appellants. Accordingly, these Criminal Appeals are dismissed. The learned trial Judge is directed to secure the appellant to undergo the remaining part of the sentence of imprisonment as per law.
12.03.2024
Index :Yes / No
Internet :Yes / No
cmr/sbn
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CRL.A(MD).Nos.419 & 420 of 2021
To
1.The learned Chief Judicial Magistrate cum Special Judge for Vigilance and Anti-Corruption Cases, Srivilliputhur, Virudhunagar District.
2.The Deputy Superintendent of Police, Vigilance and Anti Corruption Wing, Virudhunagar.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 27/28 CRL.A(MD).Nos.419 & 420 of 2021 K.K.RAMAKRISHNAN, J.
cmr/sbn Pre-delivery Judgment made in CRL.A.(MD)Nos.419 and 420 of 2017 12.03.2024 https://www.mhc.tn.gov.in/judis 28/28