ORDER
D.K. Jain, J.
1. In a charge-sheet filed about two and a half decades ago, the appellant Tirth Prakash (since deceased) was convicted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (for short the Act) and Section 161 of the Indian Penal Code and Sentenced to undergo one year rigorous imprisonment and a fine of Rs.2,000/- for the offence punishable under the Act and one year rigorous imprisonment and a fine of Rs.500/- for the offence punishable under the Indian Penal Code. In default of payment of fine he has been sentenced to undergo six months RI. The substantive sentences are to run concurrently and the sentence in default of payment of fine is to run consecutively. The appeal is directed against this order.
2. During the pendency of the appeal the appellant expired on 23 May 1993 and on his widow moving an application under Section 394 of the Code of Criminal Procedure, 1973 (for short the Code) vide order dated 19 November 1997, leave was granted to her to continue with the appeal.
3. Prosecution version in nutshell is as follows:
The appellant was working as a Enquiry Clerk in the Foreign Post Office, Bahadur Shah Zafar Marg, New Delhi in the year 1973. One Ram Lubhaya, (hereinafter referred to as the complainant) a government employee at one time, had gone to the United States where he remained for about eight years. Before he left the USA for India in 1973 he sent some packets by post by sea, hoping to receive them on reaching this country. Four of these packets addressed to his wife were to be cleared in July, 1973. The complainant came to Delhi in July, 1973 to seek release of these four packets, where he came in contact with the appellant on 23 July 1973. The packets were inspected on 25 July 1973 by an Inspector of the Customs. The appellant is alleged to have indicated to the complainant that the case calls for levy of heavy customs duty but could be settled amicably on payment of Rs.250/-, which would include Customs duty amounting to Rs.60/- and the rest would be on account of gratification. However, later on the demand is stated to have been reduced to Rs.200/-. Not willing to pay the illegal gratification, the complainant contacted the Assistant Collector (Vigilance), Customs at Palam Airport and lodged a written complaint. Acting on it and after tape-recording the conversation on telephone between the appellant and the complainant, a trap was laid on 26 July, 1973. As per the plan two currency notes of Rs.100/- each, treated with Phenolphthalein powder, were given by the complainant to the appellant,the raiding team appeared on the spot and asked the appellant to take out the notes from his pocket. The hands of the appellant were dipped in the solution of sodium carbonate which turned pink, indicating the presence of phenolphthalein powder on the hands of the appellant. After investigation, charge-sheet was filed on 4 November 1976 along with sanction order dated 19 August 1974 issued by Shri Amrik Singh, Superintendent, Foreign Post Office, New Delhi.
4. Relying on the testimony of the complainant (PW-4), public witnesses to the trap (PWs 5 and 6) the learned Special Judge was found the appellant guilty an convicted and sentenced him as stated above.
5. I have heard Mr. P.R. Thakur, learned counsel for the appellant and Mr. A.K.Dutt, learned counsel for the state. Learned counsel for the appellant assailed the trial and conviction of the appellant on three legal grounds namely, (i) the sanction order under Section 6 of the Act purportedly made by the competent authority is illegal – having been made mechanically, without application of mind, in that it does not reveal correct facts constituting the offence alleged against the appellant inasmuch as it proceeds on the basis that the appellant had demanded and accepted illegal gratification of Rs.140/- whereas as per the record of the case, including the seizure memo and the remand application, the accepted illegal gratification is shown as Rs.138/-; (ii) defective recording of the appellant’s statement under Section 313 of the Code and (iii) fundamental defect in the framing of charge. On merits, it is submitted that the trial Court has failed to analyses the defense evidence and the Prosecution had withheld material evidence available in the form of audio tapes of the conversation between the appellant and the complainant and, therefore, the conviction is not sustainable. In support of the proposition that proceedings initiated as a result of invalid sanction were void ab initio and the Trial Court should not have taken cognizance of the charge, reliance is placed on decisions in Gokulchand Dwarkadas Morarka v. The King Mohd. Iqbal Ahmed v. State of Andhra Pradesh and R.S.Nayak v. A.R. Antuley .
6. On the order hand learned counsel for the State has submitted that the question as to the validity of sanction having not been raised during the course of the trial, the appellant cannot be permitted to challenge the same at the appellate stage. It is also urged that since the point has been raised after the Prevention of Corruption Act, 1988 (for short the 1988 Act) has come into force, in the light of sub-Sections (3) and (4) of Section 19 of the said Act, the order passed by the Trial Court cannot be reversed or altered on account of some deficiency in the sanction order. In the alternative, it is urged that such on omission is otherwise saved by Section 465 of the code. In support of the last proposition, reliance is placed on the decision of the Supreme Court in State of Orissa v. Mrutunjaya Panda 1998 Crl. LJ 782. It is however not disputed by learned counsel for the State that the illegal gratification accepted by the appellant was Rs. 138/- and not Rs.140/- as mentioned in the charge framed.
7. Since I am of the view that the appeal must succeed on pure points of law raised by learned counsel for the appellant, I deem it unnecessary to dwell on the merits of the case.
8. The relevant portion of Section 6 of the Act, counched in negative terms, is reproduced below :-
“6. Previous sanction necessary for prosecution – (1) No court shall take cognizance of an offence punishable under section 161 or Section 164 or section 165 of the Indian Penal Code (45 of 1860) or under sub-section (2) or sub-section 3a) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,
(a) xxxxx
(b) xxxxx
(c) in the case of any other person, of the authority competent to remove him form his office.
(2) xxxxx
9. The Sections bars the Court from taking cognizance of the offence enumerated therein, alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction. The object underlying the said provision is the save the public servant from harassment of frivolous or unsubstantiated allegations.Existence of valid sanction, thus, is a condition precedent for taking cognizance of the enumerated offence punishable under the act. In K. Veeraswami v. Union of India & Ors. , J.S.Verms, J. (as his Lordship then was) said (para 120): “The concept of sanction for prosecution by a superior is so inextricably woven into the fabric of the enactment that the pattern is incomplete without it. The provision for sanction is like the keystone in the arch of enactment. Remove the keystone of sanction and the arch crumbles.” Therefore when the Court is called upon to take cognizance of such an offence, it must enquire whether there is valid sanction to prosecute the public servant for the offence alleged to have been committed by him.
10. Validity of sanction depends upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning authority, which must apply its won independent mind to the relevant facts of the case, the evidence collected and other incidental facts before granting sanction. As observed in Mohd Iqbal Ahmed’s case (supra) grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act and must be strictly complied with before an prosecution can be launched against the public servant concerned. 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.
11. These observation have throughout been followed by the Supreme Court in its subsequent decisions. Therefore, before taking cognizance, the Court is required to see whether or not the sanctioning outward while granting the sanction was aware of the facts constituting the offence and had applied its mind. It is obvious that if the sanction granted is based on incorrect facts it would be a case of non-application of mind per se vitiating the sanction.
12. In the instant case, in the charge-sheet filed against the appellant it has been alleged that the appellant had demanded Rs.200/- as the bribe including Rs.60/-as Customs duty for delivery of the four parcels to the complainant, meaning thereby that the illegal gratification demanded and accepted by the appellant was Rs.140/-. The same allegation is repeated verbatim in the sanction order. It is, therefore, crystal clear that he competent authority had proceeded to grant the sanction for persecution of the appellant for accepting illegal gratification of Rs.140/-as mentioned in the charge-sheet whereas the admitted case of the Prosecution and as reflected in the seizure memo (Ex-PW-4/J), receipts issued by the Post and Telegraph Department (Ex. PW-4/D), forming part of the case record, the amount of illegal gratification was Rs.138/-, because Rs.25/- and Rs.37/- were payable by the appellant on parcels No. 55489 and 55498 respectively as government dues for the release of the four packets. The question of validity of sanction appears as raised during the trail itself. Cross-examined on the controversy, the competent authority, appearing as PW-9, admitted that the amount of illegal gratification was Rs.138/-, though mentioned as Rs.140/- in the sanction order made by him. Questioned, he stated that he had made the sanction order after going through the entire record. The contradiction in terms appearing, was not explained. Further cross-examined, he did not remember if the draft sanction order was also sent to him by the prosecuting agency along with the record of the case for making the sanction order. I am, thus, convinced that the competent authority had granted sanction mechanically without application of mind, which renders the sanction to be void ab initio. In this view of the matter, the cognizance taken by the Special Judge and the consequent trial for the afore noted offence was illegal and the appeal must succeed on this short point alone.
13. Though, it is true that there is no discussion in the impugned order about the challenge to the legality of the sanction order, the question of its validity, as discussed above, appears as sufficiently raised during the trail itself. I do not, therefore, find much substance in the argument of Mr. Dutt that the validity of sanction has been questioned for the first time before this Court and, therefore, it should not be entertained.
14. I am also not impressed with his alternative argument that Section 19 of the 1988 Act militates against the finding on the point. Section 19 of the 1988 Act came into force on 9 September 1988. Both sub-sections (3) and (4) of Section 19, which were added in the new Act, as also Section 465 of the Code, pressed into service by learned counsel for the State, for all practical purposes, only provide that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal on the ground of the absence of any error, omission or irregularity in the sanction required under sub-section(1) unless in the opinion of the Court a failure of justice has in fact been occasioned thereby. In my view since the validity of the sanction was required to be considered at the time of taking cognizance of the case, i.e. in November 1976, much prior to the coming into force of the 1988 act, the provisions of the earlier Act will be applicable and not that of the 1988 Act. If there had been no sanction or sanction was materially defective the benefit thereof under the Act will accrue to the appellant.
15. I am also of the considered view that the afore noted infirmity in the sanction cannot be saved by taking recourse to Section 465 of the Code as well, as pleaded by learned counsel of the State. It is significant to note that though Section 465 of the Code provides that finding or sentence shall not be reversed or altered on account of any “error”, “omission” or “irregularity” in the complaint, summons, warrant, proclamation etc., but insofar as the sanction is concerned it purports to contain only an “error” or “irregularity” therein and not an “omission”. Blacks Law Dictionary (6th Ed.) defines an “error” as mistake; inaccuracy as an error in calculation; “irregularity” as failure or non-observance of established rules and practices; the technical term for any defense in proceedings as distinguishable from defects in pleading”; and the term “omission” as “the neglect to perform what the law requires”.
16. The law obligates the competent authority to apply its mind to the facts and circumstances of the case before granting sanction. Before granting sanction the sanctioning authority is required to first ascertain the correct facts, like in the present case the correct amount of illegal gratification, and then decide whether the sanction was to be given or not. But in the instant case, as noticed above, the authority failed to apply his mind to ascertain the correct amount of illegal gratification to decide the question of sanction and failure on his part of ascertain this material fact is not a mere error or irregularity but is a serious “omission” on his part, amounting to illegality, affecting the validity of the sanction order. The term “illegality” cannot be synonymous with the term “irregularity”. This illegality, in my view, did occasion the failure of justice within the meaning of Section 465 of the Code. The decision of the Apex Court in Panda’s case (Supra), heavily relied on by learned counsel for the State, is clearly distinguishable on facts. In that case apart from the fact that the nature of infirmity in the sanction, alleged by the convict, is not indicated in the judgment, but the Court has not only recorded a finding that there is nothing on record from which it cant be said that the error or irregularity in the sanction had occasioned any failure of justice, it has also noticed that objection regarding the validity of sanction was not raised before the Trial Court, which, as noted above, is not the case here. Thus, Section 465 of the Code does not come to the rescue of the Prosecution.
17. Section 313 of the Code embodies the fundamental principle of fairness enunciated in the maxim Audi Altrem Partem. The purpose and object of examination of the accused under Section 313 is to give the accused an opportunity to explain the incriminating material which as surfaced on record. It is not intended to be an idle formality. The provisions in the Section, therefore, make it obligatory on the Court to question the accused on the evidence and circumstances appearing against him so as to apprise him of the exact case which he is required to meet. Though it is equally true that every omission of some points to be put to the case under Section 313 may not vitiate the trial but the failure to put questions on specific and vital points and circumstances would undoubtedly vitiate the trial because it apparently occasions prejudice to him.
18. The object and nature of the provision contained in Section 313 of the Code, though in a different context, came up for consideration before the Apex Court recently in Basavaraj R. Patil & Ors. v. State of Karnataka & Ors. wherein it was observed that if the Court fails to put the needed question under clause (b) of sub-section (1) of Section 313 it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It was also observed that the circumstances about which the accused was not asked to explain cannot be used against him.
19. In the present case the only question put to the appellant in his statement is:
“Q.8. It is in evidence that when it was lunch interval and Ram lubhaya was coming out, you took him aside and Inspector Chattoupadhaya also came there and you demanded Rs. 250/- from Ram Lubhaya assuring him to settle the case and mentioned Rs.60/- out of it on account of duty and the rest as illegal gratification. What have you to say?
Ans. It is incorrect. There was no such demand by me.
From the above it is evident that he has not been questioned on the material facts constituting the offence, like the exact amount of illegal gratification mentioned in the charge framed. The question put was indefinite and vague. No other question on this aspect was put to him. The omission to put the precise question on the quantum of illegal gratification assumes more importance because of the variation in the amount of alleged illegal gratification mentioned in the charge sheet, the sanction order and the charge (Rs.140/-) and in the testimony of the sanctioning authority (Rs.138/-). I feel that the appellant was deprived of an opportunity to explain the precise case against him. This is a serious omission which goes to the root of the matter and cannot be said to be a mere irregularity which could be cured by re-examining the accused. In any event, even if it is assumed for the sake of argument that it is curable defect in the statement, in the circumstances of the present case, it cannot be cured because the accused is not alive. In my opinion, therefore, the trial and the consequent conviction stand vitiated on this legal infirmity also.
20. I am also inclined to agree with learned counsel for the appellant that there has been a fundamental defect in the charge framed against the appellant. It reads as under :
“That you being a public servant, as an Enquiry Clerk in the Foreign Post Office, Bahadur Shah Zafar Marg, New Delhi, on 25.7.73 demanded Rs.140/- as gratification other than legal remuneration by asking for Rs.200/- including Rs.60/- custom duty from Ram Lubhay, P.W. for giving delivery of four parcels received in Foreign delivery of four parcels received in Foreign Post Office in the name of his wife and on 26-7-73 accepted the said amount of Rs.140/- as illegal gratification from Shri Ram Lubhaya PW and committed an offence punishable u/s 161 IPC and within my cognizance.
Secondly that on 26-7-1973 at the same place you being a public servant as Enquiry Clerk in the Foreign Post Office, New Delhi obtained Rs.140/- as pecuniary advantage by corrupt or illegal means from Shri Ram Lubhaya PW and committed criminal misconduct punishable u/s 5(2) read with Sec. 5(1)(d) of the Prevention of Corruption Act, 1947 and within my cognizance.”
(Emphasis added)
21. Admittedly, the figure of Rs.140/- mentioned as illegal gratification, is incorrect and is a fundamental infirmity, resulting in a serious prejudice to the appellant. I feel that this infirmity is not saved either by Section 215 or 464 of the Code, as it has occasioned a failure of justice. Thus, this serious lacuna in the charge also vitiates the trial.
22. For the forgoing reasons, I have no hesitation in holding that the present prosecution was launched without a valid sanction and, therefore, cognizance taken by the Special Judge was without jurisdiction. Further, the trial was also vitiated on account of defective recording of statement of the appellant under Section 313 of the Code and for the incorrect framing of charge. The appeal is accordingly allowed on the legal grounds, without going into the merits of the allegations. The judgment of the learned Special Judge is set aside and the conviction and sentence passed on the appellant are quashed.