Kerala High Court
Luckose Joseph vs State Of Kerala on 8 August, 2025
2025:KER:59688
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947
CRL.A NO. 509 OF 2008
AGAINST THE JUDGMENT DATED 14.02.2008 IN C.C. NO.44 OF 2004 ON THE FILES
OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
LUCKOSE JOSEPH
FORMERLY VILLAGE OFFICER, KUNNUMMA VILLAGE, ALAPPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.ANIL K.MUHAMED
SRI.R.ANIL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY THE PUBLIC PROSECUTOR ,HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2025, THE
COURT ON 08.08.2025 DELIVERED THE FOLLOWING:
Crl.A. No. 509 of 2008
2
"C.R"
JUDGMENT
Dated this the 8th day of August, 2025
The sole accused in C.C. No.44/2004 on the files of
the Enquiry Commissioner and Special Judge,
Thiruvananthapuram, has filed this appeal under Section
374(2) of the Code of Criminal Procedure, 1973 [hereinafter
referred as ‘Cr.P.C.’ for short], challenging the conviction and
sentence imposed against him by the Special Judge as per
the judgment dated 14.02.2008. The State of Kerala,
represented by the Public Prosecutor is arrayed as the sole
respondent herein.
2. Heard the learned counsel for the appellant and
the learned Public Prosecutor, in detail. Perused the verdict
under challenge, records of the trial court and the decisions
placed by both sides.
3. Parties in this appeal shall be referred as
‘accused’ and ‘prosecution’, hereafter.
4. In this matter, the prosecution case is that, on
27.10.2001, when the complainant went to the Kunnumma
Crl.A. No. 509 of 2008
3
Village Office and met the accused, who was the then
Village Officer for the purpose of getting possession
certificates in respect of the properties of his father, mother
and grand mother, for renewing the agricultural loan availed
from State Bank of Travancore, Mankomb Branch, the
accused then told the complainant that applications and tax
receipts were necessary for giving possession certificates
and directed him to come with the same on 29.10.2001.
Accordingly, the complainant went to the Kunnumma Village
Office with the tax receipts and applications of his father,
mother and grand mother and gave the same to the
accused. Then the accused said that the title deed of the wet
lands also was necessary and on this premise, he returned
the applications and tax receipts to the complainant. On
30.10.2001, the complainant again went to the Village Office
with the title deed and met the accused and then the
accused told him that, since the properties were not owned
by the complainant, the owners of the properties should
come for getting the possession certificates. The
complainant informed the accused that his father, who was
a daily labourer, had gone for work. Then the accused
Crl.A. No. 509 of 2008
4
demanded Rs. 250/- to give the possession certificates and
told him that if that sum was given, the possession
certificates would be issued. As the complainant was not
willing to pay such sum, he went to the VACB Alappuzha Unit
on 31.10.2001 and gave Ext.P1 statement at about 11.30
a.m. Soon, the then Dy.S.P. of Alappuzha Vigilance Unit
recorded Ext.P1 statement given by PW1 and registered a
case vide crime No.11/2001 and Ext.P2 is the FIR. Thereafter,
on completion of pre-trap proceedings, the Vigilance party
along with the official witnesses and the complainant
reached the Village Office. Then, the accused demanded
Rs.250/- as bribe and accepted the same. The said notes
were recovered from him. On this premise, the prosecution
alleges commission of offences punishable under Sections 7
and 13(2) read with 13(1)(d) of Prevention of Corruption Act,
1988 [hereinafter referred as ‘P.C. Act‘ for short], by the
accused.
5. After, framing charge for the offences under
Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act, the
Special court recorded evidence and tried the matter. PWs 1
to 10 were examined, Exts.P1 to 19, Exts.X1 to X3 and MOs 1
Crl.A. No. 509 of 2008
5
to 5 were marked on the side of the prosecution. After
questioning the accused under Section 313(1)(b) of Cr.P.C,
DW1 was examined and Exts.D1 to D3 were marked on the
side of the accused.
6. On appreciation of evidence, the Special Court
found that the accused was guilty for the offences
punishable under Sections 7 and 13(2) read with 13(1)(d) of
the P.C. Act and was convicted for the said offences.
Accordingly, the accused was sentenced as under:
“The accused is sentenced to undergo
rigorous imprisonment for a term of three years
and in addition he shall pay a fine of Rs.7,500/-
(Rupees Seven thousand and five hundred only)
and in default of such payment of fine, he shall
undergo rigorous imprisonment for a term of six
months and for the conviction entered against him
under S.7 of P.C. Act, 1988, he shall undergo
rigorous imprisonment for a term of two years. The
period of detention undergone by the accused for
the period from 31.10.2001 to 8.11.2001 shall be
given set off as provided by S.428 Crl.P.C. The
substantive sentences shall run concurrently.”
7. While challenging the conviction and sentence,
the prime contention raised by the learned counsel for the
Crl.A. No. 509 of 2008
6
accused is that, in this case, Ext.P12 sanction to prosecute
the accused issued by PW7 is not legal, since he is not the
competent authority to issue the sanction. In this connection,
the learned counsel for the accused placed judgments of this
Court in W.P.C No.31122/2005 dated 06.12.2005 and W.A.
No.2681/2005 dated 24.01.2006. As per the judgment dated
06.12.2005 in W.P.C No.31122/2005, the learned Single Judge
of this Court found in paragraph No.6 that, on a perusal of
Exts.R2(a), R2(b) and R2(c) it is seen that none of those
orders was issued in exercise of the power conferred on the
Government under Rule 10(1) of the Rules, or Section 4(1) of
the Kerala Board of Revenue Abolition Act. 1996. A glance
through the above orders would further show that the Addl.
Commissioner of Land Revenue was empowered to exercise
day-to-day administrative powers, and subsequently, the
post of Addl. Commissioner of Land Revenue was
redesignated as Deputy Land Revenue Commissioner. I am
not able to accept the contention that by virtue of or on the
strength of Exts.R2(a), (b) & (c) orders, the 2 nd respondent
gets the statutory power under a notification issued or to be
issued as per Rule 10(1) of the Rules or under Section 4(2) of
Crl.A. No. 509 of 2008
7
the Kerala Board of Revenue Abolition Act. As already stated,
no notification issued by the Government under Rule 10(1)
of the Rules empowering the 2nd respondent-Deputy
Commissioner to exercise the powers of the disciplinary
authority or appointing authority or as an authority
subordinate to that of appointing authority empowered by
the Government to suspend the employees has neither been
produced nor any pleading to effect made in the counter
affidavit.
8. When an appeal was filed challenging the
judgment dated 06.12.2005 in W.P.C No.31122/2005, the
finding of the learned Single Judge was upheld by the
Division Bench holding the view that, Land Revenue
Commissioner is the competent authority to appoint and
remove Upper Division Clerk working in Revenue Divisional
Office.
9. The learned counsel for the accused placed
decision of this Court in A.R.Raphel v. State of Kerala –
Rep. By the Public Prosecutor, High Court of Kerala
reported in [2015 Supreme (Ker) 624], wherein a Single
Judge of this Court found that, in a case involving
Crl.A. No. 509 of 2008
8
prosecution sanction granted by a wrong authority, the
accused is entitled for clean acquittal, whatever be the
findings of facts. The scope for remand of the said case also
was negatived by this Court on the said ground.
10. Since the Single Judge as well as the Division
Bench judgments referred by the learned counsel for the
accused have been discussed in the impugned judgment
along with two judgments of the Apex Court to negative the
impropriety of the sanction, the above decisions as well as
the subsequent decisions also required to be referred. The
Special Court referred decisions of the Apex Court reported
in [2007 (2) KHC 400 : JT 2007 (5) SC 525 : 2007 (2)
KLT 529] Paul Varghese v. State of Kerala and Another
and [(2004) 7 Supreme Court Cases 763] State by
Police Inspector v. T.Venkatesh Murthy , to hold that the
validity of sanction does not affect the validity of the
proceedings unless the court records a satisfaction that such
error, omission or irregularity has resulted in a failure of
justice.
11. In Paul Varghese’s case (supra), the Apex Court
held that, in cases covered under the Act, in respect of
Crl.A. No. 509 of 2008
9
public servants the sanction is of automatic nature and thus
factual aspects are of little or no consequence. Conversely,
in a case relatable to S.197 of the Code, the substratum and
basic features of the case have to be considered to find out
whether the alleged act has any nexus to the discharge of
duties. Position is not so in case of S.19 of the Act.
12. In T.Venkatesh Murthy‘s case (supra), the Apex
Court considered the validity of sanction with reference to
sub sections (3) and (4) of Section 19 of the P.C. Act and
also referred Sections 462 and 460 of Cr.P.C. and held in
paragraph Nos.7 and 8 as under:
7. A combined reading of sub-sections (3) and
(4) of Section 19 of the Prevention of Corruption Act,
1988 makes the position clear that notwithstanding
anything contained in the Criminal Procedure Code,
1973, 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 irregularity
in the sanction required under sub-section (1),
unless in the opinion of that court a failure of justice
has in fact been occasioned thereby.
8. Clause (b) of sub-section (3) shows that no
court shall stay the proceedings under the Act on
the ground of any error, omission or irregularity in
Crl.A. No. 509 of 2008
10the sanction granted by the authority, unless it is
satisfied that such error, omission or irregularity has
resulted in a failure of justice.
13. It could be gathered that, in the decision of the
Apex Court reported in [2005 KHC 1803 : 2005 (4) KLT
SN 87 : 2005 (8) SCC 130 : AIR 2005 SC 3606] State of
Goa v. Babu Thomas, the Apex Court distinguished the
decision in T.Venkatesh Murthy‘s case (supra) and held in
paragraph No.11 as under:
11. Referring to the aforesaid provisions, it is
contended by learned counsel for the appellant that
the Court should not, in appeal, reverse or alter any
finding, sentence or order passed by a Special Judge
on the ground of the absence of any error, omission
or irregularity in the sanction required under sub-s.
(1), unless the Court finds that a failure of justice
has in fact been occasioned thereby. In this
connection, a reference was made to the decision of
this Court rendered in the case of State v. T.
Venkatesh Murthy (2004 (7) SCC 763: 2004 SCC
(Cri) 2140). Reference was also made to the
decision of this Court in the case of Durga Dass v.
State of H.P. (1973 (2) SCC 213: 1973 SCC (Cri) 762)
where this Court has taken the view that the Court
should not interfere in the finding or sentence or
order passed by a Special Judge and reverse or alter
Crl.A. No. 509 of 2008
11
the same on the ground of the absence of, or any
error, omission or irregularity in the sanction
required under sub-s.(1), unless the Court finds that
a failure of justice has in fact been occasioned
thereby. According to the counsel for the appellant
no failure of justice has occasioned merely because
there was an error, omission or irregularity in the
sanction required because evidence is yet to start
and in that view the High Court has not considered
this aspect of the matter and it is a fit case to
intervene by this Court. We are unable to accept
this contention of the counsel. The present is not
the case where there has been mere irregularity,
error or omission in the order of sanction as required
under sub-s.(1) of S.19 of the Act. It goes to the root
of the prosecution case. Sub-s.(1) of S.19 clearly
prohibits that the Court shall not take cognizance of
an offence punishable under S.7, 10, 11, 13 and 15
alleged to have been committed by a public
servant, except with the previous sanction as stated
in clauses (a), (b) and (c).
14. The learned counsel for the accused also placed
decision of the Apex Court reported in [(2015) 14 Supreme
Court Cases 186] Nanjappa v. State of Karnataka and
in paragraph No.22, the Apex Court held as under:
22. The legal position regarding the
importance of sanction under Section 19 of the
Crl.A. No. 509 of 2008
12Prevention 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 previous 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 authority
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 the
same offences, upon grant of a valid sanction for
such prosecution.
15. The learned counsel for the accused also pointed
out subsequent decision of the Apex Court reported in
[(2023) 17 Supreme Court Cases 699 : 2023 SCC
OnLine SC 911] State of Karnataka Lokayukta Police
v. S.Subbegowda. In paragraph Nos.22 and 23 of the
same, the Apex Court held as under:
Crl.A. No. 509 of 2008
13
22. In the instant case, the Special Judge
proceeded with the trial, on the second application
for discharge filed by the respondent having not
been pressed for by him. The Special Judge, while
dismissing the third application filed by the
respondent seeking discharge after examination of
17 witnesses by the prosecution, specifically held
that the sanction accorded by the Government
which was a superior authority to the Karnataka
Water Supply Board, of which the respondent was
an employee, was proper and valid. Such findings
recorded by the Special Judge could not have been
and should not have been reversed or altered by
the High Court in the petition filed by the
respondent challenging the said order of the
Special Judge, in view of the specific bar contained
in sub-section (3) of Section 19, and that too
without recording any opinion as to how a failure of
justice had in fact been occasioned to the
respondent-accused as contemplated in the said
sub-section (3). As a matter of fact, neither the
respondent had pleaded nor the High Court opined
whether any failure of justice had occasioned to
the respondent, on account of error if any,
occurred in granting the sanction by the authority.
23. As a matter of fact, such an interlocutory
application seeking discharge in the midst of trial
would also not be maintainable. Once the
cognizance was taken by the Special Judge and the
Crl.A. No. 509 of 2008
14charge was framed against the accused, the trial
could neither have been stayed nor scuttled in the
midst of it in view of Section 19(3) of the said Act.
In the instant case, though the issue of validity of
sanction was raised at the earlier point of time, the
same was not pressed for. The only stage open to
the respondent-accused in that situation was to
raise the said issue at the final arguments in the
trial in accordance with law.
16. The learned counsel for the accused placed
another decision of the High Court of Bombay in Sudhir v.
State of Maharashtra, through Police Station Officer
reported in [2025 SCC OnLine Bom 1782] and the
decision of the High Court of Allahabad in Rajendra Singh
Verma v. C.B.I. reported in [2024 : AHC : 110653] , to
buttress his point that the ratio in Nanjappa’s case (supra)
has been followed by the High Courts of Bombay as well as
Allahabad.
17. At this juncture, the learned Public Prosecutor
placed decision of the Apex Court in [MANU/SC/1319/2024
: 2025 (265) AIC 165 : 2024 INSC 952] Central Bureau
of Investigation v. Jagat Ram, with reference to
paragraph No.6, to contend that, it is clear that under Sub-
Crl.A. No. 509 of 2008
15
section 3(a) of Section 19 of the Act, no finding, sentence or
order by a Special Judge shall be reversed by a court of
appeal on the ground of absence, error, omission or
irregularity in the sanction. This is the first principle.
However, such a restraint against reversal or alteration is
always subject to the opinion of the court that failure of
justice has in fact been occasioned thereby. Sub-section (4)
of Section 19 of the Act further provides that while
construing whether the absence, error, omission or
irregularity has occasioned or resulted in failure of justice,
the court will examine the fact that whether an objection
could and should have been raised at an earlier stage in the
proceedings.
18. Paragraph No.7, 9 and 12 of Jagat Ram‘s case
(supra) appears to be relevant and the same are extracted
as under:
7. Failure of Justice, what it entails and the
scope of such enquiry was explained by this Court in
C.B.I. v. Ashok Kumar Aggarwal in the following
terms:
18…….The failure of justice would be relatable
to error, omission or irregularity in the grant of
sanction. However, a mere error, omission or
Crl.A. No. 509 of 2008
16irregularity in sanction is not considered to be fatal
unless it has resulted in the failure of justice or has
been occasioned thereby.
19. The court must examine whether the issue
raised regarding failure of justice is actually a failure
of justice in the true sense or whether it is only a
camouflage argument. The expression “failure of
justice” is an extremely pliable or facile an
expression which can be made to fit into any case.
The court must endeavour to find out the truth.
There would be “failure of justice” not only by unjust
conviction but also by acquittal of the guilty as a
result of unjust or negligent failure to produce
requisite evidence. Of course, the rights of the
Accused have to be kept in mind and safeguarded
but they should not be overemphasised to the
extent of forgetting that the victims also have
certain rights. It has to be shown that the Accused
has suffered some disability or detriment in the
protections available to him under the Indian
criminal jurisprudence. “Prejudice” is incapable of
being interpreted in its generic sense and applied to
criminal jurisprudence. The plea of prejudice has to
be in relation to investigation or trial and not
matters falling beyond their scope. Once the
Accused is able to show that there has been serious
prejudice caused to him with respect to either of
these aspects, and that the same has defeated the
rights available to him under legal jurisprudence, the
Crl.A. No. 509 of 2008
17
Accused can seek relief from the court.
xxx xxx xxx
9. Apart from the clear statutory prescription of
Section 19 of the Act, as informed by relevant court
precedents, the High Court has also lost sight of
Section 465 of the Code of Criminal Procedure, 1973,
which provides that a sentence or an order passed
by the court of competent jurisdiction shall not be
reversed or altered by a court of appeal,
confirmation or revision on account of any error or
irregularity in any sanction for the prosecution
unless in the opinion of the court, a failure of justice
has in fact been occasioned thereby. Section 465 of
the Code of Criminal Procedure is as under:
Section 465 Finding or sentence when
reversible by reason of error, omission or irregularity:
(1) Subject to the provisions hereinbefore contained,
on finding, sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered
by a Court of appeal, confirmation or revision on
account of any error, omission or irregularity in the
complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial
or in any inquiry or other proceedings under this
Code, or any error, or irregularity in any sanction for
the prosecution unless in the opinion of that Court, a
failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission
or irregularity in any proceeding under this Code, or
Crl.A. No. 509 of 2008
18any error, or irregularity in any sanction for the
prosecution has occasioned a failure of justice, the
Court shall have regard to the fact whether the
objection could and should have been raised at an
earlier stage in the proceedings.
xxx xxx xxx
12. Justice Gogoi, (as he then was) has
explained this position in State of Bihar (supra):
6. In a situation where under both the
enactments any error, omission or irregularity in the
sanction, which would also include the competence
of the authority to grant sanction, does not vitiate
the eventual conclusion in the trial including the
conviction and sentence, unless of course a failure of
justice has occurred, it is difficult to see how at the
intermediary stage a criminal prosecution can be
nullified or interdicted on account of any such error,
omission or irregularity in the sanction order without
arriving at the satisfaction that a failure of justice
has also been occasioned. This is what was decided
this Court in State v. T. Venkatesh Murthy
MANU/SC/0731/2004: 2004: INSC:510: (2004) 7 SCC
763: 2004 SCC (Cri) 2140 paras 10 and 11, SCC p.
767, para 14 wherein it has been inter alia observed
that:
14. … 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
Crl.A. No. 509 of 2008
19that such error, omission or irregularity has resulted
in failure of justice.
7. The above view also found reiteration in
Parkash Singh Badal v. State of Punjab
[MANU/SC/5415/2006: 2006: INSC:960: (2007) 1 SCC
1: (2007) 1 SCC (Cri) 193 (para 29)] wherein it was,
inter alia, held that mere omission, error or
irregularity in sanction is not to be considered fatal
unless it has resulted in failure of justice. In Parkash
Singh Badal [MANU/SC/5415/2006 : 2006: INSC:960:
(2007) 1 SCC 1: (2007) 1 SCC (Cri) 193 (para 29)] it
was further held that Section 19(1) of the PC Act is a
matter of procedure and does not go to the root of
jurisdiction. On the same line is the decision of this
Court in R. Venkatkrishnan v. CBI
[MANU/SC/1411/2009: 2009: INSC: 1037: (2009) 11
SCC 737: (2010) 1 SCC (Cri) 164]. In fact, a three-
Judge Bench in State of M.P. v. Virender Kumar
Tripathi [MANU/SC/0668/2009:2009:INSC:611: (2009)
15 SCC 533: (2010) 2 SCC (Cri) 667] while
considering an identical 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, this Court held
that in view of Section 19(3) of the PC Act,
interdicting a criminal proceeding mid-course on
ground of invalidity of the sanction order will not be
appropriate unless the court can also reach the
Crl.A. No. 509 of 2008
20
conclusion that failure of justice had been
occasioned by any such error, omission or
irregularity in the sanction. It was further 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 (para 10 of the
report).
8. There is a contrary view of this Court in
State of Goa v. Babu Thomas [MANU/SC/0776/2005:
2005:INSC:457: (2005) 8 SCC 130: 2005 SCC (Cri)
1995] holding that an error in grant of sanction goes
to the root of the prosecution. But the decision in
Babu Thomas [MANU/SC/0776/2005 : 2005:INSC:457
: (2005) 8 SCC 130: 2005 SCC (Cri) 1995] has to be
necessarily understood in the facts thereof, namely,
that the authority itself had admitted the invalidity
of the initial sanction by issuing a second sanction
with retrospective effect to validate the cognizance
already taken on the basis of the initial sanction
order. Even otherwise, the position has been clarified
by the larger Bench in State of M.P. v. Virender
Kumar Tripathi [MANU/SC/0668/2009:
2009:INSC:611: (2009) 15 SCC 533: (2010) 2 SCC
(Cri) 667].
19. In this connection, it is relevant to refer Section 19
of the P.C. Act and the same reads as under:
19. Previous sanction necessary for
prosecution.–(1) No court shall take cognizance of
Crl.A. No. 509 of 2008
21an offence punishable under sections 7, 10, 11, 13
and 15 alleged to have been committed by a public
servant, except with the previous sanction –
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the
sanction of the Central Government, of that
Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the
sanction of the State Government, of that
Government;
(c) in the case of any other person, of the
authority competent to remove him from his office:
(2) Where for any reason whatsoever any
doubt arises as to whether the previous sanction as
required under sub-section (1) should be given by
the Central Government or the State Government or
any other authority, such sanction shall be given by
that Government or authority which would have
been competent to remove the public servant from
his office at the time when the offence was alleged
to have been committed.
(3) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974),–
(a) no finding, sentence or order passed by a
special Judge shall be reversed or altered by a Court
in appeal, confirmation or revision on the ground of
Crl.A. No. 509 of 2008
22the absence of, or any error, omission or irregularity
in, the sanction required under sub-section (1),
unless in the opinion of that court, a failure of justice
has in fact been occasioned thereby;
(b) no court shall stay the proceedings under
this Act on the ground of any error, omission or
irregularity in the sanction granted by the authority,
unless it is satisfied that such error, omission or
irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under
this Act on any other ground and no court shall
exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial,
appeal or other proceedings.
(4) In determining under sub-section (3)
whether the absence of, or any error, omission or
irregularity in, such sanction has occasioned or
resulted in a failure of justice the court shall have
regard to the fact whether the objection could and
should have been raised at any earlier stage in the
proceedings.
Explanation.–For the purposes of this section,-
(a) error includes competency of the authority
to grant sanction;
(b) a sanction required for prosecution includes
reference to any requirement that the prosecution
shall be at the instance of a specified authority or
with the sanction of a specified person or any
requirement of a similar nature.
Crl.A. No. 509 of 2008
23
20. In this case, evidently, Ext.P12 sanction was
granted by PW7, who was the Deputy Land Revenue
Commissioner. Going by the Division Bench ruling referred
by the learned counsel for the accused, after referring
Ext.R2(c) therein viz. G.O.(RT)No.1631/2003/GAD dated
06.03.2003, the Division Bench held that the above G.O
would not by itself is not sufficient to confirm the status of
appointing authority to the Deputy Land Revenue
Commissioner in the Revenue Department. In fact, in
A.R.Raphel’s case (supra), as per the judgment dated
25.06.2015, the learned Single Judge of this Court acquitted
a Village Officer, who alleged to have committed offences
punishable under Sections 7 and 13(2) read with 13(1)(d) of
the P.C. Act, finding that the sanction was not issued by the
Land Revenue Commissioner.
21. But, the learned Public Prosecutor placed decision
of the same Judge in Crl.Rev.Pet. No.3682/2010 dated
10.02.2017, wherein the same learned Single Judge, after
referring G.O.(RT)No.1631/2003/GAD dated 06.03.2003, set
aside the order of the Special Court, holding the view that
Land Revenue Commissioner is not the competent authority
Crl.A. No. 509 of 2008
24
to grant sanction and held that, in view of the above
Government Order, the Deputy Land Revenue Commissioner
also is competent to grant sanction, being the competent
authority. Thus, the learned Single Judge rendered divergent
verdicts on the same issue.
22. Coming to the Single Bench and Division Bench
rulings referred hereinabove, after referring all the
Government Orders on the point, the final finding is that,
none of the government orders produced in Exts.R2(a), (b)
and (c) referred therein, were issued in exercise of the power
conferred on the Government under Rule 10(1) of the Rules
or Section 4(1) of the Kerala Board of Revenue Abolition Act,
1996 and therefore, the same have no legal effect. If so, the
Land Revenue Commissioner alone is the competent
authority to appoint and remove a Government servant in
the Revenue Department. At the same time, the Division
Bench clarified that, “whatever order passed which had not
been duly challenged under appropriate proceedings will
remain as such”.
23. While addressing the necessity of valid sanction
provided under Section 19(1) of the P.C. Act, taking
Crl.A. No. 509 of 2008
25
cognizance for offences punishable under Sections 7, 10, 11,
13 and 15 alleged to have been committed by a public
servant, except with the previous sanction is prohibited. But,
sub section (3) to Section 19 carves out two exceptions viz. (a)
and (b) as hereinabove extracted. Further in sub-section (4), it
has been provided that, in determining under sub-section (3)
whether the absence of, or any error, omission or irregularity
in, such sanction has occasioned or resulted in a failure of
justice, the court shall have regard to the fact whether the
objection could and should have been raised at any earlier
stage in the proceedings. Explanation (a) to sub section (4) for
the purpose of this section, error includes competency of the
authority to grant sanction. In the instant case, the
competency of the authority (PW7) to grant Ext.P12 sanction
is under challenge.
24. Regarding the essentials to constitute offences
under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act,
the learned counsel for the accused placed two decisions of the
Apex Court reported in [2025 SCC OnLine 1175] State of
Lokayuktha Police, Devanagere v. C.B.Nagaraj and
[(2025) 4 Supreme Court Cases 624] Madan Lal v. State
of Rajasthan, to contend that, demand and acceptance are to
Crl.A. No. 509 of 2008
26
be established to punish an accused under Sections 7 and
13(2) read with 13(1)(d) of the P.C. Act and to apply
presumption under Section 20 of the P.C. Act. In response to
this contention, the learned Public Prosecutor placed Five
Bench decision of the Apex Court reported in [2022 LiveLaw
(SC) 1029] Neeraj Dutta v. State (Govt. of N.C.T. of
Delhi), with reference to paragraph Nos. 65 to 68. The same
are extracted hereunder:
65. Learned senior counsel Shri Nagamuthu
submitted that when the prosecution examines a
witness who does not support the case of the
prosecution he cannot be “declared” to be a “hostile
witness” and his evidence cannot be discarded as a
whole. Although, permission may be given by the
Court to such a witness to be cross-examined by the
prosecution as per sub-section (2) of Section 154 of
the Evidence Act, it is not necessary to declare such
a witness as a “hostile witness”. This is because a
statement of a “hostile witness” can be examined to
the extent that it supports the case of prosecutor.
66. In this regard, our attention was drawn to
Sat Paul vs. Delhi Administration (1976) 1 SCC
727 (“Sat Paul”) which is a case arising under the
1947 Act wherein this Court speaking through
Sarkaria, J. has made pertinent observations
regarding the credibility of a hostile witness. It was
observed in paragraph 30 of the judgment that the
Crl.A. No. 509 of 2008
27terms “hostile witness”, “adverse witness”,
“unfavourable witness”, “unwilling witness” are all
terms of English law. At Common law, if a witness
exhibited manifest antipathy, by his demeanour,
answers and attitude, to the cause of the party
calling him, the party was not, as a general rule,
permitted to contradict him with his previous
inconsistent statements, nor allowed to impeach his
credit by general evidence of bad character. It was
observed in paragraph 33 that the rigidity of the
rule prohibiting a party to discredit or contradict its
own witness was to an extent relaxed by evolving
the terms “hostile witness” and “unfavourable
witness” and by attempting to draw a distinction
between the two categories. A “hostile witness” is
described as one who is not desirous of telling the
truth at the instance of the party calling him, and an
“unfavourable witness” is described as one who is
not desirous of telling the truth at the instance of
the party calling him, and an “unfavourable
witness” is one called by a party to prove a
particular fact in issue or relevant to the issue who
fails to prove such fact, or proves an opposite fact.
In the context of Sections 142 and 154 of the
Evidence Act, this Court observed in paragraphs 38
and 52 as under:
“38. To steer clear of the controversy over the
meaning of the terms “hostile” witness, “adverse”
witness, “unfavourable” witness which had given
Crl.A. No. 509 of 2008
28
rise to considerable difficulty and conflict of opinion
in England, the authors of the Indian Evidence Act,
1872 seem to have advisedly avoided the use of
any of those terms so that, in India, the grant of
permission to cross-examine his own witness by a
party is not conditional on the witness being
declared “adverse” or “hostile”. Whether it be the
grant of permission under Section 142 to put
leading questions, or the leave under Section 154 to
ask questions which might be put in cross-
examination by the adverse party, the Indian
Evidence Act leaves the matter entirely to the
discretion of the court (see the observations of Sir
Lawrence Jenkins in Baikuntha Nath vs.
Prasannamoyi AIR 1922 PC 409. The discretion
conferred by Section 154 on the court is unqualified
and untrammelled, and is apart from any question
of “hostility”. It is to be liberally exercised whenever
the court from the witnesses demeanour, temper,
attitude, bearing, or the tenor and tendency of his
answers, or from a perusal of his previous
inconsistent statement, or otherwise, thinks that the
grant of such permission is expedient to extract the
truth and to do justice. The grant of such permission
does not amount to an adjudication by the court as
to the veracity of the witness. Therefore, in the
order granting such permission it is preferable to
avoid the use of such expressions, such as “declared
hostile”, “declared unfavourable”, the significance of
Crl.A. No. 509 of 2008
29
which is still not free from the historical cobwebs
which, in their wake bring a misleading legacy of
confusion, and conflict that had so long vexed the
English courts.
52. From the above conspectus, it emerges
clear that even in a criminal prosecution when a
witness is crossexamined and contradicted with the
leave of the court, by the party calling him, his
evidence cannot, as a matter of law, be treated as
washed off the record altogether. It is for the Judge
of fact to consider in each case whether as a result
of such cross-examination and contradiction, the
witness stands thoroughly discredited or can still be
believed in regard to a part of his testimony. If the
Judge finds that in the process, the credit of the
witness has not been completely shaken, he may,
after reading and considering the evidence of the
witness, as a whole, with due caution and care,
accept, in the light of the other evidence on the
record, that part of his testimony which he finds to
be creditworthy and act upon it. If in a given case,
the whole of the testimony of the witness is
impugned, and in the process, the witness stands
squarely and totally discredited, the Judge should,
as a matter of prudence, discard his evidence in
toto.”
67. Therefore, this Court cautioned that even
if a witness is treated as “hostile” and is cross-
examined, his evidence cannot be written off
Crl.A. No. 509 of 2008
30
altogether but must be considered with due care
and circumspection and that part of the testimony
which is creditworthy must be considered and acted
upon. It is for the judge as a matter of prudence to
consider the extent of evidence which is
creditworthy for the purpose of proof of the case. In
other words, the fact that a witness has been
declared “hostile” does not result in an automatic
rejection of his evidence. Even, the evidence of a
“hostile witness” if it finds corroboration from the
facts of the case may be taken into account while
judging the guilt of the accused Thus, there is no
legal bar to raise a conviction upon a “hostile
witness” testimony if corroborated by other reliable
evidence.
68. What emerges from the aforesaid
discussion is summarised as under:
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by
the prosecution is a sine qua non in order to
establish the guilt of the accused public servant
under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
(b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the subsequent
acceptance as a matter of fact. This fact in issue
can be proved either by direct evidence which can
be in the nature of oral evidence or documentary
evidence.
Crl.A. No. 509 of 2008
31
(c) Further, the fact in issue, namely, the proof
of demand and acceptance of illegal gratification
can also be proved by circumstantial evidence in
the absence of direct oral and documentary
evidence.
(d) In order to prove the fact in issue, namely,
the demand and acceptance of illegal gratification
by the public servant, the following aspects have to
be borne in mind:
(i) if there is an offer to pay by the bribe
giver without there being any demand from the
public servant and the latter simply accepts the
offer and receives the illegal gratification, it is a
case of acceptance as per Section 7 of the Act. In
such a case, there need not be a prior demand by
the public servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe giver accepts the
demand and tenders the demanded gratification
which in turn is received by the public servant, it is
a case of obtainment. In the case of obtainment,
the prior demand for illegal gratification emanates
from the public servant. This is an offence under
Section 13 (1)(d)(i) and (ii) of the Act.
iii) In both cases of (i) and (ii) above, the offer
by the bribe giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words, mere
acceptance or receipt of an illegal gratification
Crl.A. No. 509 of 2008
32without anything more would not make it an offence
under Section 7 or Section 13 (1)(d), (i) and (ii)
respectively of the Act. Therefore, under Section 7
of the Act, in order to bring home the offence, there
must be an offer which emanates from the bribe
giver which is accepted by the public servant which
would make it an offence. Similarly, a prior demand
by the public servant when accepted by the bribe
giver and inturn there is a payment made which is
received by the public servant, would be an offence
of obtainment under Section 13 (1)(d) and (i) and
(ii) of the Act.
(e) The presumption of fact with regard to the
demand and acceptance or obtainment of an illegal
gratification may be made by a court of law by way
of an inference only when the foundational facts
have been proved by relevant oral and documentary
evidence and not in the absence thereof. On the
basis of the material on record, the Court has the
discretion to raise a presumption of fact while
considering whether the fact of demand has been
proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal presumption
stands.
(f) In the event the complainant turns ‘hostile’,
or has died or is unavailable to let in his evidence
during trial, demand of illegal gratification can be
proved by letting in the evidence of any other
Crl.A. No. 509 of 2008
33witness who can again let in evidence, either orally
or by documentary evidence or the prosecution can
prove the case by circumstantial evidence. The trial
does not abate nor does it result in an order of
acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is
concerned, on the proof of the facts in issue, Section
20 mandates the court to raise a presumption that
the illegal gratification was for the purpose of a
motive or reward as mentioned in the said Section.
The said presumption has to be raised by the court
as a legal presumption or a presumption in law. Of
course, the said presumption is also subject to
rebuttal. Section 20 does not apply to Section 13(1)
(d) and (ii) of the Act.
(h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in point (e) as
the former is a mandatory presumption while the
latter is discretionary in nature.
25. In view of the rival arguments, the questions arise
for consideration are:
1. Whether the contention raised by the
learned counsel for the accused that, Ext.P12
sanction issued by PW7 is without competence,
is sustainable? and the same would go to the
root of the matter?
Crl.A. No. 509 of 2008
34
2. What is the impact of sub section (3)(a)
and (b) of Section 19 of the P.C. Act?
3. Whether the Special Court rightly found
that the accused committed the offence
punishable under Section 7 of the P.C. Act?
4. Whether the Special Court went wrong
in holding that the accused committed
offences punishable under Section 13(2) read
with 13(1)(d) of the P.C. Act?
5. Whether the verdict of the Special
Court would require interference?
6. Order to be passed.
26. Point Nos.3 to 5:- In this matter, regarding the
occurrence, the evidence of PW1, the complainant and PW3
and PW4, official witnesses are relied on by the Special
Court. PW1, the complainant, given evidence that, on
27.10.2001, PW1 met the accused, who was working as the
Village Officer at Kunnumma Village Office, for obtaining
possession certificates of properties belonged to his father,
mother and grand mother, for renewing agricultural loan
from the State Bank of Travancore, Mankomb branch. Then,
the accused directed PW1 to come with their applications
and tax receipts. Accordingly, on 29.10.2001, when PW1
Crl.A. No. 509 of 2008
35
again met the accused with tax receipts and applications,
the accused told him that title deeds of the properties were
also necessary. On 30.10.2001, when PW1 again went to
Village Office and met the accused with applications, tax
receipts and title deeds, the accused informed PW1 that for
giving possession certificates, the concerned owners of the
properties should come. When PW1 stated inconvenience of
his father, mother and grand mother, to come to the office,
the accused demanded Rs.250/- as bribe, for issuing
possession certificate. Since PW1 was not ready to give bribe
as demanded by the accused, he informed the matter to the
Vigilance Office and the Vigilance Office directed him to
come to the Vigilance Office on the next day. On 31.10.2001,
PW1 reported the matter to PW9, the Dy.S.P., and he
recorded Ext.P1 statement given by PW1 and registered the
case on preparing Ext.P2 FIR. PW1 admitted his signature in
Exts.P1 and P2. Then, two Government Officials, PW3 and
PW4 were also brought by the Dy.S.P. and phenolphthalein
demonstration was done. Thereafter, Rs.250/- [two hundred
rupee notes and one fifty rupee note] marked as MO1 series,
were entrusted to the Dy.S.P. and he inturn returned the
Crl.A. No. 509 of 2008
36
same to PW1, after smearing phenolphthalein. Thereafter,
PW1 and Dy.S.P. along with the Vigilance party and Gazetted
Officers reached near the Kunnumma Village Office and PW9
directed him to give MO1 series to the accused on demand
and on acceptance of the same by the accused, he would
show a signal. According to PW1, when he reached the
Village Office, the accused demanded Rs.250/- and accepted
the amount and the applications for possession certificates
were marked and identified by him as Ext.P3 series. PW1
was cross-examined at length, but nothing elicited to
disbelieve his version.
27. It is interesting to note that, PW3, who was
working as Agricultural Deputy Director, appeared before the
Vigilance Office, as per Ext.P14 letter issued by the District
Collector directing him to appeal before the Vigilance Dy.S.P.
for assisting in the investigation of a case and accordingly he
along with PW4 came to the Vigilance Officer. They along
with the Vigilance party and PW1 reached near the Village
Office. According to PW3, there was phenolphthalein
demonstration and entrustment of MO1 series notes by PW9
to PW1. He also deposed about the direction given by PW9 to
Crl.A. No. 509 of 2008
37
PW1 to give the money to the accused on demand.
Thereafter, on reaching the Village Office, the members of
the party were deployed at various places. Then, PW1 went
to the room of the accused and PW3 stood outside the door
of that room. Then, PW3 noticed that the accused received
the MO1 series from PW1 by using his left hand and put the
same in the left pocket of his shirt. On receiving the signal,
PW9 along with others entered the office room and
introduced himself and the official witnesses. When PW9
asked to PW1, who was standing there regarding the
amount, PW1 told him that the accused had demand and
accepted the amount from him, for issuing possession
certificates. When PW9 asked the accused about the amount
received by him, PW3 did not remember whether the
accused stated anything. PW3 deposed about
phenolphthalein test by dipping the fingers of both hands of
PW9 and other official witnesses in sodium carbonate
solution and there was no color change. The said sodium
carbonate solution was marked as MO2. Then, PW9 directed
PW4 to search the pocket of the accused. Accordingly, PW4
searched out MO1 series and also other five hundred rupee
Crl.A. No. 509 of 2008
38
notes along with a recovery notice from the left pocket of the
shirt of the accused and the above notes were identified as
MO3. Then the left hand fingers of the accused were dipped
in sodium carbonate solution and there was color change
and the sample of that solution collected in a bottle and
taken into custody, got identified by PW4 as MO4. PW3 also
deposed about the conduct of phenolphthalein test on MO1
series notes, with color change and the collection of the said
solution in custody as MO5. Further, PW3 deposed that the
shirt worn by the accused was taken into custody and the
same is MO6. He also identified Ext.P7 mahazar regarding
the recovery. In fact, no contradictions brought out during
cross-examination of PW3, who witnessed the occurrence,
supporting the evidence of PW1.
28. PW4, the other Gazetted Officer, who went along
with the Vigilance party also supported the pre and post
events before the demand and acceptance of MO1 series by
the accused. PW5 and PW6 were co-workers of the accused
and they supported their assignment and also that the
accused was working as a Special Village Officer in
Kunnumma Village Office on the date of occurrence.
Crl.A. No. 509 of 2008
39
29. According to the learned counsel for the accused,
in the evidence given by PW2, the owner of the land, she
admitted that there was some amount due towards the land
value in respect of the property and she did not remember
whether the said amount was remitted or not. It is pointed
out by the learned Public Prosecutor that, evidence given by
PW2 in this regard was found in the negative, by the other
evidence stating that there was no due insofar as the
property is concerned.
30. The prime contention raised by the learned
counsel for the accused is that, there was no evidence to
prove the demand and acceptance of bribe by the accused
for issuing possession certificates and according to him,
there was a sum of Rs.675/- due as arrears of purchase price
of the property and there was direction from official superiors
to recover the said arrears as far as possible. In this attempt,
the accused directed PW1 that, atleast Rs.250/- should be
paid as part of the said amount and PW1 misconceived the
said direction as demand for bribe and the same led to trap
proceedings and recovery of MO1 series.
31. Now, it is necessary to address the ingredients
Crl.A. No. 509 of 2008
40
required to attract the offences under Section 7 and Section
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. The same are extracted as under:–
Section 7:- Public servant taking
gratification other than legal remuneration in
respect of an official act. – Whoever, being, or
expecting to be a public servant, accepts or obtains
or agrees to accept or attempts to obtain from any
person, for himself or for any other person, any
gratification whatever, other than legal
remuneration, as a motive or reward for doing or
forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or for
rendering or attempting to render any service or
disservice to any person, with the Central
Government or any State Government or
Parliament or the Legislature of any State or with
any local authority, corporation or Government
Company referred to in clause (C) of section 2, or
with any public servant, whether named or
otherwise, shall be punishable with imprisonment
which shall be not less than three years but which
may extend to seven years and shall also be liable
to fine.
Section 13:- Criminal misconduct by a
public servant. – (1) A public servant is said to
commit the offence of criminal misconduct,-
Crl.A. No. 509 of 2008
41
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) If he,- (i) by corrupt or illegal means, obtains
for himself or for any other person any valuable
thing or pecuniary advantage; or (ii) by abusing his
position as a public servant, obtains for himself or
for any other person any valuable thing or
pecuniary advantage; or (iii) while holding office as
a public servant, obtains for any person any
valuable thing or pecuniary advantage without any
public interest.
xxxxxx
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment
for a term which shall be not less than four years
but which may extend to ten years and shall also
be liable to fine.
32. In paragraph No. 12 of the decision of this Court
in Bharat Raj Meena v. Central Bureau of
Investigation, Ernakulam reported in [2024 (4) KHC
52], it has been held that:-
It is trite that proof of demand and acceptance
of illegal gratification by a public servant is a
prerequisite to establish the guilt of the accused /
public servant under Section 7 of the PC Act. Indeed,
proof of demand and acceptance of illegal
Crl.A. No. 509 of 2008
42gratification by a public servant can also be proved
by circumstantial evidence in the absence of direct,
oral and documentary evidence [See Neeraj Dutta
v. State (Govt. of NCT of Delhi), 2023 (4) SCC
731]. Recently, the Supreme Court in Jagtar Singh
v. State of Punjab, AIR 2023 SC 1567 reiterated the
principle that the demand of illegal gratification, at
least by circumstantial evidence, is sine qua non to
attract the offence under Section 7 or Section 13(1)
(d)(i) and (ii) of the PC Act. S.13(1)(a) of the PC Act
provides that the prosecution is obliged to prove that
the accused accepted or obtained or agreed to
accept or agreed to obtain any gratification as a
motive or reward as contemplated under Section 7 of
the PC Act . Thus, the demand and acceptance by
the public servant for illegal gratification must be
independently proved by the prosecution as a fact in
issue to establish the guilt under Section 7 or 13(1)
(a) of the PC Act.
33. In paragraph No.68(a) to (h) of Neeraj Dutta’s
case (supra), the Five Bench of the Apex Court categorically
summarized the essentials to constitute offences under
Sections 7 and 13(1)(d) of the P.C. Act, as extracted herein
above.
34. In fact, the legal position as held in Bharat Raj
Meena‘s case (supra), Neeraj Dutta‘s case (supra), and
Crl.A. No. 509 of 2008
43
Jagtar Singh‘s case (supra) to the effect that the demand
and acceptance of illegal gratification is sine qua non to
attract offence under Section 7 of the P.C. Act. That apart, as
per Section 13(1)(a) of the PC Act, the prosecution is obliged
to prove that the accused accepted obtained, or agreed to
accept or agreed to obtain any gratification as a motive or
reward as contemplated by Section 7 of the PC Act. There is
no doubt that the demand and acceptance–the elements of
the offence punishable under Section 7 of the PC Act–can be
proved by either direct evidence or, in the absence of direct
and documentary evidence, by circumstantial evidence.
35. In this matter, the Special Court found that, going
by the evidence tendered, there is no reason to disbelieve
the demand and acceptance of MO1 series by the accused
as bribe for the issuance of possession certificates in respect
of the properties of his parents and grand mother. Further,
the Special Court found that the accused had no case that
Rs.250/- otherwise prescribed as the fee for issuance of
possession certificate. Accordingly, the Special Court held
that Section 20 of the P.C Act would get attracted in this
case. Section 20 of the P.C. Act deals with presumption
Crl.A. No. 509 of 2008
44
where public servant accepts gratification other than legal
remuneration and it is provided that, where, in any trial of an
offence punishable under section 7 or under section 11 or
clause (a) or clause (b) of sub-section (1) of section 13, it is
proved that an accused person has accepted or obtained or
has agreed to accept or attempted to obtain for himself, or
for any other person, any gratification (other than legal
remuneration) or any valuable thing from any person, it shall
be presumed, unless the contrary is proved, that he
accepted or obtained or agreed to accept or attempted to
obtain that gratification or that valuable thing, as the case
may be, as a motive or reward such as is mentioned in
section 7 or, as the case may be, without consideration or
for a consideration which he knows to be inadequate. (2)
Where in any trial of an offence punishable under section 12
or under clause (b) of section 14, it is proved that any
gratification (other than legal remuneration) or any valuable
thing has been given or offered to be given or attempted to
be given by an accused person, it shall be presumed, unless
the contrary is proved, that he gave or offered to give or
attempted to give that gratification or that valuable thing, as
Crl.A. No. 509 of 2008
45
the case may be, as a motive or reward such as is
mentioned in section 7, or as the case may be, without
consideration or for a consideration which he knows to be
inadequate. 3) Notwithstanding anything contained in sub-
sections (1) and (2), the court may decline to draw the
presumption referred to in either of the said sub-sections, if
the gratification or thing aforesaid is, in its opinion, so trivial
that no interference of corruption may fairly be drawn.
36. In this matter, DW1, who entered into service as
Clerk and retired as ADM, was examined to prove that, there
was arrears of purchase price due from the land and
according to DW1, there were directions by higher officials
for recovery of the arrears and excess lands acquired by the
Government used to be assigned to land less persons, for
which they have to pay purchase price for the same in 16
installments to obtain patta. Regarding Ext.D3 produced
through DW1, the Special Court addressed the same in
paragraph No.21 of the judgment and found that, in the
relevant entry in the attested photocopy of thandaper
No.212 in the name of PW2, there is no mention that the
land obtained by PW2 was assigned by the Government and
Crl.A. No. 509 of 2008
46
there was arrears towards purchase price.
37. The Special Court found that, in Ext.X1 there were
many suspicious entries and accordingly the original was
retained till completion of trial. In paragraph No.21 of the
judgment of the Special Court it has been observed that,
now coming to Ext.X1 it is seen that it contains several
suspicious entries. So its original also was directed to be
produced and it has been retained with a direction to return
the same after disposal of this case. On a careful perusal of
this record, it is seen that there is endorsement on stating
that the arrears of purchase price and interest have been
remitted. On its back side there is another endorsement in
red ink in the remarks column that Rs.675/- is due as arrears
of purchase price in LA No.41/81. There is also another
endorsement stating that Rs.675/- and Rs.690/- have been
paid as purchase price and interest 31.10.2001. All these are
appear to have been made after this trap occurrence. There
are several over writings, scorings etc. on its first page. Even
though this register contains the Thandapper Account and
details of remittance of tax in respect of other persons who
obtained such assigned lands, no similar entries are seen in
Crl.A. No. 509 of 2008
47
respect of the Thandapper account of such persons. For
example, the land owned by one Sasidharan bearing
Thandapper No.230 is an assigned land, the details of which
are available in the register of lands reserved and assigned.
From that register, it is seen that there is arrears of purchase
price due from that land. Similar is the case with persons
bearing Thandapper Nos. 231, 237 etc. But there are no
entries in the Thandapper Account Register as seen in Ext.X1
stating that arrears of purchase price are due from them. On
a careful appraisal of all facts and evidence, I am of the view
that the above entries contained in Ext.X1 do not appear to
be genuine entries and they are surrounded by a thick cloud
of suspicion. In the above context, the argument of the
learned counsel for the accused that PW9 directed PW6 to
furnish the photo copy of first page of Ext.X1 alone with the
intention of suppressing the details available on its back
page cannot stand to reason. Even assuming that there was
some amount due as arrears of purchase price in respect of
the land owned by PW2, it cannot be held that the accused
had demanded Rs.250/- as part of purchase price. If the
accused was anxious to recover such arrears in compliance
Crl.A. No. 509 of 2008
48
of the directions of his official superiors to recover such
amounts as far as possible, then he would have demanded
and received the whole amount remaining as arrears and
would not have limited to Rs.250/.
38. Even though, it is argued by the learned counsel
for the accused that, the accused said during preparation of
Ext.P7 mahazar that the amount from PW1 was received as
stamp value instead of purchase price, which is supported by
the evidence of DW1, the Special Court did not give
emphasize to the said evidence, holding that the amount
received by the accused as MO1 series was demanded and
accepted by him from PW1 towards the arrears for issuing
possession certificate. In fact, this contention could not
succeed, as the evidence of PW1, PW3 and PW9 supported
by Exts.X1 and D3 would substantially show that, no arrears
due in respect of the property.
39. Points Nos.1 and 2:- Reading Section 19(1) of the
P.C. Act, what mandated is that, no court shall take
cognizance for offences punishable under Sections 7, 10, 11,
13 and 15 alleged to have been committed by a public
servant, except with previous sanction embodied under
Crl.A. No. 509 of 2008
49
Section 19(1)(a) to (c), subject to Section 19(2) of the P.C.
Act. Section 19(3) carves out exception to 19(1). Section
19(3)(a) of the P.C. Act emphasizes that, no finding, sentence
or order passed by a special judge shall be interfered on the
ground of absence of, or any error, omission or irregularity
in, the sanction required under sub-section (1), unless in the
opinion of court, a failure of justice occasioned thereby.
Section 19(3)(b) provides that, for the same ground, no court
shall stay the proceedings under this Act. As per Section
19(4) of the P.C. Act, the absence of, or any error, omission,
or irregularity in, sanction has occasioned or resulted in a
failure of justice, the court shall have regard to the fact that,
whether the objection could and should have been raised at
an earlier stage of the proceedings. It is relevant to note
further that, error includes competency of the authority to
grant sanction.
40. Going by the decisions extracted hereinabove,
majority of the decisions would emphasize the point that,
failure of justice if not occasioned, by way of the absence of,
or any error, omission or irregularity in sanction, the same by
itself is not a ground to interfere the finding, sentence or
Crl.A. No. 509 of 2008
50
order passed by the Special Judge. It is the fundamental
principle of interpretation of statute that, when provisions of
a statute are interpreted, the interpretation should be by
giving effect to all the provisions, without making any of the
provisions redundant or inoperative.
41. In the latest decision of the Apex Court reported in
[2025 INSC 654] Dashrath v. The State of
Maharashtra, the Apex Court referred Neeraj Dutta‘s case
(supra) and the decision reported in [(2015) 2 SCC 33]
Manzoor Ali Khan v. Union of India, and held in
paragraph Nos.12 and 13 that, it is no longer res integra that
requirement of sanction has a salutary object. Provisions
requiring sanction to prosecute, either under Section 19, PC
Act or Section 197 of the (now repealed) Cr. PC or under
Section 218 of the Bharatiya Nagarik Suraksha Sanhita,
2023 are intended to protect an innocent public servant
against unwarranted and mala fide prosecution. Indubitably,
there can be no tolerance to corruption which has the effect
of undermining core constitutional values of justice, equality,
liberty and fraternity; however, at the same time, the need
to prosecute and punish the corrupt is no ground to deny
Crl.A. No. 509 of 2008
51
protection to the honest. This is what was held by this Court
in its decision in Manzoor Ali Khan v. Union of India while
repelling a challenge raised in a Public Interest Litigation to
the constitutional validity of Section 19 of the PC Act. Even
otherwise, merely because there is any omission, error or
irregularity in the matter of granting sanction, that does not
affect the validity of the proceedings unless the court
records its own satisfaction that such error, omission or
irregularity has resulted in a failure of justice.
42. In another decision of the Apex Court reported in
[2025 INSC 50], The State of Punjab v. Hari Kesh , after
referring S.Subbegowda‘s case (supra), the apex Court
considered the combine effect of sub-sections (3) and (4) of
Section 19 and reiterated that, in view of sub-section (3)
clearly forbids the court in appeal, confirmation or revision,
the interference with the order passed by the Special Judge
on the ground that the sanction was bad, save and except in
cases where the failure of justice had occurred by such
invalidity.
43. Thus, the law emerges is that, in order to take
cognizance for the offences under Sections 7, 10, 11, 13 and
Crl.A. No. 509 of 2008
52
15 of the P.C. Act, alleged to have committed by a public
servant, sanction is necessary. After taking cognizance,
during trial, when considering the validity of sanction on the
ground of absence of, any error or omission or irregularity in
the sanction, including the incompetency of the authority to
grant sanction, a court in appeal, confirmation or revision on
the said ground, no finding, sentence or order passed by the
special judge shall not be interfered, unless the court finds
that such error or omission or irregularity has resulted in a
failure of justice. Therefore, even though sanction is
necessary to take cognizance for offences under Sections 7,
10, 11, 13 and 15 of the P.C. Act alleged to be committed by
a public servant, unless there is no failure of justice in the
finding, sentence or order passed by the Special Judge shall
not be reversed or altered by a court in appeal, confirmation
or revision.
44. No doubt, in the instant case, the challenge is
against the sanction, mainly on alleging incompetency of the
authority to grant the same. Since explanation to section
19(4) of the P.C. Act specifically provides that, error includes
competency of the authority to grant sanction, unless a
Crl.A. No. 509 of 2008
53
failure of justice is not occasioned in the instant case, merely
finding error in the sanction, this court cannot interfere with
the conviction and sentence under challenge herein. The trial
court found on evidence that, there was no failure of justice
in this case, merely because sanction was granted by the
Deputy Land Revenue Commissioner instead of Land
Revenue Commissioner. In the instant case, the evaluation
evidence does not show that failure of justice occasioned
because a wrong authority issued sanction. Therefore,
interference of the verdict impugned, on the said ground
would not succeed.
45. On reading the evidence as discussed and
considered by the Special Court with the essentials to
constitute the offence as already discussed, there is no
reason to find that the findings of the Special Court
regarding commission of the offences by the accused,
otherwise would require interference, since the said findings
were entered relying on cogent and convincing evidence
available, satisfying the ingredients to find commission of
offences punishable under Sections 7 and 13(2) read with
13(1)(d) of the P.C. Act, by the accused. Therefore, the
Crl.A. No. 509 of 2008
54
conviction rendered by the Special Court does not require
any interference.
46. Regarding the sentence, some modification can be
considered, in view of the facts and circumstances of the
case.
47. Point No.6:- Accordingly, this appeal is allowed in
part. The conviction stands confirmed and sentence stands
modified, whereby the accused is sentenced to undergo
rigorous imprisonment for a period of one year (the bare
minimum) and to pay fine of Rs.7,500/- (Rupees Seven
Thousand and Five Hundred Only) for the offence punishable
under Section 13(2) read with 13(1)(d) of the P.C. Act. In
default of payment of fine, the accused shall undergo
rigorous imprisonment/default imprisonment for a period of
twenty days. The accused is sentenced to undergo rigorous
imprisonment for a period of six months (the bare minimum)
and to pay fine of Rs.10,000/- (Rupees Ten Thousand Only)
for the offence punishable under Section 7 of the P.C. Act. In
default of payment of fine, the accused shall undergo
rigorous imprisonment/default imprisonment for a period of
one month.
Crl.A. No. 509 of 2008
55
48. The substantive sentences shall run concurrently
and the default sentences shall run separately.
49. The order suspending sentence and granting bail
to the appellant shall stand vacated and the bail bond
executed by the appellant/accused stands cancelled. The
appellant/accused is directed to surrender before the special
court and to undergo the sentence within two weeks from
today, failing which, the special court shall execute the
sentence without fail.
Registry is directed to forward a copy of this judgment
to the Special Court, forthwith, for information and
compliance.
Sd/-
A. BADHARUDEEN
SK
JUDGE