The State Of Punjab vs Hari Kesh

(REPORTABLE) 2025 INSC 50 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. OF 2025 (Arising out of SLP(Criminal) No.9114/2019)

THE STATE OF PUNJAB Appellant(s)

VERSUS HARI KESH Respondent(s)

J U D G M E N T

1. Leave granted.

2. The present appeal, filed by the appellant­State of Punjab,

is directed against the impugned judgment and order dated

20.05.2019, passed by the High Court of Punjab and Haryana

at Chandigarh in CRM­M No. 11994 of 2019 (O&M), whereby the

said petition, filed by the respondent­accused seeking

quashing of Sanction Order dated 19.11.2018, in the case

arising out of F.I.R. No. 02 dated 10.01.2024, registered at

Police Station­Vigilance Bureau, Patiala Range, Patiala for

the offence punishable under Sections 7 and 13(2) of the

Prevention of Corruption Act, 1988 (for short “the Act”),

has been allowed and the consequent proceedings arising

therefrom have been set aside.

Signature Not Verified

3. Digitally signed by ARJUN BISHT Heard learned counsels for the parties. Date: 2025.01.09 17:22:09 IST Reason:

4. It is sought to be submitted by the learned counsel for the

appellant­State of Punjab that the High Court had passed the 2

impugned order when the trial had already commenced and the

prosecution had already examined seven witnesses. Learned

counsel places heavy reliance on the decision of this Court

in the case of State of Karnataka, Lokayukta Police Versus

S. Subbegowda (2023 SCC Online SC 911), to submit that the

High Court has committed an error in quashing the Sanction

Order and setting aside the proceedings arising therefrom

when the trial has already commenced.

5. However, the learned counsel for the respondent-accused

submits that the High Court has rightly quashed the

proceedings considering the fact that earlier, Sanction

sought was not granted by the competent authority and now,

the impugned Sanction Order has been passed by an officer who

was not competent to grant the Sanction to prosecute the

respondent-accused.

6. The short question that arises for determination of this

Court is whether the High Court could have set aside the

impugned Sanction Order and the proceedings arising

therefrom, more particularly, when the trial had already

commenced and the prosecution had examined seven witnesses.

7. In our opinion, the judgment in the case of S. Subbegowda

(supra) clinches the issue, in which, this Court in the

similar facts and circumstances, after considering the

provisions contained in Section 19 of the Act, has held as

under: -

“11. The combined reading of sub-section (3) and (4) of Section 19 makes it clear that notwithstanding anything contained in the Code, 3

no finding, sentence or order passed by the 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 the Court, a failure of justice has in fact been occasioned thereby. sub-section (4) further postulates that in determining under subsection (3) whether the absence of, or any error, omission or irregularity in the sanction has occasioned, or resulted in 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. The explanation to sub-section (4) further provides that for the purpose of Section 19, error includes “competency of the authority to grant sanction”. Thus, it is clear from the language employed in sub-section (3) of Section 19 that the said sub-section has application to the proceedings before the Court in appeal, confirmation or revision, and not to the proceedings before the Special Judge. The said 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 appellate or revisional court finds that the failure of justice had occurred by such invalidity.”

12. & 13……………………………

14. 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 4

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.

8. In the instant case, it appears that the petition for

quashing of Sanction Order was filed by the respondent after

the trial court framed the charge and commenced the trial,

rather after the prosecution examined five witnesses. It is

pertinent to note that whether the Sanction has been granted

by the competent authority or not, would be a matter of

evidence. Further, as per the Explanation to sub-section (4),

for the purpose of Section 19, error includes “competency of

the authority to grant Sanction.” Therefore, in view of the

settled legal position, the High Court should not have

quashed the Sanction Order and the consequent proceedings,

unless it was satisfied that the failure of justice had

occurred by such error or irregularity or invalidity. There

is not a whisper in the impugned order about any failure of

justice having occurred on account of the impugned Sanction

Order. The High Court also should not have entertained the

petition for quashing the Sanction Order when the prosecution

had already examined seven witnesses.

9. In that view of the matter, we are of the opinion that the

High Court has committed gross error in quashing the Sanction

Order and the consequent proceedings vide the impugned order. 5

10. The impugned judgment and order dated 20.05.2019, passed by

the High Court of Punjab and Haryana at Chandigarh in CRM-M

No. 11994 of 2019 (O&M), is therefore set aside. The

proceedings arising out of the case being PC-15/2018, are

restored on file before the Special Court-Sangrur and they

shall be proceeded further from the stage at which the

proceedings were stopped, in accordance with law.

11. As stated earlier, whether the Sanction Order was passed by

the competent authority or not, would be a matter of evidence

to be proved by the prosecution during the course of trial.

12. We clarify that we have not expressed any opinion on the

merits of the case and the respondent-accused shall be at

liberty to raise all contentions as may be legally

permissible with regard to Sanction during the course of the

trial.

13. The Appeal is allowed accordingly.

14. Pending application(s), if any, shall stand closed.

.....................J. (BELA M. TRIVEDI)

.....................J. (PRASANNA B. VARALE)

New Delhi 07th January, 2025 6

(REPORTABLE JUDGMENT) ITEM NO.12 COURT NO.11 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 9114/2019

[Arising out of impugned final judgment and order dated 20-05-2019 in CRM-M No. 11994/2019 passed by the High Court of Punjab & Haryana at Chandigarh]

THE STATE OF PUNJAB Petitioner(s)

VERSUS HARI KESH Respondent(s)

(IA No. 186039/2019 - EXEMPTION FROM FILING O.T.)

Date : 07-01-2025 These matters were called on for hearing today.

CORAM :

HON'BLE MS. JUSTICE BELA M. TRIVEDI HON'BLE MR. JUSTICE PRASANNA B. VARALE

For Petitioner(s) Mr. Vivek Jain, D.A.G. Mr. Karan Sharma, AOR

For Respondent(s) Mr. Vivek Gupta, AOR Mr. Ankit Verma, Adv.

UPON hearing the counsel the Court made the following O R D E R

1. Leave granted.

2. The Appeal is allowed in terms of the signed

reportable judgment.

3. Pending application(s), if any, shall stand closed.

(NISHA KHULBEY) (MAMTA RAWAT) SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)

(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)