M CHINA GOPALAKRISHNA Vs. STATE OF A P

JUDGEMENT

(1.) The sole accused in C.C. No. 13/1993 on the file of the III Additional District and Sessions Judge-cum-Special Judge for SPE and ACB Cases, Visakhapatnam, was convicted by the judgment, dated 28.4.1997, of the trial Court, and sentenced to imprisonment and fine for the offences under Sections 7 and 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, challenging which the accused filed this appeal. The appeal came up before a learned Single Judge of this Court (LNR.J). The learned Single Judge has held that in CBI v. V.K. Sehgal, 1999 (8) Supreme 490, the Supreme Court has observed that a Court of appeal or revision is debarred from reversing a finding or even an order of conviction and sentence on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had occasioned on account of such error or irregularity, and to determine whether such failure had occasioned or not, the fact whether the accused had raised any objection at the trial stage has to be considered. A learned Single Judge of this Court, in Crl. A. Nos.1618 and 1629 of 1999, dated 26.4.2000, has held that non- proof of order of sanction to prosecute the accused itself amounts to failure of justice. Since in the present case the accused did not raise any objection at the trial stage that the sanction order was not properly proved, Justice L. Narasimha Reddy has felt that it desirable that the following questions need authoritative pronouncement by a Division Bench since in several cases these questions are falling for consideration, and directed the matter to be placed before the Hon'ble the Chief Justice for necessary directions. The Reference has been directed to be posted before us. Thus it has been listed before us. The questions sought to be answered under Reference are:

(2.) learned Standing Counsel appearing for the C.B.I., submitted that since the accused did not raise any objection with regard to the sanction, the presumption as provided in illustration (e) in Section 114 of the Evidence Act can be drawn that the sanction was validly accorded, and that whether failure of justice had occasioned on account of any error or irregularity in the sanction is purely a question of fact to be decided on the facts of each case. On the other hand, learned Counsel for the accused contended that as the sanction order was not proved in accordance with law, the entire trial is vitiated. He relied upon a decision in Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677, in support of his contention.

(3.) With regard to the first question whether the proceedings according sanction under Section 19 of the Prevention of Corruption Act are public documents, this question need not be answered, because whether a document is a public document or a private document is to be decided in accordance with the provisions in Sections 74 and 75 of the Evidence Act, and in view of the decisions of the Apex Court referred to infra.