# ' • ' ' MOHD. IQBAL AHMAD v. ST ATE OF ANDHRA PRADESH

- **Citation:** [1979] 2 S.C.R. 1007
- **Court:** Supreme Court of India
- **Decided:** 1979-01-18
- **Case number:** ": Criminal Appeal No. 194 of 1973
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-iqbal-ahmad-v-st-ate-of-andhra-pradesh-7556
- **Pages:** 5

## Headnote

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MOHD. IQBAL AHMAD
v.
ST ATE OF ANDHRA PRADESH
January 18, 1979
r.s. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.]
1007
Prevention of Corruption Act, s. 5(2) read with s. 5(1) (d)-Case irrstuuieo
'k.'fthnut proper sallc/ion-Efiect of-Proof of valfd sanction--Ilow could be
established-Sanction-Its importance in
prosecution9--Facts coming into
existence subsequently-If could be rele1·ant-Pres11n1ptio11 that sanctioning
aurhurity "H-'as satisfied that the accused received bribc-JVhen could ariseIf prosecution could be given a chance at appellate stage to prove
that
the
sanctioning authori!Y had applied its 1nind before giving the sanction.
The appellant who was charged with an offence under s. 5(2) read
with
s. 5(1) (d) of the Prevention of Corruption Act was acquitted by the
SpeCial
Judge.
But !·he I-ligh Court oq. appeal by the State, reversed the judgment of
t'he Special Judge and convicted him.
ln appt-:i1 to this Court it v,ras contended on behalf of tht~ appellant that
there was no evidence to show on what materials the sanctioning
authority
applied its mind before granting the sanction under s. 6 of the Act. The entire
proceedings are void ab initiv.
Allowing the appeal,
HELD: 1 (a). The prosecution of the appellunt was without valid sancA
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tion and, therefore, cognizance taken by the Special Judge was \Vithout jurisE
diet.on. [1011 GJ
(b) Any case instituted without proper sanction must fail
because
this
being a n1anifest defect in the prosecution, the entire proceedings are rendered
void ab initio.
It is incumbent on the prosecuticn to prove that a va.lid sanction had been granted by the sanctioning authority after it was satisfied that
a case had been made out constituting the offence. This should be done in
two ways: either (i) by producing the original sanction which itself contains
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the. facts constituting the offence arid the grounds of ~t:tisfaction or (ii) bY
adducing evidence aliunde shov,.:ing the facts placed before the authority and
the sa1isfn·:.:ticn arrived at by it. f1010 B-D]
In the present case no evidence, either pri1nary or secondary, had been led
to rrcve the contents of the note placed bef(1re the sanctioning authority nor
were the witnesses examined in a position to state the contents of the note .
2(a). The grant of sanction is not an idle formality but a solemn and
sa<:rosanct act whiclz affords protection to governnzent .rer·;a1u.~ aga!nsr frivolou1
prosecutions and must therefore be strictly complied with before any pr(')SCCD.
tion could be launched against public servan!s. [lOIOGJ
G
(b) There is no force in the argument of the State that the Court should
presume the facts on the basis of evidence given by one of the wittleSleS and
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the onJcr implementing the sanction mentioning those factl'i.
What the Court
8-119 SC!/7J
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1008
SUPREME COURT REPORTS
l 1979] 2 S.C.R.
has to see is whclher or not the sanctioning authority at the time o[ giving
the sanction was aware of the facts ~nstituting the offence and applied its
mind for the srune.
Any subsequent f3.ct coming into existence after the resolution t.ad been
pat:~cd is wholly irrelevant. [1010 F]
(c) 'fhcrc is equally no force in the S'::ate's contention that even if no
fact& Vi'Crc mentioned in the resolution it must be presumed that the sanctioninc: authority was satisfied that the accused had received a bribe. There is no
:.!iuestion vf a presumption being available to the sanctioning authority because
at that itace the occasion for drawing a presumption never arises since there
is no case in the Court. flOll Bl
(d) The presumption does not arise automatically but onJy on proof of
certn.in circumstances that is to say, where it is proved by evidence in Court
that the money said to have been paid to the accused was actually recovered
from his possession. It is only then that the Court may presume the amount
received would be deemed to be an illegal gratification. The question of sanction ariies before the proceeding

## Text

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MOHD. IQBAL AHMAD
v.
ST ATE OF ANDHRA PRADESH
January 18, 1979
r.s. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.]
1007
Prevention of Corruption Act, s. 5(2) read with s. 5(1) (d)-Case irrstuuieo
'k.'fthnut proper sallc/ion-Efiect of-Proof of valfd sanction--Ilow could be
established-Sanction-Its importance in
prosecution9--Facts coming into
existence subsequently-If could be rele1·ant-Pres11n1ptio11 that sanctioning
aurhurity "H-'as satisfied that the accused received bribc-JVhen could ariseIf prosecution could be given a chance at appellate stage to prove
that
the
sanctioning authori!Y had applied its 1nind before giving the sanction.
The appellant who was charged with an offence under s. 5(2) read
with
s. 5(1) (d) of the Prevention of Corruption Act was acquitted by the
SpeCial
Judge.
But !·he I-ligh Court oq. appeal by the State, reversed the judgment of
t'he Special Judge and convicted him.
ln appt-:i1 to this Court it v,ras contended on behalf of tht~ appellant that
there was no evidence to show on what materials the sanctioning
authority
applied its mind before granting the sanction under s. 6 of the Act. The entire
proceedings are void ab initiv.
Allowing the appeal,
HELD: 1 (a). The prosecution of the appellunt was without valid sancA
B
c
tion and, therefore, cognizance taken by the Special Judge was \Vithout jurisE
diet.on. [1011 GJ
(b) Any case instituted without proper sanction must fail
because
this
being a n1anifest defect in the prosecution, the entire proceedings are rendered
void ab initio.
It is incumbent on the prosecuticn to prove that a va.lid sanction had been granted by the sanctioning authority after it was satisfied that
a case had been made out constituting the offence. This should be done in
two ways: either (i) by producing the original sanction which itself contains
J'
the. facts constituting the offence arid the grounds of ~t:tisfaction or (ii) bY
adducing evidence aliunde shov,.:ing the facts placed before the authority and
the sa1isfn·:.:ticn arrived at by it. f1010 B-D]
In the present case no evidence, either pri1nary or secondary, had been led
to rrcve the contents of the note placed bef(1re the sanctioning authority nor
were the witnesses examined in a position to state the contents of the note .
2(a). The grant of sanction is not an idle formality but a solemn and
sa<:rosanct act whiclz affords protection to governnzent .rer·;a1u.~ aga!nsr frivolou1
prosecutions and must therefore be strictly complied with before any pr(')SCCD.
tion could be launched against public servan!s. [lOIOGJ
G
(b) There is no force in the argument of the State that the Court should
presume the facts on the basis of evidence given by one of the wittleSleS and
B
the onJcr implementing the sanction mentioning those factl'i.
What the Court
8-119 SC!/7J
'A
B
c
D
E
F
H
1008
SUPREME COURT REPORTS
l 1979] 2 S.C.R.
has to see is whclher or not the sanctioning authority at the time o[ giving
the sanction was aware of the facts ~nstituting the offence and applied its
mind for the srune.
Any subsequent f3.ct coming into existence after the resolution t.ad been
pat:~cd is wholly irrelevant. [1010 F]
(c) 'fhcrc is equally no force in the S'::ate's contention that even if no
fact& Vi'Crc mentioned in the resolution it must be presumed that the sanctioninc: authority was satisfied that the accused had received a bribe. There is no
:.!iuestion vf a presumption being available to the sanctioning authority because
at that itace the occasion for drawing a presumption never arises since there
is no case in the Court. flOll Bl
(d) The presumption does not arise automatically but onJy on proof of
certn.in circumstances that is to say, where it is proved by evidence in Court
that the money said to have been paid to the accused was actually recovered
from his possession. It is only then that the Court may presume the amount
received would be deemed to be an illegal gratification. The question of sanction ariies before the proceedings come to the Court and the
qnestion of
drawing a presumption does not arise n•t this stage. [1011 Cl
(e) The prosecution cannot be given a ci~nce to produce any
material
before the court at the appellate stage to satisfy that the sanctioning authority
had duly applied its mind before giving the sanction. The prosecution bad
been afforded a full and complete opportunity at the trial stage to produce
whatever material it liked and it had chosen to examine two witne~; but
for reasons best known to it, it did not produce the note which formed the
subji:-Ct rriattcr of resolution of the sanctioning authority. [1011 E.]
(f) In a criminal case this Court would not "ordinarily direct fresh evidence
to fill up a lacuna deliberately left by the prosecution. The liberty
of the
subject v.as in jeopardy and it cannot be allowed to put in jeopardy again a1
. the instance of the prosecution which failed to avail of the opportunity aft'ordcd
to it. [lOll I']
CRIMINAL APPELLATE JURISDICTION": Criminal Appeal No. 194 of
1973.
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Appeal by Special Leave from the Judgment and Order dated
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3-4-1973 of the Andhra Pradesh High Court in Criminal Appeal No.
703/71.
A. N. Mui/a and A. Subba Rho for the Appellant.
G. Narayana Rao for the Respondent.
Th~ Judgment of the Court was delivered by
FAzAL ALI, J.-In this appeal by special leave the appellant has
been convicted under section 161 I.P.C. and section 5(2) read with
section 5 ( 1 )( d) of the Prevention of Corruption Act and sentenced
tO rigorous imprisonment for one year and a fine of Rs. 250/- on
each count.
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MOHD. IQBAL v. A. P. STATE (Fazal Ali, J.)
The appellant had been convicted by Special Judge but on appeal
.by the State to the High Court the High Court reversed the judgment of
acquittal and convicted the appellant as indicated above. According to
the prosecution the appellant is said to have struck a bargain for
taking a bribe of Rs. 125/- which he received on the 15th of July,
1968 in the presence of P.Ws. 1 and 3.
On receiving the signal the
raiding party appeared on the scene and the hand of the accused
was dipped in water containing phenopthelien solution which showed
that he touched the notes.
The defence of the appellant was that
he never demanded any bribe and that the notes were thrust into his
pocket. It is not necessary for us to dwell on the merits of the case
because, in our opinion, the appeal must succeed on a short point of
law, raised by Mr. A. N. Mulla, learned counsel for the appellant.
It was argued that the sanction under section 6 of the Prevention
of Corruption Act produced in this case does not reveal the facts
constituting the offence and, therefore, there is no evidence to show
on what materials the sanctioning authority applied its
mind
and
granted the sanction.
The Resolution of the Standing Committee·
granting the sanction is Exh. P-16 and is dated 31-3-1969, and runs
as follows :
"As per note of the Commissioner, M.C.H. the Standing Committee nnanimously accords sanction for prosecution of Sri Mohd. Iqbal Ahmed (in the scale of 110-180)
Section Officer of Town Planning Section (Under suspension) in a competent Court for the offence mentioned in the
note of the Commissioner M.C.H., dated 18-1-1969 so as
to enable the Commissioner to sign the 'prosecution order
and send it to the Director, Anti·Corruption
Bureau for
taking further action at the earliest".
A perusal of the Resolution of the Sanctioning Authority clearly
shows that no facts Gil the basis of which the prosecution was to be
sanctioned against the appellant are mentioned in the sanction nor
does this document contain any ground on which the satisfaction of
the Sanctioning Authority was based and its mind
applied.
This
document merely mentions that the sanction has been given on the
basis of a note of the Commissioner, Mimicipal Corporation which
appears to have been placed before the Committee.
It is obvious,
therefore, that this note, if any, must have come
into
existence
_either on 31-3-1969 or at any date prior to this.
The, prosecution
could have proved the facts constituting the offence
which
were
· placed· befor,,. the Sanctioning Authority by producing the note- at
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SUPREME COURT REPORl S
[I '179] 2 s.c.a.
the trial.
But no such thing has been done.
What the prosecution
did was merely to examine two witnesses P.Ws. 2 and 7.
P.W. 2
has produced the order implementing the Resolution of the Sanctioning Authority which is Exhibit P-10 1mc;I is dated 21st April, 1969,
that is to say after the sanction was given. This document no doubt
contains the facts constituting the offence but that does not solve the
legal issues that arise in this case. It is incumbent on the prosecution
to prove that a valid sanction has been granted by the Sanctioning
Authority after it was satisfied that a case for sanction has
been
made out constituting the offence. This should oo done in two ways;
either ( 1) by producing the original sanction which itself contains
the facts constituting the offence and the grounds of satisfaction and
(2) by adducing evidence aliunde to show that the facts placed
before the Sanctioning Authority and the satisfaction arrived at by
it. It is well settled that any ,case instituted without a proper sanction must fail because this being a manifest di!liculty in the prosecution, the entire proceedings are rendered void ·ab i11itio.
In the
instant case no evidence has been led either primary or secondary to
prove as to what were the contents of the note mentioned in Exhibit
P-16 which was placed before the Sanctioning Authority.
The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were
not in a position to say as to what were the contents of the note
which formed the subject matter of the sanction by the Standing
Committee of the Corporation.
The note referred to above was
the only primary evidence for this purpose.
Mr. Rao vehemently
argued that although the Resolution, Exh. p-16 docs not mention
the facts, the Court. should presume the facts on the basis of
the evidence given by P.W. 2 and the order implementing sanction
which mentions these· facts.
This argument is wholly untenable
because what the Court has to see is whether or not the Sanctioning
Authority" at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any sub·
sequent fact which may come into existence after
the resolution
granting sanction has been passed, is wholly irrelevant.
The grant
of 5anction is not an idle formality or an acritnonious exercise but·
a solemn and sacrosanct act which affords protection to government
servants against frivolous prosecutions and must therefore be strictly
complied with before any prosecution can be launched against the
public servant concerned.
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II was next contended by Mr. Rao that in view of the presumption which is to be drawn under section 4 of the
Prevention -0f
Corruption Act, even if, no facts are mentioned in the Resolution of
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MOllll. IQBAi. V, A. P. STATE (Fazal Ali, J.)
1011
the Sanctioning Authority it must be pP~sumed that the Sanctioning
Authority was satisfied that the prosecution against the.
appellant
should be launched on the basis of the presump:ion that the accused
had received ~ bribe.
With due respects to the learned counsel, this
argument seems to be wholly mis-conceived.
In the first plaoe, there
is no question of the presumption being available to the Sanctioning
Authority because at that stage the occasion for drawing a presump1ion nCver arises since there is no case in the Court.
Secondly, the
presu1npiic~n docs not arise automatically but only on proof of cert::~iri
-circumstances, that is to say, where it is proved by evidence in the
Court that the money said to have been paid to the accused
was
actually recovered from his possession, It is only then that the Court
may presume the amount received would be deemed to be an illegal
gratification.
So far as the question of sanction is concerned this
arises before the proceedings come to the Court and the question
of drawing the presumption, therefore, docs not arise at this stage.
Lastly, it was submitted by Mr. Rao
that he should be given a
<:hance to produce the materials before the Court to satisfy that the
Sanctioning Authority had duly applied its mind to the facts constituting the offence.
We are, however, unable to accede to this
prayer which has been made at a very late s·:agc.
The prosecution
had been afforded a full and complete opportunity at the trial stage
to produce whatever material it liked and it had chosen to examine
two witnesses but for reasons best known to it did not produce the
note which formed the subject matter of the Resolution of the Sanc1 ioning Authority-Exh. P-16.
It is well settled that in a criminal
case this Court or for that matter any court should not ordinarily
direct fresh evidence to fill up a lacuna delibratcly left by the prosecution. The lib·"rty of the subject was put in jeopardy and it cannot
be allowed to put in jeopardy again at the instance of the prosecution
which failed to av·ai] of the opportunity afforded to it
For these reasons, therefore, we are satisfied that the present prosecu•ion was launched without any valid sanction and, therefore, the
cogni?an::"c taken by the Special Judge \.Vas con1pletely without juriSdiction.
The appeal is accordingly allowed.
The judgment of the
· High Court is set aside and convictions and sentences passed on the
appellant are quashed.
The appellant will now be discharged from
his bail bonds.
P.B.R.
Appeal allowed.
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