Prevention of Corruption Act, 1988 – Framing of Charge – In order to frame charge against the accused, a strong suspicion is sufficient. A microscopic examination of the materials produced by the prosecution is not warranted at that stage. The evaluation of the materials produced by the prosecution shall be conducted by the court only for the limited purpose of finding out whether any prima facie case is made out against the accused. [Para 39]

Prevention of Corruption Act, 1988 – Framing of Charge – If the Special Court had not taken into consideration the plea of the accused that there are no materials produced by the prosecution which would make out a prima facie case against him, he should have challenged that order.

The seventh accused did not challenge the order of the Special Court dismissing the application for discharge filed by him and that order has become final. It was after the dismissal of the application for discharge filed by him that the court framed charge against him. Since he did not challenge the order of the Special Court dismissing the application for discharge filed by him, he cannot now raise a contention that framing of charge against him by the trial court is illegal exercise of jurisdiction by that court. [Para 32]

Prevention of Corruption Act, 1988 – S.19 – Sanction – the validity of sanction for prosecution granted by the competent authority under Section 19(1) of the Act is not a matter to be raised in challenging the charge framed against the accused by the trial court. The challenge would have been maintainable if it is a case of total absence of sanction by a competent authority.

Penal Code, 1860 – S.120B – Prevention of Corruption Act, 1988 – Ss. 13(1) (d) r/w. 13(2) – Code of Criminal Procedure, 1973 – Ss. 239 & 482  When the sanction for prosecution is admittedly granted by an authority competent to grant it, the validity of the sanction granted is a question to be decided not at the stage of framing the charge against the accused. It is a matter to be considered and decided by the trial court after adducing evidence in the case.

Prevention of Corruption Act, 1988 – S. 2(c)(iii) – the contention that the Bank has not received any financial aid from the State Government and therefore, the employees of the Bank do not come within the purview of the definition of public servant under Section 2(c)(iii) of the Act cannot be examined in detail at the preliminary stage. It is a matter to be dealt with in the course of the trial of the case.

As per the definition given in Section 2(c)(iii) of the Act, “public servant” includes any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956. In construing the definition of ‘public servant’ in Clause (c) of Section 2 of the Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. When the legislature has used a comprehensive definition of ‘public servant’ to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by a construction which would be against the spirit of the statute. The definition of ‘public servant’, therefore, deserves a wide construction. [Paras 17 & 18]

Prevention of Corruption Act, 1988 – S.19 – Sanction for Prosecution – There is a distinction between the absence of sanction and invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.

Section 19(3) of the Act makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal or revision on the ground of absence of/ or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the Court a failure of justice has in fact been occasioned thereby. The stage when this failure is to be established is not the stage of framing of charge but once the trial commenced and evidence is adduced. [Paras 24 & 25]

Case : M. Sulfiker v. State of Kerala
Date of Judgment : 1 September 2021
Court: High Court of Kerala
Bench : R. Narayana Pisharadi; J.

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