an offence under the Terrorist and Disruptive Activities Act

[sinthia]

My friend is tried by the court under the procedure laid down in the Code of Criminal Procedure, 1973 for an offence under the Terrorist and Disruptive Activities Act, 1987. He is convicted inspite of the fact that there was irregularity in obtaining sanction for prosecution, is it legal?

[amit]

Section 465 of the Code reads as under
( I) Subject to the provisions hereinbefore contained, no 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 any 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

So No order by a Court of competent jurisdiction shall be reversed or altered by a revisional Court on count of any omission in any proceedings held under this Court unless the Court reaches the conclusion ::hat such omission has occasioned a failure of justice. One of the tests to ascertain whether such omission has occasioned failure of justice is incorporated in sub-section (2), i.e. whether objection had been taken at any earlier stage regarding such omission. If no such objection has been taken earlier normally the Court cannot permit that party to raise it at the last stage.

While dealing with Section 465(2) of the Code in Kalpanath Rai v. State, AIR 1998 SC 201 : 1998 Cri LJ 369 Apex Court has observed that

Sub-section (2) of Section 465 of the Code is not a carte balanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that 'the Court shall have regard to the fact' that objection has been .raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial."

In "Rosy v. State of Kerala" AIR 2000 SC 63 7 it was observed that When the accused have chosen not to raise objection on the premise of omission to examine witnesses before process was issued by the Magistrate, it must be taken that they had no grievance that such omission had occasioned failure of justice. Even if they had taken such objection after committal of the case to the Sessions Court there was no need to turn the switch board backwards as there is no scope for believing that such omission had occasioned failure of justice. This is because no evidence of any witness would be used in the trial Court unless such witness was examined in the trial Court and the accused is afforded reasonable opportunity to cross-examine him.

In the case in hand, there is no plea that any failure of justice has occasioned to the accused due to some irregularity in the sanction order. Therefore, the order of conviction in the present case cannot be set aside for said reason.