Karnataka High Court
State Of Karnataka By vs Dr V Chandrashekhar on 9 February, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL REVISION PETITION NO.790 OF 2015
BETWEEN:
State of Karnataka b y
Lokayukta Police,
M.S.Building, Beng aluru-560001.
...Petitioner
(By Sri B.S.Prasad, Advocate)
AND:
Dr. V.Chandrashekhar,
S/o Vangundi Veeranna,
Aged about 61 years,
Occ: Retired
No.1051, 11 t h Main (G.V.Iyer Road )
RPC Layout, Vijaya Nag ara,
Beng aluru-560040.
...Respondent
(By Sri S.M.Chandrashekar, Senior Counsel,
For Sri Amit Deshp ande, Advocate)
This Criminal Revision Petition is filed under
Section 397 of Cr.P.C. p raying to set aside the order
dated 02.06.2015 passed by the learned Principal
Sessions and Sp ecial Judge, Bengaluru Rural District
in Sp l.Case No.44/2014 and pass such consequential
order.
This Criminal Revision Petition having b een heard
& reserved on 18.01.2022 through vid eo conferencing,
coming on for pronouncement this day, the court
pronounced the following:
:: 2 ::
ORDER
Karnataka Lokayukta being the petitioner has questioned the correctness of the order dated 2.6.2015 passed on an application filed under section 19 of the Prevention of Corruption Act in Special Case 44/2014 on the file of Principal Sessions Judge and Special Judge, Bengaluru Rural District. The brief facts are as follows: -
2. The petitioner initiated suo motu action against the respondent who was an IAS officer alleging that during the check period from 7.2.1977 to 19.12.2007, he had amassed assets in his name and in the name of his family members to an extent of Rs.2,21,26,963.92. His total income during that period was found to be Rs.2,39,19,513.37 and total expenses of himself and his family members was Rs.1,30,58,787.99.
Thus it was found that the total value of the assets acquired by him disproportionate to his known :: 3 ::
source of income was Rs.1,12,66,238.54 which was equivalent to 47.1%. FIR came to be registered for the offence under sections 13(1)(e) read with section 13(2) of the Prevention of Corruption Act. After holding investigation, the petitioner submitted the final report to the State Government to send it to appropriate authority for according sanction to prosecute the respondent. Since the respondent was an IAS officer, the appropriate authority was the Government of India. But, the State Government instead of forwarding the final report to the Central Government rejected the sanction on 6.7.2012 though it had no jurisdiction being not an appropriate authority. Then the respondent filed W.P.No.15687/2013 for quashing the FIR registered against him by the Lokayukta police and directing the Lokayukta police to file final report. It appears that in the writ proceeding, a submission was made on behalf of Lokayukta that :: 4 ::
the Central Government was the competent authority for according sanction to prosecute the respondent and that final report would be laid after obtaining sanction from competent authority.
But before the sanction was obtained, the respondent retired from service on attaining superannuation. In view of retirement, the Chief Secretary by his letter dated 14.3.2014 addressed to ADGP, Karnataka Lokayukta, stated that there was no need to obtain sanction and accordingly the Government had withdrawn its letter dated 6.7.2012 rejecting the request made by the Lokayukta for according sanction. Pursuant to this letter, charge sheet was filed against the respondent.
3. Thereafter the respondent made an application under section 19 of the Prevention of Corruption Act seeking to discharge him on the ground that he could not be subjected to :: 5 ::
prosecution in the absence of sanction. The learned Special Judge allowed this application and respondent was discharged. Therefore this revision petition before this court now.
4. I have heard Sri B.S.Prasad, learned counsel for the petitioner and Sri S.M.Chandrashekar, learned senior counsel for the respondent.
5. Sri. B.S.Prasad argued two points, the first being that the respondent was an IAS officer and the competent authority to issue sanction was the Central Government. The State Government, instead of rejecting the sanction on 6.7.2012, ought to have forwarded the entire records to the Central Government. Actually the State Government had no authority to reject the sanction and in this view the order dated 6.7.2012 is of no consequence at all. It was a non-est order and can be ignored. The second point of argument :: 6 ::
was that the petitioner applied to the Central Government for sanction as has been observed in the order passed by this court in W.P.No.15687/2013. The records were submitted to the State Government for forwarding the same to the Central Government to obtain sanction. Since the respondent retired on attaining superannuation, it was felt that sanction was not necessary for prosecuting the respondent and hence sanction was not obtained. He argued that by the time charge sheet was filed, the respondent was no longer a public servant and in this view if he was subjected to prosecution without sanction, there was no illegality in it. The court below has failed to notice this aspect of position of law and its decision to discharge the respondent is not sustainable. The revision petition is therefore required to be allowed. Alternatively, Sri B.S.Prasad sought liberty to proceed against the respondent in accordance with law by obtaining :: 7 ::
sanction, in case this court would come to conclusion that sanction was necessary. In support of his argument, he has placed reliance on some of the judgments of the Supreme Court which I will refer to later.
6. Sri. S.M.Chandrashekar, learned Senior Counsel for the respondent submitted that actually the entire prosecution commenced at the behest of one Mr. Thimmaiah, who was a rival contender for the respondent in connection with conferment of IAS cadre. As on 18.12.2007, the date of registration of FIR, the respondent was under the service of Government of Karnataka and the competent authority to grant sanction was the State Government. The respondent was conferred with IAS on 31.12.2008. Therefore rightly the State Government took a decision to reject the sanction as there had not existed any prima-facie material for subjecting the respondent to :: 8 ::
prosecution. The petitioner did not question this order. Rather when the respondent filed Writ Petition No.15687/2013, the petitioner's counsel therein made a submission that sanction would be obtained from the Central Government and therefore the said writ petition was disposed of with a direction to file the final report within three months from the date of the order. Actually the petitioner did not obtain sanction from the Central Government and as the respondent retired, the petitioner thought that sanction was not necessary. Elaborating further, the learned senior counsel submitted that though the earlier judicial pronouncements were to the effect that once a public servant retired from service, sanction was not necessary, in view of amendment brought to the Prevention of Corruption Act by Act No.16 of 2018, sanction was necessary to be obtained even in respect of a public servant who had retired from service. He submitted that this amendment had :: 9 ::
retrospective operation as it was by way of substitution. He also referred to the recommendation made by Law Commission for making it mandatory to obtain sanction to subject a retired public servant for prosecution under the provisions of Prevention of Corruption Act. He therefore submitted that the court below has not committed any error in discharging the respondent. He too has placed reliance on some judgments which will be referred to later.
7. The arguments give rise to a question whether it was not necessary to obtain sanction for prosecution of the respondent for the offence under section 13 (1)(e) read with Section 13(2) of Prevention of Corruption Act in view of his retirement from service.
8. The trial court has referred to decisions of the Supreme Court in STATE OF HIMACHAL PRADESH VS. NISHANT SAREEN (AIR 2011 SC :: 10 ::
404) and CHITTARANJAN DAS VS. STATE OF ORISSA (AIR 2011 SC 2893). In all these decisions the principle laid down is that the sanction to prosecute public servant, if once refused by a competent authority, it cannot be reviewed to reconsider the grant of sanction unless fresh materials to prove the guilt of the public servant are available. It is held that in the case on hand fresh material was not available as against the respondent and therefore Lokayukta Police was not justified in filing the charge sheet against the respondent only on the ground that as on the date of filing of charge sheet he had retired from service.
9. The impugned order has actually not dealt with the question whether sanction is necessary or not once a public servant retires from service. Of the many judgments that Sri B.S.Prasad has relied upon, only one judgment of :: 11 ::
the Supreme Court in the case of R.S.NAYAK Vs. A.R.ANTULAY (AIR 1984 SC 684), deals with this question and it is held there that no sanction is necessary for taking cognizance of the offence under the provisions of Prevention of Corruption Act once a public servant retires. The other judgment he relied upon is in the case of DR. JAGMITTAR SAIN BHAGAT Vs. DIRECTOR, HEALTH SERVICES, HARYANA AND OTHERS [AIR 2013 SC 3060] where it is held that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the Court passes a decree saying there is no jurisdiction over the matter, it would amount to nullity as it goes to roots of the cause. It is quite clear that this decision has been relied upon by Sri B.S.Prasad in support of his argument that the State Government actually was not the competent authority to grant or reject the sanction in respect :: 12 ::
of the respondent and therefore the order dated 06.07.2012 rejecting the sanction is of no consequence. This position is not disputable. The respondent was an IAS officer and that the competent authority was the Central Government and as per the submission made by the counsel for Lokayukta during the proceedings in WP No.15687/2013, steps had been taken for obtaining sanction from the Central Government, but it is not in dispute that such a sanction was not obtained as by that time, the respondent had superannuated.
10. In the two decisions that the counsel for the respondent has relied upon, i.e., in the cases of STATE OF HIMACHAL PRADESH VS. NISHANT SAREEN and CHITTARANJAN DAS VS. STATE OF ORISSA (supra), the ratio laid down is that if the competent authority refuses sanction, if at all the same is to be reconsidered for granting sanction, :: 13 ::
prosecution has to produce fresh materials; and on the same materials, it is impermissible to grant sanction. Therefore the question under the consideration did not arise in these two decisions.
11. The learned counsel for the respondent submitted that an amendment was brought to the Prevention of Corruption Act, by Act No.16 of 2018. The amendment thus brought made it clear that sanction is to be obtained even for subjecting a retired public servant to prosecution. He referred to 41 s t Law Commission Report recommending amendment to Section 197 of Cr.P.C. The report of Law Commission is as follows:
The Law Commission in its 41 s t Report has observed--
"15.123. Section 197, as it now stands, applies to a public servant of the specified :: 14 ::
category only when he is holding office as such public servant. It does not apply to him after he has retired, resigned or otherwise left the service........... It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant.".
12. Section 19(1) of the Prevention of Corruption Act, 1988 as it stood before the amendment reads as below:
:: 15 ::
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013],--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
13. After the amendment, the same Section reads as below:
:: 16 ::
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
:: 17 ::
(c) in the case of any other person, of the authority competent to remove him from his office."
14. Therefore it is clear that the amended Section makes it very clear that sanction is necessary not only for subjecting a public servant while in service (or who is in service) but also a public servant who has retired from service (who was in service). This amendment is by way of substitution, and it takes effect from the inception in the sense it must be understood as if the substituted provision is there from the day when the law was enacted. This position is made clear by the Division Bench of this Court in the case of PUSHPALATHA N.V. VS. V.PADMA AND OTHERS (ILR 2010 KAR 1484). Though this decision was rendered in an appeal arising from a suit, for the purpose of understanding the effect of amendment by substituting a provision of law, it can be referred to here. What is held is as below:
:: 18 ::
"52. This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending Act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The Parliament realised this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e, 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-
9-2005. Though her status was so declared on 9-9-2005, she has been given :: 19 ::
right in the coparcenery property from the date of her birth. It would result in absurdity. Therefore, what the Parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity.
(emphasis supplied)
15. Thus seen, it may be stated that the amendment brought to Section 19 of the Prevention of Corruption Act by Act No.16 of 2018 is to be understood as if it came into effect from the date the Prevention of Corruption Act was first given into effect i.e., from 09.09.1988. This being the change in law, definitely the respondent can contend that he cannot be prosecuted without sanction and his retirement from service does not make any difference in the matter of obtaining sanction. Therefore the argument of Sri B.S.Prasad cannot be accepted, I do not find any :: 20 ::
infirmity in the ultimate conclusion taken in the impugned order to discharge the respondent. The revision petition fails and it is dismissed.
16. Considering the request made by Sri B.S.Prasad, liberty is granted to the petitioner to proceed against the respondent in accordance with law.
Sd/-
JUDGE ckl/kmv