TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 1307
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....e F.I.R. dated 01.11.2013 in Crime No. 370/2013 for the offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC before the Mandya West Police (Annexure-B). The petitioner has also challenged the F.I.R. dated 23.12.2014 in Crime No. RC.21(A)/2014 for the offence punishable under Section 120-B read with Sections 406, 409 and 420 of I.P.C. and Section 13(2) read with Section 13(1)(c) & (d) of P.C. Act registered by the CBI, ACB, Bengaluru and the Charge Sheet bearing No. 30/CBI/ACB/BLR/2015 dated 31.12.2015 filed by CBI, ACB, Bengaluru, the respondent No. 2 herein (Annexure-D) and the order dated 29.03.2021 passed in Spl.CC. No. 577/2021 by the Court of XLVI Additional City Civil & Sessions Judge and Spl. Judge for CBI Cases at Bengaluru, taking cognizance of offences punishable under Sections 120-B, 409 and 420 of IPC and Section 13(1)(c) & (d) read with Section 13(2) of P.C. Act and has also assailed the entire proceedings in Spl.C.C. No. 577/2021 pending on the file of XLVI Additional City Civil & Sessions Judge and Spl. Judge for CBI Cases at Bengaluru, (Annexure-E) insofar as the petitioner is concerned. 3. The facts as made out constituting the offence a....
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....s Accused No. 8, stay of proceedings before the trial Court was granted. Pursuant to which, there was deferment of proceedings before the trial Court awaiting the orders from the High Court and eventually the proceedings against Accused No. 8 was quashed by order dated 19.01.2017. 11. On 25.04.2017, this Court stayed the proceedings in Crl.P. No. 3578/2017 in respect of Accused No. 2. 12. The setting aside of proceedings as against Accused No. 8 was assailed before the Apex Court in S.L.P. (Crl.) No. 6971/2017, which set aside the judgment of the High Court quashing the proceedings as against Accused No. 8, while observing that the question raised by Accused No. 8 is a matter for trial. 13. On 25.11.2020, this Court vacated the interim order granted in Crl.P. No. 3578/2017 instituted by Accused No. 2. Finally on 29.03.2021, the learned Spl. Judge took cognizance of the offences punishable under Sections 120-B, 409, and 420 of IPC and Section 13(1)(c) & (d) read with Section 13(2) of the P.C. Act and the case was registered in Spl.CC. No. 577/2021 and an order was passed for issuance of summons to the accused after which the present petition has been filed. Submissions of the pe....
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....vention of Corruption (Amendment) Act, 2018 coming into force by way of Gazette Notification on 26.07.2018 would by itself indicate that the Amendment Act was to be effective prospectively. The amendment related to substantive provisions of the Act and accordingly are to be treated as prospective in application. 23. The offence was committed in the year 2009 and investigation was completed and charge sheet was filed in 2016 and accordingly, the question of applying the Amendment Act, 2018 which casts an additional burden on the C.B.I. to obtain sanction for prosecution could not be made applicable. Reliance is placed on the judgment of Kerala High Court in the case of K.R. Ramesh v. Central Bureau of Investigation and Another.. 24. As per the un-amended provisions of Section 19 of P.C. Act, the sanction was not required in case of prosecution of public servants after retirement, as held by Apex Court in the case of Station House Officer, CBI/ACB/Bangalore v. B.A. Srinivasan and Another (2020) 2 SCC 153. 25. The investigation being completed as on 31.12.2015 and the charge sheet being placed before the trial Court on 03.02.2016 for the purpose of taking cognizance, the non-taking....
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....tioned and that he is not eligible to get the site allotted to himself. He has concealed his marital status in the MUDA application form submitted for site allotment. He also concealed the details of MUDA site already allotted in the name of his wife with an intention to get allot the MUDA site in his name." 32. Under Section 197 of Cr.P.C., sanction is required where the accused who is not removable from the office save with the sanction of Government "is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty." Section 197 provides that cognizance shall not be taken except with the previous sanction. 33. The Court while insisting for sanction before taking cognizance is required to arrive at a finding that the alleged acts constituting the offence is to be treated to be an act in discharge of his official duty. This would be a sine qua non for insistence of sanction. The observations of Apex Court in the case of Rajib Ranjan and Others v. R. Vijaykumar (2015) 1 SCC 513 at paragraph Nos. 15 to 18 which are of relevance are extracted below:- "15. The sanction, however, is necessary if the offence alleged a....
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.... part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."[Ed.: As observed in Harihar Prasad v. State of Bihar, (1972) 3 SCC 89, 115, para 66: 1972 SCC (Cri.) 409.] ' [Ed.: Quoted from State of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690, 692, para 7: 1999 SCC (Cri.) 1031.]" 17. Likewise, in Shambhoo Nath Misra v. State of U.P. [(1997) 5 SCC 326: 1997 SCC (Cri.) 676: AIR 1997 SC 2102], the Court dealt with the subject in the following manner: (SCC p. 328, para 5) "5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is i....
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....f the Authority. The facts as are made out would reveal that offence is alleged to have been committed by the petitioner during his tenure as the Member of MUDA when he was a Member of the Legislative Assembly from 2008-2013. 37. The FIR has been lodged by the Mandya West Police Station in 2013 and by the C.B.I. in 2014. The charge sheet has been filed before the Spl. Judge on 03.02.2016 and cognizance thereafter was required to be taken. 38. Section 19 of the Prevention of Corruption Act prior to the amendment in 2018 required previous sanction for the purpose of taking cognizance where the person "is employed". It is only by virtue of amendment in 2018 that Section 19 has been amended which provides for sanction where offence is committed by a person "who is employed, or as the case may be, was at the time of commission of the alleged offence employed". Further, the Explanation to Section 19(1) inserted by way of amendment stipulates that the term 'public servant' in sub-section (1) of Section 19 would include a person who has ceased to hold the office during which the alleged offence is stated to have been committed or is holding an office other than the office during ....
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....aking cognizance", the question of requirement of sanction for the purpose of Section 19 (prior to the amendment in 2018) of the P.C. Act does not arise. 41. In the present case, though the petitioner at present is a Member of Legislative Assembly for the term commencing from 2018, as the alleged offence relates to the period of his office as Member of the Authority by virtue of his being a Member of Legislative Assembly from the year 2008 to 2013 with respect to such tenure, the question of sanction for prosecution for the charge sheet filed in the year 2016 would not be required in terms of the Act, as it stood prior to 2018 Amendment. Cognizance sought to be taken post 2018 Amendment with respect to charge sheet filed on 03.02.2016:- 42. It must be noted that the charge sheet dated 31.12.2015 admittedly came to be filed before the Spl. Judge on 03.02.2016. If orders were passed for taking cognizance at any time before 26.07.2018, which is the date from which Act 16 of 2018 was brought into effect, the question of applicability of amended provision would not have been an issue at all. As cognizance came to be taken by order of the Special Judge only on 29.03.2021, taking note ....
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....owed the said petition and quashed the FIR and charge sheet filed against accused no. 8. Further the matter is stayed in Crl.P. No. 3578/2017 by Hon'ble High Court of Karnataka dated 25.04.2017. Hence, await orders by 11.12.2017." The order dated 11.12.2017 by the Special Judge reads as follows: "The Hon'ble High Court of Karnataka has stayed the matter in Crl.P. No. 3578/2017 against accused no. 2. Await orders by 05.03.2018." Accordingly, it is clear from the above orders that sanction orders as against some of the accused had been produced and it was the stand of the prosecution that as regards some of the other accused sanction was not required. By then, the proceedings stood quashed as against accused no. 8 in Crl.P. No. 6993/2016 and there was an order of stay as regards accused no. 2 in Crl.P. No. 3578/2017. Thus, as on 11.12.2017 the Special Judge was in a position to pass orders on taking of cognizance as regards the petitioner and there was no legal impediment to do so. 49. It would be appropriate to take note of the observations of Apex Court in the case of Sarah Mathew (supra) at paras-37 and 39, which read as follows:- "37. We are inclined to take ....
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....e that the 'act of the court shall prejudice no man', it could be concluded that the final report filed prior to amendment in 2018 of the Act ought to have been considered and is deemed to have been considered and cognizance taken as per the law prevailing when the charge sheet was ripe for consideration. 51. The delay in passing the order and coming into force of amendment requiring sanction in the interregnum ought not to saddle the prosecution with any further obligation of obtaining sanction. 52. Another aspect that needs to be considered is as to which law would be applicable while taking cognizance, i.e. Act as amended by 2018 amendment or the pre-amended provisions. 53. It must be noted that the final report was filed as on 03.02.2016. The provisions of Prevention of Corruption Act prior to amendment in 2018 specified that sanction was required to be taken only if the person 'is employed'. Section 19 as it stood prior to the amendment reads as follows: "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, exce....
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....ave been committed and is holding an office other than the office during which the offence is alleged to have been committed." 55. By virtue of the Amendment Act, the amended provision substituted the earlier provision. No doubt, the Amendment Act does not contain a saving clause and accordingly, recourse to Section 6 of the General Clauses Act, 1897 is to be made. The relevant extract of the provision of the General Clauses Act is as follows:- "6. Effect of Repeal-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) xxx (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; (c) xxx (d) xxx (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation....
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....tands repealed and the amended provision is substituted in the place of earlier provision in the earlier Act, as if the substituted provision is there in the earlier act from the inception. By express provision or by implication if it is not made clear that it is prospective in nature the said amended provision comes into effect from the date of the earlier Act. But it is not an invariable Rule. If such an interpretation is given, if it leads to repugnancy, inconsistency or absurdity, then the said general rule is not followed. In certain situations, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an "amendment" having a prospective effect. If the amendment Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said provision is prospective in nature. Then it is not open to the Court by way of interpretation to give retrospective effect to such provision. Ultimately to decide whether these provisions are prospective or retrospective, it is the intention of the legislature which is the sole guide. If the procedure adopted for amendme....
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....aw insofar as proposed amendment casts an obligation that sanction must be obtained even in the case of "a person who at the time of commission of the alleged offence is employed" and in terms of the explanation of 'Public Servant' introduced by way of 2018 amendment which includes a person who has ceased to hold office or is holding an office other than an office during which an offence is alleged to have been committed; such requirement was absent when the final report came to be filed and is an additional obligation sought to be created, which interpretation cannot be accepted. This would be the conclusion if the principle laid in the case of Hitendra Vishnu Thakur (supra) is to be applied. 64. Insofar as applicability of the amended provision under Section 19 to the pending proceedings, the High Court of Telangana in the case of Katti Nagaseshanna v. State of Andhra Pradesh, Represented by the Deputy Superintendent of Police and Another order dt. 16.11.2018 in Crl.P. No. 9044/2018 has also concluded that the Amendment Act 16 of 2018 imposes a new obligation and duty on the prosecution to obtain sanction even after retirement of the petitioner from service and that, it ....
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....n Madhu Koda's case (Supra) also, shared the same view. I agree with those views." 66. The conclusion of the Kerala High Court is also required to be accepted by taking note of the principle that investigation which is completed ought to be saved if conducted under the law then prevailing, taking note of the principle under Section 6(e) of the General Clauses Act as also the principle laid down by the Apex Court in the case of Hitendra Vishnu Thakur (supra). III. To prevent abuse of process of any Court or otherwise to secure the ends of justice:- 67. The trial Court has recorded a finding that the question of granting sanction for prosecution of accused Nos. 4 to 6 which includes the present petitioner does not arise on the following grounds, viz., (a) That the elected representative is elected by the people and not appointed by any person and accordingly, no person including the Speaker is competent to remove the MLA/MP from his office and therefore, the question of granting sanction for prosecution of accused Nos. 4 to 6 does not arise at all. (b) That accused Nos. 4 to 6 were the then Members of MUDA and no sanction to prosecute them is required under the provisions ....