T.Bhupathi Reddy vs Stateof Ap
2023 Latest Caselaw 5396 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

              CRIMINAL PETITION No.1279 OF 2019

ORDER:

The present Criminal Petition is filed under Section 482 of

the Code of Criminal Procedure, 1973 (Cr.P.C.), praying to call

for the record pertaining to C.C.No.19 of 2018 on the file of the

Special Judge for SPE & ACB Cases, Nellore, and quash the

same against the petitioner/accused officer, relating to Crime

No.02/RCA-TCT/2016 of ACB, Tirupati Range, Tirupati,

registered for the offences under Sections 13(2) r/w 13(1)(e) of

the Prevention of Corruption Act, 1988 (hereinafter called, „the

PC Act‟, for short).

2. Heard Sri K.G.Krishna Murthy, learned senior counsel

appearing on behalf of Sri K.Rama Mohan, learned counsel for

the petitioner and Sri S.M.Subhani, learned Standing Counsel

for ACB and Special Public Prosecutor, appearing for the 2nd

respondent.

3. The 2nd respondent, who is the Inspector of Police, Anti-

Corruption Bureau, Tirupati Range, Tirupati, Chittoor District,

registered the case in Crime No.02/RCA-TCT/2016 of ACB,

Tirupati Range, Tirupati, against the petitioner/accused officer

for the aforesaid offences. After due investigation, he laid the

charge sheet alleging that he conducted check against the

accused officer from 09.06.1979, i.e., the date of entering into

service till 31.12.2010. During the said check, the accused

officer while working as Deputy Executive Officer of Sri

Kodandaramaswamy Temple, TTD, Tirupati, Chittoor District,

acquired assets in his name and his family members, valued at

Rs.80,39,509/- (as detailed in Annexure-A). The income derived

by the accused officer arrived at Rs.1,14,20,995/- (Annexure-B)

and the expenditure of the accused officer was arrived at

Rs.76,57,321/- (Annexure-C). During the investigation, the

accused officer is found to have acquired assets disproportionate

to his income known sources of income to a tune of

Rs.42,75,835/- for which he cannot satisfactorily account for

and this leads to irresistible conclusion that he acquired the

aforesaid assets by corrupt and illegal means. It is also asserted

in the charge sheet that the accused officer is retired from

service on 31.12.2016 and no sanction for prosecution is

required. The said charge sheet was numbered as C.C.No.19 of

2018 on the file of the Court of Special Judge for SPE & ACB

Cases, Nellore.

4. The present Criminal Petition is filed to quash the

proceedings in the aforesaid Calendar Case on the ground that

under Section 19 of the PC Act, no Court shall take cognizance

for the offences under Sections 7, 11, 13 and 15 of the PC Act

alleged to have been committed by the accused officer except

with the previous sanction (save as otherwise provided in the

Lokpal and Lokayuktas Act, 2013). Amendment to Section 19 of

the PC Act came into force on 26.07.2018 and the Court has

taken cognizance on 16.11.2018. As such, the Court is having

no jurisdiction to take cognizance of the offence. Hence, prays to

quash the proceedings in the said Calendar Case.

5. Learned counsel for the petitioner/accused officer relies on

the judgment of this Court as well as the Apex Court in Dilawar

Singh v. Parvinder Singh and others1 for the proposition that no

Court shall take cognizance of an offence punishable under

Sections 7, 10, 11, 13 and 15 of the PC Act alleged to have been

committed by a public servant, except with the previous sanction

and the sanction for prosecution has to be granted with respect

to specific accused and only after sanction has been granted that

the Court gets the competence to take cognizance of the

(2005) 12 SCC 709 = AIR 2006 SC 389

aforesaid offences and if the Court took cognizance of the

offence, it amounts to without jurisdiction and whole invalid.

6. Learned counsel for the petitioner also relies on the

judgment of the Apex Court in the case of Surinderjit Singh Mand

and others v. State of Punjab and others2 wherein it is held as

follows:

"The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt that under Section 197 of the Code and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary prerequisite before a court of competent jurisdiction takes cognizance of an offence (whether under the Penal Code, or under the special statutory enactment concerned). The procedure for obtaining sanction would be governed by the provisions of the Code and/or as mandated under the special enactment. The words engaged in Section 197 of the Code are, "... no court shall take cognizance of such offence except with previous sanction...". Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides-- "19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance ... except with the previous sanction ...." The mandate is clear and unambiguous that a court "shall not" take cognizance without sanction. The same needs no

(2016) 8 SCC 722

further elaboration. Therefore, a court just cannot take cognizance without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of the learned counsel for the respondents that where cognizance is taken under Section 319 of the Code, sanction either under Section 197 of the Code (or under the special enactment concerned) is not a mandatory prerequisite."

7. For the very same proposition, learned counsel for the

petitioner relied on another judgment of the Apex Court in

N.K.Ganguly v. CBI, New Delhi3 and he would contend that the

alleged offence is committed in discharge of official duty by the

accused, previous sanction under Section 197 of Cr.P.C. and

Section 19 of the PC Act is necessary.

8. Learned counsel for the petitioner also relied on the

judgment of the common High Court in Crl.P.No.5167 of 2016

dated 11.08.2017 for the proposition that sanction is a devise

provided by law to safeguard public servants from vexatious and

frivolous prosecution and it is to give them freedom and liberty

to perform their duty without fear or favour and not succumb to

the pressure of unscrupulous elements and it is a weapon at the

hands of the sanctioning authority to protect the innocent public

(2016) 2 SCC 143

servants from uncalled for prosecution but not intended to

shield the guilty.

9. Learned counsel for the petitioner also relies on the

judgment of this Court in Crl.P.Nos.2906 and 2950 of 2019 in

the case of O.Srinivasa Rao v. State of Andhra Pradesh and

others4, wherein it is held that after referring the principle of

Taylor vs. Taylor and the judgments of the Apex Court in State of

Uttar Pradesh v. Singhara Singh and others5 and Babu Verghese

and others v. Bar Council of Kerala and others6 held that statutes

prescribed that a particular action should be taken in a

particular manner, it should be done in that manner or not at all

and the Court also has a duty to look into the grievance raised

by the individual, particularly when he urges that a mandatory

provision of law has not been followed and this by itself is

prejudice. He would submit that when Section 19 of the PC Act

postulates that no Court shall take cognizance of an offence,

except with previous sanction of the authority, it would vitiate

the proceedings and where in the present case, the Court has

taken cognizance of case on 16.11.2018 and the amendment of

MANU/AP/0369/2019

AIR 1964 SC 358

(1999) 3 SCC 422

the Act has come into force on 26.07.2018 and, therefore, charge

sheet is liable to be discarded or liable to be quashed.

10. Learned counsel for the petitioner also relied on the

judgment of the High Court of State of Telangana in

Crl.P.No.4075 of 2018 dated 28.10.2022 in the case of Dereddy

Muralidhara Reddy v. The State of Telangana and others7,

wherein it is held that question of sanction can be raised at the

time of framing of charge and it can be decided prima facie on

the basis of accusation and it is open to decide it afresh in light

of evidence adduced after conclusion of trial or at other

appropriate stage and if the cognizance is taken erroneously and

the same comes to the notice of the Court at a later stage,

finding to that effect is permissible and such a plea can be taken

first time before the appellate court and it may arise at inception

itself and there is no requirement that the accused must wait till

charges are framed and, in case, sanction is necessary, it has to

be decided by the competent authority and sanction has to be

issued on the basis of sound objective assessment and the Court

is not to be a sanctioning authority.

MANU/TL/1964/2022

11. Per contra, learned counsel for the 2nd respondent filed a

brief synopsis, which is extracted as follows:

Date of Sl.No. Description of the Events Event

1. 06.02.2016 Crime No.02/RCA-TCT/16 of Tirupathi Range was registered against the Petitioner/Accused under Sections 13(2) r/w 13(1)(e) of the PC Act.

2. 31.12.2016 The Petitioner was retired from his Service.

3. 21.06.2018 Chargesheet filed by the prosecution on the file of Special Court for ACB & SPE Cases, Nellore.

4. 16.11.2018 The same was taken up by Special Court and C.C.No.19/2018 was registered.

5. 26.07.2018 Amendment to Section 19 of the PC Act.

12. Learned counsel appearing for the 2nd respondent would

submit that the has filed charge sheet on 21.06.2018 and there

is no delay on the part of the 2nd respondent and the taking

cognizance is entirely an act of the Court and the same may be

delayed for several reasons and he would submit that the

amendment, which was made to Section 19 of the PC Act, is not

applicable retrospectively and it affects prospectively and he

relies on the judgment of this Court in Crl.P.No.4775 of 2019

dated 23.01.2020 for the proposition that "At the time of taking

cognizance, if the public servant ceased to be a public servant,

no sanction is required under Section 19 of the PC Act.

13. Learned counsel for the 2nd respondent also relies on the

judgment of the Apex Court in State of Kerala vs.

V.Padmanabhan Nair8 for the proposition that a public servant

who committed an offence mentioned in the Act, while he was a

public servant, can be prosecuted with the sanction

contemplated in Section 19 of the Act, if he continues to be a

public servant when the Court takes cognizance of the offence,

but if he ceases to be a public servant by that time, the Court

can take cognizance of the offence without any such sanction

and the accused officer who is facing prosecution for the offence

under the PC Act cannot claim any immunity on the ground of

want of sanction, if he ceased to be a public servant on the date

when the Court took cognizance of the said offence.

14. Learned counsel for the 2nd respondent also relies on the

judgment of the common High Court in Crl.P.No.9044 of 2018

dated 16.11.2018 in the case of Katti Nagaseshanna v. the State

1999 (3) SCR 864

of Andhra Pradesh wherein, the learned Judge after referring

number of Supreme Court judgments, held as follows:

"On account of change of law due to addition of explanation to Section 19 (1) of the P.C.Act, now sanction is required even to prosecute retired government servant. If this provision is given retrospective effect, all retired government servants, against whom prosecutions are pending will sneak out from the prosecutions, it is nothing but accommodating retired Government Servant to escape from pending prosecution under the P.C.Act irrespective of seriousness of offence. The intention of the legislature is to prevent bribery among the public servants, which is a serious threat to the society now and increasing day by day. Therefore, amendment to Section 19 (1) of the P.C. Act though deals with procedure, which cannot be given retrospective effect as it created or imposed new obligation or duty on the prosecution to obtain sanction after more than 7 years from the date of filing charge sheet and taking cognizance against the petitioner. Therefore, the Court find that such interpretation as sought for by the learned counsel for the petitioner is against the intendment of the Statute."

15. Basing upon the submissions made by both the learned

counsel, this Court has to determine the following questions:

(1) Whether the amendment of Section 19 of the PC Act dated

26.07.2018 (which envisages the previous sanction) that no

Court shall take cognizance for the offence under Sections 7, 11,

13 and 15 of the PC Act is applicable to the petitioner/accused

officer and whether such amendment is the prospective in

nature or retrospective?

(2) When the Court fails to take cognizance when the charge

sheet is filed even prior to the amendment of the Act come into

force, the said part can be attributed to the complainant.

16. It is appropriate to extract Section 19 of the PC Act, which

reads thus:

"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;

(c) in the case of any other person, of the authority competent to remove him from his office.

[Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the Court of any of the offences specified in this sub-section, unless--

(i) such person has filed a complaint in a competent Court about the alleged offences for which the public servant is sought to be prosecuted; and

(ii) the Court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:

Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:

Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.

Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--

(a) who has ceased to hold the office during which the offence is alleged to have been committed; or

(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.]

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.--For the purposes of this section,--

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

17. The Supreme Court in State of Telangana v. Managipet

alias Managipet Sarveshwar Reddy9, it is discernable from

paragraph No.37 that if the offences were committed prior to the

amendment that much before the Act was amended in the year

2018, the said amendment provision is not applicable to the

accused officer retrospectively.

18. In Hitendra Vishnu Thakur v. State of Maharashtra10, it is

held by the Apex Court as follows:

"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force

(2019) 19 SCC 87

(1994) 4 SCC 602

and the challan had not till then been filed in the court.

From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed

to be prospective in operation, unless otherwise provided, either expressly or by necessary implication." "

19. In view of the specific finding of the Apex Court in Hitendra

Vishnu Thakur's case (10 supra), this Court would determine

that amendment of Section 19 of the PC Act applies only

prospectively. Hence, the issue No.1 is answered accordingly.

20. The Apex Court in Jayalakshmi Coelho v. Oswald Joseph

Coelho11, held that no party should suffer due to mistake of the

Court and otherwise it would only be destructive to the principle

of advancing the cause of justice.

21. In the present case, the complainant has filed the charge

sheet on 21.06.2018 and the amendment to Section 19 of the PC

Act came into force with effect from 26.07.2018, and that much

prior to the amendment, charge sheet has been filed and taking

cognizance is entirely an act of the Court. The complainant has

to file the complaint/charge sheet as per the procedure

contemplated under the Code/Act and it is within their bounds

and taking cognizance is within the purview of the Court.

Therefore, when a complaint is filed prior to the amendment,

that cannot be made infructuous by an act of the Court. Here it

(2001) 4 SCC 181

is appropriate to refer the legal phrase "actus curiae neminem

gravabit", which means an act of the Court shall prejudice no

man, or by a delay on the part of the Court neither party should

suffer.

22. As a matter of fact, the Court has not taken cognizance

when the charge sheet was filed on 21.06.2018 and the Court

has taken cognizance on 16.11.2018, in the meantime, the

amendment to Section 19 of the PC Act had been affected i.e.

26.07.2018 had come into force. As per the amendment, the

previous sanction is necessary to take cognizance of the offence

against the officer, a mistake in not taking cognizance soon after

fling of charge sheet which resulted to file the present criminal

petition and as held by the Hon‟ble Supreme Court in

Jayalakshmi Coelho's case (11 supra) that

the act of Court prejudice no man and no parties should suffer

due to mistake of the Court, otherwise it would only be

destructive to the principle of advancing the cause of justice.

23. The term 'cognizance' in the context of the provisions of the

Code and the earlier decisions in the cases of Jamuna Singh Vs.

Bhadai Shah12, R.R.Chari Vs. State of U.P.13, Gopal Das Sindhi

AIR 1964 SC 1541

Vs. State of Assam14, and Chief Enforcement Officer Vs. Videocon

International Ltd.15, was discussed and it was observed that

'taking cognizance' is entirely an act of the Magistrate/Court and

that the same may be delayed because of several reasons

including systematic reasons. The conflicting view points as to

whether the date of taking cognizance or the date of filing

complaint is material for computing limitation was considered

and it was observed as follows:-

"Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term "cognizance" and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons.

Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of Court. The legal phrase "actus curiae

AIR 1962 SC 1573

AIR 1961 SC 986

(2008) 2 SCC 492

neminem gravabit" which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant..."

24. The highest duty of the Court is to take care that an act of

Court do not harm to suitors. The maxim "actus curiae neminem

gravabit" i.e., an act of Court shall prejudice no man. The maxim

"is founded upon justice and good sense; and affords a safe and

certain guide for the administration of the law". Said Cresswell,

J. in Freeman v. Trandah (ER p. 967). An unintentional mistake

of the Court which may prejudice the cause of any party must

and alone could be rectified.

25. Criminal proceeding cannot be abruptly terminated when a

complainant approaches the court well within the time

prescribed by law.

26. In Bharat Damodar Kale & Anr. v. State of Andhra

Pradesh16, the Apex Court has held that apart from the statutory

indication of this view of ours, we find support for this view from

(2003) 8 SCC 550

the fact that taking of cognizance is an act of the Court over

which the prosecuting agency or the complainant has no control.

Therefore a complaint filed within the period of limitation

under the Code cannot be made infructuous by an act of Court.

The legal phrase "actus curiae neminem gravabit" which means

an act of the Court shall prejudice no man, or by a delay on the

part of the court neither party should suffer, also supports the

view that the legislature could not have intended to put a period

of limitation on the act of the court of taking cognizance of an

offence so as to defeat the case of the complainant. This view of

ours is also in conformity with the early decision of this Court in

the case of in Rashmi Kumar (Smt) v. Mahesh Kumar Bhada17.

27. The complainant had approached within time and the

delay was because of an act of Court, over which the prosecuting

agency or the complainant had no control.

28. In the present case, the charge sheet was filed on

21.06.2018 and the Court has taken cognizance on 16.11.2018.

In the interregnum, the amendment has come into force on

26.07.2018. The police has filed the charge sheet before

amendment to Section 19 of the PC Act come into force.

(1997) 2 SCC 397

Therefore, the same cannot be attributed to the complainant

and, as such, the contention made by the learned counsel for the

petitioner that no Court shall take cognizance without previous

sanction is liable to be rejected and, accordingly, it is rejected.

29. In view of the above judgments of the Apex Court, the act

of the Court cannot be attributed to the complainant and the

delay was because of an act of Court over which the prosecuting

agency or the complainant had no control. Issue No.2 is

answered against the petitioner/accused officer.

30. As regards the merits, the trial Court has to consider all

the material in detail the assertions and allegations made

against the accused officer. The prosecution allegations were

that there were disproportionate assets to a tune of more than

Rs.43,00,000/- approximately. So, the trial Court can certainly

look into all these aspects. The trial Court has to go through the

material available on record to see if there is ground to proceed

against the accused officer. The accused officer is entitled to

show the source of income for illegal acquisition of

disproportionate assets in his name and his family members

during the trial. He may be able to show that disproportionate

assets are in his name and in the name of his family members or

not. There is no scope for interference of the proceedings of the

Calendar Case. Hence, the Criminal Petition lacks merit.

31. Accordingly, the Criminal Petition is dismissed. As a

sequel, interlocutory applications, pending if any in this case,

shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 09.11.2023 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

CRIMINAL PETITION No.1279 OF 2019

Date: 09.11.2023

siva