Karnataka High Court

Sri Anil Kumar B H vs The Lokayukta Police on 25 November, 2021

Author: M.Nagaprasanna

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF NOVEMBER, 2021       R
                           BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.24574 OF 2013 (GM- RES)

BETWEEN:

1.   SRI ANIL KUMAR B.H.,
     S/O SRI HANUMANTHA RAJU B.H.,
     AGED ABOUT 51 YEARS
     PRESENTLY WORKING AS PRINCIPAL SECRETARY
     MINORITIES DEVELOPMENT DEPARTMENT
     VIKASA SOUDHA
     BENGALURU - 560 001.

2.   SRI TANKASALI S.H.,
     S/O LATE HEMADREPPA
     AGED ABOUT 52 YEARS
     EX. GENERAL MANAGER (FINANCE)
     MYSORE PAPER MILLS
     R/O 536, SRI GURUKRUPA RESIDENCY
     2ND MAIN, 3RD BLOCK, RMV 2ND STAGE
     BENGALURU - 560 094.

3.   SRI LOKESH M.R.,
     S/O MARISUGUNAIAH
     AGED ABOUT 60 YEARS
     RETIRED GENERAL MANAGER (MKTNG)
     MYSORE PAPER MILLS
     R/O 11C, 14TH C CROSS
     1ST B MAIN, 16TH BLOCK
     SECTOR-6, HSR LAYOUT
     BENGALURU.
                                           ... PETITIONERS
(BY SRI VIJAYA KUMAR, ADVOCATE (VIDEO CONFERENCING))
                                2




AND:

1.     THE LOKAYUKTA POLICE
       SHIVAMOGGA - 577 201
       SHIVAMOGGA DISTRICT.

2.     SHIVAMURTHY C.S.,
       S/O SRI SHANTHAPPA
       AGED ABOUT 51 YEARS
       R/O 1/66, PAPER TOWN
       BHADRAVATHI - 577 302.
       SHIVAMOGGA DISTRICT
                                                  ... RESPONDENTS

(BY SRI VENKATESH S.ARABATTI, SPL. PP FOR R1 (PHYSICAL
    HEARING); R2 - SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C. PRAYING TO CALL FOR THE RECORDS RELATING TO ISSUE
OF THE IMPUGNED ORDER DATED 6.5.13 PASSED BY THE PRL.
DIST. SESSIONS AND SPECIAL JUDGE, SHIVAMOGGA IN CRIME
NO.2/13, [PCR NO.1/13] VIDE ANNX-A AND AFTER PERUSAL SET
ASIDE THE SAME; QUASH THE PROCEEDINGS IN PCR NO.1/13 ON
THE FILE OF THE PRL. DIST. SESSIONS AND SPECIAL JUDGE,
SHIVAMOGGA, SHIVAMOGGA DIST AND COMPLAINT NO.1/13 VIDE
ANNX-C.

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.10.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-


                              ORDER

The petitioners are before this Court calling in question the

order dated 06-05-2013, passed by the Principal District and

Sessions Judge and Special Judge, Shivamogga in Crime No.2 of

2013 (PCR No.1/2013), for offences punishable under Section

13(1)(d)(i)(ii)(iii) of the Prevention of Corruption Act, 1988 read

with Sections 166, 120(b), 403, 406, 409, 417, 420, 427 and

477(a) of the IPC.

2. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioners were Officers in different capacities in

Mysore Paper Mills ('the Company' for short), a State

Government undertaking. The 1st petitioner was working in the

Company for the period from 26-02-2009 to 27-05-2010 as its

Managing Director. The 2nd petitioner was working as General

Manger (Finance) from 15-10-2009 and has ceased to be an

officer of the Company on account of his resignation on

31-01-2011. The 3rd petitioner has retired from service on

attaining the age of superannuation on 31-01-2013.

3. In the year 2007 a report was placed before the 13th

Legislative Meeting in relation to the steps to be taken by the

Company for implementing a report dated 15-11-2007. The

report was made suggesting certain remedial measures to

improve efficiency of the Company. On 15-07-2009 the Company

framed guidelines accepting the said report. On 15-10-2009 the

Managing Director and Director (Finance) in terms of the

guidelines took a decision to extend the benefit of credit to one

M/s Victory Press Private Limited ('VPPL'). On 18-12-2009 it

appears that a decision was further taken by the Committee to

procure coal from Singareni coal fields by appointing liaisoning

official to overcome the shortage of coal and avoid stoppage of

production in the Company.

4. On 04-06-2011, it appears that the Director

(Operations) submits a preliminary investigation report with

regard to the decision taken by the Company for sale of paper to

VPPL being contrary to marketing policy approved by the Board

of the Company. On 9-12-2011 the Committee of Public

Undertaking submitted its report regarding performance of the

Company along with certain suggestions and placed the same

before the 13th Legislative Meeting. All the aforesaid actions had

a little background. VPPL was granted credit facility in order to

match the price of HPC Creamwove. The decision was taken by

the Managing Director and the Director (Finance) in view of

quantity of purchase to overcome competition. The said decision

is claimed to have been taken in the interest of the Company.

The Committee of Public Undertaking which submitted its report

relating to sale of paper to VPPL referred the matter to the

Director (Operations) to investigate and submit its report.

5. The Director (Operations) submitted its report on 4-06-

2011 observing that due to fluctuation in the price of news print

and fall in the price of the news print in International and

domestic market, the Company has taken a decision to supply

excess paper to VPPL by obtaining post-dated cheques as

security. The report itself indicated that that was in tune with

the guidelines of the marketing policy as approved by the

Company. Things being thus, the 2nd respondent, an employee of

the Company, files a private complaint against the petitioners

who were officers of the Company before the jurisdictional

Magistrate invoking Section 200 of the Cr.P.C. Pursuant to the

complaint, the criminal Court has referred the matter to the

Deputy Superintendent, Lokayukta Police to conduct

investigation and submit a report under Section 156(3) of the

Cr.P.C.. It is at that juncture, the petitioners knocked the doors

of this Court on the sole ground that the criminal Court could

not have directed investigation to be conducted by the

Lokayukta Police without prior sanction for such prosecution

under Section 197 of the Cr.P.C., as the petitioners were public

servants. This Court by order dated 20.6.2013 stayed all further

proceedings in Crime No.2 of 2013 in so far as it concerns the

petitioners. The same is in operation as on date and therefore,

further proceedings in Crime No.2 of 2013 have not gone on.

6. Heard Sri Vijaya Kumar, learned Advocate for the

petitioners and Sri Venkatesh S.Arabatti, learned Special Public

Prosecutor for Respondent No.1.

7. The learned counsel appearing for the petitioners would

contend that the petitioners being public servants no action for

prosecution could have been initiated without prior sanction

either under Section 19 of the Prevention of Corruption Act or

under Section 197 of the Cr.P.C. He would further contend that

it was a collective decision taken by the Committee in the

interest of the Company and the said decision is given a colour

of crime by an employee who registers a complaint without any

authority of law. Primarily the contention is with regard to

sanction not being accorded for registration of criminal case or

directing investigation under Section 156(3) of the Cr.P.C.

7.1. On the other hand, the learned counsel representing

the 1st respondent would contend that no sanction is required

for issue of direction to conduct investigation under Section

156(3) Cr.P.C. and the offences that are alleged against the

petitioners are not restricted to the provisions of the Prevention

of Corruption Act, but are for various other offences which

would not require any sanction as they are not the actions

performed by the petitioners in the course of their official duty.

8. I have given my anxious consideration to the

submissions made by the respective learned Advocates and

perused the material on record.

9. The only issue that falls for my consideration at this

juncture in these proceedings is whether the learned Sessions

Judge could have directed investigation under Section 156(3) of

the Cr.P.C. to be conducted by the Lokayukta Police without

sanction as mandated under Section 19(1) of the Prevention of

Corruption Act or under Section 197 of the Cr.P.C.

10. Facts afore-narrated, not being in dispute, are not

reiterated since the issue is only with regard to proceedings

without sanction or otherwise. Section 19(1) of the Prevention of

Corruption Act 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, 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;

(emphasis supplied)

Section 197 of the Cr.P.C. reads as follows:-

"197. Prosecution of Judges and public servants.--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence 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, of the Central 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, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.

Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be

specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and

may specify the Court before which the trial is to be held."

(emphasis supplied)

The date on which direction was given by the learned Sessions

Judge for investigation under Section 156(3) Cr.P.C. petitioner

Nos.1 and 2 were still public servants. The 3rd petitioner had by

then ceased to be a public servant on account of his retirement

on attaining the age of superannuation, but was a retired public

servant. Section 197 of the Cr.P.C. mandates that no Court

would take cognizance of an offence except with the previous

sanction of the Government for offences alleged against the

accused is said to have been committed by him or them while

acting or purporting to act in the discharge of his or their official

duty. Therefore, obtaining sanction is sine qua non of an act of

the learned Sessions Judge taking cognizance of the offence.

11. The issue now is, whether an order passed by the

learned Sessions Judge on 06.05.2013, whereby the learned

Sessions Judge refers the matter for investigation under Section

156(3) of the Cr.P.C. on the complaint requires previous sanction

or not as it is not an order that is taking cognizance? This issue

need not detain this Court for long or delve deep into the matter

as it is an admitted fact that there is no sanction accorded for

initiation of prosecution against the petitioners. The prosecution

emanated from a private complaint registered by one of the

employee of Company. In these circumstances the Apex Court

has in the judgment in ANIL KUMAR v. M.K AIYAPPA1, the facts

before the Apex Court are found at paragraph Nos.1, 2 and 4,

which read as follows:

"Leave granted. We are in this case concerned with the question whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 CrPC for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) CrPC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.

2. The appellants herein filed a private complaint under Section 200 CrPC before the Additional City Civil and Special Judge for Prevention of Corruption on 9-10- 2012. The complaint of the appellants was that the first respondent with mala fide intention passed an order

(2013) 10 SCC 705

dated 30-6-2012 in connivance with other officers and restored valuable land in favour of a private person. On a complaint being raised, the first respondent vide order dated 6-10-2012 recalled the earlier order. Alleging that the offence which led to issuance of the order dated 30- 6-2012 constituted ingredients contained under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120-B IPC and Section 149 IPC and Sections 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act, a private complaint was preferred under Section 200 CrPC.

... ... ... ...

4. Aggrieved by the said order, the first respondent herein approached the High Court of Karnataka by filing Writ Petitions Nos. 13779-80 of 2013. It was contended before the High Court that since the petitioner is a public servant, a complaint brought against him without being accompanied by a valid sanction order could not have been entertained by the Special Court on the allegations of offences punishable under the Prevention of Corruption Act. It was submitted that even though the power to order investigation under Section 156(3) can be exercised by a Magistrate or the Special Judge at pre-cognizance stage, yet, the governmental sanction cannot be dispensed with. It was also contended that the requirement of a sanction is the prerequisite even to present a private complaint in respect of a public servant concerning the alleged offence said to have been committed in discharge of his public duty."

(emphasis supplied)

The Apex Court was considering whether the Magistrate was

justified in referring the private complaint made under Section

200 of the Cr.P.C for investigation by the Deputy Superintendent

of Police, Karnataka Lokayukta in exercise of his powers under

Section 156(3) Cr.P.C. without production of valid sanction order

under Section 19 of the Act. The challenge as aforesaid, was

made before this Court. This Court accepted the plea of the

petitioner that without prior sanction investigation under

Section 156(3) could not have been ordered by the Magistrate.

The order of this Court is observed at paragraph 5 of the said

judgment and is as follows:

"5. The High Court, after hearing the parties, took the view [M.K. Aiyappa v. State of Karnataka, WP No. 13779 of 2013, order dated 21-5-2013 (KAR)] that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the petitioner (first respondent herein). Aggrieved by the same, as already stated, the complainants have come up with these appeals."

The Apex Court upholds the findings of this Court that without

valid sanction the Magistrate could not have ordered

investigation under Section 156(3). The Apex Court holds as

follows:

"15. The judgments referred to hereinabove clearly indicate that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC.

Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre- cognizance stage.

16. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the Magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under Section 190 CrPC or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) CrPC.

17. We may now examine whether, in the abovementioned legal situation, the requirement of sanction is a precondition for ordering investigation under Section 156(3) CrPC, even at a pre-cognizance stage.

18. Section 2(c) of the PC Act deals with the definition of the expression "public servant" and provides under clauses (viii) and (xii) as under:

"2. (c)(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

***

(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."

19. The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:

"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--

(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;

20. Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:

"19. (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 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)-(c)***"

21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that

there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372: (2009) 2 SCC (L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64: (2012) 1 SCC (Cri) 1041: (2012) 2 SCC (L&S) 666] cases.

22. Further, this Court in Army Head quarters v. CBI [(2012) 6 SCC 228: (2012) 3 SCC (Cri) 88] opined as follows: (SCC p. 261, paras 82-83)

"82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. ...

83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio...."

23. We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order [M.K. Aiyappa v. State of Karnataka, WP No.

13779 of 2013, order dated 21-5-2013 (KAR)] passed by the High Court. The appeals lack merit and are accordingly dismissed."

(emphasis supplied)

The facts obtaining in the case at hand are identical to the facts

that obtained in the case before the Apex Court (supra).

Therefore, the issue whether the learned Sessions Judge could

have ordered investigation in the case at hand in exercise of his

power under Section 156 of the Cr.P.C. stands covered on all its

fours in terms of the judgment in the case of ANIL KUMAR

(supra).

12. Subsequently, the Apex Court in the case of MANJU

SURANA v. SUNIL ARORA2, again considering the judgment of

Anil Kumar (supra) and other judgments refers the matter to a

Larger Bench for resolution of the issue as to whether sanction

is required when the Magistrate orders investigation under

Section 156(3), particularly when the offence is under the

(2018) 5 SCC 557

Prevention of Corruption Act. The Apex Court in the case of

MANJU SURANA, holds as follows:

           "30. In L.    Narayana    Swamy v. State     of
     Karnataka [L.      Narayana     Swamy v. State     of

Karnataka, (2016) 9 SCC 598: (2016) 3 SCC (Cri) 696: (2016) 2 SCC (L&S) 837] (two-Judge Bench), the judgment in Anil Kumar v. M.K. Aiyappa [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705: (2014) 1 SCC (Cri) 35] was followed. After discussing various other pronouncements, it was concluded that even while directing an inquiry under Section 156(3) CrPC, the Magistrate applies his judicial mind to the complaint and therefore, it would amount to taking cognizance of the matter.

... ... ... ...

32. We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench. There is no doubt that even at the stage of Section 156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow, were the Magistrate to act in a mechanical and mindless manner. That cannot be the test.

... ... ... ...

35. The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the PC Act offences read with CrPC is, thus, required to be settled by a larger Bench. The papers may be placed before the Hon'ble the Chief Justice of India for being placed before a Bench of appropriate strength.

(emphasis supplied)

At paragraph 32 the Apex Court does not hold that the judgment

in the case of ANIL KUMAR is per incuriam. In fact, the Apex

Court holds that it is not an acceptable proposition to contend

that there would be some consequence to follow and the

Magistrate cannot act in a mechanical and mindless manner

and there has to be application of mind by the Magistrate while

directing investigation under Section 156(3). It is after this the

Apex Court refers the matter to a Larger Bench. The Larger

Bench having seized of the matter is yet to conclude the

proceedings. Therefore, the contention of the learned counsel

appearing for the petitioners and the respondent that the issue

at hand will have to await the decision of the Larger Bench is

unacceptable more so in the light of the fact that the judgment

in the case of Anil Kumar is not held to be per incuraim or bad

in law.

13. It is apposite to refer to the judgment of the Apex Court

in the case of ASHOK SADARANGANI v. UNION OF INDIA3 -

(2012) 11 SCC 321

wherein the Apex Court holds that mere reference to a Larger

Bench would not mean that all other cases involving the same

would remain stayed till a decision is rendered in the reference.

Till such time as the decisions cited are not modified or altered,

they will continue to hold the field. The Apex Court holds as

follows:

"29. As was indicated in Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135], the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case [(2010) 15 SCC 118] need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field."

It is further apposite to refer to a Division Bench judgment of the

High Court of Kerala which answers the very issue of the Court

holding its hands in the light of the judgment in the case of

MANJU SURANA (supra) being referred to a Larger Bench, in the

case of MUHAMMED V.A. v. STATE OF KERALA4 -wherein it is

held as follows:

2019 Crl.L.J.1243

"13. As far as the cases on hand are concerned, what should be the method to be adopted until a final decision is taken in Manjju Surana (supra) requires to be addressed especially in the light of the detailed reference order in W.P.(C) No. 4389/14, which requires to be answered.

14.The Apex Court in Manjju Surana (supra) after having referred to the earlier three-Judge Bench judgments already referred above had further placing reliance on the judgments in Ramdev Food Products (P) Ltd. v. State of Gujarat ((2015) 6 SCC 439) : (AIR 2015 SC 1742); Suresh Chand Jain v. State of Madhya Pradesh ((2001) 2 SCC 628) : (AIR 2001 SC 571) and Mohammed Yousuf v. Afaq Jahan ((2006) 1 SCC 627) : (AIR 2006 SC 705) had observed that a situation may arise where a Magistrate may exercise his power u/s. 156(3) of Cr.P.C. in a routine manner resulting in an FIR being registered against a public servant, who may have no role in the allegation made. Therefore, in Manjju Surana (supra) itself, despite having taken note of the earlier three- Judge Bench judgments, the view expressed in Anil Kumar (2013 AIR SCW 5570) (supra) was not found to be per incuriam on account of other judgments which indicated that there should be application of mind by the Magistrate while exercising power u/s. 156(3) of Cr.P.C. and also the consequences for not exercising such power properly when a complaint is being filed against a public servant. It is in the said background the Apex Court in Manjju Surana (supra) observed that even at the stage of S.156(3), while directing an investigation, there has to be an application of mind by the Magistrate."

(emphasis supplied)

In the light of the judgment of the Apex Court in the cases of

ANIL KUMAR and MANJU SURANA and the interpretation of the

Apex Court as extracted hereinabove with regard to pendency of

the issue before the Larger Bench, the issue in the case at hand

would stand covered by the judgment in the case of Anil Kumar.

14. Insofar as the judgments relied on by the learned

counsel appearing for the respondent in the case of STATE OF

HIMACHAL PRADESH v. M.P. GUPTA5 -and in the case of

INSPECTOR OF POLICE v. BATTENAPATLA VENKATA

RATNAM6, to strengthen his submission that sanction is not

required in the case of offences not relatable to official duty in so

far as other offences with regard to the IPC. The said judgments

relied on would not be applicable to the facts of the case at hand

as, in my considered view, the offences alleged against the

petitioners emanate from a decision being taken in their official

capacity as Director, General Manager or Managing Director as

(2004) 2 SCC 349

(2015) 13 SCC 87

the case would be. The decision that is alleged is not rendered

outside the scope of official work. The narration in the complaint

is also one of, doing acts in abuse of official powers of a

Committee constituted in the Company. The offences under the

IPC alleged are to be read with the offences under the Prevention

of Corruption Act. Since they are intertwined it cannot be held

that sanction is not required as the allegations are for offences

punishable which are not in the course of official duty. The other

judgments with regard to the order of the Magistrate referring

the matter for investigation will have to bear application of mind

or otherwise, the same also stands covered by the judgment in

the case of ANIL KUMAR. These would be with regard to public

servants who are in office.

15. Insofar as public servants who have demitted office or

retired on attaining the age of superannuation, the said issue

also stands covered by the judgment of Apex Court in the case of

STATE OF PUNJAB v. LABH SINGH7 -wherein it is held as

follows:

"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9- 2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A.

Venkataraman v. State [S.A. Venkata-raman v. State, AIR 1958 SC 107: 1958 Cri LJ 254: 1958 SCR 1040] while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman [S.A. Venkataraman v. State, AIR 1958 SC 107: 1958 Cri LJ 254: 1958 SCR 1040] was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537: 1971 SCC (Cri) 143] and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411: 1998 SCC (Cri) 1455] and by the Constitution Bench of this Court in K. Veeraswami v. Union of India [K. Veeraswami v. Union of India, (1991) 3 SCC 655: 1991 SCC (Cri) 734] . The High Court was not therefore justified in setting aside the order passed by the Special

(2014) 16 SCC 807

Judge insofar as charge under the PC Act was concerned.

10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 CrPC is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13-9- 2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As laid down by this Court in State of H.P. v. Nishant Sareen [State of H.P. v. Nishant Sareen, (2010) 14 SCC 527: (2011) 3 SCC (Cri) 836] , the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material."

(emphasis supplied)

Therefore, none of the submissions made by the learned counsel

appearing for the respondent would merit consideration as all

contentions stand covered by the judgments referred to supra.

16. For the aforesaid reasons, I pass the following:

ORDER

(i) The Writ Petition is allowed.

(ii) The order dated 06-05-2013, passed by the Principal District and Sessions Judge and Special Judge, Shivamogga passed in Crime No.2/2013 (PCR No.1/2013) stands quashed and the matter is remitted back to the hands of learned Principal District and Sessions Judge, Shivamogga to continue the proceedings only after a valid sanction from the competent authority is placed before the Court.