Karnataka High Court

State Of Karnataka By vs Dr V Chandrashekhar on 9 February, 2022

Bench: Sreenivas Harish Kumar

 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