Mahendra Kumar Dubey vs Economic Offence Wing Thr.
2021 Latest Caselaw 6947 MP

                                 1                    CRR.470.2021

               The High Court of Madhya Pradesh
                          CRR.470.2021
                     Mahendra Kumar Dubey
                                Vs.
               Economic Offence Wing, Unit: Gwalior
     thr. its Superintendent of Police, E.O.W. Gwalior (M.P.)

Gwalior dated 28.10.2021

       Shri Nipun Saxena, learned counsel for petitioner.

       Shri Naval Kishor Gupta, learned Special Public Prosecutor

for respondent/EOW.

Learned counsel for rival parties are heard.

1. Revisional powers of this Court u/S.397 r/w 401 Cr.P.C. are

invoked seeking quashment of order dated 29.01.2021 by which

learned Special Judge [Prevention of Corruption Act], Bhind

(M.P.) in Case No.01/2021 Special (E.O.W.) while declining to

accept the closure report submitted by the prosecution in

connection with offences punishable u/S.420 IPC and u/Ss.7,

13(1)(c)(d) & 13(2) of Prevention of Corruption Act ("PC Act" for

brevity), has taken cognizance of said offences against the

petitioner by holding that since the petitioner has superannuated

in 2016, the need to seek prior sanction of the Sanctioning

Authority u/S.19 of PC Act, gets obviated.

2. The challenge in this petition has though been made on

merits of the allegations in the charge-sheet qua offences

punishable u/S.420 IPC and the aforesaid provisions under the PC

Act, but learned counsel for petitioner has restricted his challenge

to the ground that the impugned order of taking cognizance is 2 CRR.470.2021

passed in violation of the amended provision of Section 19 PC

Act.

2.1 Learned counsel for petitioner primarily submits that after

the amendment in PC Act, in particular Sec.19 w.e.f. 26.07.2018,

the definition of "Public Servant" which in pre-amendment era

was restricted to the Public Servant in service has been widened to

include even retired public servant. In this background, it is urged

that if cognizance is to be taken under the amended provisions of

PC Act i.e. on or after 26.07.2018, qua a retired public servant,

grant of prior sanction for prosecution is mandatory

notwithstanding the offence having been committed in the pre-

amendment era. Learned counsel for petitioner in support of this

argument has relied upon the decision of Single Bench of

Allahabad High Court in the case of Dr. Anil Kumar Shukla @

A.K. Shukla Vs. Central Bureau of Investigation decided on

20.12.2019, relevant paras of which are reproduced below for

ready reference and convenience:

"13. As it is evident from the aforesaid provisions that before amendment there was no such mandatory provisions for taking previous sanction for prosecuting the Government Officials after his retirement for the offence which was alleged to be taken place during his official discharge of duty but in the amended provision of section 19 (1) (B) of P.C. Act, it clearly provides that in case of a person who is employed or as the case may be, was at the time of commission of alleged offence employed in connection with the affairs of State and is not removable from his office save by or with the 3 CRR.470.2021

sanction of the State Government, of that Government, the sanction is necessary and without previous sanction no court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 of the Act. As it is also relevant that after coming into existence of the amended provision of Section 19, the harassment of officials by filing of unnecessary complaint and asking for prosecution sanction is stopped by the Legislature. It is also relevant to mention here that the amended provisions came into existence on 26.07.2018 but the court below had taken cognizance on 30.08.2018. At the time of taking cognizance, the court below fails to consider the amended provisions which was applicable from the date of notification and the submissions of the learned A.S.G., that the charge-sheet was filed on 15.03.2018. Therefore, the amended provisions are not applicable in the case of applicant, is baseless.

14. It is also evident from the impugned order that the court below has wrongly applied the decision of Hon'ble Supreme Court given in the case of Omkar Dhanker Vs. State of Haryana reported in (2012) 11 SCC, page 252 that in the case of criminal breach of trust and conspiracy, sanction under Section 197 is not required and similarly the decisions of Hon'ble Supreme Court in the case of Prakesh Singh Badal Vs. State of Punjab reported in 2007, 1 SCC 1 is also not applicable in the present case. The court below had failed to consider the amended provision of Section 19 of Prevention of Corruption Act, 1988.

15. Thus, the applicant was working on the post of Chief Medical Officer, Raebareli, on the date of alleged commission of offence, he retired on 31.10.2012, the FIR was registered on 30.06.2016, the charge-sheet dated 15.03.2018 was filed by the Investigating Officer without 4 CRR.470.2021

obtaining sanction order from the employer, the court below had taken cognizance on 13.10.2018 without considering the amended provision of Section 19 (1) (a) of Prevention of Corruption Act, 1988 which came into force on 26.07.2018, it provides protection to the retired public servant also from unnecessary harassment by putting obligation on the prosecuting agency to prosecute him after proper sanction from its employer.

16. However, it is open to the prosecution to take appropriate action, in accordance with law.

17. In view of above, the application (u/s 482 Cr.P.C.) is allowed and the order dated 30.08.2018 along with entire proceeding of Special Case No.08 of 2018 arising out of Crime No.RC0062016A0018, Police Station C.B.I./A.C.B., Lucknow, is hereby quashed."

3. Per contra, learned counsel for the prosecution Shri Gupta

by relying upon the decision dated 21.09.2020 in WP.27734/2019

[Kavindra Kiyawat Vs. State of M.P., through Special Police

Department and Ors.] of this Court and also of a Single Bench

of Telangana High Court in the case of "Katti Nagaseshanna Vs.

State of Andhra Pradesh [by judgment dated 16-11-2018

passed in Cr. Petition No.9044 of 2018]" has submitted that the

PC Act was amended in 2018 with the intent of widening the net

to prevent wrongdoers from taking advantage of the loopholes

which existed in pre-amendment PC Act. It is urged by learned

counsel for prosecution that the offence in question was

committed in the pre-amendment era and therefore petitioner

cannot take advantage or derive any protection made available by 5 CRR.470.2021

amended PC Act after the commission of offence in question.

4. Pertinently, the offences in question were allegedly

committed in 2007-08, the FIR was lodged in 2013, whereafter

petitioner retired on attaining the age of superannuation in 2016

and the charge-sheet was filed in Jan. 2021 while the cognizance

was taken by the impugned order passed on 29.01.2021.

5. For proper adjudication of the issue raised and for analyzing

the rival submissions, it would be apt to reproduce the pre-

amended and amended Sec.19 of PC Act:

A. Pre-amended Sec.19 of PC Act :

"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 (1 of 2014)]--

(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.

(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 6 CRR.470.2021

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."

B. Amended Sec.19 of PC Act :

19. Previous sanction necessary for prosecution.-

7 CRR.470.2021

(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 8 CRR.470.2021

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 9 CRR.470.2021

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 reserved 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."

5.1 A bare scrutiny of Sec.19 PC Act before and after the 10 CRR.470.2021

amendment reveals that the obligation cast upon the Sanctioning

Authority in the pre-amended era was limited to the public servant

in service which has now been widened to include superannuated

public servants on the day when the cognizance is taken.

5.2 The aforesaid provision requiring sanction for prosecution

as a pre-condition for taking cognizance becomes applicable at the

point of time when competent court takes cognizance of the

offence and not from any prior or posterior stage. This dual

statutory obligation of the Sanctioning Authority to either grant or

decline sanction and of the trial court to take cognizance only on

grant of sanction is governed by the law applicable at the time of

taking cognizance of the offence. This view is explicit from plain

reading of language employed by Sec.19 (pre and post

amendment, both). This view is also compatible with the object

behind Sec.19 of PC Act. The object is to protect public servant

from malicious, false and motivated prosecution for acts during

discharge of official functions. Since the criminal misconduct

arises out of act committed during purported discharge of official

duty, the legislature in its wisdom has rightly incorporated Section

19 of PC Act to give primacy to the opinion of the Sanctioning

Authority of the accused for enabling the trial court to take

cognizance of the offence alleged. In offences of this nature where

demand/receipt of illegal gratification or amassing assets

disproportionate to the known source of income are alleged, the

Sanctioning Authority (employer) is the best judge about 11 CRR.470.2021

complicity of the accused. Thus, the intent and object behind

Sec.19 needs to be judged in the manner as explained above so as

to serve the purpose for which it is incorporated in the PC Act.

5.3 This issue appears to have been dealt with by the Single

Bench of Allahabad High Court in the case of Dr. Anil Kumar

Shukla @ A.K. Shukla (supra) as relied upon by learned counsel

for the petitioner which as per the website of the Allahabad High

Court and the Apex Court does not seem to have been disturbed

by any higher forum.

6. Learned counsel for prosecution has relied upon the order

dated 21.09.2020 in WP.27734/2019 [Kavindra Kiyawat Vs.

State of M.P., through Special Police Department and Ors.]

which was passed by Single Bench on being referred to it owing

to the difference of opinion between the Judges of Division Bench

in a case where challenge was made to the lodging of FIR on

various grounds including the ground that the same has been done

without seeking prior sanction for prosecution from the

Sanctioning Authority as per the amended provision of 17A of PC

Act.

7. Pertinently, the difference of opinion was in respect of the

ground that no prima facie offence is made out on reading the

allegations contained in the FIR but in regard to the aspect of

Section 17A of the amended PC Act being retrospective the

members of the Division Bench and the Single Bench were

unanimous. The relevant extract of the order dated 21.09.2020 in 12 CRR.470.2021

regard to findings rendered qua Section 17A of PC Act are

reproduced below for ready reference and convenience:

"17. As already pointed out that there is no difference of opinion, between the Hon'ble Judges on the question of maintainability of F.I.R. However, as the maintainability of F.I.R. in the light of Section 17-A of Prevention of Corruption Act, 1988 has been once again attacked by the Counsel for the respondent no.3, therefore, this Court apart from the reasoning which has already been given by my esteemed brothers in order dated 28-7-2020, would like to add certain more reasons to hold that the F.I.R. and the investigation is maintainable.

18. Section 17-A of Prevention of Corruption Act, 1988 reads as under :

17-A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.-- (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government

(b) in the case of a person who is or was employed, at the time when the offence was 13 CRR.470.2021

alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.

19. It is well settled principle of law that where the language of a Statute is plain and unambiguous, then the Court must give literal meaning to the words used in the statute.

20. The Supreme Court in the case of Nathi Devi Vs. Radha Devi Gupta, reported in (2005) 2 SCC 271 has held as under :

13. The interpretative function of the court is to discover the true legislative intent. It is trite that in interpreting a statute the court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When the language is plain and unambiguous and admits of only one meaning, no question of construction of 14 CRR.470.2021

statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.

14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. v. Dr. Vijay Anand Maharaj, Rananjaya Singh v. Baijnath Singh, Kanai Lal Sur v. Paramnidhi Sadhukhan, Nyadar Singh v. Union of India, J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P. and Ghanshyamdas v. CST.).

15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity.

21. From the plain reading of Section 17-A of 15 CRR.470.2021

Prevention of Corruption Act, 1988, it is clear that an officer can claim protection from "enquiry" or "investigation" only when he has made any "recommendation" or "decision". The general meaning of word "decision" means, the action or process of deciding something or resolving a question.

22. Thus, it can be said that a "decision" means an act by which an Executive or Authority decides to act in a particular manner in a given set of facts or problems. Therefore, in order to apply the provisions of Section 17- A of Prevention of Corruption Act, 1988, there must be "decision" or "recommendation" by an authority against which an enquiry or investigation is under contemplation.

23. Maintaining silence on a particular issue cannot be said to be a "recommendation" or "decision". Further, it is the defence of the petitioner himself, that he was not aware of the agreement which was executed between the State Govt. and M/s Yash Air Ltd. Thus, it is not the case of the petitioner, that he had taken any "decision" or made any "recommendation" in the matter.

24. Thus, in the present investigation, neither the "decision" nor "recommendation" of the petitioner is under scanner, therefore, in the considered opinion of this Court, the requirement of approval before "enquiry" or "investigation" as required under Section 17-A of Prevention of Corruption Act, would not apply.

In the case of Manoj Prasad Vs. CBI, the High Court of Delhi, by Judgment dated 11-1-2019 passed in W.P. (Cri) 3292/2018 has held as under :

36........ The bar to enquiry or investigation under Section 17A of the PC Acct is apropos such alleged offence as may be relatable to any recommendation made or decision taken by a 16 CRR.470.2021

public servant in discharge of his official functions or duties. In the present case, there is no recommendation or decision on record by a Public Servant in the discharge of his official functions.

........The purpose of Section 17A can be read to be only to provide protection to officers/public servants who discharge their official functions and/or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger. Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.

25. Further, the Telangana High Court in the case of Katti Nagaseshanna Vs. State of Andhra Pradesh by judgment dated 16-11-2018 passed in Cr.Petition No. 9044 of 2018 has held as under :

The facts of the case are distinguishable as the petitioner claiming immunity from the prosecution on the ground of failure to obtain sanction for prosecuting him taking advantage of explanation by Act 16 of 2018, which came into force with effect from 26.07.2018, but such amendment created/imposed new obligation or 17 CRR.470.2021

duty on the prosecution to obtain sanction to prosecute even retired government servant. Earlier sanction is required only to prosecute the public servant, and when a person (1966) 1 All ER 524 (1894) 1 QB 725 MSM,J Crl.P_9044_2018 retired from service, no sanction is required. 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, I find that such interpretation as sought for by the learned counsel for the petitioner is against the intendment of the Statute.

26. In the present case, the preliminary enquiry was already initiated in the year 2015 and was pending on the date when Section 17-A of Prevention of Corruption Act, 1988, came into force, accordingly, it is held that 18 CRR.470.2021

the benefit of Section 17-A of Prevention of Corruption Act, 1988 is not available to the petitioner."

7.1 Section 17A the newly inducted provision in the PC Act

with effect from 26.07.2018, in substance, purpose and intent is

pari materia to the provisions of Section 19 in the unamended and

amended PC Act. In the unamended PC Act, the concept of

sanction from the competent disciplinary authority of the accused

public servant was a pre-condition for taking cognizance of

offence by the Court; however, under the pre-amended PC Act

there was no such protection available to a public servant at the

time of registration of offence, which has now been made

available by way of Section 17A.

7.2 The aforesaid decision of the three Judges Bench in the case

of Kavindra (supra) which relates exclusively to the stage of

registration of offence holds that this protection of prior sanction

for prosecution is not available to a retired government servant,

owing to the offence in that case having been committed prior to

coming into effect Section 17A PC Act. Thus, this Court in the

case of Kavindra (supra) was not impressed with the argument

that for an offence committed prior to amendment in PC Act

sanction for prosecution is sine qua non for lodging FIR after the

amendment in PC Act.

8. In the backdrop of above discussion, this Court has no

manner of doubt that when the factual matrix attending the instant

case is tested on the anvil of the object behind Sec.19, as analyzed 19 CRR.470.2021

above, the learned Trial Court was obliged to first ensure grant of

sanction for prosecution by the sanctioning authority in respect of

petitioner before taking cognizance of the offence alleged. Not

having done so, the learned Trial Judge, in the humble opinion of

this Court, has acted against the object of Sec.19 PC Act.

9. However, this Court cannot pronounce judgment on the

basis of the above analysis and the view taken since a Larger

Bench of this Court has taken a contrary view in the case of

Kavindra (supra). In the said case of Kavindra (supra), the

challenge was to the FIR on merits and also on the question that

since the FIR was lodged subsequent to the amendment in PC Act

in 2018 it was obligatory on the part of the police to have obtained

sanction for prosecution from the sanctioning authority before

lodging the FIR notwithstanding the offence alleged therein being

of pre-amendment era. Pertinently, in the said case of Kavindra

(supra), there was difference of opinion between both the

members of Division Bench which led to the matter being referred

to Single Bench for final opinion. However, the members of the

Division Bench and as well as of the Single Judge Bench were of

the concurrent view that for lodging of an FIR against retired

public servant even after the amendment in 2018 in 19 PC Act. All

the judges of the Division Bench and also of the Single Bench

were of the view that looking to the ultimate object of the PC Act

i.e. curbing corruption, it was not appropriate to hold that even for

offences which had been committed prior to the amendment there 20 CRR.470.2021

is requirement of obtaining prior sanction for prosecuting retired

public servants by lodging of FIR posterior to the amendment.

The relevant extract of the said judgment of learned Single Judge

who gave deciding verdict is reproduced below:

"26. In the present case, the preliminary enquiry was already initiated in the year 2015 and was pending on the date when Section 17-A of Prevention of Corruption Act, 1988, came into force, accordingly, it is held that the benefit of Section 17-A of Prevention of Corruption Act, 1988 is not available to the petitioner."

10. In the conspectus of above discussion, this Court is of the

considered view that the date of commission of offence is not the

deciding factor but it is the date of taking cognizance of the

offence in question which decides the applicability of amended

Sec.19 PC Act. Thus, the Trial Court by taking cognizance of the

offence in question against petitioner without insisting for

sanction for prosecution from Sanctioning Authority has

committed illegality. However, this view of this Court gets

eclipsed by the findings rendered by Larger Bench in Kavindra

(supra) and therefore dissuading this court from taking a course

at variance to the view of Larger Bench in Kavindra (supra).

11. Consequently, the present petition stands dismissed sans

cost.

                                                             (Sheel Nagu)                   (Deepak Kumar Agarwal)
                                                                 Judge                               Judge
                                                              28.10.2021                           28.10.2021
                                    pd

PAWAN    Digitally signed by PAWAN DHARKAR
         DN: c=IN, o=HIGH COURT OF MADHYA

PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,

DHARKA postalCode=474001, st=Madhya Pradesh, 2.5.4.20=5da1b3ce5c6aee672b1f51a5cff5661c 113046ab7ebb8031c36dcac4472c040a, pseudonym=22FE9CB9F7CF0345E7FFAC9031E 38DF6A29B4C10,

R serialNumber=C72B9531562BC6028F5D6E42E 82477C85878470B30E4A7672CCA523E83C0BC B9, cn=PAWAN DHARKAR Date: 2021.10.28 19:00:00 +05'30'