Madras High Court

S.Thennarasu vs The State Rep. By on 9 January, 2023

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Dated: 09/01/2023

                                                            CORAM:

                                         THE HON'BLE MR JUSTICE G.ILANGOVAN

                                              Crl.OP(MD)No.22734 of 2022
                                                          and
                                              Crl.MP(MD)No.16092 of 2022

                 S.Thennarasu                                       : Petitioner/Accused
                                                              Vs.

                 1.The State rep. By
                   The Deputy Superintendent of Police,
                   Vigilance and Anti-Corruption,
                   Pudukottai District.         : 1st Respondent/Complainant

                 2.N.Prabhakaran                                  : 2nd Respondent/De-facto
                                                                                 Complainant

                                  Prayer: Criminal Original Petition is filed under
                 Section 482 of the Criminal Procedure Code, to call for the
                 entire records pertaining to the case in Special CC No.3 of
                 2022         on     the    file      of   the    Chief    Judicial     Magistrate,
                 Pudukottai           District     and      quash    the   same   as    against   the
                 petitioner and pass such any or other orders.


                                     For Petitioner              : Mr.R.Anand

                                     For 1st Respondent        : Mr.S.Ravi
                                                              Additional Public Prosecutor
                                     For 2nd Respondent          : No appearance


                                                           O R D E R

This criminal original petition has been filed

seeking in order to set aside the charge sheet filed in CC

No.3 of 2022 on the file of the Chief Judicial Magistrate,

Pudukottai District.

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2.The facts in brief:-

The petitioner is facing the charge for the offence

punishable under section 7 of the Prevention of Corruption

(Amendment) Act, 2018. As per the case of the prosecution,

on the basis of the complaint given by the de-facto

complainant, trap was laid. On the basis of the demand of

Rs.5,000/- as bribe for issuing “No Objection Certificate”,

trap was conducted, on 28/10/2020 and while allegedly

receiving the money, he was apprehended and after

completing the formalities of arrest, now the trial process

is underway.

3.Pending trial process, on going through the

evidence of PW1, it was noticed that sanction order was

granted under old Act. On that basis, this revision

petition has been filed by the petitioner seeking quashment

of the entire proceedings.

4.Heard both sides.

5.Now the grievance of the petitioner is that while

issuing sanction order, PW1 has not applied his mind in a

strict sense to the statute, which was in force on the date

of the alleged occurrence. So according to him, the

allegations that have been made against him attract the https://www.mhc.tn.gov.in/judis

offence under section 7(1) of the Prevention of Corruption

Act, 2018, but whereas without taking into account of the

above said development of law, PW1 has issued sanction

order as if it is the offence under section 7 of the

Prevention of Corruption Act, 1988.

6.According to the learned counsel appearing for

the petitioner, because of the defective sanction order, he

has been affected prejudicially. Had it been taken into

account the development of law and the consequential

amendment, PW1 would not have issued the sanction order. So

according to him, there is world of difference between

section 7 of the Prevention of Corruption Act, 1998 and

section 7 of the Present Act. If the prosecution is allowed

to be prosecuted on the defective sanction order, then his

case will be prejudiced.

7.Per contra, the learned Additional Public

Prosecutor would submit that it is a typographical error,

that was committed by PW1 at the time of issuing the

sanction order. As per section 19 of the Prevention of

Corruption Act, any defect or error in the sanction order,

that will not vitiate the proceedings, unless serious

prejudice has been alleged and proved. According to him,

this does not affect the prosecution case and will not

cause any prejudice to the defence also. https://www.mhc.tn.gov.in/judis

8.In reply to the above said argument, the learned

counsel appearing for the petitioner would rely upon

various judgments to bring home the point and what would be

the consequence of such defective sanction order.

9.For better appreciation of the issue involved in

this case, let us extract section 7 of the Prevention of

Corruption Act, 1988 and section 7 of the Prevention of

Corruption amended Act.

10.Section 7 of the Prevention of the Corruption

Act, 1988 reads as under:-

“7.Public servant taking

gratification other than legal remuneration

in respect of an official act.—Whoever,

being, or expecting to be a public servant,

accepts or obtains or agrees to accept or

attempts to obtain from any person, for

himself or for any other person, any

gratification whatever, other than legal

remuneration, as a motive or reward for

doing or forbearing to do any official act

or for showing or forbearing to show, in

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the exercise of his official functions,

favour or disfavour to any person or for

rendering or attempting to render any

service or disservice to any person, with

the Central Government or any State

Government or Parliament or the Legislature

of any State or with any local authority,

corporation or Government company referred

to in clause (c) of section 2, or with any

public servant, whether named or otherwise,

shall be punishable with imprisonment which

shall be not less than six months but which

may extend to five years and shall also be

liable to fine.

Explanation.-(a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

                                          (b)”Gratification”.            The       word
                                  “gratification”       is    not   restricted       to
                                  pecuniary        gratifications          or       to

gratifications estimable in money.

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(c)Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d)”A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e)Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.

11.Section 7 of the Prevention of Corruption

Amendment Act, 2018 reads as follows:-

                                             “7.Offence           relating        to      public
                                  servant    being          bribed.-Any      public     servant
                                  who,-

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(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c)performs or induces another public servant to perform improper or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1. For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

https://www.mhc.tn.gov.in/judis

Explanation 2.- For the purpose of this section.-

                                             (i)the     expression        “obtains”     or
                                  “accepts”    or     “attempts    to     obtain”     shall

cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant, or by any other corrupt or illegal means;

(ii)it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.

12.Let us appreciate the argument of the learned

counsel appearing on either side, in the light of the above

said amendment and in the light of the judgment cited.

13.First let us take the judgments cited by the

learned counsel appearing for the petitioner in a

chronological order.

1.In State of Goa Vs. Babu Thomas [(2005)8 SCC 130]. In that case, the

https://www.mhc.tn.gov.in/judis

sanction order was issued by the incompetent authority. So a fresh sanction order was ordered to be issued by the competent authority.

2.In State of Uttarakhand Vs. Yogendra Nath Arora and another [(2013)14 SCC 299]. It is also on the very same point with regard to the competency of the sanction order issuing authority with a direction to issue a sanction order by the competent authority, the above said matter has been discussed and decided.

3.In Nanjappa Vs. State of Karnatama [(2015)14 SCC 186]. In that case, it has been observed by the Hon'ble Supreme Court that when sanction order is issued by the competent authority and found to be defective, no acquittal is possible and fresh sanction order must be obtained.

                                            4.In        State          of         Mizoram        Vs.
                                  C.Sangnghina [(2019)13 SCC 335],                     the same

issue has been raised with regard to the sanction order by the incompetent authority and a fresh sanction order was ordered to be obtained.

14.In this case, we are dealing with the improper

issue of sanction order. As mentioned above, the grievance

of the petitioner is that PW1 has not considered the

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prosecution case in the light of the amended Act. so at

best, it can be termed only as 'improper sanction order'.

15.In the light of the evidence of PW1, I am of the

considered view that quashment of the entire proceedings is

not permissible in law. Because of the improper sanction

order, at best, PW1 can be directed to issue fresh sanction

order by taking into account all the relevant materials and