Telangana High Court

V.D. Rajagopal vs The State Of Telangana, on 21 October, 2022

Bench: Ujjal Bhuyan

     THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN

             CRIMINAL PETITION No.258 OF 2021

ORDER:

Heard Ms. Jayasree Narasimhan, learned counsel

representing Mr. Dilip Kumar, learned counsel for the

petitioner and Mr. K.Surender, learned Special Public

Prosecutor for Central Bureau of Investigation (CBI) (as his

Lordship then was).

2. This petition has been filed under Section 482 of the

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

proceedings in C.C.No.26 of 2013 pending on the file of

Principal Special Judge for CBI Cases, Nampally, Hyderabad

(briefly, 'the CBI Court' hereinafter) qua the petitioner Sri

V.D.Rajagopal who has been arrayed as accused No.16 as well

as to set aside the order dated 10.01.2020 passed by the CBI

Court whereby the CBI Court took cognizance of the offence

against the petitioner as accused No.16 under Section 120B

read with Section 420 and Section 409 of the Indian Penal

Code, 1860 (IPC) and under Section 13(2) read with Section

13(1)(d) of the Prevention of Corruption Act, 1988 (briefly, 'the

PC Act' hereinafter).

3. The aforesaid prayer has been made on the ground that

sanction for prosecution has not been obtained from the

appropriate government against the petitioner, more

particularly in the context of the Prevention of Corruption

(Amendment) Act, 2018.

4. Petitioner in this case is Sri V.D.Rajagopal who is a

retired Government servant of the Government of Andhra

Pradesh belonging to the Indian Administrative Service (IAS).

At the relevant point of time, he was serving as the Director of

Mines and Geology, Government of Andhra Pradesh.

5. One P.Shankar Rao, former M.L.A., and late Yerran

Naidu, former M.P., had filed W.P.Nos.794 and 6604 of 2011

respectively before the then High Court for the composite

State of Andhra Pradesh alleging corruption against late

Y.S.Rajasekhara Reddy, former Chief Minister of Andhra

Pradesh, his son Sri Y.S.Jagan Mohan Reddy and others and

sought for investigation into such allegations of corruption by

the CBI. By the order dated 10.08.2011, the erstwhile High

Court of Andhra Pradesh directed CBI to investigate the

allegations. Following the High Court order, CBI, Anti

Corruption Bureau (ACB), Hyderabad registered a case on

17.08.2011 being R.C.19(A)/2011-CBI-HYD against seventy

four accused persons under various provisions of the IPC,

such as, Section 120B read with Section 420 and Section

477A and also under the provisions of Sections 6, 12, 13(2)

read with Section 13(1)(c) and (d) of the PC Act.

6. In the above F.I.R. petitioner was not arrayed as an

accused person.

7. After conducting investigation, CBI filed charge sheet on

10.09.2013 in final report form being charge sheet No.14. In

this charge sheet, as many as nine persons were named as

accused including Sri Y.S.Jagan Mohan Reddy as accused

No.1 but petitioner was not named as an accused. CBI Court

registered the said charge sheet as C.C.No.26 of 2013.

8. Thereafter, CBI submitted supplementary charge sheet

in final report form being charge sheet No.9 dated

21.07.2016, wherein seven more persons were named as

accused Nos.10 to 16. It is in this supplementary charge

sheet that the petitioner was named as accused No.16.

Petitioner was charged under Section 120B read with Section

420 IPC and Section 13(2) read with Section 13(1)(d) of the PC

Act.

9. Allegation against the petitioner in the supplementary

charge sheet was that petitioner as the Director of Mines and

Geology had initiated the proposal recommending grant of

prospecting licence for limestone over an extent of 304.740

hectares in Kurnool District in favour of M/s.Penna Cement

Industries Limited. The allegation is that petitioner had not

followed the prescribed norms and by abusing his official

position had extended the said benefit. Petitioner in

furtherance of criminal conspiracy in facilitating the

companies owned by Sri P.Pratap Reddy, accused No.3, had

given his recommendation for grant of prospecting licence and

renewal of mining lease. Companies owned by Sri P.Pratap

Reddy for the undue benefits obtained, made investments in

companies owned by Sri Y.S.Jagan Mohan Reddy as a quid

pro quo. Therefore, petitioner had committed the offence of

criminal conspiracy, cheating and criminal breach of trust

punishable under Section 120B read with Section 420 IPC

and under Section 13(2) read with Section 13(1)(d) of the PC

Act.

10. CBI submitted that sanction for prosecution in respect

of the petitioner was not required since petitioner was no

longer a public servant as he had superannuated in the

meanwhile.

11. The supplementary charge sheet came up for hearing

before the CBI Court on 03.01.2020. Since objections were

raised as to filing of the supplementary charge sheet, the

matter was heard by the CBI Court. By the order dated

10.01.2020 CBI Court took the supplementary charge sheet

on file and further took cognizance of the offence against the

seven accused persons mentioned in the supplementary

charge sheet, including petitioner as accused No.16. CBI

Court held that roles played by the additional accused

persons including the petitioner were brought on record and

highlighted by the CBI not only in this supplementary charge

sheet but also in the original charge sheet. CBI had collected

new documents during the course of further investigation

which went to show that prima facie case is made out against

the accused persons to take cognizance against each of them

which does not amount to reviewing the original charge sheet.

In so far petitioner is concerned, CBI Court held that

petitioner was no longer a public servant. Therefore, sanction

for prosecuting petitioner is not required.

12. Aggrieved by the same, present criminal petition has

been filed seeking the reliefs as indicated above.

13. As already noted above, the challenge has been made on

the ground that no previous sanction was obtained from the

appropriate government/competent authority to prosecute the

petitioner. The Prevention of Corruption (Amendment) Act,

2018 mandates that prior to initiation of prosecution for

offences punishable under Sections 7, 11, 13 and 15 of the

PC Act, previous sanction of the appropriate government or

the competent authority is necessary which is absent in the

instant case. In the absence of previous sanction, there can

be no prosecution.

14. Respondent has filed counter affidavit objecting to the

contentions raised by the petitioner and has sought for

dismissal of the criminal petition. Order dated 10.01.2020

passed by the CBI Court has been justified as it is contended

that the said order is a well reasoned and speaking order.

Thereafter, the affidavit discloses the contours of the charges

against the petitioner in the backdrop of facts which emerged

during the course of investigation and further investigation

leading to filing of supplementary charge sheet after filing of

the original charge sheet. Materials on record clearly discloses

involvement of the petitioner who was part of the decision

making process and had acted in furtherance of the criminal

conspiracy by abusing his official position as the Director of

Mines and Geology. The materials on record are sufficient to

proceed against the petitioner and other accused public

servants for offences under Section 120B, 409 and 420 IPC

and under Section 13(2) read with Section 13(1)(d) of the PC

Act. It is stated that since the petitioner had retired from

service at the time of filing of supplementary charge sheet,

sanction for prosecution was not required as per Section 19 of

the PC Act. That apart, the Prevention of Corruption

(Amendment) Act, 2018 (briefly, 'the Amendment Act'

hereinafter) came into effect from 16.07.2018, whereas the

supplementary charge sheet was filed much prior thereto i.e.,

on 21.07.2016. Therefore, the Amendment Act would not be

applicable to the facts of the case. This has rightly been

interpreted by the CBI Court in the order dated 10.01.2020.

14.1. It is further stated that petitioner is an accused being

accused No.5 in C.C.No.25 of 2013. He had filed criminal

petition No.6398 of 2016. Likewise, being accused No.3 in

C.C.No.1 of 2012, he had also filed criminal petition No.6399

of 2016 for quashing the proceedings in C.C.No.1 of 2012.

Both the two criminal petitions were dismissed by the

common order dated 16.11.2018 holding that such amended

provision cannot be given retrospective effect and has to be

given prospective effect. Against the dismissal of his criminal

petitions, petitioner has preferred S.L.P (Criminal) No.2194 of

2019 which is pending before the Supreme Court but there is

no stay. In the circumstances, respondent seeks dismissal of

the criminal petition.

15. Learned counsel for the petitioner submits that when

CBI registered the F.I.R on 17.08.2011 on the basis of the

High Court judgment dated 10.08.2011 a list of seventy four

accused persons were mentioned. However, petitioner was not

named as an accused. There is no allegation against the

petitioner in the F.I.R. and therefore his name did not figure

as an accused in the F.I.R. After conclusion of investigation,

when CBI filed the charge sheet being charge sheet No.14

dated 10.09.2013, a total of nine persons were named as

accused. In this charge sheet also, name of the petitioner did

not figure as an accused. In fact, there were no allegations

against the petitioner in the charge sheet. It was only when

supplementary charge sheet was filed being charge sheet No.9

dated 21.07.2016 that petitioner came to be arrayed as

accused No.16. Learned counsel for the petitioner submits

that petitioner as a government servant being the Director of

Mines and Geology had discharged his duties following all

governmental norms. No wrong doing could be attributed to

the petitioner. Therefore, CBI was not at all justified in

arraying the petitioner as accused No.16.

15.1. However, the principal ground on which petitioner seeks

quashing of the charge sheet and the cognizance order is that

no sanction was sought for or obtained by CBI from the

appropriate government for prosecution of the petitioner. On

the point of sanction, learned counsel for the petitioner has

particularly relied upon and laid great emphasis on the

Amendment Act. Learned counsel submits that the

supplementary charge sheet was filed on 21.07.2016 whereas

the Amendment Act came into effect from 26.07.2018.

Learned counsel submits that under Section 19 of the PC Act

as amended by the Amendment Act, CBI Court could not have

taken cognizance of the alleged offence under Section 13 of

the PC Act without obtaining previous sanction of appropriate

government. He submits that the Amendment Act is

procedural in nature and being procedural, it would have

retrospective effect. Therefore, the fact that petitioner had

retired from service though the alleged offence was committed

when he was in service, would be no ground to justify failure

to obtain sanction from the appropriate government under

Section 19 of the PC Act as amended. As such, in the absence

of such sanction, there can be no prosecution of the

petitioner.

15.2. Learned counsel has referred to relevant portion of the

supplementary charge sheet as well as the order of the CBI

Court dated 10.01.2020 and submits that the view taken by

the prosecution as well as by the CBI Court that since

petitioner is no longer a public servant, sanction for

prosecution is not required; that the amendment came into

effect from 26.07.2018 whereas the supplementary charge

sheet was filed on 21.07.2016 prior to the amendment of the

PC Act, hence the Amendment Act would not be applicable, is

totally erroneous and liable to be interfered with by the Court.

Learned counsel submits that Section 19 pertains to

procedure and thus is a procedural law. It is settled

proposition that any amendment carried out in respect of

procedural law is retrospective in nature. Even though the

offences alleged to have been committed by the petitioner

were prior to 26.07.2018 (when the Amendment Act came into

effect), the cognizance of which was taken subsequently

would be covered by the Amendment Act. Thus, sanction for

prosecution of a government servant who is serving or who

had superannuated would be covered under Section 19 of the

PC Act. Since the offences alleged to have been committed

under Section 13 of the PC Act, sanction for prosecution

under Section 19 is mandatory. Without such sanction, the

trial Court would have no jurisdiction to try the petitioner.

15.3. Learned counsel for the petitioner has submitted a

compilation of judgments covering the aspects of sanction for

prosecution as well as the power of the Court to quash

criminal proceedings under Section 482 of Cr.P.C. He has

particularly referred to and relied upon the decisions of the

Supreme Court in R.S.Nayak v. A.R.Antulay1 and L.Narayana

Swamy v. State of Karnataka2.

16. Per contra, learned Special Public Prosecutor for CBI has

referred to the counter affidavit and submits therefrom that

identical ground was raised by the petitioner before this Court

(1984) 2 SCC 183

(2016) 9 SCC 598

in criminal petition Nos.6398 and 6399 of 2016

(V.D.Rajagopal v. State of Telangana). Criminal petition

No.6398 of 2016 was filed by the petitioner under Section 482

of Cr.P.C to quash the proceedings in C.C.No.25 of 2013 on

the file of the CBI Court where the petitioner was arrayed as

accused No.5 for commission of offences punishable under

Section 120B and 420 IPC and under Section 13(2) and

13(1)(d) of the PC Act. Likewise, petitioner had filed criminal

petition No.6399 of 2016 under Section 482 Cr.P.C to quash

proceedings in C.C.No.1 of 2012 on the file of CBI Court

where petitioner was arrayed as accused No.3 for offences

punishable under Sections 120B, 379, 409, 411, 420, 427,

447 and 468 of IPC and under Section 13(2) read with Section

13(1)(d) of the PC Act.

16.1. In both the criminal petitions, identical ground was

urged for quashing. Both the criminal petitions were however

dismissed by a common judgment and order dated

16.11.2018 which has since been reported in 2019 (2) ALD (Crl)

836. Though petitioner has filed S.L.P before the Supreme

Court which is pending, no stay has been granted by the

Supreme Court. Learned counsel further submits that no new

or additional ground has been urged by the petitioner. All the

grounds urged in the present petition have been answered in

the aforesaid decision. That being the position, the present

criminal petition is liable to be dismissed.

17. Submissions made by learned counsel for the parties

have received the due consideration of the Court.

18. Since it is submitted that identical challenge made by

the petitioner in criminal petition Nos.6398 and 6399 of 2016

was rejected by this Court by a reasoned order dated

16.11.2018, it would be apposite to deal with the same. The

contentions urged on behalf of the petitioner were summed up

by the Court in the following manner:

It is the contention of the petitioner that he joined as Director of Mines and Geology on 01.08.2005. The department consists of 32 district/ sub district level offices headed by Asst. Director of Mines and Geology, 8 sub-regional level offices headed by Deputy Director of Mines and Geology and 4 regional level offices headed by Joint Director of Mines and Geology and 12 offices of Asst. Director of Mines and Geology vigilance. As per the powers delegated to various level officers the district/ sub-district level officers are responsible for day to day

mineral regulatory activities in the district and entrusted with powers to issue permits and collect royalties. They are also entrusted with the powers to prosecute the offenders involved in the illegal mining activity. In this case Assistant Director of Mines and Geology, Anantapur is the officer in-charge to regulate the activity. As the head of the department the role of Petitioner/Accused is overall supervision of the entire department and authority to grant lease for minor minerals in respect of granite/marble and forwarding of the proposals received from the district/regional level officers for grant of mineral concessions to the state government, besides attending to number of state level meetings, reviews conducted by the State Government. Therefore, the petitioner is not vested with any power to grant mining lease, but the Assistant Director alone is responsible to regulate the mining operations.

Though the petitioner raised several grounds, in view of the limited submissions made by Sri Dilip Kumar, learned counsel for the petitioner, I feel that the grounds urged in the argument alone are relevant to decide the present issue in both the petitions.

The first and foremost ground urged by the learned counsel for the petitioner is that the petitioner is Public Servant as defined under Section 2 (c) of P.C.Act and under Section 21 of I.P.C., but no sanction was obtained as required under Section 197 of Cr.P.C. Therefore, taking cognizance against the petitioner for various offences referred supra without obtaining prior sanction under Section 197 of Cr.P.C. is serious illegality, which vitiates the entire proceedings. The allegation made against the petitioner is that he exercised such power or

indulged in criminal conspiracy or cheating in connection with discharge of his official duties, therefore, sanction is required, which is precondition to take cognizance of offences against the petitioner.

The second ground urged before this Court is that the petitioner is a public servant as defined under Section 2 (c) of P.C. Act, sanction is required under Section 19 of P.C.Act to take cognizance against the petitioner for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of P.C.Act. Therefore, without sanction as required under Section 19 of P.C. Act, taking cognizance against the petitioner for the offence under Section 13 (2) read with Section 13 (1) (d) of P.C.Act is a serious illegality. Therefore, prosecution against the petitioner is vitiated by illegality and liable to be quashed.

18.1. Additionally in the hearing, learned counsel appearing

for the petitioner further contended that the benefit of the

Amendment Act which came into force with effect from

26.07.2018 would be available to the petitioner. Therefore, it

was contended that sanction of the appropriate government

would be required even to prosecute a retired public servant.

The above submissions were recorded by the Court as under:

During hearing, Sri Dilip Kumar, appearing for Sri V.L.Surendra, learned counsel for the petitioner, advanced new ground i.e. that the petitioner is entitled to claim benefit of amended provisions of P.C.Act by Act 16 of 2018, which came into force with effect from

26.07.2018. According to explanation added to Section 19 by virtue of the amendment, sanction is required to prosecute the officer as defined under Section 2 (c) of P.C. Act even after retirement. Thus, sanction is required even to prosecute retired public servant and obtaining sanction is a procedure to be followed by the Government to prosecute the Government Servant. The main endeavour of the learned counsel for the petitioner is that when amendment was made to penal law, more particularly the provision dealing with procedural aspect, it has to be given retrospective effect, thereby the petitioner is entitled to claim benefit of explanation to sub-section (1) of Section 19 of P.C. Act as amended by the Act 16 of 2018, thereby the prosecution of the petitioner for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of P.C. Act is liable to be quashed against the petitioner.

It is also contended that the alleged acts of the petitioner are connected to discharge of his official duties and he is a public servant as defined under Section 2 (c) of the P.C. Act and in the absence of any sanction from competent authority as required under Section 19 of the P.C. Act taking cognizance against the petitioner for the offences punishable under IPC is a serious illegality, therefore, the order taking cognizance for various offences under I.P.C. vitiates the entire proceedings against the petitioner, on this ground also the proceedings against the petitioner are liable to be quashed.

18.2. This was contested by learned Special Public Prosecutor

for CBI who had submitted that though the Amendment Act

was a procedural one when no obligation was cast upon the

investigation agency by the date of filing of charge sheet to

obtain sanction from the competent authority, the law

amended after five years from the date of filing of the charge

sheet could not be applied retrospectively. The clock could not

be set back. New obligation imposed by the amended law

could not be given retrospective effect. Legislative intent was

not to defeat all pending prosecutions against retired public

servants under the PC Act. It is only to protect them from

illegal prosecution from the date of such amendment.

Therefore, the Amendment Act could not have given

retrospective effect to quash the proceedings against the

petitioner.

18.3. On the basis of the rival submissions, learned Judge

framed questions for consideration, two of which are relevant

for our present deliberation, which are reproduced below:

(1) Whether failure to obtain sanction under Section 197 of Cr.P.C. to prosecute the petitioner for the offences punishable under the provisions of Indian Penal Code is sufficient to quash the proceedings against the petitioner?

(2) Whether explanation to sub-section (1) of Section 19 of Prevention of Corruption Act by Act 16 of 2018, which came into force on 26.07.2018 be given retrospective effect, if so, whether the investigating agency is obligated with the duty to obtain sanction under Section 19 of Prevention of Corruption Act after retirement and failure to do so is sufficient to quash the proceedings against the petitioner for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of P.C.Act?

18.4. On question No.1, learned Judge noted that petitioner

was an IAS Officer and at the relevant time was working as

Director of Mines and Geology. In that capacity he was

charged with committing offences under Sections 120B and

420 IPC and under Section 13(2) read with Section 13(1)(d) of

the PC Act in C.C.No.25 of 2013 and under Sections 120B,

379, 409, 411, 420, 427, 447 and 468 IPC and under Section

13(2) read with Section 13(1)(d) of the PC Act in C.C.No.1 of

24. Thereafter, learned Judge examined the provision of

Section 21 of IPC which defines the word "public servant" as

well as Section 197 of Cr.P.C, the object and purpose of which

is to afford protection to public servants against frivolous,

vexatious or false prosecution for offences alleged to have

been committed by them while acting or purporting to act in

the discharge of their official duty. Learned Judge examined

and analysed various decisions of the Supreme Court on the

scope of Section 197 of Cr.P.C and culled out following

principles therefrom:

1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner.

3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection Under Section 197 Code of Criminal Procedure There cannot be a universal Rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary Under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the

provisions of Section 197 Code of Criminal Procedure would apply.

5. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.

6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.

7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.

9. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the

defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.

18.5. Learned Judge concluded that on the ground of want of

sanction under Section 197 of Cr.P.C, without establishing

the nexus between the act or omission done by the petitioner

and the duty purported to be discharged by the petitioner as a

public servant, it would be difficult to quash the criminal

proceedings. Accordingly, question No.1 was answered in

favour of the prosecution and against the petitioner.

19. What is, however, more relevant for the present

deliberation is the discussion and finding given by the learned

Judge on question No.2. Question No.2 was analysed by the

learned Judge in the following manner:

The core issue before this Court is that in view of the explanation added to Section 19 (1) of P.C. Act by amended Act 16 of 2018 with effect from 26.07.2018, the petitioner was a public servant as defined under Section 2 (c) of P.C. Act is entitled to protection akin to Section 197 of Cr.P.C. Though, the petitioner retired from service, taking cognizance against the petitioner for various offences, he is entitled to benefit of explanation to Section 19 (1) of P.C. Act and the Section 19 is though part of penal legislation i.e. P.C. Act, it purely deals with procedural aspect and the amended procedural law must

be given retrospective effect. Learned counsel for the petitioner, in support of his contentions, placed reliance on umpteen number of decisions, which will be referred at appropriate stage.

19.1. Learned Judge minutely examined the above provisions

as under:

The amended provisions of P.C. Act, 1988 came into force with effect from 26.07.2018 vide Notification No.S.O.3664 (E) dated 26.07.2018. Therefore, on the face of the notification, the amended provisions will have prospective effect, but based on the date of commencement of the Act, the Court cannot conclude that the amended provisions will have prospective operation. The prime contention of the counsel for the petitioner is that when a provision dealing with procedure is amended, it must be given retrospective effect and if the explanation to Section 19 (1) of P.C. Act is given retrospective effect, to prosecute the petitioner, who retired from service on the date of filing charge sheet, sanction is mandatory and in the absence of sanction, the proceedings against the petitioner for the offences punishable under P.C. Act are liable to be quashed.

Learned counsel for the petitioner relied on the judgment of Apex Court rendered in State of Punjab v. Mohar Singh3 wherein the Apex Court had an occasion to deal with application of principle of repeal and held that whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a

(1955) CriLJ 254

different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. "The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them." The Court cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material.

19.2. Thereafter, learned Judge extracted Section 19(1) of the

PC Act, both prior to the Amendment Act and post the

Amendment Act and made a comparative analysis of the

same. Since it is relevant, the same is extracted hereunder:

In view of the law declared by the Apex Court in the said judgment, it is apposite to extract the Section 19 (1) of P.C. Act prior to amendment and after amendment, and extracted hereunder.

Section 19 (1) of P.C. Act prior to Section 19 (1) of P.C. Act after to amendment amendment by Act 16 of 2018.

19. Previous sanction necessary for Section 19 : Previous sanction prosecution necessary for prosecution (1) No court shall take cognizance of (1) No court shall take cognizance of an an offence punishable under section 7, offence punishable under [sections 7, 10, 11, 13 and 15 alleged to have been 11, 13 and 15] alleged to have been committed by a public servant, except committed by a public servant, except with the previous sanction,- with the previous sanction [save as

(a) in the case of a person who is otherwise provided in the Lokpal and employed in connection with the Lokayuktas Act, 2013],-- affairs of the Union and is not (a) in the case of a person [who is removable from his office save by or employed, or as the case may be, was with the sanction of the Central at the time of commission of the alleged Government, of that Government; offence employed] in connection with

(b) in the case of a person who is the affairs of the Union and is not employed in connection with the removable from his office save by or affairs of a State and is not removable with the sanction of the Central from his office save by or with the Government, of that Government; sanction of the State Government, of (b) in the case of a person [who is that Government; employed, or as the case may be, was

(c) in the case of any other person, of at the time of commission of the alleged the authority competent to remove him offence employed] in connection with from his office. 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;

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

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

(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2

of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:

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

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

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

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

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

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

(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.]

The sentences referred in bold italics in column No.2 of the above table indicate the amended provision introduced by the Amendment Act.

19.3. Thereafter, learned Judge proceeded to examine and

answer question No.2 as under:

Here, on account of amendment to Section 19 (1) of the P.C. Act, new duty is cast upon the prosecution to obtain sanction to prosecute retired Government Servant and a disability attached to the prosecution to prosecute the petitioner, who has retired from service, such law has to be treated as prospective unless the legislative intention is clear to give enactment a retrospective effect. The amendment by Act 16 of 2018, which came into force with effect from 26.07.2018 would not give retrospective effect in clear terms. On account of judicial interpretation, the petitioner is claiming that he is entitled to the benefit of amended provision, but in view of new obligation or duty imposed by amended Act, for the acts done long ago, such amendment cannot be given retrospective effect and it has to be given prospective effect only, though, the amendment is declaratory/ explanatory one.

In Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited4, the Apex Court held as follows:

Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as

(2015) 1 SCC 1

clarificatory or declaratory in nature. Such statutory provisions are labeled as "declaratory statutes". The circumstances under which a provision can be termed as "declaratory statutes" is explained by Justice G.P. Singh in the following manner:

Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by the Supreme Court: "For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word 'declared' as well as the word 'enacted'. But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective

operation is generally intended. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.

xx xx xx xx

No doubt, the intention of the legislature is to provide necessary protection to the officers to discharge their duties without fear or favour being the public servants. As per the law declared by the Apex Court in the judgments referred supra, even after retirement they are entitled to claim such protection in view of the addition of explanation to Section 19 (1) of the P.C. Act. If language used in explanation to Section 19 (1) of the P.C.

Act is unambiguous, the intent of the legislature is to provide protection to the retired employees. Basing on the protective shield provided to retired Government employees, who ceased to be public servants as on the date of taking cognizance, the petitioner is claiming protection that unless sanction was obtained, the petitioner cannot be prosecuted for the offence. The law referred above is in his favour to some extent since Section 19 (1) of the P.C. Act deals with procedure to

prosecute the Government Servant for various offences under the P.C. Act.

In the present facts of the case, the offence was allegedly committed in 2011 i.e. long prior to amendment of the P.C. Act. But because of the additions, the petitioner wanted to take advantage of situation in view of amendment of Section 19 (1) of the P.C. Act and contending that in the absence of any sanction as required under Section 19 (1) of the P.C. Act as amended by Act 16 of 2018, the prosecution shall not be continued against him. Directly, it amounts to setting clock back to the date prior to taking cognizance, but such procedure which creates or imposes new obligation or duty on either of the parties to the criminal proceedings can be given retrospective effect is a question required to be considered by this Court.

xx xx xx xx

Turning to the facts of the present case, the respondent's contention is that on account of amendment by Act 16 of 2018, a new obligation or duty was imposed on the prosecution to obtain sanction even after retirement of the petitioner from service as a public servant. It is not the intention of the legislation to defeat all prosecutions pending against the retired Government servants. The Act itself is clear that it was not intended to defeat all pending prosecutions against retired Government servants on account of such imposition of new obligation or duty upon the prosecution.

As the Act is enacted as a measure conceived in public interest, it should be construed so as to bring about the desired object to prevent corruption among

public servants and to prevent harassment of honest among them. "The preamble indicates that the Act was passed as it was expedient to make more effective provisions for the prevention of bribery and Corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is form of corruption. The fact that in addition to the word "Bribery" 'the word "corruption" is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre--existing offences and enacts a rebuttable presumption contrary to the well known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, i.e. to prevent corruption among public servants and to prevent harassment of the honest among them. A decision of the Judicial Committee in

Dyke v. Elliott, The Gauntlet (1872-4 A.C. 184) cited by the Learned Counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at page 191 as follows:

No-doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." (Vide M.Narayanan Nambiar v. State of Kerala5) The legislature intended to provide such protection to the officer, who ceased to be the Government Servant after commission of offence or on the date of taking cognizance as contended by the learned counsel for the petitioner, but the same is not intended to give any undue benefit to the person who committed such offence since bribery became a menace to the society at large.

AIR 1963 SC 1116

If such interpretation is given to sneak out the retired Government Servants on account of disability or duty imposed by amended provision on the prosecuting agency, it amounts to causing violence to the intendment of the legislature, if such is the situation, it will have devastating effect on the pending prosecutions throughout the country against the retired Government servants in view of amendment to explanation to Section 19 (1) of the P.C. Act. Therefore, such amended provision which created or imposed new obligation on the prosecution to obtain sanction to prosecute the retired Government Servant after taking cognizance or before taking cognizance, depending upon the stage of the proceedings, and the same cannot be given retrospective effect and it shall be given prospective effect in view of the law declared by the constitutional bench of the Apex Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited (referred supra).

xx xx xx xx

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 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 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.

Coming to the present facts of the case, Section 19 (1) of the P.C. Act relates to procedure to be followed for prosecuting a public servant. When such amendment imposes new obligation or creating disability, in the absence of any provision giving retrospective effect, the same cannot be given retrospective effect to defeat all pending prosecutions against the retired Government Servants. If such interpretation is given to explanation to Section 19 (1) of P.C. Act by Act 16 of 2018, it will have devastating effect on the pending prosecutions and it amounts to paving path to the accused persons, who are retired public servants to sneak away from prosecutions though they committed serious offences, and such interpretation is against the intendment of the Act itself

as observed in M.Narayanan Nambiar v. State of Kerala (referred supra). Therefore, it is difficult to accept the contention of the learned counsel for petitioner to give retrospective effect to the amended provision i.e. Section 19 (1) of the P.C. Act, which permits the petitioner to escape from the prosecution. The point is held against the petitioner and in favour of the respondent.

20. Therefore, learned Judge declined to accept the

contention of the petitioner that the Amendment Act would

have retrospective effect and thereby save the petitioner from

prosecution in the absence of sanction. Accordingly, question

No.2 was answered against the petitioner.

21. From the above, it is seen that the same contentions

which were urged and rejected by this Court in 2019 (2) ALD (Crl)

836 (Criminal Petition Nos.6398 and 6399 of 2016, date of

judgment 16.11.2018 - V.D.Rajgopal v. State of Telangana) in

respect of the petitioner himself, have been re-urged in

present petition.

22. After a threadbare analysis of the judgment rendered by