1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE25H DAY OF NOVEMBER, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.24574 OF2013(GM- RES) BETWEEN:
1. SRI ANIL KUMAR B.H., S/O SRI HANUMANTHA RAJU B.H., AGED ABOUT51YEARS PRESENTLY WORKING AS PRINCIPAL SECRETARY MINORITIES DEVELOPMENT DEPARTMENT VIKASA SOUDHA BENGALURU - 560 001.
2. SRI TANKASALI S.H., S/O LATE HEMADREPPA AGED ABOUT52YEARS EX. GENERAL MANAGER (FINANCE) MYSORE PAPER MILLS R/O536 SRI GURUKRUPA RESIDENCY2D MAIN, 3RD BLOCK, RMV2D STAGE BENGALURU - 560 094.
3. SRI LOKESH M.R., S/O MARISUGUNAIAH AGED ABOUT60YEARS RETIRED GENERAL MANAGER (MKTNG) MYSORE PAPER MILLS R/O11, 14TH C CROSS1T B MAIN, 16TH BLOCK SECTOR-6, HSR LAYOUT BENGALURU. ... PETITIONERS (BY SRI VIJAYA KUMAR, ADVOCATE (VIDEO CONFERENCING)) 2 AND:
1. THE LOKAYUKTA POLICE SHIVAMOGGA - 577 201 SHIVAMOGGA DISTRICT.
2. SHIVAMURTHY C.S., S/O SRI SHANTHAPPA AGED ABOUT51YEARS R/O166, PAPER TOWN BHADRAVATHI - 577 302. SHIVAMOGGA DISTRICT ... RESPONDENTS (BY SRI VENKATESH S.ARABATTI, SPL. PP FOR R1 (PHYSICAL HEARING); R2 - SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF CR.P.C. PRAYING TO CALL FOR THE RECORDS RELATING TO ISSUE OF THE IMPUGNED
ORDERDATED65.13 PASSED BY THE PRL. DIST. SESSIONS AND SPECIAL JUDGE, SHIVAMOGGA IN CRIME NO.2/13, [PCR NO.1/13]. VIDE ANNX-A AND AFTER PERUSAL SET ASIDE THE SAME; QUASH THE PROCEEDINGS IN PCR NO.1/13 ON THE FILE OF THE PRL. DIST. SESSIONS AND SPECIAL JUDGE, SHIVAMOGGA, SHIVAMOGGA DIST AND COMPLAINT NO.1/13 VIDE ANNX-C. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON2310.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDERThe petitioners are before this Court calling in question the order dated 06-05-2013, passed by the Principal District and 3 Sessions Judge and Special Judge, Shivamogga in Crime No.2 of 2013 (PCR No.1/2013), for offences punishable under Section 13(1)(d)(i)(ii)(iii) of the Prevention of Corruption Act, 1988 read with Sections 166, 120(b), 403, 406, 409, 417, 420, 427 and 477(a) of the IPC.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:- The petitioners were Officers in different capacities in Mysore Paper Mills (‘the Company’ for short), a State Government undertaking. The 1st petitioner was working in the Company for the period from 26-02-2009 to 27-05-2010 as its Managing Director. The 2nd petitioner was working as General Manger (Finance) from 15-10-2009 and has ceased to be an officer of the Company on account of his resignation on 31-01-2011. The 3rd petitioner has retired from service on attaining the age of superannuation on 31-01-2013.
3. In the year 2007 a report was placed before the 13th Legislative Meeting in relation to the steps to be taken by the 4 Company for implementing a report dated 15-11-2007. The report was made suggesting certain remedial measures to improve efficiency of the Company. On 15-07-2009 the Company framed guidelines accepting the said report. On 15-10-2009 the Managing Director and Director (Finance) in terms of the guidelines took a decision to extend the benefit of credit to one M/s Victory Press Private Limited (‘VPPL’). On 18-12-2009 it appears that a decision was further taken by the Committee to procure coal from Singareni coal fields by appointing liaisoning official to overcome the shortage of coal and avoid stoppage of production in the Company.
4. On 04-06-2011, it appears that the Director (Operations) submits a preliminary investigation report with regard to the decision taken by the Company for sale of paper to VPPL being contrary to marketing policy approved by the Board of the Company. On 9-12-2011 the Committee of Public Undertaking submitted its report regarding performance of the Company along with certain suggestions and placed the same 5 before the 13th Legislative Meeting. All the aforesaid actions had a little background. VPPL was granted credit facility in order to match the price of HPC Creamwove. The decision was taken by the Managing Director and the Director (Finance) in view of quantity of purchase to overcome competition. The said decision is claimed to have been taken in the interest of the Company. The Committee of Public Undertaking which submitted its report relating to sale of paper to VPPL referred the matter to the Director (Operations) to investigate and submit its report.
5. The Director (Operations) submitted its report on 4-06- 2011 observing that due to fluctuation in the price of news print and fall in the price of the news print in International and domestic market, the Company has taken a decision to supply excess paper to VPPL by obtaining post-dated cheques as security. The report itself indicated that that was in tune with the guidelines of the marketing policy as approved by the Company. Things being thus, the 2nd respondent, an employee of the Company, files a private complaint against the petitioners 6 who were officers of the Company before the jurisdictional Magistrate invoking Section 200 of the Cr.P.C. Pursuant to the complaint, the criminal Court has referred the matter to the Deputy Superintendent, Lokayukta Police to conduct investigation and submit a report under Section 156(3) of the Cr.P.C.. It is at that juncture, the petitioners knocked the doors of this Court on the sole ground that the criminal Court could not have directed investigation to be conducted by the Lokayukta Police without prior sanction for such prosecution under Section 197 of the Cr.P.C., as the petitioners were public servants. This Court by order dated 20.6.2013 stayed all further proceedings in Crime No.2 of 2013 in so far as it concerns the petitioners. The same is in operation as on date and therefore, further proceedings in Crime No.2 of 2013 have not gone on.
6. Heard Sri Vijaya Kumar, learned Advocate for the petitioners and Sri Venkatesh S.Arabatti, learned Special Public Prosecutor for Respondent No.1. 7
7. The learned counsel appearing for the petitioners would contend that the petitioners being public servants no action for prosecution could have been initiated without prior sanction either under Section 19 of the Prevention of Corruption Act or under Section 197 of the Cr.P.C. He would further contend that it was a collective decision taken by the Committee in the interest of the Company and the said decision is given a colour of crime by an employee who registers a complaint without any authority of law. Primarily the contention is with regard to sanction not being accorded for registration of criminal case or directing investigation under Section 156(3) of the Cr.P.C. 7.1. On the other hand, the learned counsel representing the 1st respondent would contend that no sanction is required for issue of direction to conduct investigation under Section 156(3) Cr.P.C. and the offences that are alleged against the petitioners are not restricted to the provisions of the Prevention of Corruption Act, but are for various other offences which 8 would not require any sanction as they are not the actions performed by the petitioners in the course of their official duty.
8. I have given my anxious consideration to the submissions made by the respective learned Advocates and perused the material on record.
9. The only issue that falls for my consideration at this juncture in these proceedings is whether the learned Sessions Judge could have directed investigation under Section 156(3) of the Cr.P.C. to be conducted by the Lokayukta Police without sanction as mandated under Section 19(1) of the Prevention of Corruption Act or under Section 197 of the Cr.P.C.
10. Facts afore-narrated, not being in dispute, are not reiterated since the issue is only with regard to proceedings without sanction or otherwise. Section 19(1) of the Prevention of Corruption Act reads as follows: “19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 9 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 — (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office.” (emphasis supplied) Section 197 of the Cr.P.C. reads as follows:- “197. Prosecution of Judges and public servants.—(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 — 10 (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860). (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be 11 specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and 12 may specify the Court before which the trial is to be held.” (emphasis supplied) The date on which direction was given by the learned Sessions Judge for investigation under Section 156(3) Cr.P.C. petitioner Nos.1 and 2 were still public servants. The 3rd petitioner had by then ceased to be a public servant on account of his retirement on attaining the age of superannuation, but was a retired public servant. Section 197 of the Cr.P.C. mandates that no Court would take cognizance of an offence except with the previous sanction of the Government for offences alleged against the accused is said to have been committed by him or them while acting or purporting to act in the discharge of his or their official duty. Therefore, obtaining sanction is sine qua non of an act of the learned Sessions Judge taking cognizance of the offence.
11. The issue now is, whether an order passed by the learned Sessions Judge on 06.05.2013, whereby the learned Sessions Judge refers the matter for investigation under Section 156(3) of the Cr.P.C. on the complaint requires previous sanction 13 or not as it is not an order that is taking cognizance?. This issue need not detain this Court for long or delve deep into the matter as it is an admitted fact that there is no sanction accorded for initiation of prosecution against the petitioners. The prosecution emanated from a private complaint registered by one of the employee of Company. In these circumstances the Apex Court has in the judgment in ANIL KUMAR v. M.K AIYAPPA1, the facts before the Apex Court are found at paragraph Nos.1, 2 and 4, which read as follows: “Leave granted. We are in this case concerned with the question whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 CrPC for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) CrPC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.
2. The appellants herein filed a private complaint under Section 200 CrPC before the Additional City Civil and Special Judge for Prevention of Corruption on 9-10- 2012. The complaint of the appellants was that the first respondent with mala fide intention passed an order 1 (2013) 10 SCC70514 dated 30-6-2012 in connivance with other officers and restored valuable land in favour of a private person. On a complaint being raised, the first respondent vide order dated 6-10-2012 recalled the earlier order. Alleging that the offence which led to issuance of the order dated 30- 6-2012 constituted ingredients contained under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120-B IPC and Section 149 IPC and Sections 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act, a private complaint was preferred under Section 200 CrPC. … … … … 4. Aggrieved by the said order, the first respondent herein approached the High Court of Karnataka by filing Writ Petitions Nos. 13779-80 of 2013. It was contended before the High Court that since the petitioner is a public servant, a complaint brought against him without being accompanied by a valid sanction order could not have been entertained by the Special Court on the allegations of offences punishable under the Prevention of Corruption Act. It was submitted that even though the power to order investigation under Section 156(3) can be exercised by a Magistrate or the Special Judge at pre-cognizance stage, yet, the governmental sanction cannot be dispensed with. It was also contended that the requirement of a sanction is the prerequisite even to present a private complaint in respect of a public servant concerning the alleged offence said to have been committed in discharge of his public duty.” (emphasis supplied) The Apex Court was considering whether the Magistrate was justified in referring the private complaint made under Section 15 200 of the Cr.P.C for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta in exercise of his powers under Section 156(3) Cr.P.C. without production of valid sanction order under Section 19 of the Act. The challenge as aforesaid, was made before this Court. This Court accepted the plea of the petitioner that without prior sanction investigation under Section 156(3) could not have been ordered by the Magistrate. The order of this Court is observed at paragraph 5 of the said judgment and is as follows: “5. The High Court, after hearing the parties, took the view [M.K. Aiyappa v. State of Karnataka, WP No.13779 of 2013, order dated 21-5-2013 (KAR)]. that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the petitioner (first respondent herein). Aggrieved by the same, as already stated, the complainants have come up with these appeals."
The Apex Court upholds the findings of this Court that without valid sanction the Magistrate could not have ordered 16 investigation under Section 156(3). The Apex Court holds as follows: “15. The judgments referred to hereinabove clearly indicate that the word “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre- cognizance stage.
16. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the Magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under Section 190 CrPC or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) CrPC. 17
17. We may now examine whether, in the abovementioned legal situation, the requirement of sanction is a precondition for ordering investigation under Section 156(3) CrPC, even at a pre-cognizance stage.
18. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under clauses (viii) and (xii) as under: “2. (c)(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty; *** (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
19. The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under: “19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction— (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 18 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.
20. Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder: “19. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b)-(c)***
21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that 19 there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC372 (2009) 2 SCC (L&S) 200]. and Subramanian Swamy [(2012) 3 SCC64 (2012) 1 SCC (Cri) 1041: (2012) 2 SCC (L&S) 666]. cases.
22. Further, this Court in Army Head quarters v. CBI [(2012) 6 SCC228 (2012) 3 SCC (Cri) 88]. opined as follows: (SCC p. 261, paras 82-83) “82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. … 83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio….
23. We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order [M.K. Aiyappa v. State of Karnataka, WP No.20 13779 of 2013, order dated 21-5-2013 (KAR)]. passed by the High Court. The appeals lack merit and are accordingly dismissed.” (emphasis supplied) The facts obtaining in the case at hand are identical to the facts that obtained in the case before the Apex Court (supra). Therefore, the issue whether the learned Sessions Judge could have ordered investigation in the case at hand in exercise of his power under Section 156 of the Cr.P.C. stands covered on all its fours in terms of the judgment in the case of ANIL KUMAR (supra).
12. Subsequently, the Apex Court in the case of MANJU SURANA v. SUNIL ARORA2, again considering the judgment of Anil Kumar (supra) and other judgments refers the matter to a Larger Bench for resolution of the issue as to whether sanction is required when the Magistrate orders investigation under Section 156(3), particularly when the offence is under the 2 (2018) 5 SCC55721 Prevention of Corruption Act. The Apex Court in the case of MANJU SURANA, holds as follows: “30. In L. Narayana Swamy v. State of Karnataka [L. Narayana Swamy v. State of Karnataka, (2016) 9 SCC598 (2016) 3 SCC (Cri) 696: (2016) 2 SCC (L&S) 837]. (two-Judge Bench), the judgment in Anil Kumar v. M.K. Aiyappa [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC705 (2014) 1 SCC (Cri) 35]. was followed. After discussing various other pronouncements, it was concluded that even while directing an inquiry under Section 156(3) CrPC, the Magistrate applies his judicial mind to the complaint and therefore, it would amount to taking cognizance of the matter. ... … … … 32. We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench. There is no doubt that even at the stage of Section 156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow, were the Magistrate to act in a mechanical and mindless manner. That cannot be the test. … … … … 35. The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the PC Act offences read with CrPC is, thus, required to be settled by a larger Bench. The papers may be placed before the Hon'ble the Chief Justice of India for being placed before a Bench of appropriate strength. (emphasis supplied) 22 At paragraph 32 the Apex Court does not hold that the judgment in the case of ANIL KUMAR is per incuriam. In fact, the Apex Court holds that it is not an acceptable proposition to contend that there would be some consequence to follow and the Magistrate cannot act in a mechanical and mindless manner and there has to be application of mind by the Magistrate while directing investigation under Section 156(3). It is after this the Apex Court refers the matter to a Larger Bench. The Larger Bench having seized of the matter is yet to conclude the proceedings. Therefore, the contention of the learned counsel appearing for the petitioners and the respondent that the issue at hand will have to await the decision of the Larger Bench is unacceptable more so in the light of the fact that the judgment in the case of Anil Kumar is not held to be per incuraim or bad in law.
13. It is apposite to refer to the judgment of the Apex Court in the case of ASHOK SADARANGANI v. UNION OF INDIA3 – 3 (2012) 11 SCC32123 wherein the Apex Court holds that mere reference to a Larger Bench would not mean that all other cases involving the same would remain stayed till a decision is rendered in the reference. Till such time as the decisions cited are not modified or altered, they will continue to hold the field. The Apex Court holds as follows: “29. As was indicated in Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC608 (2010) 1 SCC (Cri) 1135]., the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case [(2010) 15 SCC118 need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.” It is further apposite to refer to a Division Bench judgment of the High Court of Kerala which answers the very issue of the Court holding its hands in the light of the judgment in the case of MANJU SURANA (supra) being referred to a Larger Bench, in the case of MUHAMMED V.A. v. STATE OF KERALA4 –wherein it is held as follows:
4. 2019 Crl.L.J.1243 24 “13. As far as the cases on hand are concerned, what should be the method to be adopted until a final decision is taken in Manjju Surana (supra) requires to be addressed especially in the light of the detailed reference order in W.P.(C) No.4389/14, which requires to be answered. 14.The Apex Court in Manjju Surana (supra) after having referred to the earlier three-Judge Bench judgments already referred above had further placing reliance on the judgments in Ramdev Food Products (P) Ltd. v. State of Gujarat ((2015) 6 SCC439 : (AIR2015SC1742; Suresh Chand Jain v. State of Madhya Pradesh ((2001) 2 SCC628 : (AIR2001SC571 and Mohammed Yousuf v. Afaq Jahan ((2006) 1 SCC627 : (AIR2006SC705 had observed that a situation may arise where a Magistrate may exercise his power u/s. 156(3) of Cr.P.C. in a routine manner resulting in an FIR being registered against a public servant, who may have no role in the allegation made. Therefore, in Manjju Surana (supra) itself, despite having taken note of the earlier three- Judge Bench judgments, the view expressed in Anil Kumar (2013 AIR SCW5570 (supra) was not found to be per incuriam on account of other judgments which indicated that there should be application of mind by the Magistrate while exercising power u/s. 156(3) of Cr.P.C. and also the consequences for not exercising such power properly when a complaint is being filed against a public servant. It is in the said background the Apex Court in Manjju Surana (supra) observed that even at the stage of S.156(3), while directing an investigation, there has to be an application of mind by the Magistrate.” (emphasis supplied) 25 In the light of the judgment of the Apex Court in the cases of ANIL KUMAR and MANJU SURANA and the interpretation of the Apex Court as extracted hereinabove with regard to pendency of the issue before the Larger Bench, the issue in the case at hand would stand covered by the judgment in the case of Anil Kumar.
14. Insofar as the judgments relied on by the learned counsel appearing for the respondent in the case of STATE OF HIMACHAL PRADESH v. M.P. GUPTA5 –and in the case of INSPECTOR OF POLICE v. BATTENAPATLA VENKATA RATNAM6, to strengthen his submission that sanction is not required in the case of offences not relatable to official duty in so far as other offences with regard to the IPC. The said judgments relied on would not be applicable to the facts of the case at hand as, in my considered view, the offences alleged against the petitioners emanate from a decision being taken in their official capacity as Director, General Manager or Managing Director as 5 (2004) 2 SCC3496 (2015) 13 SCC8726 the case would be. The decision that is alleged is not rendered outside the scope of official work. The narration in the complaint is also one of, doing acts in abuse of official powers of a Committee constituted in the Company. The offences under the IPC alleged are to be read with the offences under the Prevention of Corruption Act. Since they are intertwined it cannot be held that sanction is not required as the allegations are for offences punishable which are not in the course of official duty. The other judgments with regard to the order of the Magistrate referring the matter for investigation will have to bear application of mind or otherwise, the same also stands covered by the judgment in the case of ANIL KUMAR. These would be with regard to public servants who are in office.
15. Insofar as public servants who have demitted office or retired on attaining the age of superannuation, the said issue also stands covered by the judgment of Apex Court in the case of 27 STATE OF PUNJAB v. LABH SINGH7 –wherein it is held as follows: “9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9- 2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman v. State [S.A. Venkata-raman v. State, AIR1958SC107 1958 Cri LJ254 1958 SCR1040 while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman [S.A. Venkataraman v. State, AIR1958SC107 1958 Cri LJ254 1958 SCR1040 was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, (1970) 3 SCC537 1971 SCC (Cri) 143]. and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC411 1998 SCC (Cri) 1455]. and by the Constitution Bench of this Court in K. Veeraswami v. Union of India [K. Veeraswami v. Union of India, (1991) 3 SCC655 1991 SCC (Cri) 734]. . The High Court was not therefore justified in setting aside the order passed by the Special 7 (2014) 16 SCC80728 Judge insofar as charge under the PC Act was concerned.
10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 CrPC is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13-9- 2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As laid down by this Court in State of H.P. v. Nishant Sareen [State of H.P. v. Nishant Sareen, (2010) 14 SCC527 (2011) 3 SCC (Cri) 836]. , the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material.” (emphasis supplied) Therefore, none of the submissions made by the learned counsel appearing for the respondent would merit consideration as all contentions stand covered by the judgments referred to supra. 29
16. For the aforesaid reasons, I pass the following:
ORDER(i) The Writ Petition is allowed. (ii) The order dated 06-05-2013, passed by the Principal District and Sessions Judge and Special Judge, Shivamogga passed in Crime No.2/2013 (PCR No.1/2013) stands quashed and the matter is remitted back to the hands of learned Principal District and Sessions Judge, Shivamogga to continue the proceedings only after a valid sanction from the competent authority is placed before the Court. Sd/- JUDGE nvj CT:MJ