ORDER
1. This petition is filed against the order dated 28-9-1995 passed in P.C. No. 231 of 1995 on the file of the XXI Additional Sessions Judge and Special Judge, Bangalore City, taking cognizance of the offence punishable under Sections 420, 468, 471 of the IPC and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 on the allegation that the petitioner while working as clerk in State Bank of Mysore, Bangalore City, during the period between 1982 and 1984 abused his official position by corrupt or illegal means or by otherwise and obtained pecuniary advantage for himself by dishonestly or fraudulently making false entries in the fixed deposit ledger maintained with the Bank in the name of Rajasekaran furnishing false particulars and by making use of such false entries as genuine, knowing them to be false and by raising interest payment vouchers. It is also alleged that he opened another S.B. A/c No. 9554 in the Canara Bank, Vijayanagar Branch, Bangalore and got transferred the interestamounts totalling to Rs. 6,820/- maintained in the SBM, Bangalore. Thereby he had caused wrongful loss to the bank to the tune of Rs. 6,820/- and wrongful gain for himself.
2. Learned XXI Additional Sessions Judge taking cognizance, framed charges against the petitioner. In support of the case of the prosecution, as many as 13 witnesses were examined and Exs. P-1 to P-42 were marked. After hearing both the parties and considering both oral and documentary evidence, the learned Sessions Judge acquitted the accused solely on the ground that P.W. 13 who had accorded sanction to prosecute the case had no authority. Subsequently, the respondent filed another charge-sheet wherein the accused was prosecuted for the same offence which was alleged to have been committed by him on the same day as mentioned above. It is also mentioned in the charge-sheet itself that a charge-sheet was earlier filed against the accused before that Court on 23-12-1985 and the same was ended in acquittal of the accused petitioner by its judgment dated 31-3-1995 in R.C. No. 26 of 1982 in C.C. No. 35 of 1987. As the said petitioner is dismissed from service no sanction is necessary to prosecute him and accordingly the present charge-sheet has been filed. On the basis of the present charge-sheet the learned Sessions Judge has taken cognizance of the offence and directed to issue process to the petitioner. The said order is questioned in this petition.
3. In spite of notice being served on the Central Government Standing Counsel no one is present. Even the learned Central Government Standing Counsel was sent words, but nobody appeared for the respondent. Hence, the Counsel for the petitioner is heard. Perused the records.
4. As narrated above, this is the second charge-sheet filed by the C.B.I. for the same offence with which the petitioner was charge-sheeted and ultimately acquitted by the learned Sessions Judge. The only reason given by the respondent to file a separate charge for the same offence is that, since the petitioner was dismissed from service no sanction is necessary. This is contrary to the judgment rendered by their Lordships of the Supreme Court in R. Balakrishna Pillai v State of Kerala and Another, as under:
'The Law Commission in its 41st Report in Paragraph 15.123 while dealing with Section 197, as it then stood, observed 'it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view that the question of the expediency of prosecuting any public servant. It was in pursuance of this observation that the expression 'was' came to be employed in Section 197 after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted'.
5. From this it is clear that sanction is required not only to the official or officer in service, but also for the official or Officers who have retired from service for the alleged act or offence committed by the officer during the course of his employment. In this case allegation is that the petitioner while in service committed offence and on the basis of it, the petitioner was dismissed from service. Therefore, it is clear that just because he was dismissed from service, he cannot be prosecuted without prior sanction. Besides that, the Trial Court has conducted the trial and has come to the conclusion that the offence was not made out against him and the case was dismissed acquitting the petitioner. Thereafter, it is not now open to the respondent to prosecute the accused or petitioner for the same offence, which would amount to double jeopardy. Therefore, the petition deserves to be allowed.
6. In the result therefore, I proceed to pass the following: