TMI Blog2022 (1) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1 to 24. Insofar as the conclusion that no sanction is required as against the petitioner, the conclusion of trial Court is indeed correct and could be supported by virtue of the reasoning as made by this Court in the present order - The conclusion arrived at is correct and it would 'secure the ends of justice' to leave the order of the trial Court undisturbed. However, the observation made as noticed at point (a) above may not be correct, as it is the settled position of law that the Speaker would be the competent Authority to grant sanction for prosecution as regards the elected representatives. It is clear that the conclusion arrived at by the trial Court is correct. The defect in reasoning in arriving at such conclusion is liable to be ignored and would require to be so done in order to secure the ends of justice, which would be consistent with the exercise of jurisdiction under Section 482 of Cr.P.C. Petition dismissed. - Criminal Petition No. 5305/2021 - - - Dated:- 31-1-2022 - SIDDAPPA SUNIL DUTT YADAV, J. For the Appellant : Udaya Holla, Senior Advocate for R. Vybhav, Advocate For the Respondent : V.S. Vinayak, HCGP, Prasanna Kumar, Spl. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the Member of Legislative Assembly, Melukote Constituency for the term of 2008-2013 was appointed as Member of MUDA in terms of Section 3(3)(d) and Section 4 of the Karnataka Urban Development Authorities Act, 1987. 5. It further comes out from the facts as narrated by C.B.I. in their statement of objections that the petitioner had applied to MUDA on 16.10.2009 seeking allotment of site declaring that neither he nor his family has been allotted any site by any Urban Development Authority. 6. It is the further case of the Prosecution that the application was also pre-dated. It is stated that the site came to be allotted, the Possession Certificate came to be issued on 05.01.2010, Sale Deed was executed on 07.05.2010 and the Khatha was issued on 16.11.2010 with respect to the said site. 7. It is also made out that the petitioner had executed a Sale Deed with respect to the allotted site to one Mr. Khalak Sharief on 15.10.2011. 8. The petitioner is stated to have made an application to MUDA seeking cancellation of allotment on 27.12.2011 and subsequently on 02.01.2012 had re-purchased the said property from said Mr. Khalak Sharief. 9. On 01.11.2013, Mandya West Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken as regards the petitioner till 29.03.2021, as on which date the sanction for prosecution was required in terms of Section 19(1)(c) of the Prevention of Corruption Act as amended by Act 16 of 2018 (the Act as amended prescribed sanction as being necessary where the accused was at the time of commission of the alleged offence employed). 16. In light of petitioner being appointed as Member of MUDA in terms of Section 3(3)(d) and Section 4 of the Karnataka Urban Development Authorities Act, 1987 and as the State Government was empowered to remove them, sanction ought to have been obtained in terms of Section 19(1)(c) from the State Government. 17. It is contended that sanction of prosecution ought to have preceded taking of cognizance, that amendment to the Prevention of Corruption Act was by way of substitution and accordingly, it would have retrospective effect and is deemed to have been part of the Act since its inception and accordingly, the sanction was required. 18. The finding of trial Court that Accused No. 5, who was an elected Member of Legislative Assembly not being appointed could not be removed even by the Speaker and accordingly no sanction was necessary, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director K.M. Cherian and Others (2014) 2 SCC 62. 27. Sanction under Section 197 of Cr.P.C. as regards offences as per the I.P.C. is not required insofar as the offences relating to criminal breach of trust cannot be construed to be an act done in discharge of official duties of the petitioner. Accordingly, dismissal of the petition is sought for. CONSIDERATION:- I. Sanction under Section 197 of Cr.P.C. 28. While the validity of the proceedings is challenged on the ground of absence of sanction, the sanction as required under Section 197 of Cr.P.C. for proceedings relating to I.P.C. offences, is required to be considered as a distinct issue.The petitioner-Accused No. 5 was a Member of Legislative Assembly from 2008 to 2013 and came to be appointed as Member of Mysuru Urban Development Authority , which membership is co-terminus with his tenure as a Member of Legislative Assembly. 29. The case has been registered as regards tenure of the petitioner when he was a Member of MUDA. It is alleged that he had got allotted a stray site to himself though he was ineligible, as his wife was alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provided by this Court in Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 : 1993 SCC (Cri.) 901 : (1993) 2 SCR 311] in the following words: (SCC p. 347, para 6). 6.... If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. 16. This principle was explained in some more detail in Raghunath Anant Govilkar v. State of Maharashtra [(2008) 11 SCC 289: (2009) 1 SCC (Cri.) 130], which was decided by this Court on 8-2-2008 in SLP (Cri.) No. 5453 of 2007, in the following manner: (SCC pp. 298-99, para 11) 11.7.... 66.... On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli v. State of Bombay [AIR 1955 SC 287: 1955 Cri. LJ 857] and Amrik Singh v. State of Pepsu [AIR 1955 SC 309: 1955 Cri. LJ 865] was as follows: (Amrik Singh case [AIR 1955 SC 309: 1955 Cri. U 865], AIR p. 312, para 8) '8.... It is not every offence commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of sanction is clearly illegal and cannot be sustained. 18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied. 34. Keeping in mind the above legal framework whether the acts constituting the offence has been committed by him while acting or purporting to act in discharge of his official duty... would require evaluation of the material and evidence produced in support of the charge sheet. Depending on such conclusion, the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time when cognizance is taken. 39. Another aspect that has received judicial attention is that the person accused must be holding that very office during the tenure of which the alleged offence has been committed as per the provisions of the Act, prior to the amendment in 2018. The Apex Court in the case of Abhay Singh Chautala v. CBI (2011) 7 SCC 141 has clarified the position as follows:- 54. The learned Senior Counsel tried to support their argument on the basis of the theory of legal fiction . We do not see as to how the theory of legal fiction can work in this case. It may be that the appellants in this case held more than one offices during the check period which they are alleged to have abused; however, there will be no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman v. State [AIR 1958 SC 107: 1958 Cri. LJ 254], is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but in a different capacity or holding a different off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Special Judge, the Investigating Agencies have completed their investigation and nothing more remained to be done from their end as regards investigation. 44. The intervening circumstances between 03.02.2016 and 29.03.2021 which may have constituted a legal impediment upon the Special Judge to pass an order taking cognizance are not within the control of the Investigation Agency. 45. In the facts of the present case, it cannot be stated that during the aforesaid period till the Amendment Act 16 of 2018 dated 26.07.2018 which provided for obtaining sanction, there was no occasion for taking cognizance. 46. The order of stay of proceedings as regards Accused No. 8 was only made on 28.09.2016 in Crl.P. No. 6993/2016. The order reads as follows:- stay of further proceedings in so far as the petitioner is concerned. Though the petition came to be allowed quashing the proceedings as against Accused No. 8 by order dated 19.01.2017, there was legally no impediment to have proceeded against the other accused. 47. Crl.P. No. 3578/2017 was filed by Accused No. 2 and an order of stay came to be granted only on 25.04.2017. The sanction orders were produced before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides, it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. 39....The provision is, therefore, made for condonation of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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. 54. The amendment by Act 16 of 2018, published in the Gazette on 26.07.2018 brought about a change and sanction was required to be obtained before taking cognizance for the offences where the person is employed, or as the case may be, was at the time of commission of the alleged offence employed. Accordingly, sanction was required to be taken not only where he is in employment but also when he was employed at the time of commission of the offence. The amended provision of Section 19 of the Prevention of Corruption Act is as follows:- 19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act extracted hereinabove may be kept in mind as a guiding principle while construing the effect of substitution of a clause in an enactment wherein change is sought to be brought in by virtue of the substituted provision. 57. Merely use of the word, 'substitution' to replace the old provision will not have the effect of making the amendment effective with retrospective effect, in the sense, that the substituted provision will have to be made applicable even as regards the acts already done as per the existing law and accordingly, such acts are required to be reworked in terms of the substituted provision. 58. What would also be of relevance is the language employed in the Amendment Act of 2018 as regards to coming into force of the amended provision. An Act further to amend the Prevention of Corruption Act, 1988. Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:- 1. (1) This Act may be called the Prevention of Corruption (Amendment) Act, 2018. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 59. The Amendment Act 16 of 2018 provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce, the intention of the legislature is clear. On the pretext that it is the case of substitution, the effect cannot be given to that substituted provision from the date of the earlier statute. It has to be necessarily from the date the amended rules came into force. (emphasis supplied) 61. Accordingly, taking note that the amendment by way of substitution would come into force as the Central Government would appoint, which is 26.07.2018, it would be appropriate to construe that the substitution would be effective prospectively. 62. The observations of Apex Court in the case of Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 at para-26 would read as follows:- 26.... From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation to prevent bribery among public servants needs to be taken note of and it is observed as follows:- 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 prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclosures and has opined that prima facie there are sufficient material to take cognizance of the offences alleged and has ordered to proceed against accused Nos. 1 to 24 and while taking cognizance of the offence, has directed issuance of summons to accused Nos. 1 to 24. 69. Insofar as the conclusion that no sanction is required as against the petitioner, the conclusion of trial Court is indeed correct and could be supported by virtue of the reasoning as made by this Court in the present order. 70. The conclusion arrived at is correct and it would 'secure the ends of justice' to leave the order of the trial Court undisturbed. However, the observation made as noticed at point (a) above may not be correct, as it is the settled position of law that the Speaker would be the competent Authority to grant sanction for prosecution as regards the elected representatives. 71. The conclusion at point (b) arrived at is a correct conclusion. The said conclusion reflects the position of law regarding obtaining of sanction as per the provisions of the Act prior to the 2018 Amendment. Though reasons are not assigned to arrive at such conclusion as per the discussion made herein, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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