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2015 DIGILAW 1197 (KAR)

Shankarappa K A S v. State of Karnataka

2015-10-28

A.V.CHANDRASHEKARA

body2015
ORDER : Heard the senior counsel Sri Ravi B.Naik and Sri Venkatesh P Dalwai, representing Lokayukta. 2. The short question that arises before this Court in this criminal revision petition filed under Section 397 of Cr.P.C. is as follows: “Whether a public servant can be prosecuted for offences under the Prevention of Corruption Act, 1988, after attaining the age of superannuation or voluntary retirement in the light of the rejection of the plea for according sanction by the Government while he was in service?” 3. Revision petitioner was a public servant and was working as Assistant Commissioner in the Revenue Department, Government of Karnataka. A trap was laid when he was allegedly taking bribe and the trap was not very much successful in the sense that there was no positive finding in regard to the hand wash of the petitioner collected during the time of laying the trap. After concluding investigation, the Lokayukta police sought the sanction from the Government to prosecute the accused and the same was rejected by a considered order dated 8.12.2009. At the time when the prayer for according sanction was rejected, accused was still a public servant. 4. Lokayukta police choose to file a charge sheet against this petitioner before the Special Court dealing with the offences under the Prevention of Corruption Act on the ground that no sanction was required as the public servant had retired from the service. This was objected to by filing an application under Section 239 of Cr.P.C. After hearing elaborate arguments from the learned counsel appearing for the parties, the learned Special Judge, Chamarajanagar has chosen to reject the said application on the ground that no sanction is required to prosecute a public servant after he has attained the age of superannuation. 5. This aspect of the matter has been well dealt at length by the Hon’ble Apex Court in the case of Chittaranjan Das Vs. State of Orissa reported in (2011) 7 SCC 167 . While dealing with the aspect of prosecuting the accused for offences punishable under the provisions of Prevention of Corruption Act, 1988, Hon’ble Apex Court has held that, when once the request for according sanction to prosecute the public servant while in service is rejected by the Government, he cannot be prosecuted after public servant retiring from the service due to superannuation. Law laid down by the Hon’ble Apex Court is found in paragraph 14 of the decision rendered in Chittaranjan Das case and the same is extracted below: “14. We are of the opinion that in a case in which sanction sought for is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of the public servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility.” 6. In the case of Louis Peter Surin Vs. State of Jharkhand reported in (2010) 12 SCC 497 the Hon’ble Apex Court has allowed the Special Leave Petition filed by the accused on the ground that the public servant could not have been prosecuted after the plea for according sanction was rejected by the Government while the public servant was in service. Paragraph 8 of the decision rendered in Louis Peter case relevant is extracted below: “8. We see from the judgments cited by Mr.Vikas Singh that they proceed on facts which are akin to the present one. In both cases sanction was granted after a delay of thirteen years while the officials concerned were still in service under the State Government. We find in the matter before us that the appellant had superannuated in the year 1997 and the cognizance had been taken by the Special Judge four years thereafter in a matter arising out of an FIR registered in April 1984 even though the request for sanction had been rejected by the State Government on two occasions. In view of these peculiar facts we are of the opinion that the initiation of proceedings against the appellant was not justified. We may however clarify that this judgment should not be read to mean that sanction would be required in a case where an employee has in the meanwhile superannuated.” 7. In the latest decision rendered in the case of State of Punjab Vs. We may however clarify that this judgment should not be read to mean that sanction would be required in a case where an employee has in the meanwhile superannuated.” 7. In the latest decision rendered in the case of State of Punjab Vs. Labh Singh reported in Criminal Appeal No.2168/2010, the Hon’le Apex Court has held in paragraph 10 that the action of the appellant prosecuting a public servant after attaining the age of superannuation that too when the earlier plea for according sanction was rejected, cannot be countenanced either as legal or correct. Paragraph 10 of the said decision rendered in the case of State of Punjab Vs. Labh Singh in Criminal Appeal No.2168/2010 (SC) relevant is extracted below: “10. Before we part, we must record that we do not approve the stand taken by the appellant in the petition. The prosecution cannot keep waiting till a public servant retires and then choose to file charge sheet against him after his retirement, thereby setting at naught the protection available to him under Section 19 of the POC Act. The appeal thus stands allowed partly. No order as to costs.” 8. These aspects were not brought to the notice of the Special Court when an application was filed in terms of Section 239 of Cr.P.C. The present petition is a revision petition filed under Section 397 of Cr.P.C., and hence the proceedings cannot be quashed. Therefore, the matter will have to be remanded to the Special Court, Chamarajanagar, to pass appropriate orders keeping in mind the principles enunciated by the Hon’ble Apex Court, in the above three cases. 9. Accordingly, the revision petition is allowed and the impugned order is set aside and the matter is remitted to the trial Court to consider the application filed under Section 239 of Cr.P.C. afresh, at the earliest. 10. Registry to send a copy of this order to the trial Court and also to all the Principal District Judges for circulation of the same to the Sessions Judges working in their respective unit.