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2020 DIGILAW 49 (AP)

K. Sathaiah v. State of AP

2020-01-23

D.V.S.S.SOMAYAJULU

body2020
JUDGMENT : D V S S Somayajulu, J. This Criminal Petition is filed by the petitioner, who is an accused, under Section 482 of the Code of Criminal Procedure to quash the entire proceedings in C.C.No.28 of 2015 on the file of the Special Judge for Trial of SPE & ACB Cases at Kurnool, for the alleged offences under Section 13(2) Read with Section 13(1)(e) of Prevention of Corruption Act, 1988. 2. This Court has heard, Sri K.V. Simhadri, learned counsel for the petitioner and learned Special Public Prosecutor for the respondent-State. 3. The gist of the submission of the learned counsel for the petitioner is that the petitioner is an accused in C.C.No.28 of 2015 on the file of Special Judge for Trial of SPE & ACB cases at Kurnool. It is the contention of the learned counsel for the petitioner that the petitioner has retired from service. Learned counsel argues that in the absence of a proper sanction under Section 197 of the Criminal Procedure Code or under Section 19 of the Prevention of Corruption Act, the prosecution cannot be launched or continued. He vehemently argues that the entire proceedings are an abuse of process of the Court. Learned counsel further argued that on the basis of the settled law that cognizance cannot be taken and that the sanction of the appropriate authority is mandatory. The absence of sanction is fatal to the prosecution case as per the learned counsel. Learned counsel pointed out that the history of the case and also the need for getting proper sanction from the appropriate authorities. A compilation of case laws are also filed which is referred to in the petition itself. Learned counsel argued that while no sanction is necessary for prosecution after the retirement of a public servant still while the public servant is in service sanction was necessary. If the sanction was declined, then the learned counsel argued that the retired public servant cannot be prosecuted after his retirement. For an offence committed while he was in service, the learned counsel argues that the sanction to prosecute is mandatory whether it is under Section 19 of the PC Act or under Section 197 of Cr.P.C. Learned counsel took this Court through the rationale behind Section 19 of the PC Act. For an offence committed while he was in service, the learned counsel argues that the sanction to prosecute is mandatory whether it is under Section 19 of the PC Act or under Section 197 of Cr.P.C. Learned counsel took this Court through the rationale behind Section 19 of the PC Act. It is his contention that the amendment Section 19 of the PC Act is also brought into service to protect the public servant even after retirement from vexatious and malicious prosecution. He relies upon the 69th report which is presented to the Rajya Sabha and the Lok Sabha in February, 2014 of the Standing Committee, on the Prevention of Corruption Act. Learned counsel argued that the protection should be extended to the petitioner. It is his contention that the lack of proper sanction is a fatal flaw and as such the entire prosecution should be quashed. 4. In reply to this, learned Special Public Prosecutor relies upon the judgment of the Hon'ble Supreme Court of India in Prakash Singh Badal Vs. State of Punjab and others in Appeal (Civil) No.5636 of 2006; the judgment of the learned single judge of this Court in Criminal Petition No.9044 of 2018 and Criminal Petition No.9877 of 2010 to argue that prior sanction is not absolutely necessary. In the alternative he submits that this is a matter which must be decided during the course of trial. He also argues that sanction can be obtained at any point of time if at all it is necessary. This is a submission made in the alternative. In the case on hand, the learned Special Public Prosecutor argues that the accused was caught while taking an illegal gratification. It is his contention that this is not a part of the official duties. Apart from that he also submits that the amendment of the PC Act was introduced in July 2018 and the Calendar Case is of the year 2015. Relying upon the decision of the learned single judge in Criminal Petition No.9044 of 2018, learned Special Public Prosecutor argues that a single judge of this Court has held that the amendment to Section 19 of the PC Act came into force on 26.07.2018 and that it is prospective in nature and not retrospective in nature. Relying upon the decision of the learned single judge in Criminal Petition No.9044 of 2018, learned Special Public Prosecutor argues that a single judge of this Court has held that the amendment to Section 19 of the PC Act came into force on 26.07.2018 and that it is prospective in nature and not retrospective in nature. In fact, learned Special Public Prosecutor points out that this question was already decided by a learned single judge of this Court in Criminal Petition No.9044 of 2018. He, therefore, argues that this is not a case to quash all further proceedings. He submits that the criminal case of the year 2015 is still pending for disposal and till date the same has not been disposed of. Hence, he prays for dismissal of the petition. 5. This Court, after hearing both the learned counsel, notices that the issues involved in this case do not require an elaborate or detail investigation. The position of law that has been cited by the learned counsel for the petitioner is not something on which this Court needs to digress for long. The rationale behind Section 197 of Cr.P.C. and or under Section 19 of PC Act is clear. In order to prevent vexatious or malicious prosecution being launched prior sanction was mandated. Even in the case of Chittaranjan Das Vs. State of Orissa, (2011) 7 SCC 167 which is strongly relied upon by the learned counsel for the petitioner the application for sanction of prosecution was made when the party was in service. The same was rejected by the competent authority. The State Government rejected the sanction for the second time. Thereafter when the civil servant was prosecuted the Hon'ble Supreme Court of India held that the proceedings can be quashed. The other cases are also in line with the very same decision. 6. While appreciating the efforts made by the learned counsel for the petitioner to draw the attention of the Court to the long line of decisions, etc., the fact remains that this criminal case is based upon FIR which was registered while the petitioner was in service. The charge sheet itself was filed in the year 2015. The amendment of Section 19 of the PC Act came in July, 2018. As rightly held by the learned single judge of this Court in Criminal Petition No.9044 of 2018 the Section is not retrospective in operation. The charge sheet itself was filed in the year 2015. The amendment of Section 19 of the PC Act came in July, 2018. As rightly held by the learned single judge of this Court in Criminal Petition No.9044 of 2018 the Section is not retrospective in operation. Another single judge of this Court in Criminal Petition No.9877 of 2010 held that demanding and accepting a bribe cannot be said to be a part and parcel of the official duty of the public servant. Therefore, the learned single Judge held that sanction under Section 197 of Cr.P.C. is also not necessary. It was further held that at the time of taking cognizance, if the public servant ceased to be a public servant, no santion is required under Section 19 of the Prevention of Corruption Act. In the opinion of this Court both the issues that are raised by the learned counsel for the petitioner are squarely covered by the judgments cited by the learned Special Public Prosecutor. Further in the case of V.D. Rajagopal Vs. The State of Telangana, (2019) 2 ALD(Cri) 836 a learned single judge held that an issue of sanction by itself is not enough to quash the entire proceedings. 7. This Court agrees with the submissions of the learned Public Prosecutor and the case law cited by the State. Whether the acceptance of an alleged bribe is a part of the official duty is also a matter that requires further investigation during the trial. Hence, on these grounds this Court holds that the proceedings cannot be quashed. The power to quash (as per the settled law) is wide but it must be used sparingly. For all these reasons this Court holds that no grounds are made out to quash the proceedings. The petition is therefore dismissed. 8. The opinions expressed above are for the disposal of this petition only. 9. As a sequel, miscellaneous petitions, if any, pending in this criminal petition shall stand closed.