R. Narayana Pisharadi, J
1. The petitioner is the second accused in the case registered as Crime No.V.C.02/2013/ALP by the Deputy Superintendent of Police, Vigilance and
Anti-Corruption Bureau (VACB), Alappuzha under Sections 409 and 120B of the Indian Penal Code and also under Sections 13(1)(c) and 13(1)(d)
read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act').
2. The petitioner was the Secretary of the District Panchayat, Alappuzha during the period from 01.04.2011 to 23.04.2012. The second accused in the
case was the President of the District Panchayat, Alappuzha during the period from 08.11.2010 to 30.04.2012.
3. The second respondent filed a complaint in the Court of the Enquiry Commissioner and Special Judge, Kottayam against the aforesaid accused and
another person. The crux of the allegations in the complaint was that the accused, pursuant to a conspiracy hatched by them, purchased land from
Smt.Beena Kannan in connection with a project of the District Panchayat, by name “Gender Parkâ€, at an exorbitant price of six crores rupees
while the real value of the land was much less than the aforesaid amount.
4. As per the order of the Special Court, the VACB conducted a quick verification and filed a report in that court in respect of the allegations raised in
the complaint filed by the second respondent. In the quick verification conducted by the VACB, it was found that the value of the land, which could
have been paid to Smt.Beena Kannan was only Rs.5,36,14,173/-, but an amount of six crores rupees was paid and thereby the accused caused a loss
of Rs.63,85,827/- to the Government in the transaction and that the accused had misappropriated that amount.
5. As per Annexure-K order dated 06.04.2013, the Special Court accepted the quick verification report and it directed registration of first information
report (FIR) in the matter against the first and the second accused. Accordingly, the VACB registered Annexure-L FIR against the petitioner and the
second accused.
6. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') by the second accused for quashing
Annexure-K order and Annexure-L FIR.
7. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
8. In the application, the petitioner has challenged the legality and validity Annexure-K order and Annexure-L FIR on factual as well as legal grounds.
However, at the time of hearing, learned counsel for the petitioner has raised only one contention with regard to the legality of Annexure-K order and
Annexure-L FIR. Learned counsel for the petitioner submitted that, in the absence of sanction of the competent authority under Section 19 of the Act,
the Special Court had no power to pass an order directing registration of FIR against the petitioner who was a public servant. Learned counsel for the
petitioner relied upon the decision of the Supreme Court in Anil Kumar v. Aiyappa: (2013)10 SCC 705 in support of his contention.
9. Learned Public Prosecutor submitted that Annexure-K order was passed by the Special Court on 06.04.2013 and Annexure-L FIR was registered
on 18.04.2013. The decision of the Apex Court in Anil Kumar (supra) was rendered only on 01.10.2013. Learned Public Prosecutor submitted that the
decision in Anil Kumar (supra) has got no retrospective effect and therefore, Annexure-K order passed by the Special Court is perfectly valid.
10. Learned counsel for the second respondent did not make any oral submissions with regard to the merits of the matter but only pointed out that he
has filed a written statement. However, the written statement filed by the second respondent does not touch upon the legal contentions raised by the
petitioner. It only contains averments with regard to the factual aspects of the matter.
11. There is no dispute with regard to the fact that, at the time of commission of the alleged offences, the petitioner was a public servant as defined
under Section 2(c) of the Act.
12. Section 19(1) of the Act (as it stood before amendment by Act 16 of 2018) provided that no Court shall take cognizance of offences punishable
under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority.
13. The question considered by the Supreme Court in Anil Kumar (supra) was, whether the Special Judge/Magistrate was justified in referring a
private complaint for investigation by the police in exercise of the power conferred under Section 156(3) of the Code, without the production of a valid
sanction order under Section 19 of the Act. The Apex Court also examined the question whether an order directing investigation under Section 156(3)
of the Code would amount to taking cognizance of the offence.
14. In Anil Kumar (supra), the Apex Court held that the word ""cognizance"" has a wider connotation and not merely confined to the stage of taking
cognizance of the offence. It was held that when a Special Judge refers a complaint for investigation under Section 156(3) of the Code, 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.
15. Thereafter, the Apex Court examined the question whether the requirement of sanction is a pre-condition for ordering investigation under Section
156(3) of the Code even at a pre-cognizance stage. The Apex Court took notice of the provisions contained in Sections 19(1) and 19(3) of the Act and
held that, in the absence of previous sanction, the Special Judge/Magistrate cannot order investigation against a public servant while invoking powers
under Section 156(3) of the Code. It was held as follows:
“That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that 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) Cr.P.Câ€.
16. Having regard to the ratio of the judgment in Anil Kumar (supra), in Narayana Swamy v. State of Karnataka (AIR 2016 SC 4125), the Apex
Court has held that an order directing further investigation under Section 156(3) of the Code cannot be passed in the absence of valid sanction under
Section 19(1) of the Act.
17. In Manju Surana v. Sunil Arora : (2018) 5 SCC 557, the question considered was whether prior sanction for prosecution against a public servant
was required before setting in motion even the investigative process under Section 156(3) of the Code. The Apex Court referred the above question to
be decided by a Larger Bench.
18. The pendency of a reference made by the Apex Court to a larger Bench does not mean that all other proceedings involving the same issue would
remain stayed till a decision is rendered in the reference. Till such time as the decision cited at the Bar is not modified or altered in any way, it would
continue to hold the field (See Ashok Sadarangani v. Union of India : AIR 2012 SC 1563).
19. A Division Bench of this Court, in Muhammed v. State of Kerala : 2019 (1) KHC 239: 2019 (1) KLT 156, has held that until a final decision is
taken in the reference in Manju Surana (supra), the dictum laid down in Anil Kumar (supra) would hold the field.
20. Learned Public Prosecutor pointed out that Annexure-K order was passed by the learned Special Judge prior to the decision rendered by the
Supreme Court in Anil Kumar (supra). Therefore, he would contend that, Annexure-K order cannot be found to be an order passed by the learned
Special Judge without jurisdiction.
21. The decision in Anil Kumar (supra) was rendered by the Supreme Court on 01.10.2013. Annexure-K order was passed by the learned Special
Judge on 06.04.2013. Therefore, the question arises whether the dictum laid down by the Supreme Court in Anil Kumar (supra) would apply to
Annexure-K order.
22. In Baburam v. C.C.Jacob : AIR 1999 SC 1845, the Supreme Court has held as follows:
“The prospective declaration of law is a device innovated by the Apex Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It
is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken
contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which
are legally bound to apply the declaration of law made by this Court are also duty bound to apply such dictum to cases which would arise in future only. In
matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration
of lawâ€.
23. However, the principle with regard to prospective operation of law declared by the Apex Court will not apply unless expressly stated so by that
Court. In Aneeta Hada v. Godfather Travels and Tours (P) Ltd : AIR 2012 SC 2795, the Supreme Court held that, for maintaining the prosecution
under Section 141 of the Negotiable Instruments Act, arraigning of the company as an accused is imperative. This decision was rendered by the Apex
Court on 27.04.2012. In Ajit Balse v. Ranga Karkere : (2015) 15 SCC 748, the challenge made was with regard to the conviction entered against the
accused under Section 138 of the Negotiable Instruments Act by the trial court much before the date 27.04.2012. The Supreme Court set aside the
conviction on the basis of the decision in Aneeta Hada (supra), observing as follows:
“The learned counsel appearing on behalf of the respondent while accepting that Adivasi Machua Samiti, Sirsida on whose behalf cheque was issued was not
impleaded as the accused before the trial court, contended that the judgment in Aneeta Hada case cannot be made applicable retrospectively in respect of cases
where the conviction took place much prior to the judgment. However, such objection cannot be raised in the present case. Though judgment in Aneeta Hada is
prospective but is applicable in all pending cases, including the trial, appeal, revision and special leave petition / appeal pending before this Court. The case of
the appellants being covered by the decision in Aneeta Hada case, we set aside the impugned judgment and conviction passed by the trial court as affirmed by the
appellate court and the impugned order dated 31.08.2012 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Revision No. 365 of 2012â€.
24. The law laid down by the Supreme Court applies to all pending proceedings (See A.S. Gauraya v. S.N. Thakur : AIR 1986 SC 1440). The doctrine
of prospective overruling would be applicable only when expressly stated so. The law declared by the Apex Court will have retrospective effect if not
otherwise stated to be so specifically (See P.V.George v. State of Kerala : AIR 2007 SC 1034). Normally, a decision of the Apex Court enunciating a
principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is,
in fact, the law from inception (See Murthy v. State of Karnataka : AIR 2003 SC 3821). A declaration of law by the Supreme Court is the law of the
land and and it must be held to have always been the law of the land. It is for the Apex Court to indicate as to whether the decision in question would
operate only prospectively. Unless so indicated by the Apex Court, the decision would be applicable to all pending cases.
25. Therefore, there is no merit in the contention of the learned Public Prosecutor that the law declared by the Apex Court in Anil Kumar (supra)
cannot have any application to Annexure-K order.
26. The petitioner has retired from service in the year 2018. But it does not have any effect on Annexure-K order or Annexure-L FIR. In view of the
amendment of Section 19(1) of the Act, which came into force on 26.07.2018, sanction envisaged thereunder is necessary in respect of a retired
public servant also. True, the amendment will have only prospective application and it has no application to cases registered prior to the amendment
and pending under various stages of investigation and to cases in which investigation has been completed and are pending trial (See Ramesh v. C.B.I :
2020 (4) KHC 220). However, the date relevant for considering the necessity of sanction is the date on which cognizance is taken. In the present
case, it would be the date on which an order under Section 156(3) of the Code is being passed by the Special Judge. Therefore, in the present case,
inspite of the retirement of the petitioner from service, if the Special Judge has to pass a fresh order under Section 156(3) of the Code, sanction under
Section 19 of the Act would be necessary.
27. In the light of the decision of the Supreme Court in Anil Kumar (supra), Annexure-K order passed by the learned Special Judge, directing
registration of first information report against the petitioner, who was a public servant, is liable to be quashed in the absence of any sanction under
Section 19(1) of the Act obtained and produced before the court.
28. Consequently, the petition is allowed and Annexure-K order and Annexure-L FIR are quashed. If the investigating officer or the second
respondent produces the order of sanction under Section 19(1) of the Act, the learned Special Judge shall pass appropriate orders, in accordance with
law, on the complaint filed by the second respondent. It is made clear that this Court has not expressed any opinion on the merits of the allegations
contained in the complaint filed by the second respondent.
