,
1. Heard Ms. Jayasree Narasimhan, learned counsel representing Mr. Dilip Kumar, learned counsel for the petitioner and Mr. K.Surender, learned",
Special Public Prosecutor for Central Bureau of Investigation (CBI) (as his Lordship then was).,
2. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) to quash the proceedings in C.C.No.26 of 2013",
pending on the file of Principal Special Judge for CBI Cases, Nampally, Hyderabad (briefly, ‘the CBI Court’ hereinafter) qua the petitioner Sri",
V.D.Rajagopal who has been arrayed as accused No.16 as well as to set aside the order dated 10.01.2020 passed by the CBI Court whereby the CBI,
Court took cognizance of the offence against the petitioner as accused No.16 under Section 120B read with Section 420 and Section 409 of the Indian,
Penal Code, 1860 (IPC) and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (briefly, ‘the PC Act’",
hereinafter).,
3. The aforesaid prayer has been made on the ground that sanction for prosecution has not been obtained from the appropriate government against the,
petitioner, more particularly in the context of the Prevention of Corruption (Amendment) Act, 2018.",
4. Petitioner in this case is Sri V.D.Rajagopal who is a retired Government servant of the Government of Andhra Pradesh belonging to the Indian,
Administrative Service (IAS). At the relevant point of time, he was serving as the Director of Mines and Geology, Government of Andhra Pradesh.",
5. One P.Shankar Rao, former M.L.A., and late Yerran Naidu, former M.P., had filed W.P.Nos.794 and 6604 of 2011 respectively before the then",
High Court for the composite State of Andhra Pradesh alleging corruption against late Y.S.Rajasekhara Reddy, former Chief Minister of Andhra",
Pradesh, his son Sri Y.S.Jagan Mohan Reddy and others and sought for investigation into such allegations of corruption by the CBI. By the order",
dated 10.08.2011, the erstwhile High Court of Andhra Pradesh directed CBI to investigate the allegations. Following the High Court order, CBI, Anti",
Corruption Bureau (ACB), Hyderabad registered a case on 17.08.2011 being R.C.19(A)/2011-CBI-HYD against seventy four accused persons under",
various provisions of the IPC, such as, Section 120B read with Section 420 and Section 477A and also under the provisions of Sections 6, 12, 13(2)",
read with Section 13(1)(c) and (d) of the PC Act.,
6. In the above F.I.R. petitioner was not arrayed as an accused person.,
7. After conducting investigation, CBI filed charge sheet on 10.09.2013 in final report form being charge sheet No.14. In this charge sheet, as many as",
nine persons were named as accused including Sri Y.S.Jagan Mohan Reddy as accused No.1 but petitioner was not named as an accused. CBI Court,
registered the said charge sheet as C.C.No.26 of 2013.,
8. Thereafter, CBI submitted supplementary charge sheet in final report form being charge sheet No.9 dated 21.07.2016, wherein seven more persons",
were named as accused Nos.10 to 16. It is in this supplementary charge sheet that the petitioner was named as accused No.16. Petitioner was,
charged under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act.,
9. Allegation against the petitioner in the supplementary charge sheet was that petitioner as the Director of Mines and Geology had initiated the,
proposal recommending grant of prospecting licence for limestone over an extent of 304.740 hectares in Kurnool District in favour of M/s.Penna,
Cement Industries Limited. The allegation is that petitioner had not followed the prescribed norms and by abusing his official position had extended the,
said benefit. Petitioner in furtherance of criminal conspiracy in facilitating the companies owned by Sri P.Pratap Reddy, accused No.3, had given his",
recommendation for grant of prospecting licence and renewal of mining lease. Companies owned by Sri P.Pratap Reddy for the undue benefits,
obtained, made investments in companies owned by Sri Y.S.Jagan Mohan Reddy as a quid pro quo. Therefore, petitioner had committed the offence",
of criminal conspiracy, cheating and criminal breach of trust punishable under Section 120B read with Section 420 IPC and under Section 13(2) read",
with Section 13(1)(d) of the PC Act.,
10. CBI submitted that sanction for prosecution in respect of the petitioner was not required since petitioner was no longer a public servant as he had,
superannuated in the meanwhile.,
11. The supplementary charge sheet came up for hearing before the CBI Court on 03.01.2020. Since objections were raised as to filing of the,
supplementary charge sheet, the matter was heard by the CBI Court. By the order dated 10.01.2020 CBI Court took the supplementary charge sheet",
on file and further took cognizance of the offence against the seven accused persons mentioned in the supplementary charge sheet, including petitioner",
as accused No.16. CBI Court held that roles played by the additional accused persons including the petitioner were brought on record and highlighted,
by the CBI not only in this supplementary charge sheet but also in the original charge sheet. CBI had collected new documents during the course of,
further investigation which went to show that prima facie case is made out against the accused persons to take cognizance against each of them,
which does not amount to reviewing the original charge sheet. In so far petitioner is concerned, CBI Court held that petitioner was no longer a public",
servant. Therefore, sanction for prosecuting petitioner is not required.",
12. Aggrieved by the same, present criminal petition has been filed seeking the reliefs as indicated above.",
13. As already noted above, the challenge has been made on the ground that no previous sanction was obtained from the appropriate",
government/competent authority to prosecute the petitioner. The Prevention of Corruption (Amendment) Act, 2018 mandates that prior to initiation of",
prosecution for offences punishable under Sections 7, 11, 13 and 15 of the PC Act, previous sanction of the appropriate government or the competent",
authority is necessary which is absent in the instant case. In the absence of previous sanction, there can be no prosecution.",
14. Respondent has filed counter affidavit objecting to the contentions raised by the petitioner and has sought for dismissal of the criminal petition.,
Order dated 10.01.2020 passed by the CBI Court has been justified as it is contended that the said order is a well reasoned and speaking order.,
Thereafter, the affidavit discloses the contours of the charges against the petitioner in the backdrop of facts which emerged during the course of",
investigation and further investigation leading to filing of supplementary charge sheet after filing of the original charge sheet. Materials on record,
clearly discloses involvement of the petitioner who was part of the decision making process and had acted in furtherance of the criminal conspiracy by,
abusing his official position as the Director of Mines and Geology. The materials on record are sufficient to proceed against the petitioner and other,
accused public servants for offences under Section 120B, 409 and 420 IPC and under Section 13(2) read with Section 13(1)(d) of the PC Act. It is",
stated that since the petitioner had retired from service at the time of filing of supplementary charge sheet, sanction for prosecution was not required",
as per Section 19 of the PC Act. That apart, the Prevention of Corruption (Amendment) Act, 2018 (briefly, ‘the Amendment Act’ hereinafter)",
came into effect from 16.07.2018, whereas the supplementary charge sheet was filed much prior thereto i.e., on 21.07.2016. Therefore, the",
Amendment Act would not be applicable to the facts of the case. This has rightly been interpreted by the CBI Court in the order dated 10.01.2020.,
14.1. It is further stated that petitioner is an accused being accused No.5 in C.C.No.25 of 2013. He had filed criminal petition No.6398 of 2016.,
Likewise, being accused No.3 in C.C.No.1 of 2012, he had also filed criminal petition No.6399 of 2016 for quashing the proceedings in C.C.No.1 of",
2012. Both the two criminal petitions were dismissed by the common order dated 16.11.2018 holding that such amended provision cannot be given,
retrospective effect and has to be given prospective effect. Against the dismissal of his criminal petitions, petitioner has preferred S.L.P (Criminal)",
No.2194 of 2019 which is pending before the Supreme Court but there is no stay. In the circumstances, respondent seeks dismissal of the criminal",
petition.,
15. Learned counsel for the petitioner submits that when CBI registered the F.I.R on 17.08.2011 on the basis of the High Court judgment dated,
10.08.2011 a list of seventy four accused persons were mentioned. However, petitioner was not named as an accused. There is no allegation against",
the petitioner in the F.I.R. and therefore his name did not figure as an accused in the F.I.R. After conclusion of investigation, when CBI filed the",
charge sheet being charge sheet No.14 dated 10.09.2013, a total of nine persons were named as accused. In this charge sheet also, name of the",
petitioner did not figure as an accused. In fact, there were no allegations against the petitioner in the charge sheet. It was only when supplementary",
charge sheet was filed being charge sheet No.9 dated 21.07.2016 that petitioner came to be arrayed as accused No.16. Learned counsel for the,
petitioner submits that petitioner as a government servant being the Director of Mines and Geology had discharged his duties following all,
governmental norms. No wrong doing could be attributed to the petitioner. Therefore, CBI was not at all justified in arraying the petitioner as accused",
No.16.,
15.1. However, the principal ground on which petitioner seeks quashing of the charge sheet and the cognizance order is that no sanction was sought",
for or obtained by CBI from the appropriate government for prosecution of the petitioner. On the point of sanction, learned counsel for the petitioner",
has particularly relied upon and laid great emphasis on the Amendment Act. Learned counsel submits that the supplementary charge sheet was filed,
on 21.07.2016 whereas the Amendment Act came into effect from 26.07.2018. Learned counsel submits that under Section 19 of the PC Act as,
amended by the Amendment Act, CBI Court could not have taken cognizance of the alleged offence under Section 13 of the PC Act without",
obtaining previous sanction of appropriate government. He submits that the Amendment Act is procedural in nature and being procedural, it would",
have retrospective effect. Therefore, the fact that petitioner had retired from service though the alleged offence was committed when he was in",
service, would be no ground to justify failure to obtain sanction from the appropriate government under Section 19 of the PC Act as amended. As",
such, in the absence of such sanction, there can be no prosecution of the petitioner.",
15.2. Learned counsel has referred to relevant portion of the supplementary charge sheet as well as the order of the CBI Court dated 10.01.2020 and,
submits that the view taken by the prosecution as well as by the CBI Court that since petitioner is no longer a public servant, sanction for prosecution",
is not required; that the amendment came into effect from 26.07.2018 whereas the supplementary charge sheet was filed on 21.07.2016 prior to the,
amendment of the PC Act, hence the Amendment Act would not be applicable, is totally erroneous and liable to be interfered with by the Court.",
Learned counsel submits that Section 19 pertains to procedure and thus is a procedural law. It is settled proposition that any amendment carried out in,
respect of procedural law is retrospective in nature. Even though the offences alleged to have been committed by the petitioner were prior to,
26.07.2018 (when the Amendment Act came into effect), the cognizance of which was taken subsequently would be covered by the Amendment Act.",
Thus, sanction for prosecution of a government servant who is serving or who had superannuated would be covered under Section 19 of the PC Act.",
Since the offences alleged to have been committed under Section 13 of the PC Act, sanction for prosecution under Section 19 is mandatory. Without",
such sanction, the trial Court would have no jurisdiction to try the petitioner.",
15.3. Learned counsel for the petitioner has submitted a compilation of judgments covering the aspects of sanction for prosecution as well as the,
power of the Court to quash criminal proceedings under Section 482 of Cr.P.C. He has particularly referred to and relied upon the decisions of the,
Supreme Court in R.S.Nayak v. A.R.Antulay (1984) 2 SCC 183 and L.Narayana Swamy v. State of Karnataka (2016) 9 SCC 598.,
16. Per contra, learned Special Public Prosecutor for CBI has referred to the counter affidavit and submits therefrom that identical ground was raised",
by the petitioner before this Court in criminal petition Nos.6398 and 6399 of 2016 (V.D.Rajagopal v. State of Telangana). Criminal petition No.6398 of,
2016 was filed by the petitioner under Section 482 of Cr.P.C to quash the proceedings in C.C.No.25 of 2013 on the file of the CBI Court where the,
petitioner was arrayed as accused No.5 for commission of offences punishable under Section 120B and 420 IPC and under Section 13(2) and 13(1)(d),
of the PC Act. Likewise, petitioner had filed criminal petition No.6399 of 2016 under Section 482 Cr.P.C to quash proceedings in C.C.No.1 of 2012 on",
the file of CBI Court where petitioner was arrayed as accused No.3 for offences punishable under Sections 120B, 379, 409, 411, 420, 427, 447 and",
468 of IPC and under Section 13(2) read with Section 13(1)(d) of the PC Act.,
16.1. In both the criminal petitions, identical ground was urged for quashing. Both the criminal petitions were however dismissed by a common",
judgment and order dated 16.11.2018 which has since been reported in 836. Though petitioner has filed S.L.P before the Supreme Court which is,
pending, no stay has been granted by the Supreme Court. Learned counsel further submits that no new or additional ground has been urged by the",
petitioner. All the grounds urged in the present petition have been answered in the aforesaid decision. That being the position, the present criminal",
petition is liable to be dismissed.,
17. Submissions made by learned counsel for the parties have received the due consideration of the Court.,
18. Since it is submitted that identical challenge made by the petitioner in criminal petition Nos.6398 and 6399 of 2016 was rejected by this Court by a,
reasoned order dated 16.11.2018, it would be apposite to deal with the same. The contentions urged on behalf of the petitioner were summed up by",
the Court in the following manner:,
It is the contention of the petitioner that he joined as Director of Mines and Geology on 01.08.2005. The department consists of 32 district/ sub district,
level offices headed by Asst. Director of Mines and Geology, 8 sub-regional level offices headed by Deputy Director of Mines and Geology and 4",
regional level offices headed by Joint Director of Mines and Geology and 12 offices of Asst. Director of Mines and Geology vigilance. As per the,
powers delegated to various level officers the district/ sub-district level officers are responsible for day to day mineral regulatory activities in the,
district and entrusted with powers to issue permits and collect royalties. They are also entrusted with the powers to prosecute the offenders involved,
in the illegal mining activity. In this case Assistant Director of Mines and Geology, Anantapur is the officer in-charge to regulate the activity. As the",
head of the department the role of Petitioner/Accused is overall supervision of the entire department and authority to grant lease for minor minerals in,
respect of granite/marble and forwarding of the proposals received from the district/regional level officers for grant of mineral concessions to the state,
government, besides attending to number of state level meetings, reviews conducted by the State Government. Therefore, the petitioner is not vested",
with any power to grant mining lease, but the Assistant Director alone is responsible to regulate the mining operations.",
Though the petitioner raised several grounds, in view of the limited submissions made by Sri Dilip Kumar, learned counsel for the petitioner, I feel that",
the grounds urged in the argument alone are relevant to decide the present issue in both the petitions.,
The first and foremost ground urged by the learned counsel for the petitioner is that the petitioner is Public Servant as defined under Section 2 (c) of,
P.C.Act and under Section 21 of I.P.C., but no sanction was obtained as required under Section 197 of Cr.P.C. Therefore, taking cognizance against",
the petitioner for various offences referred supra without obtaining prior sanction under Section 197 of Cr.P.C. is serious illegality, which vitiates the",
entire proceedings. The allegation made against the petitioner is that he exercised such power or indulged in criminal conspiracy or cheating in,
connection with discharge of his official duties, therefore, sanction is required, which is precondition to take cognizance of offences against the",
petitioner.,
The second ground urged before this Court is that the petitioner is a public servant as defined under Section 2 (c) of P.C. Act, sanction is required",
under Section 19 of P.C.Act to take cognizance against the petitioner for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of,
P.C.Act. Therefore, without sanction as required under Section 19 of P.C. Act, taking cognizance against the petitioner for the offence under Section",
13 (2) read with Section 13 (1) (d) of P.C.Act is a serious illegality. Therefore, prosecution against the petitioner is vitiated by illegality and liable to be",
quashed.,
18.1. Additionally in the hearing, learned counsel appearing for the petitioner further contended that the benefit of the Amendment Act which came",
into force with effect from 26.07.2018 would be available to the petitioner. Therefore, it was contended that sanction of the appropriate government",
would be required even to prosecute a retired public servant. The above submissions were recorded by the Court as under:,
During hearing, Sri Dilip Kumar, appearing for Sri V.L.Surendra, learned counsel for the petitioner, advanced new ground i.e. that the petitioner is",
entitled to claim benefit of amended provisions of P.C.Act by Act 16 of 2018, which came into force with effect from 26.07.2018. According to",
explanation added to Section 19 by virtue of the amendment, sanction is required to prosecute the officer as defined under Section 2 (c) of P.C. Act",
even after retirement. Thus, sanction is required even to prosecute retired public servant and obtaining sanction is a procedure to be followed by the",
Government to prosecute the Government Servant. The main endeavour of the learned counsel for the petitioner is that when amendment was made,
to penal law, more particularly the provision dealing with procedural aspect, it has to be given retrospective effect, thereby the petitioner is entitled to",
claim benefit of explanation to sub-section (1) of Section 19 of P.C. Act as amended by the Act 16 of 2018, thereby the prosecution of the petitioner",
for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of P.C. Act is liable to be quashed against the petitioner.,
It is also contended that the alleged acts of the petitioner are connected to discharge of his official duties and he is a public servant as defined under,
Section 2 (c) of the P.C. Act and in the absence of any sanction from competent authority as required under Section 19 of the P.C. Act taking,
cognizance against the petitioner for the offences punishable under IPC is a serious illegality, therefore, the order taking cognizance for various",
offences under I.P.C. vitiates the entire proceedings against the petitioner, on this ground also the proceedings against the petitioner are liable to be",
quashed.,
18.2. This was contested by learned Special Public Prosecutor for CBI who had submitted that though the Amendment Act was a procedural one,
when no obligation was cast upon the investigation agency by the date of filing of charge sheet to obtain sanction from the competent authority, the",
law amended after five years from the date of filing of the charge sheet could not be applied retrospectively. The clock could not be set back. New,
obligation imposed by the amended law could not be given retrospective effect. Legislative intent was not to defeat all pending prosecutions against,
retired public servants under the PC Act. It is only to protect them from illegal prosecution from the date of such amendment. Therefore, the",
Amendment Act could not have given retrospective effect to quash the proceedings against the petitioner.,
18.3. On the basis of the rival submissions, learned Judge framed questions for consideration, two of which are relevant for our present deliberation,",
which are reproduced below:,
(1) Whether failure to obtain sanction under Section 197 of Cr.P.C. to prosecute the petitioner for the offences punishable under the,
provisions of Indian Penal Code is sufficient to quash the proceedings against the petitioner?,
(2) Whether explanation to sub-section (1) of Section 19 of Prevention of Corruption Act by Act 16 of 2018, which came into force on",
26.07.2018 be given retrospective effect, if so, whether the investigating agency is obligated with the duty to obtain sanction under Section",
19 of Prevention of Corruption Act after retirement and failure to do so is sufficient to quash the proceedings against the petitioner for the,
offence punishable under Section 13 (2) read with Section 13 (1) (d) of P.C.Act?,
18.4. On question No.1, learned Judge noted that petitioner was an IAS Officer and at the relevant time was working as Director of Mines and",
Geology. In that capacity he was charged with committing offences under Sections 120B and 420 IPC and under Section 13(2) read with Section,
13(1)(d) of the PC Act in C.C.No.25 of 2013 and under Sections 120B, 379, 409, 411, 420, 427, 447 and 468 IPC and under Section 13(2) read with",
Section 13(1)(d) of the PC Act in C.C.No.1 of,
24. Thereafter, learned Judge examined the provision of Section 21 of IPC which defines the word “public servant†as well as Section 197 of",
Cr.P.C, the object and purpose of which is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged",
to have been committed by them while acting or purporting to act in the discharge of their official duty. Learned Judge examined and analysed various,
decisions of the Supreme Court on the scope of Section 197 of Cr.P.C and culled out following principles therefrom:,
1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to,
further public duty. However, authority cannot be camouflaged to commit crime.",
2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide,
construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197,
Code of Criminal Procedure has to be construed narrowly and in a restricted manner.,
3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of",
protection Under Section 197 Code of Criminal Procedure There cannot be a universal Rule to determine whether there is reasonable nexus,
between the act done and official duty nor it is possible to lay down such rule.,
4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary Under,
Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly",
and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was,
incomplete without proving, the official act, ordinarily the provisions of Section 197 Code of Criminal Procedure would apply.",
5. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective,
assessment. The court is not to be a sanctioning authority.,
Section 19 (1) of P.C. Act prior to amendment,"Section 19 (1) of P.C. Act after to amendment by Act
16 of 2018.
19. Previous sanction necessary for prosecution
(1) No court shall take cognizance of an offence
punishable under section 7, 10, 11, 13 and 15 alleged
to have been committed by a public servant, except
with the previous sanction,-
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable 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","Section 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 provided in
the Lokpal and Lokayuktas Act, 2013],â€
(a) in the case of a person [who is employed, or as the
case may be, was at the time of commission of the
alleged offence employed] in connection with the
affairs of the Union and is not removable 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, or as the
case may be, was at the time of commission of the
,
,
ompetent to remove him from his office.,"alleged offence 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.
[Provided that no request can be made, by a
person other than a police officer or an officer of
an investigation agency or other law enforcement
authority, to the appropriate Government or
competent authority, as the case may be, for the
previous sanction of such Government or authority
for taking cognizance by the court of any of the
offences specified in this sub-section, unless-- (i)
such person has filed a complaint in a competent
court about the alleged offences for which the
public servant is sought to be prosecuted; and (ii)
the court has not dismissed the complaint under
section 203 of the Code of Criminal Procedure,
1973 (2 of 1974) and directed the complainant to
obtain the sanction for prosecution against the
public servant for further proceeding:
Provided further that in the case of request from
the person other than a police officer or an officer
of an investigation agency or other law
enforcement authority, the appropriate
Government or competent authority shall not
accord sanction to prosecute a public servant
without providing an opportunity of being heard to
the concerned public servant:
Provided also that the appropriate Government or
any competent authority shall, after the receipt of
the proposal requiring sanction for prosecution of
a public servant under this sub-section, endeavour
to convey the decision on such proposal within a
period of three months from the date of its receipt:
Provided also that in case where, for the purpose
of grant of sanction for prosecution, legal
consultation is required, such period may, for the
reasons to be recorded in writing, be extended by a
further period of one month:
Provided also that the Central Government may,
for the purpose of sanction for prosecution of a
public servant, prescribe such guidelines as it
considers necessary.
Explanation.-- For the purposes of sub-section (1),
the expression ""public servant"" includes such
person--
(a) who has ceased to hold the office during which
the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which
the offence is alleged to have been committed and
is holding an office other than the office during
which the offence is alleged to have been
committed.]
In Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited (2015) 1 SCC 1, the Apex Court held as follows:",
Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or",
declaratory in nature. Such statutory provisions are labeled as ""declaratory statutes"". The circumstances under which a provision can be termed as",
declaratory statutes"" is explained by Justice G.P. Singh in the following manner:",
Declaratory statutes,
The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by the Supreme Court:,
For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any",
statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have,
been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a",
preamble, and also the word 'declared' as well as the word 'enacted'. But the use of the words 'it is declared' is not conclusive that the Act is",
declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will",
not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a",
new Act is 'to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an",
obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the,
previous law retrospective operation is generally intended. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms",
retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended",
provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was,
already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the",
Constitution came into force, the amending Act also will be part of the existing law.",
xx xx xx xx,
No doubt, the intention of the legislature is to provide necessary protection to the officers to discharge their duties without fear or favour being the",
public servants. As per the law declared by the Apex Court in the judgments referred supra, even after retirement they are entitled to claim such",
protection in view of the addition of explanation to Section 19 (1) of the P.C. Act. If language used in explanation to Section 19 (1) of the P.C. Act is,
unambiguous, the intent of the legislature is to provide protection to the retired employees. Basing on the protective shield provided to retired",
Government employees, who ceased to be public servants as on the date of taking cognizance, the petitioner is claiming protection that unless sanction",
was obtained, the petitioner cannot be prosecuted for the offence. The law referred above is in his favour to some extent since Section 19 (1) of the",
P.C. Act deals with procedure to prosecute the Government Servant for various offences under the P.C. Act.,
In the present facts of the case, the offence was allegedly committed in 2011 i.e. long prior to amendment of the P.C. Act. But because of the",
additions, the petitioner wanted to take advantage of situation in view of amendment of Section 19 (1) of the P.C. Act and contending that in the",
absence of any sanction as required under Section 19 (1) of the P.C. Act as amended by Act 16 of 2018, the prosecution shall not be continued",
against him. Directly, it amounts to setting clock back to the date prior to taking cognizance, but such procedure which creates or imposes new",
obligation or duty on either of the parties to the criminal proceedings can be given retrospective effect is a question required to be considered by this,
Court.,
xx xx xx xx,
Turning to the facts of the present case, the respondent’s contention is that on account of amendment by Act 16 of 2018, a new obligation or duty",
was imposed on the prosecution to obtain sanction even after retirement of the petitioner from service as a public servant. It is not the intention of the,
legislation to defeat all prosecutions pending against the retired Government servants. The Act itself is clear that it was not intended to defeat all,
pending prosecutions against retired Government servants on account of such imposition of new obligation or duty upon the prosecution.,
As the Act is enacted as a measure conceived in public interest, it should be construed so as to bring about the desired object to prevent corruption",
among public servants and to prevent harassment of honest among them. “The preamble indicates that the Act was passed as it was expedient to,
make more effective provisions for the prevention of bribery and Corruption. The long title as well as the preamble indicate that the Act was passed to,
put down the said social evil i.e. bribery and corruption by public servant. Bribery is form of corruption. The fact that in addition to the word ""Bribery""",
'the word ""corruption"" is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. Penal Code",
was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The,
provisions broadly include the existing offences under Sections 161 and 165 of the Indian Penal Code committed by public servants and enact a new,
rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some,
extent it overlaps on the pre--existing offences and enacts a rebuttable presumption contrary to the well known principles of Criminal Jurisprudence. It,
also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of,
particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially,
useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, i.e. to prevent corruption among",
public servants and to prevent harassment of the honest among them. A decision of the Judicial Committee in Dyke v. Elliott, The Gauntlet (1872-4",
A.C. 184) cited by the Learned Counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James,
speaking for the Board observes at page 191 as follows:,
No-doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain",
meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing",
is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say",
that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within",
the spirit, there a penal enactment is to be construed like any other instrument, according to the fair commonsense meaning of the language used, and",
the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or",
made in the same language in any other instrument.†(Vide M.Narayanan Nambiar v. State of Kerala AIR 1963 SC 1116),
The legislature intended to provide such protection to the officer, who ceased to be the Government Servant after commission of offence or on the",
date of taking cognizance as contended by the learned counsel for the petitioner, but the same is not intended to give any undue benefit to the person",
who committed such offence since bribery became a menace to the society at large.,
If such interpretation is given to sneak out the retired Government Servants on account of disability or duty imposed by amended provision on the,
prosecuting agency, it amounts to causing violence to the intendment of the legislature, if such is the situation, it will have devastating effect on the",
pending prosecutions throughout the country against the retired Government servants in view of amendment to explanation to Section 19 (1) of the,
P.C. Act. Therefore, such amended provision which created or imposed new obligation on the prosecution to obtain sanction to prosecute the retired",
Government Servant after taking cognizance or before taking cognizance, depending upon the stage of the proceedings, and the same cannot be given",
retrospective effect and it shall be given prospective effect in view of the law declared by the constitutional bench of the Apex Court in Commissioner,
of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited (referred supra).",
xx xx xx xx,
The facts of the case are distinguishable as the petitioner claiming immunity from the prosecution on the ground of failure to obtain sanction for,
prosecuting him taking advantage of explanation by Act 16 of 2018, which came into force with effect from 26.07.2018, but such amendment",
created/imposed new obligation or duty on the prosecution to obtain sanction to prosecute even retired government servant. Earlier sanction is required,
only to prosecute the public servant, and when a person retired from service, no sanction is required. On account of change of law due to addition of",
explanation to Section 19 (1) of the P.C. Act, now sanction is required even to prosecute retired government servant. If this provision is given",
retrospective effect, all retired government servants, against whom prosecutions are pending will sneak out from the prosecutions, it is nothing but",
accommodating retired Government Servant to escape from pending prosecution under the P.C. Act irrespective of seriousness of offence. The,
intention of the legislature is to prevent bribery among the public servants, which is a serious threat to the society now and increasing day by day.",
Therefore, amendment to Section 19 (1) of the P.C. Act though deals with procedure, which cannot be given retrospective effect as it created or",
imposed new obligation or duty on the prosecution to obtain sanction after more than 7 years from the date of filing charge sheet and taking,
cognizance against the petitioner. Therefore, I find that such interpretation as sought for by the learned counsel for the petitioner is against the",
intendment of the Statute.,
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 prosecution. The point is held against the petitioner and in favour of the respondent.,
20. Therefore, learned Judge declined to accept the contention of the petitioner that the Amendment Act would have retrospective effect and thereby",
save the petitioner from prosecution in the absence of sanction. Accordingly, question No.2 was answered against the petitioner.",
21. From the above, it is seen that the same contentions which were urged and rejected by this Court in 2019 (2) ALD (Crl) 836 (Criminal Petition",
Nos.6398 and 6399 of 2016, date of judgment 16.11.2018 â€" V.D.Rajgopal v. State of Telangana) in respect of the petitioner himself, have been re-",
urged in present petition.,
22. After a threadbare analysis of the judgment rendered by a Coordinate Bench of this Court in the case of the petitioner himself, Court is of the",
view that there is no good reason to take a different view in respect of the present challenge which pertains to the petitioner himself as accused No.16,
in C.C.No.26 of 2013.,
23. Therefore and following the above decision of this Court in 2019 (2) ALD (Crl) 836 (Criminal Petition Nos.6398 and 6399 of 2016, date of",
judgment 16.11.2018 â€" V.D.Rajgopal v. State of Telangana), this Court finds no good ground to entertain the present criminal petition. Consequently,",
the criminal petition is dismissed.,
Miscellaneous petitions, if any, pending in this criminal petition shall stand closed.",
