RAMANAN v. KRISHNAPRASAD ADYANTHAYA

ORDER Since the petition is filed against the dismissal of complaint at pre-cognizance stage, notice to respondents is dispensed with.

2. This petition is directed against the order of dismissal of complaint passed by the learned District and Sessions Judge, Udupi, in PCR No.4/2012 dated 03/07/2012. 4

3. The petitioner – complainant had filed a private complaint for the offences punishable under Sections 7 and 13(b) of the Prevention of Corruption Act, 1988, inter alia alleging that the accused, during their tenure as public servants have misappropriated huge amount of the Temple.

4. The learned Magistrate, by the impugned order has dismissed the complaint on the sole ground that the complaint has been filed against public servants and as such, sanction as contemplated under Section 19(3) of the Prevention of Corruption Act, 1988, (for short, `the Act`) was required and in the absence of sanction, the accused cannot be prosecuted. As against the said order, this petition has been filed.

5. Learned counsel for the petitioner submits that in the complaint, the complainant himself has stated that the accused have demitted their office and they are no more public servants and as on the date of taking cognizance, if 5 they are not public servants, no sanction is necessary. Sanction as contemplated under Section 19 is necessary only when a public servant discharges public duty and not against the person, who had demitted the office. In support of his contention, he has relied upon two decisions of the Apex Court: one in the matter of R.S. NAYAK Vs. A.R. ANTULAY ((1984) 2 Supreme Court Cases 183) and another in the matter of ABHAY SINGH CHAUTALA Vs. CENTRAL BUREAU OF INVESTIGATION reported in ((2011) 7 SCC 141) and submitted that the relevant time is the date on which the cognizance is taken. If accused are not public servants as on the date of taking cognizance, the question of obtaining sanction does not arise.

6. The Apex Court in Abhay Singh Chautala`s case (referred supra) has considered this aspect of the matter and has held that sanction is necessary, only if as on the date of taking cognizance, the accused is a public servant holding the public office and if he was not a public servant as on the 6 date of taking cognizance, no sanction is necessary and has observed as under: “53. Same argument was tried to be raised on the question of plurality of the offices held by the public servant and the doubt arising as to who would be the sanctioning authority in such case. In the earlier part of the judgment, we have already explained the concept of doubt which is contemplated in the Act, more particularly in Section 19(2). The law is very clear in that respect. The concept of `doubt' or `plurality of office' cannot be used to arrive at a conclusion that on that basis, the interpretation of Section 19(1) would be different from that given in Antulay's case ((1984) 2 SCC 183) or Prakash Singh Badal Vs. State of Punjab (2007) 1 SCC 1. We have already explained the situation that merely because a concept of doubt is contemplated in Section 19(2), it cannot mean that the public servant who has abused some other office than the one he is holding could not be tried without a sanction.

54. The learned senior counsel tried to support 7 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 Vs. State (AIR 1958 SC 107), 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 office than the one which is alleged to have been abused, still there will be no question of sanction and in that case, there will also be no question of any doubt arising because the doubt can arise only when the sanction is necessary. In case of the present appellants, there was no question of there being any doubt because basically there was no question of the appellants' getting any protection by a sanction.

55. We do not, therefore, agree with learned 8 Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants, that the decision in Antulay's case and the subsequent decisions require any reconsideration for the reasons argued before us. Even on merits, there is no necessity of reconsidering the relevant ratio laid down in Antulay's case.

56. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Prakash Singh Badal v. State of Punjab to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19 of the Act as held in K. Karunakaran v. State of Kerala and the later decision in Prakash Singh Badal v. State of Punjab. The appeals are without any merit and are dismissed.”

7. In view of the same, the petition is allowed. The order passed by District and Sessions Judge, Udupi, dated 3/7/2012 in PCR No.4/2012 is set aside. The learned 9 Magistrate is directed to proceed with the matter without insisting upon the sanction. Sd/- JUDGE