THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL PETITION No.3289 OF 2009 ORDER: 1 This Criminal petition is filed under Section 482 of Cr.P.C. requesting the court to quash the proceedings in C.C.No.3 of 2009 on the file of the court of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam registered for the offences punishable under sections 13 (2) r/w 13 (1) (c) of the Prevention of Corruption Act, 1988. 2 Brief facts are that as the petitioner by name G.V.Narasimha Murthy, formerly Regional Joint Commissioner and Executive Officer (now retired), Sri Raja Rajeswara Swamy Devasthanam, Vemulavada, Karimnagar District was found in possession of disproportionate assets, the ACB officials registered a case against him on 04.12.2000 vide Cr.No.12/RC- ACB/VZM/2000 U/s. 13 (2) r/w 13 (1) (c) of the Prevention of Corruption Act, 1988 and took up investigation and the investigation established that the petitioner was in possession of disproportionate assets to a tune of Rs.14,52,761/- and that he failed to obtain prior permission from the competent authority for acquisition of assets and failed to submit Annual Property Returns. The petitioner was issued a statutory notice dated 18.04.2003 requiring him to go through the statements that were furnished in Annexures I to III and submit his explanation within 15 days of receipt of the said notice, failing which, it would be deemed that the petitioner had no explanation and a report would be submitted to the State Government against him for taking suitable action. The petitioner submitted a detailed explanation on 24.05.2003 along with necessary supporting documents, receipts etc and the evidence about the property, which are in his possession and those in the possession of his family members. 3 It appears, after completion of investigation the Bureau sent final report to the Government on 28.02.2005 recommending prosecution of the petitioner in the court of law under section 13(2) r/w 13 (1) (e) of the P.C. Act for being in possession of disproportionate assets worth Rs.14,82,761-00 and also to initiate departmental action for violation of APCS (Conduct) Rules 1964. However, no charge sheet could be filed for want of sanction till 30.04.2008 i.e. the date of retirement of the petitioner by attaining superannuation. Thereafter charge sheet was filed on 31.03.2009 and the same was numbered as C.C.No.3 of 2009 on the file of the court of the learned III Additional District & Sessions Judge-cum-Special Judge for ACB cases, Visakhapatnam. Subsequently, the Government, by Memo No.16205/Vig IV (1) / 2001-4 dated 01.04.2009, informed the Bureau that the discrete enquiry conducted by the appropriate authority on the allegations of acquisition of disproportionate assets to the known sources of income against the petitioner revealed prima facie that there is a need to probe into the matter in detail and accordingly the Government decided to entrust the case against the petitioner to the Tribunal for initiation of disciplinary proceedings for a detailed enquiry into the allegations levelled against the petitioner and ordered that the Bureau shall furnish all the relevant records and material to the Tribunal for that purpose. 4 In the light of the said parallel proceedings and, as there was no progress, the petitioner approached this court and filed this petition invoking the inherent jurisdiction of this court under section 482 of Cr.P.C. stating that it amounts to double jeopardy and as the matter has already been referred to the Tribunal for Disciplinary Proceedings, there is no need to continue the said proceedings by the Special Judge for ACB Cases in C.C.No.3 of 2009. 5 When this matter came up for admission, a learned Judge of this court, having considered the fact that the petitioner retired from service and the matter has already been referred to the Tribunal for Disciplinary Proceedings, granted interim stay of all further proceedings in its order dated 13.05.2009. Despite the said interim order, the Bureau by letter dated 01.08.2009 informed the Government that the case is pending before the III ADJ Court and hence it is not desirable to place the petitioner on his defence before the Tribunal for Disciplinary Proceedings as the petitioner cannot be proceeded against in two different fora on the same charges. Thereafter, under the G.O.Rt.No.1394 dated 25.09.2010, upon which the petitioner is placing reliance, the Government informed the Bureau that after careful and detailed examination of the matter, it was ordered to continue the Disciplinary Proceedings initiated against the petitioner before the Tribunal for Disciplinary Proceedings and ordered to take necessary steps to withdraw the prosecution already filed before the Special Court for ACB Cases, Visakhapatnam vide C.C.No.3 of 2009, pending against the petitioner. During the pendency of this petition, the Government issued G.O.Rt.No.1394 dated 25.09.2010 stating that after careful and detailed examination of the matter, it was ordered to continue the Disciplinary Proceedings initiated against the petitioner. 6 Heard both sides. 7 The learned counsel for the petitioner contended that after reinvestigating into the crime, the matter was referred to the Tribunal for initiation of disciplinary proceedings and in those circumstances, the Government issued G.O.Rt.No.1394 dated 25.09.2010 stating that there is no need to launch prosecution. He further submitted that inasmuch as the Government itself under the above G.O. has directed the Bureau to withdraw the prosecution it is not desirable to direct the petitioner to face trial in the Court of law as the petitioner cannot be proceeded against in two different fora on the same charges. He further submits that even if the petitioner is retired from service, sanction is required and hence the trial court cannot proceed with the trial of the case on the ground that no sanction was accorded by the Government. The learned counsel further made his submissions on merits stating that if the entire case is taken into consideration there is no disproportion to the known sources of the income of the petitioner and in that context he displayed the following table of assets, income and expenditure of the petitioner during the relevant period. I Total income of the A.O. during the Check period: Rs.37,64,220-31 II Total expenditure spent by the A.O. During the check period: Rs.17,91,561-20 -------------------- III Likely savings of the A.O. Rs.19,72,659-11 -------------------- IV Total value of assets acquired by the A.O. during the check period: Rs.27,62,468-90 Savings of the A.O. Rs.19,72,659-11 -------------------- Disproportionate Assets Rs. 7,89,809-79 8 On the other hand the learned Standing counsel for the Bureau submitted that as no sanction was received from the government till 30.04.2008 i.e. date of retirement of the petitioner by attaining superannuation, the ACB filed charge sheet against the petitioner on 31.03.2009 i.e. after 11 months after retirement, as the sanction for prosecution was not at all required since the petitioner retired from service. He further contended that after the ACB had filed the charge sheet before the court below the Government had issued the said G.O.Rt.No.1394 dated 25.09.2010 and hence the Bureau had addressed a detailed letter vide RC.No.172/RCA-VV2/2000-S12 dated 14.10.2010 requesting the Government to keep the G.O.Rt.No.1394 dated 25.09.2010 in abeyance and to reconsider the matter and permit prosecution of the petitioner in a court of law and therefore the petitioner deserves no consideration in this petition. 9 In view of the rival contentions made on both sides, this court looked into the record. On 13.05.2009, this court, while ordering notice to the first respondent, granted interim stay of all further proceedings for a further period of eight weeks and the said interim order has been extended from time to time. 10 The learned counsel for the petitioner tried to impress upon this court stating that there are no disproportionate assets and that the assets, which were found in possession of the petitioner are not disproportionate and the said assets are acquired by him only through his known sources of income. This court may not go into the said aspect for the reason that the said statement filed by the petitioner cannot be gone into as it is a matter of evidence and that it is only after full fledged trial, it is for the trial court to decide as to whether there is any disproportion or not. But the point involved in this petition is an altogether different one. Hence it is not necessary for this court to adjudicate on the issue whether the petitioner had possessed disproportionate assets to the known sources of his income or not. 11 No doubt, the prosecution, after investigation filed charge sheet against the petitioner on 31.03.2009 i.e. after 11 months after retirement, as the sanction for prosecution was not at all required since the petitioner retired from service. But the contention of the learned counsel for the petitioner is that though the accused officer retired from service, for prosecuting him in a court of law sanction as provided for under section 197 of Cr.P.C. is required. When once the accused is a public servant and is required to be prosecuted under the provisions of the Indian Penal Code, sanction as provided for under section 197 of Cr.P.C. is a must. But here is a case where the petitioner is alleged to have committed offence punishable under the provisions of Prevention of Corruption Act, 1988. Though the offence was alleged to have been committed by the accused officer while he was discharging duties as public servant, but, when once he ceased to be public servant and is removed or retired from service, sanction for his prosecution is not required. This view of mine is fortified by the decision of the apex court in S.A.Venkataraman vs. The State[1]. In the said judgment the apex court while dealing with Section 6 of the Prevention of Corruption Act, 1947, which is corresponding to section 19 of the Prevention of Corruption Act, 1988, at para No.16 observed as under: “In our opinion, in giving effect to the ordinary meaning of the words used in S.6 of the Act, the conclusion is inevitable that at the time a Court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of S.6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the Court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly the provisions of S.6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.” 12 In the light of the above law laid down by the Supreme Court, the contention of the learned counsel for the petitioner that sanction as provided for under section 197 of Cr.P.C. to prosecute the petitioner cannot be countenanced. On this point, I am further fortified by the judgment of the apex court in Paul Varghese Vs. State of Kerala[2] where the apex court while dealing with the very same question observed at para Nos.8, 9 and 10 as under: 8. “………..Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root of jurisdiction, Sub-Section (3) (c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Prevention of Corruption Act, 1947 (hereafter referred to as the ‘Old Act’) corresponding to Section 19(2) of the Act, question relates to doubt about authority to grant sanction and not whether sanction is necessary. 9. Whether sanction is necessary or not has to be considered on the factual scenario. The question of sanction involves two aspects i.e. one relating to alleged lack of jurisdiction and the other relating to prejudice. 10. It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties. Position is not so in case of Section 19 of the Act. 13 It is to be noticed that the Government, by Memo No.16205/Vig IV (1) / 2001-4 dated 01.04.2009, informed the Bureau that the discrete enquiry conducted by the appropriate authority on the allegations of acquisition of disproportionate assets to the known sources of income against the petitioner revealed prima facie that there is a need to probe into the matter in detail and accordingly the Government decided to entrust the case against the petitioner to the Tribunal for initiation of disciplinary proceedings for a detailed enquiry into the allegations levelled against the petitioner and ordered that the Bureau shall furnish all the relevant records and material to the Tribunal for that purpose. In accordance with the said direction, the matter was referred to the Tribunal for initiation of disciplinary proceedings. It is further emanated from the record that the Tribunal for Disciplinary Proceedings on 04.04.2009 issued a memo to the third respondent herein directing to furnish all relevant records and material in order to proceed with enquiry against the petitioner as directed by the Government in Memo No.01.04.2009. From that, it is clear that the Tribunal for Disciplinary Proceedings has assumed jurisdiction of the matter and as on today, the said Tribunal for Disciplinary Proceedings is ceased of the matter. 14 May be it is true that the Bureau might have requested the Government to reconsider the decision and permit the prosecution of the petitioner in a court of law. But the Government issued G.O.Rt.No.1394 dated 25.09.2010, stating that there is no need to launch prosecution. The relevant paragraphs of the said G.O. read as under: 4 . Government, after careful and detailed examination of the matter, hereby order to continue the Disciplinary Proceedings initiated by the Government in its Memo 2nd read above, against Sri G.V.Narsimha Murthy, formerly Joint Commissioner, Executive Officer, Sri Raja Rajeswara Swamy Devasthanam, Vemulawada, Karimnagar District before the Tribunal for Disciplinary Proceedings, Hyderabad. 5. The Director General, Anti-Corruption Bureau, Hyderabad, shall take necessary steps to withdraw the prosecution already filed before the Special Court for Anti- Corruption Bureau, Visakhapatnam vide C.C.No.3/2009 on 31.03.2009, against Sri Sri G.V.Narsimha Murthy, formerly Joint Commissioner, Executive Officer, Sri Raja Rajeswara Swamy Devasthanam, Vemulawada, Karimnagar District. 15 As the said G.O.Rt.No.1394 dated 25.09.2010 is subsequent to the filing of this Criminal Petition under section 482 of Cr.P.C, and is not a part of the record, and inasmuch as the same is a very crucial document, this court directed the learned Standing Counsel for ACB to report the present status / stand of the ACB. On instructions the learned Standing Counsel produced the proceedings in RC.No.172 / RCA – VVZ / 2000 - S.12, Dated 14.10.2010 and admitted the factum of issuance of the said G.O.Rt.No.1394 dated 25.09.2010 and he also informed that the Bureau is awaiting the orders of this court. 16 When the Government is not interested in proceeding further and referred the matter to the Tribunal for Disciplinary Proceedings and the said Tribunal is ceased of the matter in my considered view, it is desirable that the proceedings in C.C.No.3 of 2009 on the file of the court of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam are required to be quashed. When the Government issued the said G.O. dated 25.09.2010, stating that the prosecution need not proceed further with the case, in the normal circumstances, it is for the prosecution to file an application before the court below seeking withdrawal of the said prosecution against the petitioner as provided for under section 320 Cr.P.C. But, as the Tribunal for Disciplinary Proceedings has assumed jurisdiction over the matter and is already ceased of the matter, this court is of the view that this court, without directing the Prosecution to file a separate application under section 320 of Cr.P.C. before the court below seeking withdrawal of prosecution, can interdict into the issue and dispense with the filing of such an application under section 320 of Cr.P.C and the same is accordingly dispensed with. 17 In the result, the petition is allowed and the proceedings pending against the petitioner in C.C.No.3 of 2009 on the file of the court of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam registered for the offences punishable under sections 13 (2) r/w 13 (1) (c) of the Prevention of Corruption Act, 1988 are hereby quashed. -------------- 21.03.2011 Kvsn [1] AIR 1958 SC 107 [2] AIR 2007 SC 2618