Important Points
1. An accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences.
2. For launching prosecution against a public servant for offenc­es under Sections 406 and 409 r/w Section 120B of IPC, prior sanction u/s 197 of Cr.P.C. is not condition precedent.

Judgment

Thomas, J.—Leave granted.

2. In July 1989, respondent retired from Government service as Superintending Engineer of the P.W.D. under the Government of Kerala. About three years thereafter he was arraigned along with certain other persons before a Special Judge for offence under Section 5(2) of the Prevention of Corruption Act, 1947 (for short ‘the P.C. Act’) and Sections 406, 409, 201 read with Sections 120B and 109 of the Indian Penal Code. A learned Single Judge of the High Court of Kerala quashed the criminal proceedings against the respondent for want of sanction under Section 197 of the Code of Criminal Procedure (for short “the Code”). State of Kerala, aggrieved by the said order of the High Court, has come up with this appeal by special leave.

3. The case against the respondent, in short, is that while he was working as Execu­tive Engineer at the Moovattupuzha Valley Irrigation Project Division, he joined himself into a criminal conspiracy with four other accused for defrauding the Government by misappropriating about 600 tonnes of steel rods (costing Rs. 1,26,000/-). When respondent was charge-sheeted for the aforesaid offences, he appeared before the Special Judge’s Court and filed a petition to discharge him on the ground that no prior sanction, as contemplated in Section 197 of the Code, has been obtained. Respondent, however, conceded before the Special Judge that no previous sanction is necessary under Section 6 of the P.C. Act 1947. But the Special Judge overruled his contention and held that “there is no necessity at all to obtain a sanction under Section 197 of the Code to proceed against the petitioner under the provisions of the P.C. Act 1947.”

4. As the matter was taken up before the High Court the decision of this Court in Harihar Prasad v. State of Bihar1  was cited before the learned Single Judge, who heard the matter. It was held in the said decision that:

“As far as the offence of criminal conspiracy punishable under Section 120B, read with Section 409 of the Penal Code is con­cerned and also Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. It is no part of the Code of Criminal Procedure. It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Proce­dure is, therefore, no bar to a prosecution under Section 120B, read with Section 409 of the Penal Code.”

Learned Single Judge tried to distinguish the said decision by observing thus:

“But here he is charged under Section 406 and 409 also which relate to criminal breach of trust by a public servant. There­fore, sanction is necessary to prosecute the petitioner (respon­dent).”

5. In S.A. Venkataraman v. State2  and in C.R. Bansi v. State of Maharashtra3  this Court has held that :

“There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed.”

When the newly worded section appeared in the Code (Section 197) with the words “when any person who is or was a public servant” (as against the truncated expression in the corresponding provi­sion of the old Code of Criminal Procedure 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa4  that the legal position must be treated as changed even in regard to offences under the P.C. Act also. The said conten­tion was, however, repelled by this Court in Kalicharan Maha­patra (cited supra) wherein a two Judge Bench has held thus:

“A public servant who committed an offence mentioned in the Act, while