The requirement of prior sanction for prosecution under Sec.19 PC Act applies at the time of taking cognizance of the offence, and the intent behind the provision is to protect public servants from malicious prosecution.

JUDGMENT :

1. Revisional powers of this Court u/S.397 r/w 401 Cr.P.C. are invoked seeking quashment of order dated 29.01.2021 by which learned Special Judge [Prevention of Corruption Act], Bhind (M.P.) in Case No. 01/2021 Special (E.O.W.) while declining to accept the closure report submitted by the prosecution in connection with offences punishable u/S.420 IPC and u/Ss.7, 13(1)(c)(d) & 13(2) of Prevention of Corruption Act (“PC Act” for brevity), has taken cognizance of said offences against the petitioner by holding that since the petitioner has superannuated in 2016, the need to seek prior sanction of the Sanctioning Authority u/S.19 of PC Act, gets obviated.

2. The challenge in this petition has though been made on merits of the allegations in the charge-sheet qua offences punishable u/S.420 IPC and the aforesaid provisions under the PC Act, but learned counsel for petitioner has restricted his challenge to the ground that the impugned order of taking cognizance is passed in violation of the amended provision of Section 19 PC Act.

2.1 Learned counsel for petitioner primarily submits that after the amendment in PC Act, in particular Sec.19 w.e.f. 26.07.2018, the definition of “Public Servant” which in pre-amendment era was restricted to the Public Servant in service has been widened to include even retired public servant. In this background, it is urged that if cognizance is to be taken under the amended provisions of PC Act i.e. on or after 26.07.2018, qua a retired public servant, grant of prior sanction for prosecution is mandatory notwithstanding the offence having been committed in the pre-amendment era. Learned counsel for petitioner in support of this argument has relied upon the decision of Single Bench of Allahabad High Court in the case of Dr. Anil Kumar Shukla @ A.K. Shukla vs. Central Bureau of Investigation decided on 20.12.2019, relevant paras of which are reproduced below for ready reference and convenience:

“13. As it is evident from the aforesaid provisions that before amendment there was no such mandatory provisions for taking previous sanction for prosecuting the Government Officials after his retirement for the offence which was alleged to be taken place during his official discharge of duty but in the amended provision of section 19 (1) (B) of P.C. Act, it clearly provides that in case of a person who is employed or as the case may be, was at the time of commission of alleged offence employed in connection with the affairs of State and is not removable from his office save by or with the sanction of the State Government, of that Government, the sanction is necessary and without previous sanction no court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 of the Act. As it is also relevant that after coming into existence of the amended provision of Section 19, the harassment of officials by filing of unnecessary complaint and asking for prosecution sanction is stopped by the Legislature. It is also relevant to mention here that the amended provisions came into existence on 26.07.2018 but the court below had taken cognizance on 30.08.2018. At the time of taking cognizance, the court below fails to consider the amended provisions which was applicable from the date of notification and the submissions of the learned A.S.G. that the charge-sheet was filed on 15.03.2018. Therefore, the amended provisions are not applicable in the case of applicant, is baseless.

14. It is also evident from the impugned order that the court below has wrongly applied the decision of Hon'ble Supreme Court given in the case of Omkar Dhanker vs. State of Haryana, (2012) 11 SCC 252 that in the case of criminal breach of trust and conspiracy, sanction under Section 197 is not required and similarly the decisions of Hon'ble Supreme Court in the case of Prakesh Singh Badal vs. State of Punjab, (2007) 1 SCC 1 is also not applicable in the present case. The court below had failed to consider the amended provision o