MADAN, J. - (1.) BY this criminal misc. petition, the petitioner accused has sought direction to quash and set aside letter dated 24. 4. 1999 (Ann. 1) of the Superintendent of Police (4) Anti Corruption Department Rajasthan Jaipur directing Additional Superintendent of Police at Bhilwara to prepare the draft charge sheet in Cr. Case No. 42/98. The petitioner also prayed for quashing and setting aside the trial launched against the petitioner in Case No. 12/1999 vide charge sheet (Ann. 2), whereby he was charged with offence punishable under Sec. 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short the Act ).
(2.) SO far as the validity of an order of the respondent No. 2 dated 24. 4. 1999 (Ann. 1) is concerned, it cannot be challenged in this petition filed under Section 482 Cr. PC. As regards quashment of the criminal proceedings initiated by taking cognizance and framing of the charge against the petitioner Shri S. R. Surana learned counsel for the petitioner contended that the prosecution of the present petitioner without prior sanction under Section 197 Cr. PC under the impugned charge sheet framed is an abuse of process of law because otherwise also the petitioner is protected by Sec. 19 of the Act. It is further case of the petitioner that merely because the public servant (present petitioner) has retired, the prosecuting agency cannot be allowed to take benefit of the ground of his retirement for not issuing the prosecution sanction before filing the challan in the Court. Shri Surana cited the decision of the Apex Court in R. Balakrishna Pillai vs. State of Kerala (1) & of this Court in Suraj Narain vs. State (2), and accordingly contended that even if the public servant ceases to hold the office and the challan is filed lateron still sanction under Sec. 197 Crpc is essential and the trial Court could not take cognizance or to proceed with case without prosecution sanction and ought not to have taken into consideration letter dt. 24. 4. 1999 of the S. P. (respondent No. 2 ). In R. Balakrishna Pillai (supra), the Apex Court held as under:- "the Law Commission in its 41st Report in paragraph 15. 123 while dealing with Section 197 as it then stood, observed, "it appears to us that protection under the section in needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Sec. 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view that the question of the expediency of prosecuting any public servant. " It was in pursuance of this observation that the expression `was' came to be employed in Sec. 197 after the expression `is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted. " In Suraj Narain (supra) this Court was dealing with petition under Sec. 482 Cr. PC for the challan regarding offences under Secs. 420, 471, 474 read with Sec. 120-B, IPC and the trial Court rejected the application of the petitioner seeking protection under Sec. 197 Cr. PC on the ground that challan was filed after retirement. This Court placed reliance upon the decision of the Apex Court in R. Balakrishna Pillai vs. State of Kerala (supra ). Having considered the rival contention of the learned counsel for the petitioner and perused the impugned orders, I find no merit in any of the contentions raised for quashing the criminal proceedings initiated and upon having taken cognizance by the learned trial Court without prior sanction of prosecution of the petitioner because firstly admittedly in the case at hand, the cognizance has been taken against the petitioner only for offence punishable under the Act and secondly the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a date on which the Court is called upon to take cognizance of the offence of which he is accused, and if he has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public servant, Section 6 is not attracted. I find support from the decision of 5 Judges Bench of the Apex Court in R. S. Nayak vs. A. R. Antulay No doubt Section 6 must be construed with reference to the words used therein independent of any construction which may have been placed by the decisions on the words used in Sec. 197 Cr. PC. However, it is true that prior to prosecution of the public servant, a sanction under Sec. 197 Cr. PC is required and simultaneously, there is a provision in the Act of 1988 which also requires for prosecuting the public servant but at the same time Sec. 19 (3) (a) of the Act provides that if there is no failure of justice in absence of sanction, no order should be reversed or altered in appeal.
(3.) IN R. Balakrishna Pilliai (supra) cited by Shri Surana, the Apex Court (2 Judge Bench) categorically observed, " we are unable to accept the view taken by the High Court of Kerala insofar as the requirement of sanction u/s. 197 (1) of the Code is concerned in relation to the charge of criminal conspiracy". . . " so far as the second charge u/sec. 5 (2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act is concerned, the view of the High Court remains undisturbed. " IN this view of the matter, this decision does not render any help to the petitioner in this petition u/sec. 482 Cr. PC. That apart, even in a latest decision in State of Kerala vs. V. Padamnabhan Nair (4) the Apex Court while dealing offences of criminal conspiracy held placing reliance upon the decisions in Shreekantiah Ramayya vs. State of Bombay (5), and Amrik Singh vs. State of Pepsu (6), which has been followed in Harihar Prasad vs. State of Bihar (7), that sanction under Sec. 197 is not necessary. The Apex Court after having followed the dictum of law laid down in Kalicharan Mahapatra vs. State of Orissa (8), further held, "an accused facing prosecution of offences under the PC 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 and so the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act. " Thus viewed, the decision of this Court in Suraj Narain (supra) cited by Shri Surana renders no assistance in favour of the petitioner in this petition. Hence in my considered view, the petitioner has no case for quashing of the criminal proceedings for want of previous sanction under Sec. 197 Crpc. Resultantly, this misc. petition fails and is hereby dismissed. .;