MANU/MP/1324/2021

Equivalent Citation: 2022C riLJ962

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

CRR. 470/2021
Decided On: 28.10.2021
Appellants: Mahendra Kumar Dubey
Vs.
Respondent: Economic Offence Wing
Hon'ble Judges/Coram:
Sheel Nagu and Deepak Kumar Agarwal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Nipun Saxena, Learned Counsel
For Respondents/Defendant: Naval Kishor Gupta, Learned Special Public Prosecutor
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO PREVENTION OF CORRUPTION ACT
Case Note:
Criminal - Quashing of Order - Section 420 of Indian Penal Code, 1860 (IPC)
and Section 7, 13(c)(d), 13(2) and 19 of Prevention of Corruption Act, 1988 -
Revisional powers of court were invoked seeking quashment of order passed
by court below whereby court below while declining to accept closure report
submitted by prosecution in connection with offences punishable under
section 420 IPC and under section 7, 13(c)(d) and 13(2) of Act had taken
cognizance of said offences against Petitioner by holding that since Petitioner
had superannuated in 2016, need to seek prior sanction of sanctioning
authority under section 19 of Act, gets obviated - Whether order passed by
court below liable to be interfered by court in petition - Held, in view of facts
and circumstances of case, court was of considered view that date of
commission of offence was not deciding factor but it was date of taking
cognizance of offence in question which decides applicability of amended
section 19 of Act - Thus, trial court by taking cognizance of offence in
question against Petitioner without insisting for sanction for prosecution from
sanctioning authority had committed illegality - However, this view of court
gets eclipsed by findings rendered by larger bench in Kavindra and therefore
dissuading court from taking course at variance to view of larger bench in
Kavindra - Petition dismissed. [10],[11]
DECISION
Shri Nipun Saxena, learned counsel for petitioner.
Shri Naval Kishor Gupta, learned Special Public Prosecutor for respondent/EOW.
Learned counsel for rival parties are heard.
1 . Revisional powers of this Court u/S. 397 r/w 401 Cr.P.C. are invoked seeking

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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(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.
1 4 . 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 reported in MANU/SC/0190/2012 : (2012)
11 SCC, page 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

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 reported in MANU/SC/5415/2006 : 2007, 1 SCC 1 is also not applicable in the
present case. The court below had failed to consider the amended provision of
Section 19 of Prevention of Corruption Act, 1988.
1 5 . Thus, the applicant was working on the post of Chief Medical Officer,
Raebareli, on the date of alleged commission of offence, he retired on
31.10.2012, the FIR was registered on 30.06.2016, the charge-sheet dated
15.03.2018 was filed by the Investigating Officer without obtaining sanction
order from the employer, the court below had taken cognizance on 13.10.2018
without considering the amended provision of Section 19(1)(a) of Prevention of
Corruption Act, 1988 which came into force on 26.07.2018, it provides
protection to the retired public servant also from unnecessary harassment by
putting obligation on the prosecuting agency to prosecute him after proper
sanction from its employer.
1 6 . However, it is open to the prosecution to take appropriate action, in
accordance with law.
1 7 . In view of above, the application (u/s. 482 Cr.P.C.) is allowed and the
order dated 30.08.2018 along with entire proceeding of Special Case No. 08 of
2018 arising out of Crime No. RC0062016A0018, Police Station C.B.I./A.C.B.,
Lucknow, is hereby quashed."
3 . Per contra, learned counsel for the prosecution Shri Gupta by relying upon the
decision dated 21.09.2020 in WP. 27734/2019 [Kavindra Kiyawat Vs. State of M.P.,
through Special Police Department and Ors.] of this Court and also of a Single Bench of
Telangana High Court in the case of "Katti Nagaseshanna Vs. State of Andhra Pradesh
[by judgment dated 16-11-2018 passed in Cr. Petition No. 9044 of 2018]" has
submitted that the PC Act was amended in 2018 with the intent of widening the net to
prevent wrongdoers from taking advantage of the loopholes which existed in pre-
amendment PC Act. It is urged by learned counsel for prosecution that the offence in
question was committed in the pre-amendment era and therefore petitioner cannot take
advantage or derive any protection made available by amended PC Act after the
commission of offence in question.
4 . Pertinently, the offences in question were allegedly committed in 2007-08, the FIR
was lodged in 2013, whereafter petitioner retired on attaining the age of superannuation
in 2016 and the charge-sheet was filed in Jan. 2021 while the cognizance was taken by
the impugned order passed on 29.01.2021.
5. For proper adjudication of the issue raised and for analyzing the rival submissions, it
would be apt to reproduce the pre-amended and amended Sec. 19 of PC Act:
A. Pre-amended Sec. 19 of PC Act:
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous
sanction [save as otherwise provided in the Lokpal and
Lokayuktas Act, 2013 (1 of 2014)]--
(a) in the case of a person who is employed in connection with

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 the affairs of the Union and is not removable from his office
save by or with the sanction of the Central Government, of that
Government;
(b) in the case of a person who is employed in connection with
the affairs of a State and is not removable from his office save
by or with the sanction of the State Government, of that
Government;
(c) in the case of any other person, of the authority competent
to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to
whether the previous sanction as required under sub-section
(1) should be given by the Central Government or the State
Government or any other authority, such sanction shall be
given by that Government or authority which would have been
competent to remove the public servant from his office at the
time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge
shall be reversed or altered by a Court in appeal, confirmation
or revision on the ground of the absence of, or any error,
omission or irregularity in, the sanction required under sub-
section (1), unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the
ground of any error, omission or irregularity in the sanction
granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any
other ground and no court shall exercise the powers of revision
in relation to any interlocutory order passed in any inquiry,
trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence
of, or any error, omission or irregularity in, such sanction has
occasioned or resulted in a failure of justice the court shall
have regard to the fact whether the objection could and should
have been raised at any earlier stage in the proceedings.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant
sanction;
(b) a sanction required for prosecution includes reference to
any requirement that the prosecution shall be at the instance of
a specified authority or with the sanction of a specified person

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 or any requirement of a similar nature."
B. Amended Sec. 19 of PC Act:
19. Previous sanction necessary for prosecution.-
(1) No court shall take cognizance of an offence punishable
under Sections 7, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous
sanction [save as otherwise provided in the Lokpal and
Lokayuktas Act, 2013]--
(a) in the case of a person who is employed, or as the case
may be, was at the time of commission of the alleged offence
employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the
Central Government, of that Government;
(b) in the case of a person who is employed, or as the case
may be, was at the time of commission of the alleged offence
employed in connection with the affairs of a State and is not
removable from his office save by or with the sanction of the
State Government, of that Government;
(c) in the case of any other person, of the authority competent
to remove him from his office.
Provided that no request can be made, by a person other than
a police officer or an officer of an investigation agency or other
law enforcement authority, to the appropriate Government or
competent authority, as the case may be, for the previous
sanction of such Government or authority for taking cognizance
by the court of any of the offences specified in this sub-
section, unless--
(i) such person has filed a complaint in a competent court
about the alleged offences for which the public servant is
sought to be prosecuted; and
(ii) the court has not dismissed the complaint under section
203 of the Code of Criminal Procedure, 1973 (2 of 1974) and
directed the complainant to obtain the sanction for prosecution
against the public servant for further proceeding:
Provided further that in the case of request from the person
other than a police officer or an officer of an investigation
agency or other law enforcement authority, the appropriate
Government or competent authority shall not accord sanction
to prosecute a public servant without providing an opportunity
of being heard to the concerned public servant:
Provided also that the appropriate Government or any
competent authority shall, after the receipt of the proposal
requiring sanction for prosecution of a public servant under

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 this sub-section, endeavour to convey the decision on such
proposal within a period of three months from the date of its
receipt:
Provided also that in case where, for the purpose of grant of
sanction for prosecution, legal consultation is required, such
period may, for the reasons to be recorded in writing, be
extended by a further period of one month:
Provided also that the Central Government may, for the
purpose of sanction for prosecution of a public servant,
prescribe such guidelines as it considers necessary.
Explanation.--For the purposes of subsection (1), the
expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence
is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence
is alleged to have been committed and is holding an office
other than the office during which the offence is alleged to
have been committed."
(2) Where for any reason whatsoever any doubt arises as to whether
the previous sanction as required under sub-section (1) should be
given by the Central Government or the State Government or any other
authority, such sanction shall be given by that Government or authority
which would have been competent to remove the public servant from
his office at the time when the offence was alleged to have been
committed.
(3) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a special Judge
shall be reserved or altered by a court in appeal, confirmation
or revision on the ground of the absence of, or any error,
omission or irregularity in, the sanction required under sub-
section (1), unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the
ground of any error, omission or irregularity in the sanction
granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any
other ground and no court shall exercise the powers of revision
in relation to any interlocutory order passed in any inquiry,
trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or
any error, omission or irregularity in, such sanction has occasioned or

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 resulted in a failure of justice the court shall have regard to the fact
whether the objection could and should have been raised at any earlier
stage in the proceedings.
Explanation.-For the purposes of this section,-
(a) error includes competency of the authority to grant
sanction;
(b) a sanction required for prosecution includes reference to
any requirement that the prosecution shall be at the instance of
a specified authority or with the sanction of a specified person
or any requirement of a similar nature."
5.1. A bare scrutiny of Sec. 19 PC Act before and after the amendment reveals that the
obligation cast upon the Sanctioning Authority in the pre-amended era was limited to
the public servant in service which has now been widened to include superannuated
public servants on the day when the cognizance is taken.
5.2. The aforesaid provision requiring sanction for prosecution as a pre-condition for
taking cognizance becomes applicable at the point of time when competent court takes
cognizance of the offence and not from any prior or posterior stage. This dual statutory
obligation of the Sanctioning Authority to either grant or decline sanction and of the
trial court to take cognizance only on grant of sanction is governed by the law
applicable at the time of taking cognizance of the offence. This view is explicit from
plain reading of language employed by Sec. 19 (pre and post amendment, both). This
view is also compatible with the object behind Sec. 19 of PC Act. The object is to
protect public servant from malicious, false and motivated prosecution for acts during
discharge of official functions. Since the criminal misconduct arises out of act
committed during purported discharge of official duty, the legislature in its wisdom has
rightly incorporated Section 19 of PC Act to give primacy to the opinion of the
Sanctioning Authority of the accused for enabling the trial court to take cognizance of
the offence alleged. In offences of this nature where demand/receipt of illegal
gratification or amassing assets disproportionate to the known source of income are
alleged, the Sanctioning Authority (employer) is the best judge about complicity of the
accused. Thus, the intent and object behind Sec. 19 needs to be judged in the manner
as explained above so as to serve the purpose for which it is incorporated in the PC Act.
5.3. This issue appears to have been dealt with by the Single Bench of Allahabad High
Court in the case of Dr. Anil Kumar Shukla @ A.K. Shukla (supra) as relied upon by
learned counsel for the petitioner which as per the website of the Allahabad High Court
and the Apex Court does not seem to have been disturbed by any higher forum.
6. Learned counsel for prosecution has relied upon the order dated 21.09.2020 in WP.
27734/2019 [Kavindra Kiyawat Vs. State of M.P., through Special Police Department and
Ors.] which was passed by Single Bench on being referred to it owing to the difference
of opinion between the Judges of Division Bench in a case where challenge was made to
the lodging of FIR on various grounds including the ground that the same has been
done without seeking prior sanction for prosecution from the Sanctioning Authority as
per the amended provision of 17A of PC Act.
7. Pertinently, the difference of opinion was in respect of the ground that no prima facie
offence is made out on reading the allegations contained in the FIR but in regard to the
aspect of Section 17A of the amended PC Act being retrospective the members of the

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Division Bench and the Single Bench were unanimous. The relevant extract of the order
dated 21.09.2020 in regard to findings rendered qua Section 17A of PC Act are
reproduced below for ready reference and convenience:
"17. As already pointed out that there is no difference of opinion, between the
Hon'ble Judges on the question of maintainability of F.I.R. However, as the
maintainability of F.I.R. in the light of Section 17-A of Prevention of Corruption
Act, 1988 has been once again attacked by the Counsel for the respondent no.
3, therefore, this Court apart from the reasoning which has already been given
by my esteemed brothers in order dated 28-7-2020, would like to add certain
more reasons to hold that the F.I.R. and the investigation is maintainable.
18. Section 17-A of Prevention of Corruption Act, 1988 reads as under:
17-A. Enquiry or Inquiry or investigation of offences relatable to
recommendations made or decision taken by public servant in
discharge of official functions or duties.--
(1) No police officer shall conduct any enquiry or inquiry or
investigation into any offence alleged to have been committed
by a public servant under this Act, where the alleged offence is
relatable to any recommendation made or decision taken by
such public servant in discharge of his official functions or
duties, without the previous approval-
(a) in the case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in
connection with the affairs of the Union, of that Government
(b) in the case of a person who is or was employed, at the
time when the offence was alleged to have been committed, in
connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent
to remove him from his office, at the time when the offence
was alleged to have been committed:
Provided that no such approval shall be necessary for cases
involving arrest of a person on the spot on the charge of
accepting or attempting to accept any undue advantage for
himself or for any other person:
Provided further that the concerned authority shall convey its
decision under this section within a period of three months,
which may, for reasons to be recorded in writing by such
authority, be extended by a further period of one month.
19. It is well settled principle of law that where the language of a Statute is
plain and unambiguous, then the Court must give literal meaning to the words
used in the statute.
2 0 . The Supreme Court in the case of Nathi Devi Vs. Radha Devi Gupta,
reported in MANU/SC/1071/2004 : (2005) 2 SCC 271 has held as under:
1 3 . The interpretative function of the court is to discover the true

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 legislative intent. It is trite that in interpreting a statute the court must,
if the words are clear, plain, unambiguous and reasonably susceptible
to only one meaning, give to the words that meaning, irrespective of
the consequences. Those words must be expounded in their natural and
ordinary sense. When the language is plain and unambiguous and
admits of only one meaning, no question of construction of statute
arises, for the Act speaks for itself. Courts are not concerned with the
policy involved or that the results are injurious or otherwise, which
may follow from giving effect to the language used. If the words used
are capable of one construction only then it would not be open to the
courts to adopt any other hypothetical construction on the ground that
such construction is more consistent with the alleged object and policy
of the Act. In considering whether there is ambiguity, the court must
look at the statute as a whole and consider the appropriateness of the
meaning in a particular context avoiding absurdity and inconsistencies
or unreasonableness which may render the statute unconstitutional.
14. It is equally well settled that in interpreting a statute, effort should
be made to give effect to each and every word used by the legislature.
The courts always presume that the legislature inserted every part
thereof for a purpose and the legislative intention is that every part of
the statute should have effect. A construction which attributes
redundancy to the legislature will not be accepted except for
compelling reasons such as obvious drafting errors. (See State of U.P.
v. Dr. Vijay Anand Maharaj, Rananjaya Singh v. Baijnath Singh, Kanai
Lal Sur v. Paramnidhi Sadhukhan, Nyadar Singh v. Union of India, J.K.
Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P. and Ghanshyamdas
v. CST.).
1 5 . It is well settled that literal interpretation should be given to a
statute if the same does not lead to an absurdity.
21. From the plain reading of Section 17-A of Prevention of Corruption Act,
1988, it is clear that an officer can claim protection from "enquiry" or
"investigation" only when he has made any "recommendation" or "decision".
The general meaning of word "decision" means, the action or process of
deciding something or resolving a question.
22. Thus, it can be said that a "decision" means an act by which an Executive
or Authority decides to act in a particular manner in a given set of facts or
problems. Therefore, in order to apply the provisions of Section 17-A of
Prevention of Corruption Act, 1988, there must be "decision" or
"recommendation" by an authority against which an enquiry or investigation is
under contemplation.
2 3 . Maintaining silence on a particular issue cannot be said to be a
"recommendation" or "decision". Further, it is the defence of the petitioner
himself, that he was not aware of the agreement which was executed between
the State Govt. and M/s. Yash Air Ltd. Thus, it is not the case of the petitioner,
that he had taken any "decision" or made any "recommendation" in the matter.
2 4 . Thus, in the present investigation, neither the "decision" nor
"recommendation" of the petitioner is under scanner, therefore, in the

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considered opinion of this Court, the requirement of approval before "enquiry"
or "investigation" as required under Section 17-A of Prevention of Corruption
Act, would not apply.
In the case of Manoj Prasad Vs. CBI, the High Court of Delhi, by Judgment
dated 11-1-2019 passed in W.P. (Cri.) 3292/2018 has held as under:
36........ The bar to enquiry or investigation under Section 17A of the
PC Acct is apropos such alleged offence as may be relatable to any
recommendation made or decision taken by a public servant in
discharge of his official functions or duties. In the present case, there
is no recommendation or decision on record by a Public Servant in the
discharge of his official functions.
... ..... The purpose of Section 17A can be read to be only to provide
protection to officers/public servants who discharge their official
functions and/or duties with diligence, fairly, in an unbiased manner
and to the best of their ability and judgment, without any motive for
their personal advantage or favour. A public servant cannot be possibly
left to be under the constant apprehension that bonafide decisions
taken by him/her would be open to enquiry or inquiry or investigation,
on the whimsical complaint of a stranger. Section 17A as it reads and
the legislative intent in its enactment can only be to protect public
servants in the bonafide discharge of official functions or duties.
However, when the act of a public servant is ex-facie criminal or
constitutes an offence, prior approval of the Government would not be
necessary.
25. Further, the Telangana High Court in the case of Katti Nagaseshanna Vs.
State of Andhra Pradesh by judgment dated 16-11-2018 passed in Cr. Petition
No. 9044 of 2018 has held as under:
The facts of the case are distinguishable as the petitioner claiming
immunity from the prosecution on the ground of failure to obtain
sanction for prosecuting him taking advantage of explanation by Act 16
of 2018, which came into force with effect from 26.07.2018, but such
amendment created/imposed new obligation or duty on the prosecution
to obtain sanction to prosecute even retired government servant. Earlier
sanction is required only to prosecute the public servant, and when a
perso n (1966) 1 All ER 524 : (1894) 1 QB 725 MSM, J Crl.
P_9044_2018 retired from service, no sanction is required. On account
of change of law due to addition of explanation to Section 19(1) of the
P.C. Act, now sanction is required even to prosecute retired government
servant. If this provision is given retrospective effect, all retired
government servants, against whom prosecutions are pending will
sneak out from the prosecutions, it is nothing but accommodating
retired Government Servant to escape from pending prosecution under
the P.C. Act irrespective of seriousness of offence. The intention of the
legislature is to prevent bribery among the public servants, which is a
serious threat to the society now and increasing day by day. Therefore,
amendment to Section 19(1) of the P.C. Act though deals with
procedure, which cannot be given retrospective effect as it created or
imposed new obligation or duty on the prosecution to obtain sanction

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 after more than 7 years from the date of filing charge sheet and taking
cognizance against the petitioner. Therefore, I find that such
interpretation as sought for by the learned counsel for the petitioner is
against the intendment of the Statute.
26. In the present case, the preliminary enquiry was already initiated in the
year 2015 and was pending on the date when Section 17-A of Prevention of
Corruption Act, 1988, came into force, accordingly, it is held that the benefit of
Section 17A of Prevention of Corruption Act, 1988 is not available to the
petitioner."
7.1. Section 17A the newly inducted provision in the PC Act with effect from
26.07.2018, in substance, purpose and intent is pari materia to the provisions of
Section 19 in the unamended and amended PC Act. In the unamended PC Act, the
concept of sanction from the competent disciplinary authority of the accused public
servant was a pre-condition for taking cognizance of offence by the Court; however,
under the pre-amended PC Act there was no such protection available to a public
servant at the time of registration of offence, which has now been made available by
way of Section 17A.
7.2. The aforesaid decision of the three Judges Bench in the case of Kavindra (supra)
which relates exclusively to the stage of registration of offence holds that this protection
of prior sanction for prosecution is not available to a retired government servant, owing
to the offence in that case having been committed prior to coming into effect Section
17A PC Act. Thus, this Court in the case of Kavindra (supra) was not impressed with the
argument that for an offence committed prior to amendment in PC Act sanction for
prosecution is sine qua non for lodging FIR after the amendment in PC Act.
8 . In the backdrop of above discussion, this Court has no manner of doubt that when
the factual matrix attending the instant case is tested on the anvil of the object behind
Sec. 19, as analyzed above, the learned Trial Court was obliged to first ensure grant of
sanction for prosecution by the sanctioning authority in respect of petitioner before
taking cognizance of the offence alleged. Not having done so, the learned Trial Judge,
in the humble opinion of this Court, has acted against the object of Sec. 19 PC Act.
9. However, this Court cannot pronounce judgment on the basis of the above analysis
and the view taken since a Larger Bench of this Court has taken a contrary view in the
case of Kavindra (supra). In the said case of Kavindra (supra), the challenge was to the
FIR on merits and also on the question that since the FIR was lodged subsequent to the
amendment in PC Act in 2018 it was obligatory on the part of the police to have
obtained sanction for prosecution from the sanctioning authority before lodging the FIR
notwithstanding the offence alleged therein being of pre-amendment era. Pertinently, in
the said case of Kavindra (supra), there was difference of opinion between both the
members of Division Bench which led to the matter being referred to Single Bench for
final opinion. However, the members of the Division Bench and as well as of the Single
Judge Bench were of the concurrent view that for lodging of an FIR against retired
public servant even after the amendment in 2018 in 19 PC Act. All the judges of the
Division Bench and also of the Single Bench were of the view that looking to the
ultimate object of the PC Act i.e. curbing corruption, it was not appropriate to hold that
even for offences which had been committed prior to the amendment there is
requirement of obtaining prior sanction for prosecuting retired public servants by
lodging of FIR posterior to the amendment. The relevant extract of the said judgment of
learned Single Judge who gave deciding verdict is reproduced below:

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 "26. In the present case, the preliminary enquiry was already initiated in the
year 2015 and was pending on the date when Section 17-A of Prevention of
Corruption Act, 1988, came into force, accordingly, it is held that the benefit of
Section 17-A of Prevention of Corruption Act, 1988 is not available to the
petitioner."
10. In the conspectus of above discussion, this Court is of the considered view that the
date of commission of offence is not the deciding factor but it is the date of taking
cognizance of the offence in question which decides the applicability of amended Sec.
19 PC Act. Thus, the Trial Court by taking cognizance of the offence in question against
petitioner without insisting for sanction for prosecution from Sanctioning Authority has
committed illegality. However, this view of this Court gets eclipsed by the findings
rendered by Larger Bench in Kavindra (supra) and therefore dissuading this court from
taking a course at variance to the view of Larger Bench in Kavindra (supra).
11. Consequently, the present petition stands dismissed sans cost.
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