State Through Cbi/Acb,Hyderabad Ap vs Dharmana Prased Rao

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).398/2016 (Arising out of SLP(CRL.) No. 6508/2013)

STATE THROUGH CBI/ACB,HYDERABAD A.P APPELLANT(S)

VERSUS

DHARMANA PRASED RAO RESPONDENT(S)

J U D G M E N T

A.K. SIKRI,J.

Leave granted.

This appeal is filed by the State through CBI, ACB, Hyderabad

questioning the validity of the order dated 29.04.2013 passed by

the High Court in Criminal Revision Petition which was filed by the

respondent herein under Sections 397 and 401 of the Code of

Criminal Procedure,1973 (herein referred to as “the Code”). The

said revision petition was filed by the respondent challenging the

order dated 21.01.2013 passed by the Court of Principal Sessions

Judge for CBI cases, Hyderabad by which cognizance of the offence

under Section 13 of the Prevention of Corruption Act (hereinafter

referred to as “the PC Act”) was taken against the respondent (A-5 Signature Not Verified

in the Trial Court).

Digitally signed by ASHWANI KUMAR Date: 2016.05.14 13:41:03 IST Reason:

Without stating the prosecution case in detail, suffice it to

mention that the appellant/CBI has filed charge sheet in the 2

Special Court against 14 accused persons including the respondent

herein (A-5) under Section 13(2) read with Section 13(1)(C)(D)of

the PC Act. They were also charged for various offences under

Sections, 420,409,467,468,471 and 120B etc. of the Indian Penal

Code. Accused Nos. 4 and 5 were the Ministers. After the filing of

the charge sheet, the Special Court passed an order dated

13.09.2012 whereby all these accused persons, under the various

provisions of the Indian Penal Code, were summoned. Insofar as A-4

to A-8, including the respondent herein, are concerned, the Trial

Court directed the Investigation Officer to file sanction orders

contemplated under Section 19 of the PC Act without which no

cognizance can be taken for the said offences against these accused

persons. The appellant, thereafter, filed an application before the

Special Judge pointing out that no such sanction was required and

insofar as A-4 and A-5 are concerned, cognizance against them in

respect of offences under Section 13 of the PC Act should also be

taken. On this application the Trial Court passed the order

summoning these accused persons including the respondent herein

taking cognizance of the offences under the PC Act as well. This

order was challenged by the respondent by filing the aforesaid

criminal revision petition under Sections 397 and 401 of the Code

raising issues two folds:

“(1) Having refused to take cognizance of the offence under the PC Act against the respondent, in the first instance, the Special Judge should not have taken cognizance thereafter on the application filed by the CBI as it amounted to review and the Special Judge did not have any power;

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(2) In any case, no cognizance to be taken for want of sanction which was mandatorily required under Section 19 of the PC Act.”

The High Court has addressed itself the first issue and

finding substance in the contention of the respondent allowed the

revision and set aside the order of the Trial Court on the ground

that it amounted to review.

After hearing the counsel for the parties, we are of the view

that the High Court has erred in taking the aforesaid view. Section

362 of the Code is the material provision, which reads as under:

“362. Court not to alter judgment:- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

The aforesaid provision debars the Court from altering or

reviewing the judgment only in those cases when it has signed its

judgment or when it has passed final order disposing of a case. In

the instant case, as mentioned above, the Trial Court on the

earlier occasion had simply deferred taking cognizance under the

impression that the sanction under Section 19 of the PC Act is

required. There was no final order passed disposing of the case

inasmuch as had the sanction been brought, (cognizance would have

been taken in any case), the Trial Court is authorised to take

cognizance which is not disputed by the learned counsel for the

respondent as well. The question whether a sanction is required or 4

not would be a different matter. We may point out here that the

Trial Court was not oblivious of the aforesaid aspect while taking

cognizance of offences under the PC Act against the respondent and

others. It specifically recorded that it does not amount to

reviewing its own decision. Vide order dated 13.09.2012 passed by

the Trial Court earlier, it had merely asked the Investigation

Officer to file sanction orders against A4 to A8 and deferred the

order of cognizance against them. There was no decision much less

conclusive decision taken by the Court. The Trial Court rightly

pointed out that it was only in the nature of reminding the duty of

the Investigation Officer to meet certain requirements for taking

cognizance of offence under the PC Act. However, when the

Investigation Officer brought to its notice, on the subsequent

date, that no such sanction was required, the Trial Court finding

it to be correct position in law took cognizance. By this, the

Trial Court was not reviewing any order. According to us order

dated 13.09.2012 could not be construed as final order, more so,

when there was no final determination of the issue regarding

requirement of sanction for prosecution against the respondent

herein.

The aforesaid view of the High Court is, therefore, clearly

erroneous and the impugned order is hereby set aside. Further as

the High Court has not gone into the other issue viz. whether there

was a necessity of having prior sanction under Section 19 of the PC

Act or not, we, thus, remand the case back to the High Court to 5

consider the case afresh.

The appeal is, accordingly, allowed.

......................J. [A.K. SIKRI]

......................J. [R.K.AGRAWAL] NEW DELHI;

APRIL 26, 2016.

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ITEM NO.10 COURT NO.12 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 6508/2013

(Arising out of impugned final judgment and order dated 29/04/2013 in CRLRC No. 580/2013 passed by the High Court Of A.P. At Hyderabad)

STATE THROUGH CBI/ACB,HYDERABAD AP Petitioner(s)

VERSUS

DHARMANA PRASED RAO Respondent(s) (with office report)(FOR FINAL DISPOSAL)

Date : 26/04/2016 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE R.K. AGRAWAL

For Petitioner(s) Mr. Ranjit Kumar, SG Mr. Amol Chitale, Adv. Mr. Zoheb Hossain, Adv. Mr. B. V. Balaram Das,Adv.

For Respondent(s) Mr. Ajay Burman, Adv. Mr. Alok Kumar, Adv. Ms. Somya Yadava, Adv. Mr. Karan Burman, Adv. Mr. Balaji Srinivasan,Adv.

UPON hearing the counsel the Court made the following O R D E R Leave granted.

The Criminal Appeal is allowed in terms of the signed judgment.

Interlocutory application(s) pending, if any, shall stand disposed of accordingly.

(Ashwani Thakur) (Tapan Kr. Chakraborty) COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)