State Through Cbl/Acb, Hyderabad A.P. Versus Dharmana Prased Rao

[2016] 2 S.C.R. 591 STATE THROUGH CBl/ACB, HYDERABAD A.P.

v.

DHARMANA PRASED RAO (Criminal Appeal No. 398of2016) APRIL 26, 2016 [A.K. SIKRI AND R.K. AGRAWAL, JJ.) Code of Criminal Procedure, 1973 - s. 362 - Prosecution of 14 accused including respondent-accused before Special Court - ulss. 13(2) r!w s. 13(J){C){D) of Prevention of Corruption Act (PC Act) - Initially the trial court did not take cognizance of the respondent-accused and directed the Investigating Officer to file sanction orders uls. 19 of PC Act - Later, when the Court was informed that no sanction was required, it took cognizance of the offences under PC Act against the respondent-accused - In revision High Court set aside the order of trial court on the ground that taking of cognizance at later stage amounted to review - On appeal, held: The order of trial court taking cognizance would not amount to review - The initial order whereby direction was issued to file sanction order, cannot be construed as final order - Matter remitted to High Court - Prevention of Corruption Act, 1988 - ss. 13(2) r!w s. 13(1){C){D).

Allowing the appeal and remitting the matter to High Court, the Court HELD: Section 362 Cr.P.C. debars the Court from altering or reviewing the judgment only in those cases when it has signed its judgment or when it bas passed final order disposing of a case. In the instant case, the Trial Court on the earlier occasion had simply deferred taking cognizance under the impression that the sanction u/s. 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. The Trial Court was not reviewing any order. The order dated 13.09.2012 could not be r,onstrued as final order, more so, when there was no final determination of the issue regarding

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requirement of sanction for prosecution against the respondent herein. [ Para 6) [593-G-H; 594-DJ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No . . 398of2016.

From the Judgment and Order dated 29.04.2013 of the High Court of Andhra Pradesh at Hyderabad in Crl. Revision Case No. 580 of2013. Ranjit Kumar, SG, Amol Chilate, Zoheb Hossain, B. V. Balaram Das for the Appellant.

Ajay Burman, Alok Kumar, Ms. Somya Yadava, Karan Burman, c Balaji Srinivasan forthe Respondent.

The Judgment of the Court was delivered by A.K. SIKRI, J. I. Leave granted.

2. This appeal is filed by the State through CBl,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 40 I 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 in the Trial Court).

3. Without stating the prosecution case in detail, suffice it to mention that the appellant/CBI has filed charge sheet in the 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, 420,409,467,468,4 71 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

STATE THROUGH CBI/ACB, HYDERABAD A.P. v.

DHARMANA PRASED RAO [A.K. SIKRI,J.] Judge pointing out that no such sanction was required and insofar as A4 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 40 I . of the Code raising issues two folds:

"( 1) Having refused to take cognizance of the offence under the PC Act against the res!Jondent, in the first instance, the Special Judge should not have taken cognizance there.after on the application filed by the CBI as it amounted to review and the Special Judge did not have any power;

(2) In any case, no cognizance to be taken for want of sanction which was mandatorily required under Section I 9 of the PC Act."

4. 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.

5. 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."

6. 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 1-9 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

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or not would be a different matter. We may point out here that the Trial Court was not oblivious of the aforesaid aspect while taking co~nizance 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 AS 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.

7. 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 consider the case afresh.

8. The appeal is, accordingly, allowed.

Kalpanan K. Tripathy Appeal allowed.