1. The petitioner has been arrayed as Accused No.5 pursuant to the complaint filed by respondent No.3 registered in Crime No.370/2013 by Mandya West Police Station on 01.11.2013 and as per the first F.I.R. No.RC.21(A)/2014 registered on 23.12.2014 by C.B.I., ACB, Bengaluru. The charge sheet dated 31.12.2015 having been filed before the Special Judge for CBI Cases, the trial Court has taken cognizance of the offences punishable under Sections 120-B, 409, 420 of IPC and Section 13(2) read with Section 13(1) (c) & (d) of the Prevention of Corruption Act, 1988 ('P.C. Act' for short).

2. The petitioner has sought for quashing of the complaint dated 31.10.2013 lodged by the respondent No.3 (Annexure-A) and has also assailed the F.I.R. dated 01.11.2013 in Crime No.370/2013 for the offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC before the Mandya West Police (Annexure-B). The petitioner has also challenged the F.I.R. dated 23.12.2014 in Crime No.RC.21(A)/2014 for the offence punishable under Section 120-B read with Sections 406, 409 and 420 of I.P.C. and Section 13(2) read with Section 13(1)(c) & (d) of P.C. Act registered by the CBI, ACB, Bengaluru and the Charge Sheet bearing No.30/CBI/ACB/BLR/2015 dated 31.12.2015 filed by CBI, ACB, Bengaluru, the respondent No.2 herein (Annexure-D) and the order dated 29.03.2021 passed in Spl.CC.No.577/2021 by the Court of XLVI Additional City Civil & Sessions Judge and Spl. Judge for CBI Cases at Bengaluru, taking cognizance of offences punishable under Sections 120-B, 409 and 420 of IPC and Section 13(1)(c) & (d) read with Section 13(2) of P.C. Act and has also assailed the entire proceedings in Spl.C.C.No.577/2021 pending on the file of XLVI Additional City Civil & Sessions Judge and Spl. Judge for CBI Cases at Bengaluru, (Annexure-E) insofar as the petitioner is concerned.

3. The facts as made out constituting the offence are that the Mysore Urban Development Authority ('MUDA' for short) is stated to have allotted a site in favour of wife of the petitioner on 13.03.2008, which was followed by execution of lease-cum-sale deed on 17.06.2008. It is further made out that the Possession Certificate came to be issued on 02.07.2008 followed by issuance of Khatha.

4. The petitioner, who was the Member of Legislative Assembly, Melukote Constituency for the term of 2008-2013 was appointed as Member of MUDA in terms of Section 3(3)(d) and Section 4 of the Karnataka Urban Development Authorities Act, 1987.

5. It further comes out from the facts as narrated by C.B.I. in their statement of objections that the petitioner had applied to MUDA on 16.10.2009 seeking allotment of site declaring that neither he nor his family has been allotted any site by any Urban Development Authority.

6. It is the further case of the Prosecution that the application was also pre-dated. It is stated that the site came to be allotted, the Possession Certificate came to be issued on 05.01.2010, Sale Deed was executed on 07.05.2010 and the Khatha was issued on 16.11.2010 with respect to the said site.

7. It is also made out that the petitioner had executed a Sale Deed with respect to the allotted site to one Mr.Khalak Sharief on 15.10.2011.

8. The petitioner is stated to have made an application to MUDA seeking cancellation of allotment on 27.12.2011 and subsequently on 02.01.2012 had re-purchased the said property from said Mr.Khalak Sharief.

9. On 01.11.2013, Mandya West Police Station registered the F.I.R. for the offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC in Crime No.370/2013. On 09.01.2014, the State Government has issued an order transferring the above case to C.B.I. for investigation and the State Government has ordered for entrustment of investigation to the C.B.I. The C.B.I. re-registered the FIR in RC No.21(A)/2014 as against Mr.Upendra Naik and others for the offences punishable under Sections 406, 409 and 420 read with Section 120-B of I.P.C. and Section 13(2) read with Section 13(1) (c) & (d) of P.C. Act. The charge sheet came to be filed before the Court of XLVI Additional City Civil & Sessions Judge and Spl. Judge for CBI Cases at Bengaluru on 03.02.2016.

10. It is further made out from the facts that on 28.09.2016 in Crl.P.No.6993/2016 as regards Accused No.8, stay of proceedings before the trial Court was granted. Pursuant to which, there was deferment of proceedings before the trial Court awaiting the orders from the High Court and eventually the proceedings against Accused No.8 was quashed by order dated 19.01.2017.

11. On 25.04.2017, this Court stayed the proceedings in Crl.P.No.3578/2017 in respect of Accused No.2.

12. The setting aside of proceedings as against Accused No.8 was assailed before the Apex Court in S.L.P. (Crl.) No.6971/2017, which set aside the judgment of the High Court quashing the proceedings as against Accused No.8, while observing that the question raised by Accused No.8 is a matter for trial.

13. On 25.11.2020, this Court vacated the interim order granted in Crl.P.No.3578/2017 instituted by Accused No.2. Finally on 29.03.2021, the learned Spl. Judge took cognizance of the offences punishable under Sections 120-B, 409, and 420 of IPC and Section 13(1)(c) & (d) read with Section 13(2) of the P.C. Act and the case was registered in Spl.CC.No.577/2021 and an order was passed for issuance of summons to the accused after which the present petition has been filed.

Submissions of the petitioner:-

14. The MUDA, which was stated to be facing financial crunch, in its meeting on 08.09.2009 resolved to allot 107 sites which remained unallotted to interested persons by collecting Guidance Value and the petitioner was allotted Site No.562.

15. Though there was no stay as regards the petitioner, cognizance of offence was not taken as regards the petitioner till 29.03.2021, as on which date the sanction for prosecution was required in terms of Section 19(1)(c) of the Prevention of Corruption Act as amended by Act 16 of 2018 (the Act as amended prescribed sanction as being necessary where the accused was at the time of commission of the alleged offence employed).

16. In light of petitioner being appointed as Member of MUDA in terms of Section 3(3)(d) and Section 4 of the Karnataka Urban Development Authorities Act, 1987 and as the State Government was empowered to remove them, sanction ought to have been obtained in terms of Section 19(1)(c) from the State Government.

17. It is contended that sanction of prosecution ought to have preceded taking of cognizance, that amendment to the Prevention of Corruption Act was by way of substitution and accordingly, it would have retrospective effect and is deemed to have been part of the Act since its inception and accordingly, the sanction was required.

18. The finding of trial Court that Accused No.5, who was an elected Member of Legislative Assembly not being appointed could not be removed even by the Speaker and accordingly no sanction was necessary, was a finding contrary to law and was required to be set aside.

19. As the C.B.I. itself had made efforts to obtain sanction from the Speaker instead of Government, which if taken note of, the taking of cognizance without sanction was illegal.

Contentions of the respondents:-

20. The Prevention of Corruption (Amendment) Act, 2018 created new offences punishable under Sections 7 to 13 and the procedure for obtaining sanction was made necessary even as regards the retired public servants. Such amendment could not be given effect to retrospectively.

21. Section 6(e) of the General Clauses Act, 1897 saves pending investigation or legal proceedings which are to be proceeded with as if the Amendment Act 2018 has not been passed.

22. Mere use of the word 'substitution' would not result in amendment being effective with retrospective effect. The Prevention of Corruption (Amendment) Act, 2018 coming into force by way of Gazette Notification on 26.07.2018 would by itself indicate that the Amendment Act was to be effective prospectively. The amendment related to substantive provisions of the Act and accordingly are to be treated as prospective in application.

23. The offence was committed in the year 2009 and investigation was completed and charge sheet was filed in 2016 and accordingly, the question of applying the Amendment Act, 2018 which casts an additional burden on the C.B.I. to obtain sanction for prosecution could not be made applicable. Reliance is placed on the judgment of Kerala High Court in the case of K.R.Ramesh v. Central Bureau of Investigation and Another 2020 SCC Online Ker 2529..

24. As per the un-amended provisions of Section 19 of P.C. Act, the sanction was not required in case of prosecution of public servants after retirement, as held by Apex Court in the case of Station House Officer, CBI/ACB/Bangalore v. B.A.Srinivasan and Another (2020) 2 SCC 153 [LQ/SC/2019/1828] .

25. The investigation being completed as on 31.12.2015 and the charge sheet being placed before the trial Court on 03.02.2016 for the purpose of taking cognizance, the non-taking of cognizance thereafter was beyond the control of respondent and accordingly, the additional burden by way of Amendment Act, 2018 cannot be imposed.

26. The delay caused by the Court in taking cognizance ought not to deny justice to a diligent complainant and reliance is placed on the judgment of Apex Court in the case of Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director K.M.Cherian and Others (2014) 2 SCC 62 [LQ/SC/2013/1309] .

27. Sanction under Section 197 of Cr.P.C. as regards offences as per the I.P.C. is not required insofar as the offences relating to criminal breach of trust cannot be construed to be an act done in discharge of official duties of the petitioner. Accordingly, dismissal of the petition is sought for.

CONSIDERATION:-

I. Sanction under Section 197 of Cr.P.C.

28. While the validity of the proceedings is challenged on the ground of absence of sanction, the sanction as required under Section 197 of Cr.P.C. for proceedings relating to I.P.C. offences, is required to be considered as a distinct issue.

The petitioner-Accused No.5 was a Member of Legislative Assembly from 2008 to 2013 and came to be appointed as Member of "Mysuru Urban Development Authority", which membership is co-terminus with his tenure as a Member of Legislative Assembly.

29. The case has been registered as regards tenure of the petitioner when he was a Member of MUDA. It is alleged that he had got allotted a stray site to himself though he was ineligible, as his wife was already an allottee of a site from the same Authority.

30. It has been alleged that, in the application the petitioner had declared that neither he nor his family had been allotted any site by any Urban Development Authority, which was a false declaration.

31. After investigation, the imputation made in the charge sheet by the Central Bureau of Investigation is as follows:-

"52. Shri.C.S.Puttaraju (A-5), S/o Late Sannathamme Gowda is a resident of Chinakuruli Village, Pandavapura Taluk, Mandya District. He was the MLA of the assembly Constituency of Melukote for the period from 2009 to 2014 representing the political party Janatha Dal (Secular) and was the Member, MUDA, Mandya during the said tenure. Shri.C.S.Puttaraju (A-5) conspired with A-1 and other members of MUDA and allotted with MUDA site through the MUDA meeting held on 08.09.2009 knowing very well that, stray sites are to be auctioned and that he is not eligible to get the site allotted to himself. He has concealed his marital status in the MUDA application form submitted for site allotment. He also concealed the details of MUDA site already allotted in the name of his wife with an intention to get allot the MUDA site in his name."

32. Under Section 197 of Cr.P.C., sanction is required where the accused who is not removable from the office save with the sanction of Government "is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty." Section 197 provides that cognizance shall not be taken except with the previous sanction.

33. The Court while insisting for sanction before taking cognizance is required to arrive at a finding that the alleged acts constituting the offence is to be treated to be an act in discharge of his official duty. This would be a sine qua non for insistence of sanction. The observations of Apex Court in the case of Rajib Ranjan and Others v. R.Vijaykumar (2015) 1 SCC 513 [LQ/SC/2014/1101] at paragraph Nos.15 to 18 which are of relevance are extracted below:-

"15. The sanction, however, is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duties”. In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, the following yardstick is provided by this Court in Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 [LQ/SC/1993/221] : 1993 SCC (Cri) 901 [LQ/SC/1993/221] : (1993) 2 SCR 311] in the

following words: (SCC p. 347, para 6).

6. … If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.”

16. This principle was explained in some more detail in Raghunath Anant Govilkar v. State of Maharashtra [(2008) 11 SCC 289 [LQ/SC/2008/285] : (2009) 1 SCC (Cri) 130] , which was decided by this Court on 8-2-2008 in SLP (Crl.) No. 5453 of 2007, in the following manner: (SCC pp. 298-99, para 11)

“11.7. … “66. … On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli v. State of Bombay [AIR 1955 SC 287 [LQ/SC/1954/182] : 1955 Cri LJ 857] and Amrik Singh v. State of Pepsu [AIR 1955 SC 309 [LQ/SC/1955/16] : 1955 Cri LJ 865] was as follows: (Amrik Singh case [AIR 1955 SC 309 [LQ/SC/1955/16] : 1955 Cri LJ 865] , AIR p. 312, para 8)

'8. … It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary….´

The real question therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409 of the Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.” [Ed.: As observed in Harihar Prasad v. State of Bihar, (1972) 3 SCC 89, 115, [LQ/SC/1971/469] para 66 : 1972 SCC (Cri) 409 [LQ/SC/1971/469] .] ' [Ed.: Quoted from State of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690, 692, [LQ/SC/1999/603] para 7 : 1999 SCC (Cri) 1031.] ”

17. Likewise, in Shambhoo Nath Misra v. State of U.P. [(1997) 5 SCC 326 [LQ/SC/1997/481] : 1997 SCC (Cri) 676 : AIR 1997 SC 2102 [LQ/SC/1997/481] ], the Court dealt with the subject in the following manner: (SCC p. 328, para 5)

“5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.”

18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied."

34. Keeping in mind the above legal framework whether the acts constituting the offence has been committed "by him while acting or purporting to act in discharge of his official duty…" would require evaluation of the material and evidence produced in support of the charge sheet. Depending on such conclusion, the question of requirement of sanction is to be decided. Such exercise involving appreciation of quality of evidence is a matter best left to the trial Court at the appropriate stage in the trial. The trial Court when deciding such question would keep in mind the legal framework as detailed above while recording a finding on the factual matrix.

35. Accordingly, the contention relating to the aspect of sanction under Section 197 of Cr.P.C. as raised by the petitioner is rejected.

II. Sanction for Prosecution under Section 19 of the Prevention of Corruption Act:-

36. The petitioner was appointed as the Member of MUDA by virtue of being a Member of the Legislative Assembly in terms of Section 3(3)(d) and Section 4 of the Karnataka Urban Development Authorities Act, 1987. It is also undisputed that the petitioner was a Member of Legislative Assembly for the term 2008-2013 and during such term was appointed as Member of the Authority. The facts as are made out would reveal that offence is alleged to have been committed by the petitioner during his tenure as the Member of MUDA when he was a Member of the Legislative Assembly from 2008-2013.

37. The FIR has been lodged by the Mandya West Police Station in 2013 and by the C.B.I. in 2014. The charge sheet has been filed before the Spl. Judge on 03.02.2016 and cognizance thereafter was required to be taken.

38. Section 19 of the Prevention of Corruption Act prior to the amendment in 2018 required previous sanction for the purpose of taking cognizance where the person "is employed". It is only by virtue of amendment in 2018 that Section 19 has been amended which provides for sanction where offence is committed by a person "who is employed, or as the case may be, was at the time of commission of the alleged offence employed". Further, the Explanation to Section 19(1) inserted by way of amendment stipulates that the term 'public servant' in sub-section (1) of Section 19 would include a person who has ceased to hold the office during which the alleged offence is stated to have been committed or is holding an office other than the office during which the offence is alleged to have been committed. Accordingly, in terms of the provisions of Prevention of Corruption Act, till the amendment was effected as per Act 16 of 2018, sanction was required only if the person concerned was 'in employment' at the time when cognizance is taken.

39. Another aspect that has received judicial attention is that the person accused must be holding that very office during the tenure of which the alleged offence has been committed as per the provisions of the Act, prior to the amendment in 2018. The Apex Court in the case of Abhay Singh Chautala v. CBI (2011) 7 SCC 141 [LQ/SC/2011/810] has clarified the position as follows:-

"54. The learned Senior Counsel tried to support their argument on the basis of the theory of “legal fiction”. We do not see as to how the theory of “legal fiction” can work in this case. It may be that the appellants in this case held more than one offices during the check period which they are alleged to have abused; however, there will be no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman v. State [AIR 1958 SC 107 [LQ/SC/1957/134] : 1958 Cri LJ 254] , is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but in a different capacity or holding a different office than the one which is alleged to have been abused, still there will be no question of sanction and in that case, there will also be no question of any doubt arising because the doubt can arise only when the sanction is necessary. In case of the present appellants, there was no question of there being any doubt because basically there was no question of the appellants' getting any protection by a sanction."

The facts of the said case were that the MLAs were charged under the P.C. Act as regards wrong committed during their earlier tenure as elected representatives. As the charges did not pertain to their current tenure as MLAs and as the charge sheet did not contain any allegation that the accused had abused the current office as MLA, it was held that sanction was not necessary.

40. Accordingly, as long as the person concerned is not holding "that very office", which is "alleged to have been abused as on the date of taking cognizance", the question of requirement of sanction for the purpose of Section 19 (prior to the amendment in 2018) of the P.C. Act does not arise.

41. In the present case, though the petitioner at present is a Member of Legislative Assembly for the term commencing from 2018, as the alleged offence relates to the period of his office as Member of the Authority by virtue of his being a Member of Legislative Assembly from the year 2008 to 2013 with respect to such tenure, the question of sanction for prosecution for the charge sheet filed in the year 2016 would not be required in terms of the Act, as it stood prior to 2018 Amendment.

Cognizance sought to be taken post 2018 Amendment with respect to charge sheet filed on 03.02.2016:-

42. It must be noted that the charge sheet dated 31.12.2015 admittedly came to be filed before the Spl. Judge on 03.02.2016. If orders were passed for taking cognizance at any time before 26.07.2018, which is the date from which Act 16 of 2018 was brought into effect, the question of applicability of amended provision would not have been an issue at all. As cognizance came to be taken by order of the Special Judge only on 29.03.2021, taking note of the charge sheet dated 31.12.2015 filed on 03.02.2016, the question as regards to the applicability of amended provision of Section 19 of the P.C. Act has arisen.

43. It is to be noticed that, with the filing of charge sheet on 03.02.2016 before the Special Judge, the Investigating Agencies have completed their investigation and nothing more remained to be done from their end as regards investigation.

44. The intervening circumstances between 03.02.2016 and 29.03.2021 which may have constituted a legal impediment upon the Special Judge to pass an order taking cognizance are not within the control of the Investigation Agency.

45. In the facts of the present case, it cannot be stated that during the aforesaid period till the Amendment Act 16 of 2018 dated 26.07.2018 which provided for obtaining sanction, there was no occasion for taking cognizance.

46. The order of stay of proceedings as regards Accused No.8 was only made on 28.09.2016 in Crl.P.No.6993/2016. The order reads as follows:-

"stay of further proceedings in so far as the petitioner is concerned."

Though the petition came to be allowed quashing the proceedings as against Accused No.8 by order dated 19.01.2017, there was legally no impediment to have proceeded against the other accused.

47. Crl.P.No.3578/2017 was filed by Accused No.2 and an order of stay came to be granted only on 25.04.2017. The sanction orders were produced before the Special Judge as regards Accused Nos.2, 3, 8 and 15. The Prosecutor had also filed an application with sanction orders of Accused No.9 and 10 and stated that the Speaker had rejected sanction as regards Accused Nos.4 to 6.

48. The Special Judge has observed in the order dated 01.07.2017 as follows:-

"P.P. submitted that as per the charge sheet, sanction order is required only to prosecute against accused No.7 K.M.Nagaraj, accused no.8 Muralidhar, accused no.9 S.Satish, accused no.10 Venkataiah, accused no.14 Kalegowda and accused no.15, A.G.Mahalingegowda and the same have been produced before this Court and sanction order to prosecute accused no.4 to 6 is not necessary and prays to take cognizance of the offence against the accused persons.

It is made from the order sheet dated 21-10-2016 that the proceedings stayed in Crl.Petition no.6993/2016 dt.28-09-2016. Subsequently on 19-01-2017 the Hon'ble High Court of Karnataka allowed the said petition and quashed the FIR and charge sheet filed against accused no.8.

Further the matter is stayed in Crl.P.No.3578/2017 by Hon'ble High Court of Karnataka dated 25.04.2017.

Hence, await orders by 11.12.2017."

The order dated 11.12.2017 by the Special Judge reads as follows:

"The Hon'ble High Court of Karnataka has stayed the matter in Crl.P.No.3578/2017 against accused no.2.

Await orders by 05.03.2018."

Accordingly, it is clear from the above orders that sanction orders as against some of the accused had been produced and it was the stand of the prosecution that as regards some of the other accused sanction was not required. By then, the proceedings stood quashed as against accused no.8 in Crl.P.No.6993/2016 and there was an order of stay as regards accused no.2 in Crl.P.No.3578/2017. Thus, as on 11.12.2017 the Special Judge was in a position to pass orders on taking of cognizance as regards the petitioner and there was no legal impediment to do so.

49. It would be appropriate to take note of the observations of Apex Court in the case of Sarah Mathew (supra) at paras-37 and 39, which read as follows:-

"37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides, it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant.

39....The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles."

(emphasis supplied)

50. The above observations would also fortify adopting of an interpretation that the delay or deferment of taking cognizance by the Special Judge when there was no legal impediment to do so ought not to prejudice the investigation. Keeping in mind the principle that the 'act of the court shall prejudice no man', it could be concluded that the final report filed prior to amendment in 2018 of the Act ought to have been considered and is deemed to have been considered and cognizance taken as per the law prevailing when the charge sheet was ripe for consideration.

51. The delay in passing the order and coming into force of amendment requiring sanction in the interregnum ought not to saddle the prosecution with any further obligation of obtaining sanction.

52. Another aspect that needs to be considered is as to which law would be applicable while taking cognizance, i.e. Act as amended by 2018 amendment or the pre-amended provisions.

53. It must be noted that the final report was filed as on 03.02.2016. The provisions of Prevention of Corruption Act prior to amendment in 2018 specified that sanction was required to be taken only if the person 'is employed'. Section 19 as it stood prior to the amendment reads as follows:

"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.-

(a) in the case of a person who is 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 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.

54. The amendment by Act 16 of 2018, published in the Gazette on 26.07.2018 brought about a change and sanction was required to be obtained before taking cognizance for the offences where the person "is employed, or as the case may be, was at the time of commission of the alleged offence employed." Accordingly, sanction was required to be taken not only where he is in employment but also when he was employed at the time of commission of the offence. The amended provision of Section 19 of the Prevention of Corruption Act is as follows:-

"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.

Explanation.- For the purposes of sub- section (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."

55. By virtue of the Amendment Act, the amended provision substituted the earlier provision. No doubt, the Amendment Act does not contain a saving clause and accordingly, recourse to Section 6 of the General Clauses Act, 1897 is to be made. The relevant extract of the provision of the General Clauses Act is as follows:-

"6. Effect of Repeal - Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -

(a) xxx

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;

(c) xxx

(d) xxx

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

56. In the present case, by virtue of Amendment Act 2018, there has been a substitution. The principle laid down in Section 6(b) and (e) of the General Clauses Act extracted hereinabove may be kept in mind as a guiding principle while construing the effect of substitution of a clause in an enactment wherein change is sought to be brought in by virtue of the substituted provision.

57. Merely use of the word, 'substitution' to replace the old provision will not have the effect of making the amendment effective with retrospective effect, in the sense, that the substituted provision will have to be made applicable even as regards the acts already done as per the existing law and accordingly, such acts are required to be reworked in terms of the substituted provision.

58. What would also be of relevance is the language employed in the Amendment Act of 2018 as regards to coming into force of the amended provision.

"An Act further to amend the Prevention of Corruption Act, 1988.

Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:-

1. (1) This Act may be called the Prevention of Corruption (Amendment) Act, 2018.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint."

59. The Amendment Act 16 of 2018 provides that it would come into force on such date as the Central Government may, by notification in the Official Gazette appoint. It is to be further noticed that the Amendment Act has come into force on 26.07.2018 vide SO.3664 (E) dated 26.07.2018.

60. The observations of Division Bench of this Court in the case of Govardhan. M v. State of Karnataka (2013) 1 Kant.J.J.437 would offer some guidance to the interpretation to be resorted to. Para-29 of the said judgment reads as follows:-

"29. It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The principle is also well- settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. When the Legislature amends an existing provision in a statute by way of substitution, the effect is the substituted provision stands repealed and the amended provision is substituted in the place of earlier provision in the earlier Act, as if the substituted provision is there in the earlier act from the inception. By express provision or by implication if it is not made clear that it is prospective in nature the said amended provision comes into effect from the date of the earlier Act. But it is not an invariable Rule. If such an interpretation is given, if it leads to repugnancy, inconsistency or absurdity, then the said general rule is not followed. In certain situations, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word “substitution” as an “amendment” having a prospective effect. If the amendment Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said provision is prospective in nature. Then it is not open to the Court by way of interpretation to give retrospective effect to such provision. Ultimately to decide whether these provisions are prospective or retrospective, it is the intention of the legislature which is the sole guide. If the procedure adopted for amendment is substitution and in the Amended Act it is specifically stated that the substituted provisions come into effect from the date the amended Rules or Act came into force, the intention of the legislature is clear. On the pretext that it is the case of substitution, the effect cannot be given to that substituted provision from the date of the earlier statute. It has to be necessarily from the date the amended rules came into force."

(emphasis supplied)

61. Accordingly, taking note that the amendment by way of substitution would come into force as the Central Government would appoint, which is 26.07.2018, it would be appropriate to construe that the substitution would be effective prospectively.

62. The observations of Apex Court in the case of Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 [LQ/SC/1994/591] at para- 26 would read as follows:-

"26. ... From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”

(emphasis supplied)

63. Accordingly, even if it is considered that the provision regarding sanction while taking cognizance is a procedural aspect of law insofar as proposed amendment casts an obligation that sanction must be obtained even in the case of "a person who at the time of commission of the alleged offence is employed" and in terms of the explanation of 'Public Servant' introduced by way of 2018 amendment which includes a person who has ceased to hold office or is holding an office other than an office during which an offence is alleged to have been committed; such requirement was absent when the final report came to be filed and is an additional obligation sought to be created, which interpretation cannot be accepted. This would be the conclusion if the principle laid in the case of Hitendra Vishnu Thakur (supra) is to be applied.

64. Insofar as applicability of the amended provision under Section 19 to the pending proceedings, the High Court of Telangana in the case of Katti Nagaseshanna v. State of Andhra Pradesh, Represented by the Deputy Superintendent of Police and Another(order dt. 16.11.2018 in Crl.P.No.9044/20180) has also concluded that the Amendment Act 16 of 2018 imposes a new obligation and duty on the prosecution to obtain sanction even after retirement of the petitioner from service and that, it is not the intention of the legislation to defeat all prosecutions pending against retired Government Servants. It was also held that the intention of legislation to prevent bribery among public servants needs to be taken note of and it is observed as follows:-

"Coming to the present facts of the case, Section 19(1) of the P.C.Act relates to procedure to be followed for prosecuting a public servant. When such amendment imposes new obligation or creating disability, in the absence of any provision giving retrospective effect, the same cannot be given retrospective effect to defeat all pending prosecutions against the retired Government Servants. If such interpretation is given to explanation to Section 19(1) of P.C.Act by Act 16 of 2018, it will have devastating effect on the pending prosecutions and it amounts to paving path to the accused persons, who are retired public servants to sneak away from prosecutions though they committed serious offences, and such interpretation is against the intendment of the Act itself as observed in "M.Narayanan Nambiar v. State of Kerala" (referred supra). Therefore, it is difficult to accept the contention of the learned counsel for petitioner to give retrospective effect to the amended provision i.e. Section 19(1) of the P.C.Act, which permits the petitioner to escape from the prosecution. The point is held against the petitioner and in favour of the respondent."

65. Similar stand is taken by High Court of Kerala in the case of K.R.Ramesh (supra) wherein at para-44 it is held as hereunder:-

"44. Hence, the Prevention of Corruption (Amendment) Act 2018 has to be held to be prospective and has no application to cases registered prior to amendment and pending under various stages of investigation and to cases in which investigation has been completed and are pending trial. This seems to be in consonance with the decisions in Syam Sunder's Case (supra) and other similar cases and the view expressed by this Court in M.C. Chandrasekaran Nair v. State of Kerala (2015 (4) KLJ 603 [LQ/KerHC/2015/1410] ), wherein the retrospective operation of Prevention of Corruption Act, 1988 came up for consideration. Similar view was expressed by a learned Single Judge of Madras High Court, in Crl. Appeal. No. 488 of 2018 wherein scope of application of Amendment Act 2018 came up for consideration. It was held to be not retrospective. Delhi High Court in Madhu Koda's case (Supra) also, shared the same view. I agree with those views."

66. The conclusion of the Kerala High Court is also required to be accepted by taking note of the principle that investigation which is completed ought to be saved if conducted under the law then prevailing, taking note of the principle under Section 6(e) of the General Clauses Act as also the principle laid down by the Apex Court in the case of Hitendra Vishnu Thakur (supra).

III. To prevent abuse of process of any Court or otherwise to secure the ends of justice:-

67. The trial Court has recorded a finding that the question of granting sanction for prosecution of accused Nos.4 to 6 which includes the present petitioner does not arise on the following grounds, viz.,

(a) That the elected representative is elected by the people and not appointed by any person and accordingly, no person including the Speaker is competent to remove the MLA / MP from his office and therefore, the question of granting sanction for prosecution of accused Nos.4 to 6 does not arise at all.

(b) That accused Nos.4 to 6 were the then Members of MUDA and no sanction to prosecute them is required under the provisions of pre-amended Prevention of Corruption Act, 1988.

68. The trial Court has further proceeded to take note of the charge sheet and enclosures and has opined that prima facie there are sufficient material to take cognizance of the offences alleged and has ordered to proceed against accused Nos.1 to 24 and while taking cognizance of the offence, has directed issuance of summons to accused Nos.1 to 24.

69. Insofar as the conclusion that no sanction is required as against the petitioner, the conclusion of trial Court is indeed correct and could be supported by virtue of the reasoning as made by this Court in the present order.

70. The conclusion arrived at is correct and it would 'secure the ends of justice' to leave the order of the trial Court undisturbed. However, the observation made as noticed at point (a) above may not be correct, as it is the settled position of law that the Speaker would be the competent Authority to grant sanction for prosecution as regards the elected representatives.

71. The conclusion at point (b) arrived at is a correct conclusion. The said conclusion reflects the position of law regarding obtaining of sanction as per the provisions of the Act prior to the 2018 Amendment. Though reasons are not assigned to arrive at such conclusion as per the discussion made herein, it is the pre-amendment law that would be applicable.

72. The affirmation of the conclusion arrived at by the trial Court which is in accordance with law despite its reasoning being faulty partially would be an order that would 'secure the ends of justice' and thereby permitting continuance of the prosecution which in the present case at the least warrants a full trial.

73. The upholding of the order of the trial Court would also be justified by taking recourse to the principle (also referred to "Tipsy Coachman Doctrine") evolved by the Supreme Court of Georgia in the case of Lee v. Porter, 63 Ga. 345 (1879)

"..... It may be that we would draw very different inferences, and these differences might go to uphold the judgment; for many steps in the reasoning of the court below might be defective, and still its ultimate conclusion be correct. It not infrequently happens that a judgment is affirmed upon a theory of the case which did not to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it,

"the pupil of impulse, it forc'd him along, His conduct still right, with his argument wrong; Still aiming at honor, yet fearing to roam. The coachman was tipsy, the chariot drove home."

Writ dismissed."

Section 482 of Cr.P.C. provides that inherent power can be exercised to prevent abuse of process of any Court or otherwise to secure the ends of justice.

74. It is clear that the conclusion arrived at by the trial Court is correct. The defect in reasoning in arriving at such conclusion is liable to be ignored and would require to be so done in order to secure the ends of justice, which would be consistent with the exercise of jurisdiction under Section 482 of Cr.P.C.

75. Accordingly, no interference with the order of trial Court is called for. Petition is dismissed.