M.K. Prasad v. Dy.S.P. Vigilance and Anti-Corruption Bureau, Palakkad & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935** **Crl.Rev.Pet.No. 1782 of 2012 ()** **--------------------------------** **AGAINST THE ORDER IN CRL.M.P.NO.243/11 IN CC 117/2008 of ENQUIRY COMMR.& SPL.JUDGE,THRISSUR DATED 30-06-2012.** **REVISION PETITIONER(S)/ACCUSED:-** **--------------------------------** **M.K.PRASAD, SECRETARY, THACHANATTUKARA GRAMA PANCHAYATH, PALAKKAD.** **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENT/COMPLAINANT/STATE:-** **-------------------------------** **1. DY.S.P. VIGILANCE AND ANTI CORRUPTION BUREAU, PALAKKAD, PIN - 678 001.** **2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 9/7/2013, THE COURT ON 19-08-2013, PASSED THE FOLLOWING:** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I- COPY OF THE FINAL REPORT.** **ANNEXURE IICOPY OF THE CHARGE** **ANNEXURE IIICOPY OF THE SANCTION ORDER ISSUED BY THE DIRECTOR OF PANCHAYAT.** **ANNEXURE IVCOPY OF THE PETITION FILED BY THE 1ST RESPONDENT DATED 16/2/2002.** **ANNEXURE V- TRUE COPY OF THE ORDER OF THE LEARNED SPECIAL JUDTGE DATED 6/12/2004.** **ANNEXURE VICOPY OF THE 2ND ORDER OF SANCTION DATED 30/8/2006 ISSUED BY THE GOVERNMENT.** **ANNEXURE VII- COPY OF THE PETITION FILED BY THE PETITIONER IN CRL.M.P.NO.243/11 BEFORE THE SPECIAL JUDGE, THRISSUR.** **ANNEXURE VIII- COPY OF THE ORDER IN CRL.M.P.NO.243/11.** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1782 of 2012 -----------------------------------------------------Dated this the 19[th] day of August, 2013** ## **ORDER** The revision petitioner is the accused in C.C.No.117/08 on the files of the Enquiry Commissioner and Special Judge, Thrissur, and the petitioner in Crl.M.P.No.243/11 filed thereon. Now he has been charge sheeted for the offence punishable under Secs.7 and 13(1)(d) read with Sec.13(2) of the Prevention of Corruption Act. The allegation against the revision petitioner is that while he was working as Secretary, Thachanattukara Grama Panchayat, he demanded and accepted illegal gratification of Rs.1,000/from the de facto complainant and thereby committed the offence alleged against him. **Crl.R.P. No.1782 of 2012** -: 2 :- 2. Earlier, he was charge sheeted for the very same offence, on the very same allegation. The learned Special Judge, Kozhikode, took it on files as C.C.No.31/2000. Thereafter, the learned Judge framed charge against the revision petitioner along with sanction order issued by the Director of Panchayats. Later, the Investigating Officer herself understood that there is no valid charge as the Director of Panchayats is not competent to grant sanction. Then, the Investigating Officer filed a petition to withdraw the charge sheet, with liberty to file it before the court with proper sanction order to be obtained from the Government. The Special Judge allowed the petition as prayed for. 3. Thereafter, the Investigating Officer had obtained a fresh sanction order from the Government and re-filed the very same final report. The learned Special Judge took cognizance as C.C.No.61/06. Thereafter, the case was transferred to the Court of Special Judge, Thrissur, and the learned Special Judge took it as C.C.No.117/08. While so, the revision petitioner filed the above mentioned Crl. M.P. under Sec.239 of the Code of Criminal Procedure on the **Crl.R.P. No.1782 of 2012** -: 3 :- ground that the prosecution against the revision petitioner is not maintainable under Sec.300 of the Cr.P.C. and Article 20(2) of the Constitution of India. After hearing, the learned Special Judge dismissed the above petition. This order is under challenge in this revision petition. 4. The learned counsel for the revision petitioner Sri. T.G. Rajendran submitted that present trial of the petitioner on the basis of fresh final report amounts to double jeopardy and therefore not maintainable as per Sec.300 of the Cr.P.C. and Article 20(2) of the Constitution of India. The earlier order, though states that the revision petitioner is discharged, the order has the effect of acquittal, in view of Sec.321 of the Cr.P.C. The application filed by the Investigating Officer could be treated as an application from withdrawal for prosecution contemplated under Sec.321 of the Cr.P.C. If that be so, the earlier order permitting to withdraw final report has to be treated as acquittal as per Clause (b) of Sec.321 of the Cr.P.C., then Sec.300 of the Cr.P.C. would be attracted and fresh institution of a case for the very same offence on the very same set of facts is not **Crl.R.P. No.1782 of 2012** -: 4 :- maintainable. Any discharge made after framing of charge could be treated as acquittal only. The learned counsel, in support of his argument cited the decisions reported in **State of Karnataka v. K.H. Annegowda** (1977 (1) SCC 417) and **Eciyo Coconut Oils Pvt. Ltd., v. State of Kerala** (2002 (1) KLT 172). 5. The learned Public Prosecutor advanced arguments to justify the impugned order. He drew my attention to the impugned order, which specifically states that the accused is discharged. He further submits that as per the Explanation to Sec.300 of the Cr.P.C. discharge of the accused is not an acquittal for the purpose of Sec.300 of the Cr.P.C. Then he cited the decisions in **Baij Nath Prasad Tripathi v. The State of Bhopal** (AIR 1957 SC 494); **State of Karnataka v. C. Nagarajaswamy** (2005 (8) SCC 370) and **Balbir Singh v. State of Delhi** (AIR 2007 SC 2397) and submits that for attracting bar under Sec.300 of the Cr.P.C., the fresh trial should have been before a court competent to pass valid order of acquittal or conviction. So, if the court is not competent to record conviction or **Crl.R.P. No.1782 of 2012** -: 5 :- acquittal due to lack of sanction, the whole trial will be null and void and it cannot be said that there was any conviction or acquittal in force within the meaning of Sec.300 of the Cr.P.C. 6. In view of the rival contentions, the question to be considered is whether the acquittal or conviction made by a court, for want of sanction for prosecution, would amount to a bar under Sec.300 of the Cr.P.C. for further prosecution, after obtaining sanction. 7. Let us analyse the impugned order. Apparently, the court below was cautious and careful while granting permission to withdraw from prosecution. The order itself obviously says that the accused is discharged without prejudice to the right of the prosecution to file a fresh charge after obtaining sanction from the competent authority. If the accused was discharged, certainly the Explanation under Sec.300 of the Cr.P.C. would come into application and it cannot be an acquittal, for the purpose of Sec.300 of the Cr.P.C. 8. Let us see the legal consequences, even if it is an **Crl.R.P. No.1782 of 2012** -: 6 :- acquittal coming under Clause (b) of Sec.321 of the Cr.P.C., which says if the withdrawal is made after charge has been framed or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. 9. The Apex Court in **Baij Nath Prasad Tripathi v. The State of Bhopal** (AIR 1957 SC 494) has considered the validity of acquittal or conviction made by an incompetent court or a court having no jurisdiction and held as follows: “5 ....... The Privy Council decision is directly in point, and it was there held that the whole basis of S.403(1) was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the Court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had **Crl.R.P. No.1782 of 2012** -: 7 :- been obtained. So is the decision of this Court where the following observations were made with regard to the point in question: "Section 403, Criminal Procedure Code, applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made by a Court which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a magistrate who had no jurisdiction to try him”. 6. ................... With regard, to S.403, Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of S.403(1) of the Code, to stand as a bar against their trial for the same offences”. **Crl.R.P. No.1782 of 2012** -: 8 :- In **Budha Mal v. State of Delhi** (Criminal Appeal No.17 of 1952 disposed of on 3/10/1952), a trial of the appellant therein for alleged commission of an offence under Section 161 of the Penal Code resulted in conviction but an appeal therefrom was accepted on the ground that no sanction for the prosecution of the appellant was accorded therefor. The police prosecuted the appellant again after obtaining fresh sanction whereupon a plea of bar thereto in terms of Section 403 of the Code was raised. Mahajan.J. speaking for a Division Bench opined: “We are satisfied that the learned Sessions Judge was right in the view he took. Section 403 Cr.P.C. applies to cases where the acquittal order has been made by a court of competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a Magistrate who had no jurisdiction to try him.” **Crl.R.P. No.1782 of 2012** -: 9 :- 10. The principles that can be culled out from the above decision is that even if a full fledged trial had been conducted, without proper sanction of the competent authority and the accused is acquitted of the offence, trial would be null and void as the court was incompetent to try the case. If that be so, one of the essential conditions for invoking the bar under Sec.300 of the Cr.P.C. that the court should have requisite jurisdiction to take cognizance and tried would be lacking. So, the accused is acquitted of the offence would not get the bar of further trial. He can be prosecuted further after getting proper sanction. The above proposition has been reiterated in **State of Karnataka v. C. Nagarajaswamy** (2005 (8) SCC 370) and **Balbir Singh v. State of Delhi** (AIR 2007 SC 2397). 11. In view of the above proposition, there is no illegality or impropriety in the order under challenge and this revision petition is dismissed. Sd/- ## **(K. HARILAL, JUDGE)** **//true copy//** **P.S. to Judge** **Nan/**