Case Note & Summary
The case involves two criminal revision petitions arising from an order dated 15.03.2008 passed by the Principal Sessions Judge, Gulbarga, in Special Case No.128/2007. The petitioner in Crl.RP No.659/2008 is the State through Lokayuktha Police, Gulbarga, and the petitioner in Crl.RP No.200072/2015 is Sadashiva S. Yelagod, the accused. The accused was a Civil Assistant Engineer and was alleged to have committed offences under the Prevention of Corruption Act, 1988. The Special Judge, by the impugned order, rejected the charge sheet filed by the Lokayuktha Police and directed them to file a fresh charge sheet after obtaining necessary sanction for prosecution from the competent authority, and further directed that upon filing such charge sheet, the court would take cognizance and proceed. Both the State and the accused challenged this order. The State contended that the order was illegal as it interfered with the investigation, while the accused argued that the order directing filing of charge sheet without sanction was without jurisdiction. The High Court analyzed the provisions of Section 19 of the Prevention of Corruption Act, 1988, and Section 190 of the Code of Criminal Procedure, 1973. It held that sanction for prosecution is mandatory before taking cognizance of offences under the Prevention of Corruption Act. The Special Judge cannot direct the investigating agency to file a charge sheet; cognizance can only be taken upon a police report or complaint. The impugned order was found to be without jurisdiction and illegal. The High Court allowed the revision petition filed by the accused and set aside the order dated 15.03.2008, while dismissing the revision petition filed by the State. The matter was remitted back to the Special Judge to proceed in accordance with law.
Headnote
A) Criminal Procedure Code - Revision - Maintainability - Section 397 read with 401 Cr.P.C. - An order directing the investigating agency to file a charge sheet and take cognizance is an interlocutory order, but when it affects the rights of the accused and is passed without jurisdiction, revision is maintainable. Held that the order passed by the Special Judge directing filing of charge sheet without sanction is illegal and liable to be set aside. (Paras 5-10) B) Prevention of Corruption Act - Sanction for Prosecution - Section 19 - Mandatory Requirement - The Special Judge cannot take cognizance of an offence under the Prevention of Corruption Act without a valid sanction from the competent authority. Held that the order directing filing of charge sheet and taking cognizance without sanction is void ab initio. (Paras 11-15) C) Criminal Procedure Code - Cognizance - Section 190 - Power of Special Judge - The Special Judge has no power to direct the investigating agency to file a charge sheet; cognizance can only be taken upon a police report or complaint. Held that the order directing filing of charge sheet is without jurisdiction. (Paras 16-20)
Issue of Consideration
Whether the Special Judge can direct the investigating agency to file a charge sheet and take cognizance without a valid sanction for prosecution under Section 19 of the Prevention of Corruption Act, 1988
Final Decision
The High Court allowed the revision petition filed by the accused (Crl.RP No.200072/2015) and set aside the order dated 15.03.2008 passed by the Principal Sessions Judge, Gulbarga, in Special Case No.128/2007. The revision petition filed by the State (Crl.RP No.659/2008) was dismissed. The matter was remitted back to the Special Judge to proceed in accordance with law.
Law Points
- Sanction for prosecution under Section 19 of Prevention of Corruption Act
- 1988 is mandatory
- Cognizance by Special Judge without valid sanction is illegal
- Revision petition against order directing filing of charge sheet is maintainable
