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
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).398/2016
STATE THROUGH CBI/ACB,HYDERABAD A.P
V
DHARMANA PRASED RAO.
Dated:APRIL 26, 2016.
Citation:(2016) 13 SCC 261
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
in the Trial Court).
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, 420,409,467,468,471 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;
(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
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
consider the case afresh.
The appeal is, accordingly, allowed.
......................J.
[A.K. SIKRI]
......................J.
[R.K.AGRAWAL]
NEW DELHI;
APRIL 26, 2016.
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
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).398/2016
STATE THROUGH CBI/ACB,HYDERABAD A.P
V
DHARMANA PRASED RAO.
Dated:APRIL 26, 2016.
Citation:(2016) 13 SCC 261
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
in the Trial Court).
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, 420,409,467,468,471 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;
(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
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
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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