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REPORTABLE IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL  NO(S).398/2016 (Arising out of SLP(CRL.) No. 6508/2013)

STATE THROUGH CBI/ACB,HYDERABAD A.P               APPELLANT(S)

                               VERSUS

DHARMANA PRASED RAO                                RESPONDENT(S)

J U D G M E N T A.K. SIKRI,J.

Leave granted.  

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

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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;

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(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

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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

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consider the case afresh.  The appeal is, accordingly, allowed.  

......................J. [A.K. SIKRI]

......................J.    [R.K.AGRAWAL]

NEW DELHI; APRIL 26, 2016.