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CASE NO.: Appeal (crl.) 549  of  2001

PETITIONER: STATE OF KERALA

       Vs.

RESPONDENT: M. M. MANIKANTAN NAIR

DATE OF JUDGMENT:       25/04/2001

BENCH: K.T. Thomas, R.P. Sethi & S.N. Variava

JUDGMENT:

PHUKAN, J.

Leave is granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  respondent  has  been booked for trial  along  with@@     IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII another  accused for offences punishable under Section 120B, 409,  468, 471 and 477 of IPC and Section 13(1)(c) read with Section  13(2)  of the Prevention of Corruption  Act,  1988. The allegation against the respondent No.1 was that while he was  working  as the Secretary of Melukavu  Grama  Panchayat along  with  another accused, who was the Head Clerk of  the Panchayat,  committed criminal conspiracy to  misappropriate the  funds  of  the  Panchayat   which  was  earmarked   for construction  of waiting sheds, Tribal training centres etc. and  misappropriated large amount by creating bogus receipts and   bills  and  thereby   committed  the  above  offences. Initially  the  respondent was placed under  suspension  and subsequently was allowed to retire from service on attaining superannuation.

   The  respondent filed a revision petition under  Section 482  of the Criminal Procedure Code before the High Court of Kerala  for  quashing  the said criminal proceeding  on  the ground  that  there  was  no sanction to  prosecute  him  as required  under  Section  122 of the Kerala  Panchayat  Act. That  petition viz.  Crl.M.C.  No.1137 of 2000 was dismissed by  the  learned single Judge of the High Court by  judgment dated  31st  May, 2000 on the grounds that there was  proper sanction  to prosecute the respondent and a prima facie case was  made  out against him.  Subsequently,  a  miscellaneous petition  was  filed  in  the above  criminal  case  by  the respondent  for  clarification  of the  above  order.   This petition  was  finally allowed by the impugned  order  dated 13.07.2000  by the same learned Judge holding that there was no  proper  sanction  from   the  competent  authority  and, therefore,  no cognizance could have been taken against him. Being aggrieved, the State has approached this court.

   The  first  question  which needs our  consideration  is

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whether  the  impugned order dated 13.07.2000 passed by  the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ learned  single  Judge  clarifying the earlier  order  dated@@ JJJJJJJ 31.05.2000 holding that no cognizance against the respondent could  have been taken for want of proper sanction is  valid or not.

   The first order dated 31.05.2000 is a composite order by which  the petition under Section 482 of Criminal  Procedure Code  was dismissed on the grounds as stated above.  By  way of  clarification,  this order was reversed by the  impugned order  and  the criminal proceeding was quashed for want  of proper sanction.

   The  Code  of Criminal Procedure does not authorise  the High  Court to review its judgment or order passed either in exercise   of   its  appellate,   revisional   or   original jurisdiction.   Section 362 of the Code prohibits the  court after  it has signed its judgment or final order disposing a case  from altering or reviewing the said judgment or  order except  to  correct a clerical or arithmetical error.   This prohibition is complete and no criminal court can review its own  judgment  or  order after it is signed.  By  the  first order  dated 31.05.2000, the High Court rejected the  prayer of  the  respondent  for quashing the  criminal  proceeding. This  order  attained its finality.  By the impugned  order, the  High  Court reversed its earlier order and quashed  the criminal  proceeding  for  want of proper sanction.   By  no stretch  of imagination it can be said that by the  impugned order  the  High  Court  only   corrected  any  clerical  or arithmetical  error.  In fact the impugned order is an order of  review,  as the earlier order was reversed, which  could not  have been done as there is no such provision under  the Code  of  Criminal  Procedure,  but there  is  an  interdict against it.

   This  court  in Hari Singh Mann versus  Harbhajan  Singh Bajwa  &  Ors.  [2001 (1) SCC 169] held that Section 362  of the  Criminal Procedure Code mandates that 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  an arithmetical error and that this section is based  on an  acknowledged  principle  of law that once  a  matter  is finally  disposed  of  by  a court, the said  court  in  the absence  of  a specific statutory provision becomes  functus officio  and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the court of competent jurisdiction.

   The  next  question  that we have to answer  is  whether sanction  to prosecute under sub-section (1) of Section  122@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  the  Kerala  Panchayat Act is necessary in  the  present@@ JJJJJJJ case.  We extract below the said sub-section:

   Sanction   for  Prosecution  of  President,   Executive Authority  or members of a Panchayat (i) When the President, Executive  Authority or any member is accused of any offence alleged  to  have  been  committed by him  while  acting  or purporting  to act in the discharge of his official duty, no Court  shall take cognizance of such offence except with the previous sanction of this Government.

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   The  language  of Section 122 is clear and  unambiguous. Sanction  to prosecute the President, Executive Authority or@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ members  of a Panchayat is necessary for prosecution of  any@@ JJJJJJJ offence  alleged to have been committed by him while  acting or  purporting to act in the discharge of his official duty. If a person ceases to hold the above office on retirement or otherwise  no  sanction for prosecution is  necessary.   The petitioner  who  retired  from the service could  not  claim protection  under this section as he ceased to hold the post under the Panchayat.

   Section  19  of the Prevention of Corruption Act,  inter alia,  provides  for previous sanction for  prosecution  and such  sanction  is  necessary  if a person  is  employed  in connection  with  the  affairs  of  the  Union/State.   This section came up for consideration by this court and in State of  Kerala  versus V.  Padmanabhan [1999 (5) SCC  690]  this court  held that a person who ceased to be a public  servant on  the  date  when the court took cognizance,  no  sanction under the above section is required.  It is not necessary to refer to other decisions of this court.

   The  Section  197 of the Criminal Procedure Code is  the corresponding  provision  for previous sanction of a  public servant  for  prosecution of offences in a  criminal  trial. The  language used in this section is when any person is or was  a  public servant.  This provision was  considered  by this  court in R.  Balakrishna Pillai versus State of Kerala & Anr.  [1996 (1) SCC 478] and after referring to the report of  the Law Commission which suggests an amendment to  above section  and  accordingly it was amended in 1991, the  bench observed as follows:

   It  is  in  pursuance  of  this  observation  that  the expression  was  came to be employed after the  expression is  to make the sanction applicable even in cases where  a retired public servant is sought to be prosecuted.

   clear  We are, therefore, of the opinion that in view of language  of  sub-section (1) of Section 122 of  the  Kerala Panchayat   Act,  sanction  is   required  under  the   said sub-section  only if a person holds the office of President, Executive Authority or any member and not otherwise.  As the respondent  retired  from service no previous  sanction  for prosecution under this section is required.

   In  the result we hold that the High Court committed  is@@                                                           JJ grave  error in passing the impugned ord er and  accordingly@@        JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ appeal allowed by setting aside the said order.@@ JJJJJJ