of Kerala Vs. M. M. Manikantan Nair  Insc
243 (25 April 2001)
Thomas, R.P. Sethi & S.N. Variava Phukan, J.
respondent has been booked for trial along with 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.
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.
the respondent was placed under suspension and subsequently was allowed to
retire from service on attaining superannuation.
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.
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.
aggrieved, the State has approached this court.
first question which needs our consideration is whether the impugned order
dated 13.07.2000 passed by the learned single Judge clarifying the earlier
order dated 31.05.2000 holding that no cognizance against the respondent could
have been taken for want of proper sanction is valid or not.
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.
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
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.
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.
next question that we have to answer is whether sanction to prosecute under
sub-section (1) of Section 122 of the Kerala Panchayat Act is necessary in the
present case. We extract below the said sub-section:
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.
language of Section 122 is clear and unambiguous.
to prosecute the President, Executive Authority or members of a Panchayat is
necessary for prosecution of any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his official duty.
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
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.
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
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:
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.
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.