Rama Shankar Tiwary v. Union Of India — 1998 DIGILAW 457 (PAT)

Judgment Nagendra Rai, J. 1. The petitioner, a member of Indian Administrative Service, has filed the present application for quashing the order dated 28.5.1994 passed by the Special Judge (Vigilance) in Special Case No. 87 90-47 90 taking cognizance under Sections 13(2), 13(1)(d) read with Section 15 of the Prevention of Corruption Act, 1988 and Sections 120-B and 109 of the Indian Penal Code. 2. The Deputy Superintendent of Police, Cabinet (Vigilance) Department filed a written report on 5.11.1990 before the Office In-charge of Vigilance Police Station, Bihar, Patna on the basis of which the Vigilance Police Station case No. 49 dated 5.11.1990 under Sections 5(2)/5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Sections 13(l)(d) and Section 15 of the Prevention of Corruption Act, 1988 and Sections 120-B, 109 of the Indian Penal Code was instituted. The allegation made in the said First Information Report is that the Bihar Intermediate Education Council was established in 1980 by virtue of an Ordinance. According to the provisions of the Ordinance the posts of officers and employees are to be created after prior approval of the State Government. The appointment to the posts except to the posts of the Chairman and Secretary of the Council has to be made by the authority of the Council in accordance with law. It is stated that the several posts of the officers and employees were sanctioned and appointments were made against the said posts according to rules. On 19.5.1985 the Council was superseded and the supersession continued till January, 1989. After the supersession, the Secretary, Education Department was vested with the power of the Chairman of the Council. In 1986-87 Shri Bhaskar Banerjee was the Secretary of the Education Department and in 1989 the petitioner was the secretary of the Education Department and by virtue of that they exercised the power of the Chairman at the relevant time. It is stated that during the period of Bhaskar Banerjee, attempts were made by an MLA to appoint persons on Class-III and Class-IV posts but no appointment could be made because of stiff objection put by the then Secretary, namely, Bhaskar Banerjee. However, the petitioner, after his appointment as the Secretary, Education Department, became entitled to exercise the power of the Chairman of the Council. However, the petitioner, after his appointment as the Secretary, Education Department, became entitled to exercise the power of the Chairman of the Council. He made 77 illegal appointments without creation and sanction of posts by the State Government and without following the procedure for appointment. He did not call for any application from the candidates nor did he constitute the Selection Committee for appointment to the aforesaid persons. It is alleged that the petitioner entered into conspiracy with other subordinate staff of the council and thereafter, for undue advantage and benefit, made illegal appointments. It is also alleged that the petitioner and other conspirators made appointments after taking bribe. 3. The investigation was conducted by the Investigating Officer and thereafter, the charge-sheet was submitted in 1992 against the petitioner for the aforesaid offences. 4. The records were put up before the Vigilance Judge on 3.11.1992. The Special P.P. appearing for the Vigilance Department submitted that sanction under Section 197 of the Code of Criminal Procedure was granted but there is no material to show that the sanction has been granted by the President of India under the provision of the Prevention of Corruption Act. The special public prosecutor accordingly, prayed that before hearing on cognizance matter, the Vigilance Department may be informed and thereafter, the Special Judge issued an order that the Vigilance Department be informed regarding want of sanction regarding prosecution of the petitioner under the Prevention of Corruption Act and the Department be also directed to inform about the latest position in this regard. Thereafter, it appears that nothing was done. No information was given by the Vigilance Department and by the impugned order the cognizance has been taken tinder the Prevention of Corruption Act and also under Sections 120-B and 109 of the Indian Penal Code. In the said order, the Special Judge has mentioned that sanction for prosecution has already been accorded. 5. In this case, the learned Counsel for the petitioner submitted that the authority competent to grant sanction under Section 19 of the Act has refused to grant sanction and has informed its decision to the State Government by letter dated 26.2.1992. A copy of the said letter is Annexure-9 to the Supplementary Affidavit filed on behalf of the petitioner. 6. In this case, the learned Counsel for the petitioner submitted that the authority competent to grant sanction under Section 19 of the Act has refused to grant sanction and has informed its decision to the State Government by letter dated 26.2.1992. A copy of the said letter is Annexure-9 to the Supplementary Affidavit filed on behalf of the petitioner. 6. The learned Counsel for the Vigilance Department has not disputed the correctness of the aforesaid letter and as such it has to be taken as an admitted fact that no sanction has been granted by the competent authority i.e. Central Government under Section 19 of the Prevention of Corruption Act, 1988. 7. The learned Counsel for the petitioner submitted that cognizance of the offence under the provisions of Prevention of Corruption Act against the petitioner is void ab initio for the reason that the same has been done without a valid sanction in terms of Section 19 of the Prevention of Corruption Act, 1988. In my view, this submission advanced on behalf of the petitioner is well founded. As the petitioner is being prosecuted under the Prevention of Corruption Act as well as under the Penal Code, the sanction is required under the Prevention of Corruption Act with regard to the offences covered under the said Act. The sanction is also required under Section 197 of the Cr PC with regard to the offences under the Indian Penal Code, alleged to have been committed by the petitioner while acting or purporting to act in discharge of his duties. The sanction under Section 197 of the Cr PC has been granted but admittedly, no sanction has been granted with regard to the offences under Prevention of Corruption Act. On the other hand, Annexure-9 shows that the sanction has been refused by the competent authority. Section 19 of the Prevention of Corruption Act, 1988 provides that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the authorities, mentioned therein. 8. Admittedly, the petitioner is the Member of Indian Administrative Service and his removal from the service is to be done by the Central Government and as such, no cognizance can be taken with regard to the aforesad offence unless there is previous sanction of the competent authority. 8. Admittedly, the petitioner is the Member of Indian Administrative Service and his removal from the service is to be done by the Central Government and as such, no cognizance can be taken with regard to the aforesad offence unless there is previous sanction of the competent authority. The law on this point is well settled that if there is no prior sanction in terms of the provisions of Section 19 of the Prevention of Corruption Act, the order of cognizance is void ab initio. In this case, no order granting previous sanction by the Central Government for the prosecution under the provisions of Prevention of Corruption Act was filed in the Court below and the order filed by the petitioner (Annexure-9), the correctness of which has not been disputed by the Vigilance Department, clearly shows that the sanction has been refused. Thus, the Special Judge was not justified in law in taking cognizance with regard to the offences under the Prevention of Corruption Act without a previous sanction in terms of Section 19 of said Act. Accordingly, the prosecution of the petitioner for the offence under the Prevention of Corruption Act, 1988 is quashed. 9. The learned Counsel for the petitioner further submitted that once the cognizance has been found to be bad for want of sanction with regard to the offence under the Prevention of Corruption Act, the prosecution of the petitioner for the offences under Sections 120-B and 109 of the Indian Penal Code is also not maintainable in law. He also submitted that there is no material even to make out a prima facie case under the aforesaid two sections. The appointments made by the petitioner were later on regularised and as such the ingredients of offences under the aforesaid sections are lacking. The learned Counsel for the Vigilance Department, on the other hand, submitted that the prosecution under the Prevention oi Corruption Act have failed for want of sanction and on that ground the prosecution for the offences under the Penal Code cannot fail. The learned Counsel for the Vigilance Department, on the other hand, submitted that the prosecution under the Prevention oi Corruption Act have failed for want of sanction and on that ground the prosecution for the offences under the Penal Code cannot fail. In this connection, he submitted that conspiracy is substantive offence and the offence of conspiracy is complete once there is an agreement to commit an offence even though the offence may not be committed in pursuance of the aforesaid agreement and as such the offence of conspiracy is distinct offence and the same will proceed in spite of non-prosecution of the petitioner under the provisions of Prevention of Corruption Act. He also submitted that there are materials on record to make out a prima facie case under Sections 120-B and 109 of the Indian Penal Code and the act of the petitioner in appointing large number of persons on acceptance of money is a serious offence justifying the prosecution of the petitioner. 10. The learned Counsel for the petitioner relied upon the judgment of the learned Single Judge of Gujarat High Court reported in 1988 Cr LJ 1563 Sudhendra Kumar Bhattacharjee V/s. State, wherein, relying upon the Division Bench Judgment of this Court in the case of K.P. Sinha V/s. Akhtabuddirt, AIR 1955 Pat 453 , it was held that where the offence falling under the Prevention of Corruption Act requires previous sanction, the prosecution could not be done under Section 409, IPC as it would frustrate the purpose for which the previous sanction has been deemed necessary by the Legislature. Learned Counsel for the Vigilance on the other hand relied upon the judgment of Allahabad High Court in the case of Ramanand V/s. The State of U.P., 1992 Cr LJ 612 wherein it has been held that even if there is no valid sanction for prosecution under the provisions of Prevention of Corruption Act, the trial of offence under the Penal Code cannot be quashed. The Vigilance Department also relied upon the judgment of the Supreme Court in the case of Basir Ul Haque and others V/s. The State ot West Bengal, 1953 SC 293 where the scope of Section 195 of the Code of Criminal Procedure was being considered which provides for filing of a complaint by a public servant with regard to the offences enumerated therein. It was held in that case that Section 195 of the Cr PC does not bar the trial of the accused person for a distinct offence disclosed by the same act and which is not included within the ambit of that section. It was further held in that case that the provision of Section 195 cannot be evaded by resorting to devices or camouflages. The Counsel for Vigilance Department submitted that the same principle applies even in the present case and want of sanction under the Prevention of Corruption Act will not bar the prosecution for a distinct offence disclosed by the same act. 11. The learned Counsel for the petitioner has argued that on the basis of the materials collected during the investigation, no case under Sections 120-B and 190 of the Indian Penal Code is made out. The said fact has been controverted by the learned Counsel appearing on behalf of the Vigilance Department. Unfortunately, neither the copy of the charge-sheet nor the case diary has been produced by any of the parties before the Court. In that situation, this Court is not in a position to decide as to whether a prima facie case under Sections 120-B and 109 and other sections of the Indian Penal Code is made out against the petitioner or not. The question as to whether the prosecution for the offences under the Penal Code will proceed or not in view of the non-prosecution of the petitioner under the Prevention of Corruption Act for want of valid sanction, will arise only after the determination of the connected question i.e. as to whether prima facie case under the aforesaid sections are made out or not. As stated above, in absence of any material produced by the parties, it is not possible for this Court to decide the aforesaid point. 12. The proper course, in the facts of this case, would be to direct the Vigilance Judge to consider the aforesaid question after perusal of the relevant records including the case diary and in case he comes to the conclusion that prima facie, case under the aforesaid sections is made out, then to decide as to whether the cognizance can be taken for the offence under the Penal Code in spite of non-prosecution of the petitioner under the Prevention of Corruption Act for want of valid previous sanction. 13. 13. The learned Counsel for the petitioner, by referring to the averments made in the petition, submitted that the appointments made by the petitioner have been regularised and as such he acted bona fide and as such no case under the Penal Code can be made out against the petitioner. It has to be stated at this stage that the Court cannot go into the defence version and to find out as to weather prima facie case is made out or not for trial of the petitioner. The prosecution can be quashed only on the well settled ground as held by the Apex Court in numerous cases. Reference in this connection may be made to the case of State of Haryana V/s. Bhajan Lal, AIR 1992 SC 604 wherein it has been held that the power of quashing the criminal prosecution should be exercised very sparingly and with greater circumspection and that too in the rarest of the rare cases. The Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. However, the Apex Court gave certain illustrations in paragraph 108 of the said Judgment where prosecution can be quashed. It was stated that when the allegations made in the FIR or the complaint do not make out prima facie case or where the allegation, in the FIR and the materials collected during investigation do not disclose the commission of any offence or where the allegations made in the First Information Report or the complaint are absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused or where the criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, or where the prosecution is barred by law the prosecution can be quashed. 14. 14. In this case, there is no previous sanction for prosecution under the provisions of Prevention of Corruption Act and, therefore, there is legal bar for taking cognizance and accordingly, the cognizance under the aforesaid provisions has been quashed. 15. So far as the question as to whether the prima facie case is made out or not for the offences under the Penal Code is concerned, that, as stated above, cannot be gone into in absence of relevant materials and that question has to be considered by the Special Judge afresh. 16. In that view of the matter, the impugned order taking cognizance so far as the offences under the Prevention of Corruption Act, is set aside. So far as question of cognizance under the provisions of the Penal Code, is concerned, the matter is remitted to the Vigilance Judge who after considering the materials on record including the case diary, will decide as to whether the prima facie case under Sections 120-B, 109 and other sections of the Indian Penal Code is made out or not and in case he comes to the conclusion that prima facie case is made out, then he should decide as to whether the cognizance under the aforesaid sections could be taken even after non- prosecution of the petitioner under the provisions of the Prevention of Corruption Act for want of valid sanction. 17. In the result, the application is allowed in terms of the directions issued above.