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Madhya Pradesh High Court · body

2001 DIGILAW 598 (MP)

SHIV PRAKASH TRIVEDI v. STATE OF M. P.

2001-08-16

S.C.PANDEY

body2001
S. C. PANDEY, J. ( 1 ) THE applicant has filed this revision under Section 397 of the Code of Criminal Procedure challenging the order dated 29/05/1998 passed in special case No. 12/87. ( 2 ) THE applicant is facing trial for commission of offences which are liable to be punished by Section 468, 471, 120-B of IPC and under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988") or instead of the charges under aforesaid sections of the Act of 1988 under Section 5 (1) (d) (for short 'the Act of 1947 ). ( 3 ) THE facts for determination of this revision are as follows. The applicant was serving as an Under Secretary in the Revenue Department of the State of Madhya Pradesh as an employee of the executive services of the State in 1984. In that capacity he was attached to Shri Muni Prasad Shukla, the Revenue Minister. It is alleged by the prosecution that the applicant by his acts and omissions helped Motor Parts Dealers Welfare Association, Jabalpur to obtain 40 acres of surplus land situate at Madhotal, Jabalpur by way of allotment after getting exemption from the operation of Urban Land (Ceiling and Regulation) Act, 1976. The applicant is alleged to have acted contrary to the order of Revenue Minister Muni Prasad Shukla who did not grant exemption on 3-8-1984 stating that the power could be exercised by the Collector. It is alleged that the applicant knew the order of Revenue Minister Shri Muni Prasad Shukla. However, with a view to cause wrongful loss to the State and consequent gain to the Motor Parts Welfare Association, Jabalpur the applicant got the order from the Revenue Department issued that possession of plot be handed over to the Association. The order was issued in a clanderstine manner without obtaining the signature of the Principal Secretary on the file directing the Collector to hand over the possession. The order of allotment was contrary to Revenue Book Circulars. Thus, the applicant is abused official position in this manner. He is also charged with forging documents during the transaction. The applicant was one of the persons allegedly involved in the Madhotal Scandal along with so called several dignitaries of the State. The order of allotment was contrary to Revenue Book Circulars. Thus, the applicant is abused official position in this manner. He is also charged with forging documents during the transaction. The applicant was one of the persons allegedly involved in the Madhotal Scandal along with so called several dignitaries of the State. ( 4 ) THE Court below has rejected the objection of the applicant that sanction dated 11-6-97 was invalid so far he was liable under the Act of 1988. ( 5 ) IN this revision the counsel for the applicant argued that the sanction under Section 19 of the Act of 1988 was invalid. He pointed out that at the time of grant of sanction on 11-6-97 and subsequently, on the date of taking cognizance, the applicant was posted in the Cadre of Indian Administrative Services having been selected from the quota provided for promotion by selection on the basis of service in the cadre of the State Executive Service. He was selected by notification dated 14-12-87 and was given the year of allotment with effect from 1983. The applicant should be deemed to be in the cadre of Indian Administrative Services in the year 1984. Therefore appropriate authority would be Central Government as per Section 19 (1) (a) of the Act 1988. In the alternative, it was submitted that the crucial date for determination of the sanctioning authority would be the date on which the cognizance is taken under the Act of 1988. Section 19 prohibited taking cognizance unless the sanction was granted by the appropriate authority mentioned in Section 19 (1), 19 (2) of Act. Once the date was determined there was no difficulty in determining the authority entitled to dismiss the accused. It was argued that Section 19 (2) of the Act is not attracted because there is no doubt whatsoever in finding the authority authorised to grant sanction on either argument. ( 6 ) LEARNED counsel for the non-applicant controverted this argument by saying that the competent authority to grant sanction must be determined with reference to date of the alleged offence. It was contended that offence was committed in the year 1984. Therefore, the competent authority to remove the applicant was the State Government and it was competent to grant sanction under Section 19 (1) (b) of the Act of 1988. It was contended that offence was committed in the year 1984. Therefore, the competent authority to remove the applicant was the State Government and it was competent to grant sanction under Section 19 (1) (b) of the Act of 1988. The attempt of the applicant to take advantage of the fiction of the year of allotment to the Indian Administrative Services with effect from 1983 should be turned down because the fiction was created for the initial purpose of reckoning the seniority. It cannot go beyond that purpose. In the alternative, it was submitted that the very argument raised by the applicant is likely to create a doubt in the mind of a sanctioning authority not supposed to be familiar with the technicalities of law. Any ordinary person would be beguiled and confused into thinking if he has the real authority to grant. It was argued that to such a situation Section 19 (2) of Act of 1988 shall apply. ( 7 ) THE rival contetions of parties need careful examination. Both counsel relied upon the decision of R. S. Nayak v. A. R. Antulay reported in AIR 1984 SC 684 : (1984 Cri LJ 613 ). This decision is the decision of five Judges of Supreme Court interpreting Section 6 of the Act of 1947. Section is pari materia with Section 19 of the Act of 1988. Infact the Act of 1947 was repealed by the Act of 1988 and Section 6 of repealed Act appears to have been re-enacted as Section 19 of the Act of 1988. The changes made in Section 19 (1) (a) (b) (c) of the Act of 1988 are incidental to the passing of the new Act which has been made more comprehensive. The change in the text of the opening portion of Section 19 (1) does not affect in any way the authority of decision rendered in the case of R. S. Nayak (supra ). So far as wording of Section 19 (1) (a), 19 (1) (b) and 19 (1) (c) of Act of 1988 is concerned, it corresponds to Section 6 (1) (a) (b) and (c) of Act of 1947 respectively. It is with the interpretation that part of Section 19 of the Act of 1988 we are concerned here. So far as wording of Section 19 (1) (a), 19 (1) (b) and 19 (1) (c) of Act of 1988 is concerned, it corresponds to Section 6 (1) (a) (b) and (c) of Act of 1947 respectively. It is with the interpretation that part of Section 19 of the Act of 1988 we are concerned here. ( 8 ) SECTION 19 (1) (a) (b) and (c) and Section 19 (2) of the Act of 1988 are being reproduced here for the purpose of facility :-'19 (1) : 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 :- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. 19 (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority; such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. " ( 9 ) IT would be apparent from Section 19 (1) of the Act of 1988 that a Court having jurisdiction and power to take cognizance of the offences committed by a public servant mentioned in that Section is prohibited from taking cognizance unless sanction in accordance with one of the clauses of that sub-section numbered (a) (b) and (c) is obtained previously and produced before the Court. The clauses (a), (b) and (c) of Section 19 (1) of the Act of 1988 indicate the competent authority whose sanction shall be necessary in a given case. Therefore, the first important question that a Court may ask, if the accused is a public servant. The clauses (a), (b) and (c) of Section 19 (1) of the Act of 1988 indicate the competent authority whose sanction shall be necessary in a given case. Therefore, the first important question that a Court may ask, if the accused is a public servant. The accused has ceased to be a public servant on the date the cognizance is taken, then the question of applying Section 19 of the Act did not arise. This view has been taken in case of R. S. Nayak (supra) and a host of others i. e. S. A. Venkatraman v. State, AIR 1958 SC 107 : (1958 Cri LJ 254), C. R. Bansi v. State of Maharashtra, AIR 1971 SC 786 : (1971 Cri LJ 662), K. S. Dharmadatan v. Central Government, AIR 1979 SC 1495 : (1958 Cri LJ 254 ). This view has not been upset by a larger bench. On the other hand, it has been followed. It is in this case the Supreme Court held that in case a person was not a public servant on the date when the Court took cognizance, the question of application of Section 6 of the Act of 1947 did not arise. The following observations of Mr. Justice D. A. Desai speaking for the Bench of five Judges in case of R. S. Nayak (1984 Cri LJ 613) (SC) (supra) are conclusive of the matter. It was observed at page 695 (of AIR) : at p. 624 of Cri LJ) paragraph 20 that :-'the complaint from which the present appeal arises and which was registered as Criminal Case No. 24/82 appears to have been filed on 9/08/1982 and the cognizance was taken by the learned Magistrate on the same day. It unquestionably transpires that long before the date on which the cognizance was taken by the learned Special Judge the accused had ceased to hold the office of the Chief Minister and as such had ceased to be a public servant. In other words, he was not a public servant in his capacity as Cheif Minister on 9/08/1982 when the Court took cognizance of the offence against him. A fortiori no sanction as contemplated by Section 6 was necessary before cognizance of the offence could be taken against the accused for offences alleged to have been committed in his former capacity as public servant. A fortiori no sanction as contemplated by Section 6 was necessary before cognizance of the offence could be taken against the accused for offences alleged to have been committed in his former capacity as public servant. "this Supreme Court summed up its interpretation of Section 6 of the Act of 1947 as follows :-'it, therefore, appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the Court is called upon to take cognizance of the offence of which he is accused. " ( 10 ) THE counsel for the applicant took advantage of the aforesaid observations to argue that the relevant date in all cases is the date of taking cognizance. This Court must advance the logic of the authority of case of R. S. Nayak (1984 Cri LJ 613) (SC) (supra) to hold that the competent authority for sanctioning prosecution must be determined not with reference to the date of commission of offence, but with reference to date when the cognizance was taken. ( 11 ) HOWEVER, the Court in that case was required to decide another controversy amongst others. The question was; if a person occupied plurality of offices was it compulsory to obtain sanction from the competent authority related to the office in each case. The Court after discussion came to the conclusion that in case a person holds several public offices, the question of grant of sanction would be limited to the office which was used by the accused to connect the offence. In this connection it is necessary to quote a long passage from the decision given in the case of R. S. Nayak (1984 Cri LJ 613) (SC) (supra ). The following passage shows the decision of the Supreme Court. In that case at page 696 (of AIR) : at p. 625 of Cri LJ) it was observed :-'the expression 'offices in the three sub-clauses of Section 6 (1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from the office which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provisions in Section 6 providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the Court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. ". . . . . . . . . . . . . . . . . (Emphasis supplied) in case of R. S. Nayak (supra), the Supreme Court was required to consider its own decision given in the matter of The State (S. P. E. Hyderabad) v. Air Commodore Kailash Chand AIR 1980 SC 522 : (1980 Cri LJ 393 ). In this case Kailash Chand the accused had retired as a member of Indian Air Force with effect from 15/06/1965. He was re-employed for a period of two years. On 7/09/1966 he was transferred to Regular Air Force Reserve with effect from 16/06/1965 to Jun 15/06/1970 for a period of five years. This transfer was made under the Reserve and Auxiliary Air Force Act. He was charge sheeted under Section 5 (2) of the Act of 1947. The trial Judge was of the view that applicant was not a commissioned officer of the Indian Air Force and, therefore, no sanction was necessary as he was not a public servant. In revision the order passed by the trial Judge was reversed by the High Court of Andhra Pradesh. The Supreme Court upheld the decision of the High Court relying on the decision of case of Venkataraman (supra ). The Supreme Court , distinguished this case in the case of R. S. Nayak (supra) by saying that only point that was decided in that case was; if sanction was necessary. For this purpose, the Court gave a finding that the accused remained a public servant at the time of filing of the charge sheet. The Supreme Court , distinguished this case in the case of R. S. Nayak (supra) by saying that only point that was decided in that case was; if sanction was necessary. For this purpose, the Court gave a finding that the accused remained a public servant at the time of filing of the charge sheet. However, in the case of The State (S. P. E. Hyderabad) (supra) there was no argument or a finding regarding the fact whether accused continued to hold the office on date of taking cognizance in June, 1969 when cognizance was taken. The following quotation from the case of R. S. Nayak (supra) paragraph 25 brings out the conclusion of the Supreme Court :-'indisputably, the accused had ceased to hold that office as public servant which he was alleged to have misused or abused. The Court was, however, not invited to consider the contention canvassed before us. Nor was the Court informed specifically whether the subsequent office held by the accused in that case was the same from which his service was terminated meaning thereby he was re-employed to the same office. The decision appears to proceed on the facts of the case. We would, however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion do not lay down the correct law and cannot be accepted as making a correct interpretation of Section 6. " ( 12 ) IT would, thus, be clear that Supreme Court in the case of R. S. Nayak (1984 Cri LJ 613) (supra) brushed aside the contrary view if any that the sanctioning authority could be any authority other than the competent authority authorised to remove a person from the office which was misused or abused for committing an offence under the Act of 1947. The Supreme Court reiterated at page 698 (of AIR) : paragraph 26 that :-'therefore, upon a true construction of Section 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him. " ( 13 ) THE question arises for consideration is; if the applicant was public servant? The answer is; he was. The next question that has to be asked is; what office did he misuse? The answer would be that he misused the office of under Secretary while he was posted in the State cadre. He was the employee of the State Government when the offence was committed. Therefore, on the authority of R. S. Nayak (supra), it can be held that the sanction granted by the State Government is good and valid. It may be noted on promotion and selection the applicant joined Indian Administrative Services and thereby he was an employee of the Union in the year 1987. He was not employed with the affairs of Union at the time of alleged offence and the competent authority to remove him from his office was the State Government. The conclusion of this Court is that the applicant was a public servant in the capacity of an I. A. S. officer at the time cognizance of the offence was taken and, therefore, sanction was required. The crucial date for determination if sanction is necessary for taking cognizance of the offences within the meaning of Section 19 of the Act of 1988 would be the date on which cognizance is taken. The applicant must be a public servant on that date. However, this date shall not be relevant for determination if sanction should be granted as per Section 19 (1) (a) or 19 (1) (b ). The applicant must be a public servant on that date. However, this date shall not be relevant for determination if sanction should be granted as per Section 19 (1) (a) or 19 (1) (b ). The relevant date would be determined by the office misused or abused by the public servant. It may be that this conclusion may not appear entirely logical because there are two different relevant dates for the same transaction, but this is the result of the decision of the Supreme Court which is binding on this Court. All that can be said that life does not run on a linear logical scale. Nor can this Court examine the question raised by the learned counsel for the applicant that sanction was being granted by an authority which was not competent to deal with the services of the applicant on the date of grant of sanction. In other words the applicant was not an employee in connection with the affairs of State. This argument was not accepted by the Supreme Court when the accused held plurality of offices. The argument that the applicant did not hold plural offices and was merely a promotee to I. A. S. cannot be accepted. It is not in dispute that the applicant at the relevant time of commission of crime was an employee of the State of M. P. and was governed by M. P. State Civil Services (Classification, Recruitment and Conditions of Service) Rules, 1975. On his selection and promotion, he became the employee under the Union. The applicant must have been governed by the I. A. S. (Appointment by Promotion) Regulation, 1955 framed under Rule 8 of the I. A. S. (Recruitment) Rules, 1954. He became a member of new service as per Rule 3 of the aforesaid rules. Thus, the applicant held plural i. e. more that one office by the time cognizance was taken. The two offices were different because the employing authorities were different. ( 14 ) THIS Court is not impressed by the argument that the applicant shall be deemed to be an employee under the Union of India because he was given the year of allotment from 1983. The applicant assumes that fictionally he was an I. A. S. officer for all purposes from 1983. The I. A. S. (Regulation of Seniority) Rules, 1987 provide for assignment of year of allotment. The applicant assumes that fictionally he was an I. A. S. officer for all purposes from 1983. The I. A. S. (Regulation of Seniority) Rules, 1987 provide for assignment of year of allotment. A study of the aforesaid rules indicates that, the purpose of assigning year of allotment to the recruits taken into Indian Administrative Services from different sources, is for making a gradation list. Thus the year of allotment creates a fiction for determining seniority in the case of applicant and it is deemed that the applicant was an I. A. S. officer for that purpose. However, the fiction cannot be extended beyond its object. The applicant cannot be deemed to be an I. A. S. officer for all purposes from the year 1983. ( 15 ) THE alternative ground raised by State may be considered. Sub-section (2) of Section 19 of the Act of 1988 says that in case of doubt for whatever reason the State Government shall sanction the prosecution. Assuming for a moment that this Court is wrong in its interpretation of Section 19 (1) of the Act of 1988, could it be said that there was any doubt within the meaning of Section 19 (2) of the Act of 1988. It appears to this Court that this sub-section should be given restricted construction. The doubt stated in section should be genuine doubt as apposed to be made up or spurious. The use of word 'doubt" imports difficulty in reaching proper conclusion. When a person is in dilemma regarding more than one option offered to him, it is said that he is in doubt. The reasons for doubt need not be examined unless they are so absurd that the possibility of 'doubt" itself appears to be non-existent. Firstly in this case, the decision of Supreme Court in the matter of R. S. Nayak (1984 Cri LJ 613) (supra) required an interpretation. The long judgment is amenable to interpretation contrary to what this Court has held earlier. For it may be genuinely felt by some persons that the correct view is that the date of taking cognizance is crucial for judging the competence of authority under Section 19 (1) (a) or (b) of the Act of 1988. It may seen to logically flow from the decision of Supreme Court, when it laid down the criterion for finding out if the accused is a public servant. It may seen to logically flow from the decision of Supreme Court, when it laid down the criterion for finding out if the accused is a public servant. Even a legally trained mind may take this view if he does not take care to study the judgment in all its implications. Now generally speaking sanction on behalf of the State or the Union is granted by officers who may not have been legally trained. Secondly the argument of the applicant that he was an I. A. S. officer with effect from year 1983, infact required an interpretation of the relevant rule for explaining the scope of fiction created by the rules. Therefore, alternatively this Court holds that the learned trial Judge was right in holding that the sanction was valid in view of Section 19 (2) of the Act of 1988. Thus, even on the alternative ground raised by the State Government this revision must fail. ( 16 ) NO other point was argued before me. ( 17 ) FOR all these reasons, this revision fails and is accordingly dismissed. Revision dismissed. .