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2003 DIGILAW 584 (PAT)

State Of Bihar v. Gangadhar Prasad Singh

2003-05-19

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing a portion of the order dated 3.10.2002 passed by the Special Judge (Vigilance) in Special Case No. 5 of 1996 whereby the application filed by opposite party (herein-referred to as the accused) Gangaa... Prasad Singh has been allowed and he has been discharged under section 239 of the Code of Criminal Procedure (hereinafter referred to as the Code). 2. On the basis of a written report given to the vigilance Police Station, Vigilance Case No.5 of 1996 dated 14.2.1996 was registered under sections 409, 420, 468, 471, 201 and 120B of the Indian Penal Code (for short the I.P.C.) and 13(2) of the Prevention of Corruption Act. According to the first information report Gaya Prasad the Assistant Electrical Engineer took out four drums of transformer oil on the basis of a indent containing the forged signature of Mr. M.Q. Hoda, the then Electrical Executive Engineer from Bhagalpur Central Depot of the Bihar State Electricity Board showing it to be needed for replacement of the oil circuit breaker but misappropriated the same. According to the report the act of Mr. M.Q.Hoda in requesting to regularize the delivery of transformer oil, in spite of knowing the fact that his signature is forged, shows his involvement in the case. On the basis of the aforesaid information the case was registered against Sri M.Q. Hoda, the then Electrical Executive Engineer, (Urban) Bhaglapur and Gaya Prasad, Assistant Electrical Engineer, Nath Nagar. The accused has not been named in the first information report. During the course of investigation it transpired that the accused at the relevant time was posted as Electrical Executive Engineer and incharge of the Central Depot from where the delivery of four drums of transformer oil was taken. It further transpired that the competent authority for delivery of transformer oil is the General Manager-cum-Chief Engineer but the accused allowed delivery of the transformer oil without such approval. After investigation, chargesheet was submitted also against this accused and the learned judge took cognizance of the offence under sections 409, 420, 468, 471 and 201 I.P.C. and section 13 (1) (2) of the Prevention of Corruption Act. It is common ground that in the meanwhile the accused had retired and sanction for his prosecution has not been obtained. 3. Accused filed application for discharge. It is common ground that in the meanwhile the accused had retired and sanction for his prosecution has not been obtained. 3. Accused filed application for discharge. The learned judge found that according to the prosecution itself the indent was prepared by Gaya Prasad and actual delivery of transformer oil was also taken by him from the store and hence no offence under sections 409, 420, 468, 471 and 201 I.P.C. is made out against the accused. The learned judge further observed that there is no direct allegation constituting offence punishable under section 13(1) (2) of the Prevention of Corruption Act, 1988. The learned judge also went into the question of requirement of sanction under section 197 of the Code and found that the cognizance of the offence against this accused without sanction under section 197 of the Code is bad in law and accordingly discharged him from the case under section 239 of the Code. 4. Mr. B.P. Pandey, Senior Advocate appearing on behalf of the petitioner submits that accused being not an employee of the State Government, protection under section 197 of the Code is not available. In support of his submission he has placed reliance on a decision of the Supreme Court in the case of Mohd. Hadi Raja Vs. The State of Bihar and another [(1998) 4 Supreme Court Cases 91)] and my attention has been drawn to paragraph 27 of the judgment, which reads as follows:- "Therefore in our considered opinion the protection by way of sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of government companies or the public undertaking even when such public undertakings are "State" within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government. The appeals are disposed of accordingly. It is, however, made clear that we have not taken into consideration various other grounds raised in these appeals challenging the maintainability of the criminal proceedings initiated against the officers concerned of the public undertaking or the government companies. It will be open to the accused concerned to challenge the validity of the criminal cases initiated against them on other grounds, if such challenge is available in law. Such questions, if raised, in these appeals are kept open to be considered in accordance with law by the appropriate authority." 5. Mr. It will be open to the accused concerned to challenge the validity of the criminal cases initiated against them on other grounds, if such challenge is available in law. Such questions, if raised, in these appeals are kept open to be considered in accordance with law by the appropriate authority." 5. Mr. Ram Suresh Roy, Senior Advocate however appearing on behalf of the accused submits that the accused is a public servant as defined under section 21 I.P.C. and as such prosecution of the accused without the sanction under section 197 of the Code and 56 of the Indian Electricity Act, 1910 is illegal and in that view of the matter the learned judge did not err in discharging the accused from the case. In support of the submission reliance has been placed on a decision of this Court in the case of Sri Baliram Singh vs. The State of Bihar and anr. (1989 P.L.J.R.600) and my attention has been drawn to paragraphs 15 to 17 of the judgment which read as follows: "15. In the case of Bahrul Hoda & Anr. V. Dr. Mohammad Yaqub (Cr. Misc.No. 7133 of 1980), the petitioner no.1 was a Junior Electrical Engineer under the Bihar State Electricity Board and the petitioner no.2 was an Asst. Electrical Engineer of the said Board who challenged the order of cognizance taken against them. Same point was raised on behalf of the petitioner that the order taking cognizance against them was bad in law because being public servant under the Electricity Board, the petitioner should not have been prosecuted without obtaining sanction as required under the provisions of the Indian Electricity Act. Their Lordships after considering the facts and the circumstances of the said case came to the following conclusion: - "In the aforesaid circumstances of the case, and in view of the provisions of sections 20 and 56 of the Indian Electricity Act read with sections 81 and 82 of the Electricity (Supply) Act, the order taking cognizance against these petitioners cannot be supported in the eyes of law." And accordingly the impugned order of the said case was set aside and the entire prosecution against the petitioner was quashed. 16. 16. I have already referred to Subclause (2) of section 56 of the Electricity Act which provides that no cognizance can be taken against any member, officer or other employees of the Board except with the sanction of the appropriate Government. 17. In that view of the matter, the cognizance taken against the petitioner without sanction cannot be sustained in the eyes of law and fit to be quashed." 6. Section 21 of the I.P.C. defines public servant and includes every person in the service of a Corporation established by or under a State Act. The employer of the accused i.e. Bihar State Electricity Board is created under an Act and therefore I do not have the slightest hesitation in holding that the accused is a public servant. Accused is also a public servant in view of section 81 of the Electricity (Supply) Act which, inter alia, provides that all members and officers and other employees of the Board shall be deemed to be public servant purporting to act in pursuance of any of the provisions of the said Act within the meaning of section 21 I.P.C. The word "public servant" has not been defined under the Code but according to section 2(y) of the Code it shall have the same meaning as assigned to it in the I.P.C. Hence for the purpose of the Code the meaning assigned in the I.P.C. shall be relevant and on that account the accused is a public servant within the meaning of section 197 of the Code. Even if accused is a public servant within the meaning of section 21 of the I.P.C. still the question is as to whether he shall be covered underl section 197 of the Code. Section 19 of the Code which is relevant for the purpose reads as follows: - "197. Even if accused is a public servant within the meaning of section 21 of the I.P.C. still the question is as to whether he shall be covered underl section 197 of the Code. Section 19 of the Code which is relevant for the purpose reads as follows: - "197. Prosecution of Judges and public servants.(i) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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 (a) In the case of the person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with (he affairs of a State, of the State Government. Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted." 7. From a plain reading of section 197 of the Code it is apparent that protection has been granted to a public servant who cannot be removed from his office save by or with the sanction of the Government. It is not the case of the accused that for his removal sanction of the Government is necessary. In that view of the matter, I am of the opinion that although the accused is a public servant but being not removable from his office save by or with the sanction of the Government, protection under section 197 of the Code is not available. 8. This aspect of the matter has been considered by the Supreme Court in the case of Mohd. 8. This aspect of the matter has been considered by the Supreme Court in the case of Mohd. Hadi Raja (supra) in which it has been observed as follows: - "It may be indicated here that it is not necessary that persons falling under any of the descriptions given in various clauses under Section 21 of IPC need to be appointed by the Government. If such person falls under any of the description as contained in various clauses of Section 21 of the Indian Penal Code, such person must be held to be a public servant. Explanation 1 of Section 21 indicates that persons falling under any of the above descriptions are public servants whether appointed by the Government or not. Explanation 2 indicates that wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Sub-clause (b) of clause twelve of Section 21 expressly makes the officers of local authority and corporation established by or under a Central, Provincial or State Act or a Government-owned company as defined in section 617 of the Companies Act, 1956, public servants. But protection under Section 197 Cr. P.C. is not available to a public servant unless other conditions indicated in that section are fulfilled." (underlining mine) 9. Now I revert to the decision of this Court in the case of Bali Ram Singh (supra). In the said case petitioner before the Court was an Electrical Superintending Engineer working in the Bihar State Electricity Board and this Court after holding "that petitioner is a public servant within the meaning of section 21 of the Indian Penal Code observed that "unless the sanction is obtained from the State Government for his prosecution for the alleged act done in discharge of his official duty, no court shall take cognizance of an offence". This Court further observed that petitioner being a "public servant" is entitled for certain protection which has been provided to such public servant under section 56(2) of the Electricity Act and section 197 of the Code. As observed earlier in the case of Mohd. This Court further observed that petitioner being a "public servant" is entitled for certain protection which has been provided to such public servant under section 56(2) of the Electricity Act and section 197 of the Code. As observed earlier in the case of Mohd. Hadi Raja (supra) it has been clearly held that protection under section 197 of the Code is not available to a public servant unless other conditions indicated in that section are fulfilled and one of the conditions is that such public servants are not removable from office save by or with the sanction of the government. In that view of the matter, I have no hesitation in holding that protection under section 197 of the Code is not available to the accused and the learned judge while passing the impugned order had erred in holding to the contrary. 10. Mr. Roy alternatively submits that even if protection under section 197 of the Code may not be available to the accused but protection under section 56 of the Indian Electricity Act, 1910 and section 82 of the Electricity (Supply) Act, 1948 is available to the petitioner. Section 56 of the Indian Electricity Act, 1910 reads as follows:- "56. Protection for acts done in good faith. (1) No suit, prosecution or other proceeding shall lie against any public officer, or any servant of a local authority, for anything done, or in good faith purporting to be done, under this Act. (2) No Court shall take cognizance of an offence under this Act, by a public officer except with the sanction (a) In the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) In any other case of the State Govt. Section 82 of Electricity (Supply) Act, 1948 reads thus: "82. Protection to persons acting under this Act. No suit, prosecution or other legal proceeding shall lie against any member or officer or other employee of the Board for anything which is in good faith done or intended to be done under this Act." 11. From a plain reading of section 56 of. the Indian Electricity Act it is evident that it had given protection to public officer or any servant of a local authority for anything done or purported to be done under the Act against prosecution. From a plain reading of section 56 of. the Indian Electricity Act it is evident that it had given protection to public officer or any servant of a local authority for anything done or purported to be done under the Act against prosecution. It prohibits taking of cognizane of an offence without the sanction of the Central Government or the State Government as the case may be for anything done or purported to have been done under the said Act. Further section 82 of the Electricity (Supply) Act gives protection against the prosecution for anything done in good faith or intended to be done under the Act., Protection a) prohibition for taking cognizance are: relation to an act done or purported to have been done under the Indian Electricity Act or the Electricity (Supply) Act. Mr. Roy has not been able to point out that the alleged act done by the petitioner is under any ot the provisions of the Indian Electricity Act or Electricity (Supply) Act. Hence in the facts of the present case protection under section 56 of the Indian Electricity Act and Section 82 of the Electric (Supply) Act shall not be available. 12. Mr. Pandey then submits that the finding recorded by the learned Judge that the offences under sections 409, 420,468, 471 and 201 I.P.C. are not made out is also erroneous. Mr. Roy however submits that the material collected during the course of investigation does not constitute any offence so far as this accused is concerned. Having appreciated the rival contention I find force in the submission of Mr.Roy. 13. Admittedly this accused is not named in the first information report and materials which have come against him are that he had issued four drums of transformer oil on the basis of the work order of the Electrical Executive Engineer, who, according to the prosecution, had no authority to place such work order, from the central godown of the Board. According to the prosecution such power has been vested to the Chiet Engineer-cum-General Manager. During the course of investigation it had also transpired that the requisition for issuance of transformer oil of the Electrical Executive Engineer was endorsed by the Electrical Superintending Engineer. According to the prosecution such power has been vested to the Chiet Engineer-cum-General Manager. During the course of investigation it had also transpired that the requisition for issuance of transformer oil of the Electrical Executive Engineer was endorsed by the Electrical Superintending Engineer. The material collected during the course of investigation further shows that in spite of the resolution of the Board a practice was prevalent to issue material from the Central godown and other places on the basis of the work order issued by the Electrical Executive Engineer in case of urgency and the same practice is prevalent till date. According to the prosecution itself the requisition was prepared by accused Gaya Prasad and actual delivery of transformer oil was received by him. Thus from the facts stated above, the only allegation against the petitioner is that he issued transformer oil although the requisition was not signed by the General Manager. Whether an act in breach of the decision but in conformity with the prevalent practice shall expose this accused to the criminal offence, is a question which requires determination. 14. Having given my most anxious consideration to the materials on record, the maximum which can be inferred is that accused acted in breach of the decision of the Board which may be a dereliction of duty. Dereliction of duty of grave nature may presume involvement of the person concerned in the crime but every dereliction of duty does not lead to involvement of the person in the criminal conspiracy. Here issuance of transformer oil was on the basis of the work order of the Executive Engineer which was endorsed by the Superintending Engineer, according to the prevalent practice. In my opinion the fact of mere issuance of transformer oil on the basis of work order of the Executive Engineer without anything further shall not bring this accused within the mischief of offence of criminal conspiracy with other accused persons. True it is that criminal conspiracy is hatched in secrecy and for that direct evidence is seldom available. Criminal conspiracy is largely proved from inference drawn from illegal act or omission committed by the conspirator in pursuance of any design. True it is that criminal conspiracy is hatched in secrecy and for that direct evidence is seldom available. Criminal conspiracy is largely proved from inference drawn from illegal act or omission committed by the conspirator in pursuance of any design. Here the only illegal act said to have been done by this accused is to issue transformer oil on the oasis of the work order of the Executive Engineer, which in fact should have been issued by the General Manager. As observed earlier, during the course of investigation definite material has come which shows that notwithstanding the rule, a practice was prevalent to issue material from the central godown on the work order of the Executive Engineer. Even the Board wrote to the investigating agency of the case for withdrawal of the case against the accused. The accused might not have followed the rule scrupulously but his act was in conformity with the practice and in my opinion this act of the accused shall not bring his act within the mischief of sections 409, 420, 468, 471, 201 and 120B of the Indian Penal Code. It is relevant here to state that cognizance under section 13(1)(2) of the Prevention of Corruption Act, 1988 has also been taken but there is neither any allegation nor any material to bring the act of the petition under the mischief of those provisions. 15. Before, I part with the case I must emphasise that the investigating agency must understand the distinction between a criminal act and act done in dereliction of duty. It is with all the emphasis at my command, I may observe that a tendency is growing amongst the prosecuting agency to dub an act not strictly in conformity with the rule or the instruction as a criminal act and this has generated a tendency amongst the public servants not to work at all and to protect them from prosecution. This has affected the governance in the State. The need to apprehend a corrupt public servant does not need much emphasis, it is the demand of the day in view of its pervasiveness all over but delicate balance has to be maintained between the same. The case in hand is an example so far this accused is concerned. This has affected the governance in the State. The need to apprehend a corrupt public servant does not need much emphasis, it is the demand of the day in view of its pervasiveness all over but delicate balance has to be maintained between the same. The case in hand is an example so far this accused is concerned. It is not the allegation that he is any way concerned with the misappropriation of transformer oil and the only sin which he committed was to issue transformer oil in accordance with the prevalent practice but he has to face the brunt for seven years and even after he has been let off by the trial judge, the prosecuting agency does not wish to leave him in peace. 16. Any observation made in this order shall have no bearing in the case of other accused persons, who are facing trial. 17. In the result, I do not find any merit in the application and it is dismissed accordingly.