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2004 DIGILAW 242 (PAT)

R. Gopalkrishnan v. Union Of India Through Cbi

2004-02-27

B.N.P.SINGH

body2004
Judgment 1. In these two petitions, petitioner assails his prosecution by the Central Bureau of Investigation (CBI) and also orders passed by the court below framing charges against him and seizure of cash of Rs. 50,000/-, wrist watch and also documents. 2. Broad accusations are that petitioner, during his posting as General Manager (Finance) in the establishment of Bharat Wagon & Engineering Co. Ltd., Patna (for short BWEL) issued a cheque on 28.4.1999 bearing no. 168174 of Rs. One crore payable to himself from account of BWEL and credited the same in his account no. 102577 of M/s Vijay Engineering at State Bank of Mysore, Kolkatta on 5.5.1999 and eventually withdrew the amount and converted the same for his own use causing wrongful loss of Rs. One Crore to the said public undertaking. These are the broad accusations attributed to the petitioner in Special Case No.8 of 2001 for which the petitioner preferred Cr. Misc. No. 29694 of 2003 for quashing of prosecution/ proceeding pending before the CBI Special Court, Patna. For restoration of seizure of Rs. 50,000/-, wrist watch and other document from his residence at Bangalore, petitioner has filed Cr. Misc. No. 29870 of 2003, on negation of his prayer by the Court below. 3. Petitioner is being prosecuted for his acts of omission and commissions during his posting as General Manager, BWEL. Broad accusation, as has been noticed, is that he issued a cheque of Rs. One Crore to himself which was also signed by the other General Manager. The amount in question was not only credited to his account but was also eventually withdrawn by him which, prima facie, appears to be misconduct on part of the petitioner as a public servant. Accusations attributed to him are, however, sought to be justified on excuses that cheque in question was issued by the petitioner for discharging commercial, legal, statutory and financial obligation of the establishment which included payment of salary and payment of loans taken, giving loan, transfer of funds, and payment of advance to the supplier for the materials supplied for discharge of contractual liability. 4. 4. Submission is that there is no falsification of any account in record or accounts of BWEL, as balance sheet as on 31.3.2000, and the profit and loss account for the year ending 31.3.2000, was drawn in accordance with the provisions of Companies Act and also accounts and vouchers were audited, certified and signed by the auditors and also by the Comptroller & Auditor General of India under section 619 of the Companies Act, 1956, and on these premises petitioner would argue that he performed his assigned duties which was ratified by the experts of the office, and auditors and also Comptroller and Auditor General of India, and that apart, the State has not suffered wrongful loss as would be evident from the profit and loss account of the establishment which was approved also by the share holders. Taking recourse to the statement made by other General Manager who too had signed the cheque, petitioner would argue that his statement too would not saddle the tioner with criminal liability. Filing of the report by the CBI under section 173 of the Code of Criminal Procedure, was assailed on the premises that it was without advice of the Central Vigilance Commission and also without sanction as enjoined under section 197 of the Code of Criminal Procedure and also Section 19 of the Prevention of Corruption Act as even debit voucher and its supporting vouchers pertaining to the cheque were not accompanied to the report submitted by the CBI. Placing reliance on a case of Vinit Narayan and others vs. Union of India and another [ 1998(1) SCC 226 ] argument advanced is that in that case the Apex Court held that CBI cannot abdicate its functions of having effective control over the working of the CBI nor the CBI can violate the mandate, as after completion of investigation, it was imperative for the CBI to place report before the Central Vigilance Commission and having not done so, the charge sheet could not be acted upon by the Court. 5. Contentions are raised that similar view was held by Delhi High Court in Prakash P. Hinduja vs. Union of India [lll(2002) CCR 177, (DB)] in which considering omission on part of the CBI to apprise the Central Vigilance Commission about filing of charge sheet before the court, cognizance and also consequential proceeding had been quashed by the Court. 6. 5. Contentions are raised that similar view was held by Delhi High Court in Prakash P. Hinduja vs. Union of India [lll(2002) CCR 177, (DB)] in which considering omission on part of the CBI to apprise the Central Vigilance Commission about filing of charge sheet before the court, cognizance and also consequential proceeding had been quashed by the Court. 6. Shri Rakesh Kumar, learned counsel for the CBI countering these submissions would urge that responsibility entrusted to the Central Vigilance Commission for superintendence over the CBIs functioning is not of the nature as sought to be canvassed by the petitioner but of general nature. However, I find that view taken by the Delhi High Court no longer holds the field for CBI filing charge sheet before the Central Vigilance Commission for review of the prosecution over the acpeticused, as when decision of the Delhi High Court in Hindujas case (supra) was assailed by the Union of India before the Supreme Court in a case reported in 2003 Cri. L.J. 3117 (Union of India vs. Prakash P. Hinduja and others), the view taken by the Court was that the CBI cannot be faulted for not informing the Central Vigilance Commission and as such the charge sheet submitted without its approval and cognizance having been taken on such charge sheet did not suffer infirmity and the finding recorded by the Delhi High Court was accordingly set aside by the Apex Court. 7. Yet other submission on behalf the petitioner Was that the prosecution was bad also for want of sanction under section 197 (1) of the Code. Though there has been considerable divergence of judicial opinion on scope of Section 197 (1) of the Code, it is now well nigh settled that sanction for prosecution of the accused would not be required for his action committed in wake of discharge of official duty. A public servant can only be said to have acted in discharge of his official duty if his act is such as to be within the scope of his official duty. The test may well be whether the public servant, if charged, can reasonably claim that what he does he does by virtue of his office. A public servant can only be said to have acted in discharge of his official duty if his act is such as to be within the scope of his official duty. The test may well be whether the public servant, if charged, can reasonably claim that what he does he does by virtue of his office. In case of Amerik Singh vs. State of Pepsu (1955 SCR 1307), as early as in the year 1955, the Apex Court held that if the act with which the accused was charged could not be justified as done by virtue of his office, no sanction would be necessary. It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code nor every act done by him, when he is actually engaged in performances of his official duty, but if the act complained of, is directly concerned with the official duty so that if questioned, that can be claimed to have been done by virtue of office, then sanction would be necessary and that would be so imperative where it was in face of proper discharge of his duty because that would be really a matter of defence on the merits which would have to be investigated at the trial. In long course of decisions, Courts have reiterated that if the acts complained of are so integrally connected with official duty, which are inseparable then sanction under section 197 (1) of the Code would be necessary but if there was no necessary connection between the two, no sanction would be required. 8. Since much has been argued on this score about there being infirmity in the prosecution of the petitioner for want of sanction, I have quoted views of the Courts. However, on his own showing, petitioner resigned form BWEL in June, 2000, for which there are other excuses advanced on behalf of the petitioner, and in that view of the matter too, sanction was not a prerequisite for his prosecution, and that apart, while acting as public servant, it was none of his official duty to credit cheque to his account and misappropriate the same. The circumstances under which prosecution at the inception can be quashed by the High Court in exercise of jurisdiction conferred under section 482 of the Code have been well defined by Courts and some of which are that where even uncontroverted allegations made in the First Information Report did not disclose commission of offence and do not make out a case against accused, or the allegations are so absurd and improbable which did not afford good grounds for proceeding against the accused, or in cases in which there is express legal bar engrafted in any of the provisions of the Act to the institution and continuance of proceeding, the court would be within jurisdiction to quash the proceeding or even the case, which is tainted with mala fide and proceeding is maliciously instituted, there would be good excuse to quash the proceeding. But the Courts have also sounded a note of caution that even if these grounds exist, power should be exercised very sparingly and with circumspect and that too in rarest of the rare cases, as extraordinary and inherent powers did not confer arbitrary jurisdiction on the court to act according to its whim and caprice. Principles of law enunciated by the Apex Court are that affidavits and even annexures made with the petitions, moving the court to quash the proceeding would not merit consideration, as while exercising jurisdiction under Article 226 of the Constitution and Section 482 of the Code, Court cannot enter into arena of appreciation of evidence which is the function of the trial court, and, if the court ventures for such exercise that would be usurping functions of the trial court. These principles have been well enunciated by the Apex Court in AIR 1976 SC 1947 (Smt. Nagawwa vs. Veeranna Shivlingappa Konjalgi and Ors.) and 1991 (2) PUR 11 (SC) (State of Bihar, etc. etc. vs. Shri P.P. Sharma, IAS & Anr. etc. etc.). The petitioner at this stage cannot ask the Court to hold mini trial. The court would not be justified in the circumstances to scuttle due process of law at its inspection. 9. etc. vs. Shri P.P. Sharma, IAS & Anr. etc. etc.). The petitioner at this stage cannot ask the Court to hold mini trial. The court would not be justified in the circumstances to scuttle due process of law at its inspection. 9. About seizure of the incriminating objects, from residence of the petitioner at Bangalore, submission was that he was lawful owner of these articles and alleged seizures were made by the CBI in violation of established principles of law and even though there being no good evidence, proximity of the alleged scam was sought to be linked with these articles. Both before the Court below and this Court, submission canvassed on behalf of the CBI was that not only Rs.50,000/- but even the wrist watch was part of the scam money and hence it would not be appropriate to release offending articles this stage. Since evidences are yet to be led at trial and credibility of document has to be considered by the trial court, while rejecting prayer for release of these articles seized during raid, it is directed that the petitioner would have liberty to invoke jurisdiction of the trial court at a later stage. Reliance placed on a decision of the Apex Court in the case of State of Haryana and Ors. vs. Ch. Bhajan Lal and others ( AIR 1992 SC 604 ) was quite misconceived as the case of the petitioner would hardly fall within the ambit of those circumstances outlined by the Court. 10. In the circumstances, both the petitions being quite bereft of value are being dismissed.