Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 310 (MP)

Dinanath Vimal v. State of M. P.

2004-03-29

S.K.SETH

body2004
Judgment ( 1. ) THIS revision is directed against the order dated 13-3-2003 passed by the 1st Additional Sessions Judge, Ujjain in Criminal Case No. 8/02. By the order impugned, learned Court below has taken the cognizance of the offences punishable under Sections 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short referred to as act) and has registered a criminal case against the applicant. Special Police Establishment Lokayukt, Ujjain on a written report made by Abdul Salam Khan on 14-2-2000 registered a criminal case against the applicant at Crime No. 18/2000. After completing investigation, police had filed Khatma report under Section 173 of the Code of the Criminal Procedure, 1973 (hereinafter referred to as code for short ). Learned Additional Sessions Judge vide order dated 20-6-2002 came to the conclusion that prima facie a case was made out against the applicant, therefore did not accept the Khatma Report and directed that the case diary along with the order-sheet, dated 20-6-2000 be sent to the Law and Legislative Affairs Department for taking necessary steps to obtain sanction for prosecution of applicant. That order was successfully challenged by the applicant in this Court in Misc. Criminal Case No. 2472 of 2002. By the order dated 1-10-02, application preferred under Section 482 of Code by the applicant was allowed by Honble Kochar, J. , and it was ordered as under :-"in State v. Rajkumar (supra), the Supreme Court has also held that the Trial Court before whom, final report was filed, has no jurisdiction to direct for obtaining sanction for prosecution. This point has now finally set at rest that the Trial Court can not direct the prosecution to obtain sanction of concerned authority of the Public Servant for prosecution. If the Trial Court is not agreeing with the final report filed for discharge of the accused under Section 173 (2) of Cr. PC. The Trial Court can take cognizance as per the provisions under Section 190 (c) of the Cr. PC or order further investigation under Section 156 (3), Cr. PC. " ( 2. ) AFTER the order was passed by this Court on 1-10-2002, by the order impugned learned Court below has taken cognizance holding that no prior sanction is required as the applicant retired from Government service on 31-12-2002 on attaining age of superannuation. ( 3. PC or order further investigation under Section 156 (3), Cr. PC. " ( 2. ) AFTER the order was passed by this Court on 1-10-2002, by the order impugned learned Court below has taken cognizance holding that no prior sanction is required as the applicant retired from Government service on 31-12-2002 on attaining age of superannuation. ( 3. ) LEARNED Counsel for applicant relying on decision of Supreme Court in R. Balakrishna Pillai v. State of Kerala and Anr. , reported in AIR 1996 SC 901 , submitted that even after retirement sanction under Section 197 of the Code is required and in absence of necessary sanction, the cognizance taken by the Court below is illegal and no prosecution or criminal case can get underway against the applicant without the prior sanction as envisaged under Section 197 of the Code. He, therefore, prayed that the order impugned be quashed. ( 4. ) ON the other hand, Shri G. S. Chouhan, learned Dy. G. A. appearing for State supported the impugned order and contended that the impugned order does not suffer from any infirmity so as to warrant interference in exercise of revisional powers. ( 5. ) THE only point for determination in this revision is whether sanction under Section 197 of Code was required on the day of taking cognizance ? Shri Kutumble, learned Senior Advocate drawing support from the decision of Supreme Court in R. Balakrishnan (supra) argued and submitted that in view of phraseology of Section 197 of the Code, sanction would be necessary even after the retirement of applicant from Government service and in absence of sanction, prosecution and trial would be void. ( 6. ) AFTER having learned Counsel for both sides, and considering the material available on record, in the considered opinion of this Court, this petition has no force and substance, consequently it must fail. This very contention came up for consideration before Supreme Court in Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 . In that case, question for consideration before the Supreme Court was whether cognizance of offence punishable under provisions of Prevention of Corruption Act, 1988 could be taken against a public servant (IPS Officer) without sanction under Section 197 of Code after he ceased to be public servant ? In that case, question for consideration before the Supreme Court was whether cognizance of offence punishable under provisions of Prevention of Corruption Act, 1988 could be taken against a public servant (IPS Officer) without sanction under Section 197 of Code after he ceased to be public servant ? Supreme Court after noticing the earlier judgment R. Balakrishna Pillai (supra), and various provisions of the Act, answered the question in emphatic no, holding that no sanction is required and a public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the Court takes cognizance of the offence. But if he ceases to be a public servant by that time, the Court can take cognizance of the offence without any such sanction. In other words, the public servant who committed the offence while he was a public servant is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution. While considering the ambit and scope of Section 197 of the Code, it was held in Para 13 as under :- "13. It must be remembered that in spite of bringing such a significant change to Section 197 of the code in 1973, Parliament was circumspect enough not to change the wording in Section 19 of the Act which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the Code concerns a public servant who "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", whereas the offences contemplated in the PC Act are those which can not be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code. " (Emphasis is added) ( 7. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code. " (Emphasis is added) ( 7. ) THE decision was also referred to and relied upon in subsequent decisions in State of Kerala v. V. Padmanabhan Nair, reported in (1999) 5 SCC 690 ; State of J. K. v. Charan Das Puri, reported in (1999) 5 SCC 738 and State of Kerala v. MM. Manikantan Nair, AIR 2001 SC 2145 . ( 8. ) THUS, it is clear that for committing an offence punishable under the provisions of the Act, accused must be a public servant on the date of commission of offence and if he ceases to be public servant on the date when cognizance is taken, then no sanction is required otherwise it would lead to absurd results as observed by the Supreme Court in Para 7 Kalicharan Mahapatra (supra) as under :- " 7. There is no indication anywhere in the above provisions that an offence committed by a public servant under the Act would vanish off from penal liability at the moment he demits his office as public servant. His being a public servant is necessary when he commits the offence in order to make him liable under the Act. He can not commit any such offence after he demits his office. If the interpretation now sought to be placed by the appellant is accepted, it would lead to the absurd position that any public servant could commit the offences under the Act soon before retiring or demitting his office and thus avert any prosecution for it or that when a public servant is prosecuted for an offence under the Act, he can secure an escape by protracting the trial till the date of superannuation. " ( 9. ) IN view of the foregoing discussion, there is no merit and substance in petition. The order impugned does not suffer, any illegality or infirmity so as to warrant interference by this Court. The revision is therefore dismissed.