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Madhya Pradesh High Court · body

2004 DIGILAW 990 (MP)

Jayant Avashiya v. State of M. P.

2004-12-07

S.L.KOCHAR

body2004
JUDGMENT (Oral) By this common order, Miscellaneous Criminal Case No. 4811/2004, 4812/2004 and 4813/2004 (Jayant Avashiya v. State of M.P.) are also being disposed of because the parties in the aforesaid cases are the same and the question of sanction raised by the petitioner is also the same. Learned counsel for the petitioner vehemently submitted that though the petitioner has retired and on the date of taking cognizance by the learned Court below he was not a public servant, but, the act for which he is now being prosecuted, is said to have been committed in the discharge of his official duty when he was a public servant. Therefore, the sanction, for taking cognizance, from the competent authority is essential. Learned counsel has placed reliance on a Supreme Court judgment passed in the case of State of Orissa and others v. Ganeshchandra ( AIR 2004 SC 2179 ). Having heard, learned counsel for the petitioner and after perusing the provision of section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) as well as section 197 of the Code of Criminal Procedure, this Court is of the view that for prosecution of a public servant when he ceased to be a public servant on the date of taking cognizance by the competent Court, there is no necessity of grant of sanction by the competent authority to prosecute him. In the case in hand, the petitioner is being prosecuted for the offence punishable under section 13 (1) (d) read with section 13 (2) of the Act. For prosecution of a public servant under the provision of the Act for grant of sanction provision of section 19 of the Act would apply and the wordings of section 19 are not in juxtaposition to the wording of section 197 CrPC. Section 197 of the CrPC is applicable when the public servant is prosecuted not before the offence of Prevention of Corruption Act, but, for some other offence and this section says that ''When any person who is or was a public servant not removable from his office save by or with the sanction of the Government". Section 197 of the CrPC is applicable when the public servant is prosecuted not before the offence of Prevention of Corruption Act, but, for some other offence and this section says that ''When any person who is or was a public servant not removable from his office save by or with the sanction of the Government". Therefore, for the prosecution of the public servant even if he is retired, the sanction is essential as per provision of section 197 of the CrPC because this section says that even the person who's being prosecuted is not a public servant on the date of taking cognizance by the Court, but even if he was a public servant when the offence was committed, then the sanction is necessary. In the case on hand, the petitioner is not being prosecuted for any other offence than the offence enumerated under the prevention of Corruption Act. For the prosecution of a public servant for the offence under the Prevention of Corruption Act, provision of section 19 would apply for taking sanction and that provision would apply only when the public servant who is being prosecuted is under the employment. If the prosecution is launched, after retirement or superannuation of a public servant, there is no necessity of sanction as per provision under section 19 of the Act. This legal position has been settled by the Supreme Court long back in the judgment of Venkataraman's case ( AIR 1958 SC 107 ) followed in the case of C.R. Bansi v. State of Maharashtra ( AIR 1971 SC 786 ) and again in the case of Habibulla Khan v. State of Orissa and another [ 1995 (2) JT 1 ]. The over all legal position emerged is that Prevention of Corruption Act, 1947 and 1988 sections 6 and 19 respectively of the aforesaid Acts do not contemplate that sanction is necessary for prosecution of a public servant who has superannuated from the service. No sanction is necessary for the prosecution of the petitioner in this case as he is not a public servant on the date of taking of cognizance of the offence by the learned Court below. No sanction is necessary for the prosecution of the petitioner in this case as he is not a public servant on the date of taking of cognizance of the offence by the learned Court below. In the case of State of Orissa v. Ganeshchandra (supra) while considering the above mentioned judgment in paras 14 to 18 the Supreme Court has considered the former judgments on the point and held that if the retired Government servant is prosecuted for the offence other than the offence covered by the Prevention of Corruption Act, then the sanction would be essential but, if the public servant is prosecuted under the provisions of the Prevention of Corruption Act and on the date of taking cognizance, he is ceased to be a public servant, there is no necessity of sanction for taking cognizance. The judgment relied upon by the learned counsel for the petitioner (supra) is also not helpful to the petitioner because the petitioner is being prosecuted after retirement for the offence punishable under the provisions of the prevention of Corruption Act. In this legal and factual position, no case is made out for entertaining these petitions. They are, therefore, dismissed. Consequently the M (Cr) P. No. 3072/04, 3073/04, 3074/04 and 3075/04 are also dismissed. Let a copy of this order be placed each in the records of M.Cr.C. No. 4811/2004, 4812/2004 and 4813/2004.