Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 517 (PAT)

Ajay Kumar Singh v. State Of Bihar

2005-05-12

CHANDRA MOHAN PRASAD

body2005
Judgment 1. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (in short, the Code) with a prayer to quash the order dated 12th March, 2004 of the learned Special Judge, C.B.I., South Bihar, Patna passed in Special Case No. 13 of 2003 whereby cognizance of offences under Sections 120-B, 380, 409, 411 and 420 of the Indian Penal Code and Sections 8 and 13(2) read with Section 13 (1)(c) & (d) of the Prevention of Corruption Act, 1988 (in short, the Act) has been taken against the petitioner and some other accused persons. 2. The allegation on the petitioner is that he was an officer in Canara Bank, Bokaro and being in conspiracy with other accused persons, he removed the sealed packet of question papers of C.B.S.E.-All India PMT/PDT Examination, 2003 from the strong room and got copy of the question papers prepared and after getting huge amount from the conspirators (co-accused) provided the copies to them and facilitated the leakage of question papers and commission of entire offences alleging that the petitioner had also confessed his guilt in his statement under Section 164. of the Code recorded by a Magistrate. 3. The F.I.R. and charge-sheet of the case have been filed as Annexure-1 to this petition. As to the allegations on the petitioner, the learned Standing Counsel for the C.B.I. quoted the followings from the charge- sheet: "Investigation has disclosed that Central Board of Secondary Education (CBSE), New Delhi had decided tc keep the question papers of All India CBSE Pre Medical Test/Pre Dental Test, 2003 at various centres throughout the country at different branches of Canara Bank including Bokaro Branch for safe custody till the date of examination, and for further distribution to different examination centres. These question papers were sent in sealed packets to the concerned Branches of Canara Bank including Bokaro Branch for safe custody and handing over the same to the CBSE authorities on the day of examination. These question papers were sent in sealed packets to the concerned Branches of Canara Bank including Bokaro Branch for safe custody and handing over the same to the CBSE authorities on the day of examination. Investigation has disclosed that the accused persons named in Column No. 1 of this charge-sheet and Rajiv Jha @ Babua Jha (since not traced), Shiv Nandan Singh (since not traced) and others unknown were party to a criminal conspiracy and agreed to do or caused to be done illegal act or acts which were not illegal by illegal means at Patna, Bokaro, Mumbai, Nagpur, Kolkata, New Delhi and other places during the period 2002 and 2003 to cheat the Government of India/Medical Colleges/Candidates and CBSE for wrongful gain to themselves and wrongful loss to others by pilfering, leaking the question paper of CBSE All India Pre Medical Test/Pre Dental Test 27.4.2003. Investigation has revealed that in pursuance of the said conspiracy, the Question Papers of CBSE PMT/PDT/ 2003 were pilfered from Canara Bank, Naya More Branch, Bokaro Steel City, Bokaro in April, 2003 by accused Ajoy Kumar Singh, aforesaid Shiv Nandan Singh and Rajiv Jha @ Babua Jha and thereafter the leaked questions were made available to Dr. Kumar Suman Singh @ Ranjit Singh and Dr. Rajiv Babu in furtherance of the said conspiracy accused persons negotiated with Laxmi Apartment, Flat No. 303, Kankarbagh, Patna where he came in contact with Shri Rajiv Jha @ Babua Jha (since not traced) who is the cousin brother-in-law of Sri Narendra Kumar Mishra, Shri Ajay Kumar Singh became very close to Shri Rajeev Jha @ Babua Jha. In pursuance to the said conspiracy Shri Ajay Kumar Singh got himself transferred to Canara Bank, Bokaro Branch in July 2002 where he joined as Manager (Administration). Investigation disclosed that Shri Rajeev Jha @ Babua Jha used to visit Bokaro regularly and was in touch with Sri Ajay Kumar Singh. He met Shri Ajay Kumar Singh at Canara Bank in January, 2003 and also a day or two before the Holi festival during March, 2003 and also in April, 2003 alongwith Shiv Nandan Singh. Investigation has further disclosed that accused Ajay Kumar Singh in furtherance of the said criminal conspiracy managed to remove/pilfer one packet of the said question papers from the Bank. Investigation has further disclosed that accused Ajay Kumar Singh in furtherance of the said criminal conspiracy managed to remove/pilfer one packet of the said question papers from the Bank. Investigation has further revealed that in pursuance of the said conspiracy aforesaid Babua Jha and Shiv Nandan Singh copied out the said question paper in note books and thereafter packet was reseated by them and returned to Ajay Kumar Singh alongwith the copied questions. Ajay Kumar Singh kept back the packet containing question papers in the Bank. Subsequently copied question paper was handed over to aforesaid Babua Jha and Shiv Nandan Singh by Ajay Kumar Singh on payment of Rs. 2 lakh as his share. Investigation further disclosed that in pursuance of the said conspiracy after obtaining question paper said Shiv Nandan Singh informed Ranjit Singh and Rajiv Babu about the leaked question papers of CBSE/PMT/PDT 2003 which was with him as discussed above and passed on the said leaked question paper in lieu of payment of heavy amount of their shares after examination. Investigation has disclosed that in pursuance of the said criminal conspiracy said Shiv Nandan Singh faxed leaked question papers of CBSE/PMTV PDT 2003 to co-accused Ranjit Singh to Mumbai on 26.4.2003 on fax/Tele No. 022-2896-8798 at about 5 A.M. from a PCO of Patna." 4. On the basis of the materials from the charge-sheet, the learned Standing Counsel for the C.B.I. argued that the petitioner was engaged in alleged offence which is known as Question Paper Leakage Scam relating to Medical/Dental Examination Test by pilfering the question papers from the strong room and copying it out and then leaking it to the other accused persons for illegal gain. 5. During hearing, the learned counsel for the petitioner did not make any sub-stantial argument relating to the facts constituting the occurrence but he argued on the point of sanction. As also mentioned in Para-23 of the petition, the petitioners counsel argued that in this case, cognizance of offence has been taken without any prior sanction from the authority competent to remove the petitioner from his Office. Hence it was argued that due to lack of sanction the order taking cognizance is bad in law. 6. In Para-20 of the counter affidavit, it has been mentioned that sanction for prosecution under Section 19 of the Act has been received and already filed in the court of learned Special Judge. Hence it was argued that due to lack of sanction the order taking cognizance is bad in law. 6. In Para-20 of the counter affidavit, it has been mentioned that sanction for prosecution under Section 19 of the Act has been received and already filed in the court of learned Special Judge. During argument, learned Standing Counsel for the C.B.I. submitted that in this case, sanction was obtained on 15th June 2004 i.e. after taking of cognizance of offence on 12th March, 2004. The learned counsel for the petitioner did not deny that sanction was obtained on 15th June, 2004 but he argued that sanction has been obtained after the order of taking cognizance and that prior sanction is necessary for taking cognizance of the offence. The petitioners counsel argued that in this case, cognizance of offence has been also taken under Section 13 of the Act and that Section 19 of the Act provides that no court shall take cognizance without prior sanction. Hence, it was argued that the order taking cognizance is bad in law and fit to be set aside. 7. Section 19 of the Act is as follows: Section 19.Previous sanction necessary for prosecution. (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. 2. Where for any reason whatsoever any doubt arises as to whether the previous sanction is 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. 3. 3. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby: (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice: (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial appeal or other proceedings. 4. In determining under sub-section (3) whether the absence of or any error, omission or irregularities in, such sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage of the proceedings." 8. A perusal of Section 19(1) of the Act shows that 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 of the authority competent to remove him from his office. 9. In this case cognizance of offences has been taken under section 8 and different clauses of section 13 of the Act and also under section 120-B and other sections of the Penal Code, as mentioned in the order of cognizance, so far cognizance of offence under section 13 of the Act is concerned, it was argued that cognizance is bad in law because the sanction was not obtained prior to taking of conizance. The learned standing counsel for the C.B.I. argued that cognizance of offence has been taken not only under section 13 but also under section 8 of the Act and that for taking cognizance under section 8 of the Act prior sanction is not necessary. The learned standing counsel for the C.B.I. argued that cognizance of offence has been taken not only under section 13 but also under section 8 of the Act and that for taking cognizance under section 8 of the Act prior sanction is not necessary. Learned counsel for the petitioner disputed the applicability of the offence under section 8 of the Act and he argued that in the facts and circumstances of the case, there is no material to take cognizance of offence under section 8 of the Act which provides punishment for taking gratification in order by corrupt and illegal means to influence the public servant. 10. Section 8 of the Act reads as follows: Section 8: "Taking gratification, in order, by corrupt or illegal means, to influence public servant.whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as the motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (C) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine." 11. Learned counsel for the petitioner argued that Section 8 of the Act is applicable only when gratification is received as a motive or reward for inducing the public servant by corrupt and illegal means. It was argued by him that there is no allegation that the petitioner had received illegal gratification for inducing any other public servant by any corrupt or illegal means. 12. Learned Standing Counsel for the C.B.I. replied that there is allegation that the petitioner being in conspiracy with other accused persons and other unknown entered into a criminal conspiracy at different places to cheat the C.B.S.E./Government of India/Medical Colleges/candidates etc. 12. Learned Standing Counsel for the C.B.I. replied that there is allegation that the petitioner being in conspiracy with other accused persons and other unknown entered into a criminal conspiracy at different places to cheat the C.B.S.E./Government of India/Medical Colleges/candidates etc. to derive illegal gain for himself and others in the matter of pilferage of questions of C.B.S.E. in lieu of heavy consideration ranging from 5 to 8 lacs per candidate and, hence, it was argued by the learned Standing Counsel that in this case there are several others, including known and unknown officials of the Bank against whom there is allegation that the petitioner remained in conspiracy with them for illegal gain for himself and those others. Therefore, it was argued that a case under Section 8 of the Act is made out. Learned Standing Counsel also submitted that in this case, further investigation is also going on and that detailed evidence will come during the trial to prove the conspiracy showing the involvement of the petitioner and others including public servant to whom the petitioner had influenced, assisted and had taken help of. 13. Thus, hearing and considering the allegations that the petitioner entered into a conspiracy with other accused persons and some others unknown for illegal, gain for himself and others, I find that the order taking cognizance of offence under Section 8 of the Act is not fit to be interfered with at this stage. 14. As to the taking cognizance of offence under Section 13 of the Act, the learned counsel for the petitioner argued that Section 19(1) of the Act puts a bar in taking cognizance of offence without any prior sanction. In support of his contention, learned counsel cited the case of K. Veraswamy vs. Union of India reported in (1991)3 SCC 655. It was a case under Section 6 of the P.C. Act, 1947 which like Section 19(1) of the P.C. Act, 1988 provided for prior sanction for taking cognizance and while interpreting it the Hon ble Supreme Court in Para-28 of the judgment held that as per the condition, prescribed therein i.e. Section 6 of the Act of 1947 previous sanction of the competent authority was necessary and that the public servant could not be prosecuted for offences specified in that Section, unless there was a prior sanction for prosecution from the competent authority. On the basis of what has been held by the Hon ble Supreme Court, as above, learned counsel for the petitioner argued that in this case the cognizance of offence under Section 13 of the Act has been taken without any prior sanction hence, the order taking cognizance is not sustainable in law due to lack of prior sanction. 15. The learned counsel for the petitioner also cited the case of P.V. Narsimharao vs. State (CBI)/SPE reported in (1998)4 SCC 626 [;1998(2) PLJR (SC) 67]. In this case the question of immunities of M.Ps. from liability to any proceedings in any court in respect of anything said or any vote given by him in Parliament in view of Article 105(2) of the Constitution of India was being considered and in the facts of that case the applicability of the offences under Sections 7, 12 and 13 of the Act and Section 120-A and 120-B of the I.P.C., 1860 was under consideration before the Hon ble Supreme Court. At Page-95 of the judgment, the Hon ble Apex Court held, "...this means that when there is authority competent to remove a public servant and to grant sanction for his prosecution under Section 19(1) of the 1988 Act, the requirement of sanction precludes a Court from taking cognizance of the offences mentioned in Section 19(1) against him in the absence of such sanction, but if there is no authority competent to remove a public servant and to grant sanction for his prosecution under Section 19(1), there is no limitation on the power of the Court to take cognizance under Section 190 Cr. P.C. of the offence mentioned in Section 19(1) of the 1988 Act. The requirement of sanction under Section 19(1) is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious and frivolous allegations by the interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant. The inapplicability of the provisions of Section 19(1) to a public servant would only mean that the intended safeguard was not intended to be made available to him. The object underlying the said requirement is not to condone the commission of an offence by a public servant. The inapplicability of the provisions of Section 19(1) to a public servant would only mean that the intended safeguard was not intended to be made available to him. The rigour of the prohibition contained in sub-section (1) is now reduced by sub-section (3) of Section 19 because clause (a) of sub-section (3) itself provided that no finding sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has, in fact, been occasioned thereby. This would show that the requirement of sanction under sub-section (1) of Section 19 is a matter relating to the procedure and the absence of the sanction does not go to the root of jurisdiction of the court......" 16. Referring to what has been held above at Page 95 in the case of P.V. Narsimharao (supra), the learned counsel for the petitioner argued that the Hon ble Supreme Court has held that prior sanction is necessary as provided under Section 19(1) of the Act 1988 for taking cognizance of offence under Section 13 of the Act. But the learned Standing Counsel for the C.B.I. argued that Section 19(3) of the Act is a new provision which was not present in the old P.C. Act, 1947 and referring to this provision i.e. Section 19(3) of the 1988 Act, learned Standing Counsel argued that in case the court comes to an opinion that failure of justice, in fact, has not occasioned due to absence of sanction, the order of taking cognizance of offence will not be vitiated. The learned Standing Counsel also argued that the instant case is not a case of complete absence of sanction but there is a sanction granted by the competent authority, though a little delay has been occasioned in obtaining sanction after the order of taking cognizance hence, it was further argued that the defect of sanction, if any, has been cured by post facto sanction. 17. 17. Thus, hearing the learned counsel and on perusal of what has been held by the Hon ble Apex Court at Para-95 in the case of P.V. Narsimharao (supra), I find that the Hon ble Supreme Court has held that the rigour of prohibition contained in sub-section (1) is reduced by sub-section (3) of Section 19 of the Act and it has also been further held that the requirement of sanction under sub-section (1) of Section 19 is a matter relating to the procedure and the absence of sanction does not go to the root of the jurisdiction of the court. The learned Standing Counsel for the C.B.I. argued that it is not a case of complete absence of sanction but it is a case where sanction was obtained with some delay. He argued that in this case, cognizance of offence was taken on 12.3.2004 and sanction was obtained on 15th June, 2004 and thus, there is a delay of only three months. He also submitted that the delay was not intentional and that it occurred due to some procedural delay in the offices. 18. Thus, hearing both sides and considering the facts and circumstances of the case and the nature of offence involving a huge scam in the matter of leakage of question of the Medical Examination held all over India. I find that the taking of cognizance of offence in absence of sanction which though was obtained after 3 months of order of taking cognizance in view of provisions of sub-section (3) of Section 19 cannot be said to have occasioned failure of justice, hence in my view order of cognizance is not fit to be set aside by this court in exercise of powers conferred under Section 482 of the Code. 19. Learned counsel for the petitioner also took the plea that Section 197 of the Code also bars the taking of cognizance of offence against the petitioner. Perusal of Section 197 of the Code shows that this Section bars the taking of cognizance of offence against a public servant not removable from his office save by or with the sanction of the Government under which the public servant is employed i.e. the Union of India or the State Government. Perusal of Section 197 of the Code shows that this Section bars the taking of cognizance of offence against a public servant not removable from his office save by or with the sanction of the Government under which the public servant is employed i.e. the Union of India or the State Government. This section also protects any member of the armed force in taking cognizance of an offence against him while acting or purporting to act in exercise of his duty, except with the previous sanction of the Union of India. Thus, this Section 197 of the Code gives protection to the public servant under the employment of the Central Government or the State Government as the case may be, from prosecution against any offence committed by them in exercise of their official duties without the previous sanction of the Government, concerned. The learned Standing Counsel for the C.B.I. submitted that the petitioner was not an Officer under the State or the Central Government and that the petitioner was an Officer in Canara Bank and he was removable from his Office by the General Manager of the Bank and not by the Government. Therefore, it was argued that since the petitioner was not an Officer in the employment of the Government, the protection as available under Section 197 of the Code is not available to him. 20. Mr. Rakesh Kumar, learned Standing Counsel for the C.B.I. further argued that in this case, cognizance of offence under Section 120-B and other Sections of the I.P.C. besides offences under Sections 8 and 13 of the Act has been taken against the petitioner and that so far offences under different Sections of the I.P.C. are concerned, there is nothing to show that there was any kind of incompetency in the Special Judge in taking cognizance of the offence. 21. Learned Standing Counsel, citing the provisions of Section 4(3) of the Act argued that a Special Judge is also competent to try offences punishable under Section 3 of the Act. He also referred to Section 3(a) and (b) of the Act which provides for trial by the Special Judge of any offence under the Act and also any conspiracy to commit or any abetment of any of the offences specified in Clause-8. The Special Judge is competent to try the offence under the P.C. Act as well as under the other Acts also. 22. The Special Judge is competent to try the offence under the P.C. Act as well as under the other Acts also. 22. In view of the provisions under Section 197 of the Code as discussed above. I find that there was nothing under this Section of the Code to prohibit the Special Judge from taking of cognizance of offence against the petitioner because the petitioner was not a public servant under the employment of or removable from his office by the order of the Government and that the petitioner was an Officer of the Bank removable from his Office by the Manager of the Bank. 23. Thus, hearing both sides and considering as above, I find that the impugned order suffers with no kind of infirmity and hence, there is no reason to make any interference with it and hence the same is sustained. 24. In the result, this petition is hereby rejected.