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2006 DIGILAW 2244 (PNJ)

Sat Pal Joshi v. State Of Punjab

2006-05-18

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. Petitioner Sat Pal Joshi, who was working as District Food and Supplies Controller, Hoshiarpur, in the Department of Food and Supplies, has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of case FIR No. 37 dated 31.5.2002 under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the P.C. Act) registered at Police Station Vigilance Bureau, Jalandhar, as well as the consequential proceedings along with the order dated 1.11.2004, passed by the Court of Special Judge, Hoshiarpur, whereby charge for the offence punishable under Sections 7 and 13(2) of the P.C. Act has been framed. 2. When the petitioner was performing the duties of District Food and Supplies Controller, Hoshiarpur, the aforesaid FIR was registered on 31.5.2005 on the basis of the complaint made by one Yash Pal Gupta alleging that the petitioner along with his co-accused Mahesh Chander, who was posted as Inspector in the office of the petitioner, demanded illegal gratification of Rs. 30,000/- from the complainant for dropping notice dated 18.4.2002 under the Bricks Control Order. It was further alleged that the petitioner asked the complaint to pay the amount of bribe to Inspector Mahesh Chander. In the trap laid down by the Vigilance Bureau, co-accused Mahesh Chander accepted the amount on his behalf as also on behalf of the petitioner. Both the accused were arrested on the spot. Subsequently, the staff members of the Food and Supplies Department, Hoshiarpur as well as the petitioner himself made representation to the Government that he was falsely implicated in the aforesaid corruption case by the Vigilance Bureau in connivance with the complainant Yash Pal Gupta, who was having grudge against victim as they under the orders of Deputy Commissioner, Hoshiarpur, organized raid on the business premises of Yash Pal Gupta on account of illegal and unauthorised sale of bricks in the Hoshiarpur City. The Principal Secretary, Government of Punjab, Department of Food and Supplies got conducted detailed departmental enquiry through Deputy Commissioner, Hoshiarpur, who in turn appointed Addl. Deputy Commissioner to conduct the enquiry. According to the petitioner, a detailed enquiry was conducted by the Addl. The Principal Secretary, Government of Punjab, Department of Food and Supplies got conducted detailed departmental enquiry through Deputy Commissioner, Hoshiarpur, who in turn appointed Addl. Deputy Commissioner to conduct the enquiry. According to the petitioner, a detailed enquiry was conducted by the Addl. Deputy Commissioner, in which he had examined 13 witnesses and considered the various record and then came to the conclusion that in the aforesaid FIR, the petitioner was falsely implicated as he did not demand or accept any bribe or illegal gratification. It was found that the complainant Yash Pal Gupta in connivance with the Vigilance Department had falsely implicated the petitioner in the case. It is stated in the petition that the said enquiry report was forwarded by Deputy Commissioner to Principal Secretary, Food and Supplies, who in turn forwarded the same to Principal Secretary, Government of Punjab, Department of Vigilance for information and necessary action recommending for withdrawal of the case against the petitioner. In the meanwhile, the investigating agency moved the State authorities for obtaining sanction under Section 19 of the P.C. Act for prosecuting the petitioner as well as his co-accused Mahesh Chander. When the said request was pending, the petitioner retired on attaining the age of superannuation on 31.8.2002. Vide order dated 21.4.2004, the State Government rejected the proposal for grant of sanction to prosecute the petitioner while observing that the recovery of Rs. 30,000/- from co-accused Mahesh Chander Inspector is doubtful and secondly even if the recovery was fair, then also there is no evidence of any connivance of the petitioner with the concerned Inspector in this case. Subsequently, the investigating agency filed challan in the Court of Special Judge, after receiving sanction to prosecute co- accused Mahesh Chander. Since the petitioner had retired, therefore, challan was also filed qua him as after retirement, no sanction under Section 19 of the P.C. Act was deemed to be necessary. Subsequently, the Special Judge, Hoshiarpur, vide order dated 1.11.2004, framed charge against the petitioner and his co-accused under Sections 7 and 13(2) of the P.C. Act. 3. Now, the petitioner has filed this petition for quashing of the aforesaid FIR as well as the order of charge. 4. Subsequently, the Special Judge, Hoshiarpur, vide order dated 1.11.2004, framed charge against the petitioner and his co-accused under Sections 7 and 13(2) of the P.C. Act. 3. Now, the petitioner has filed this petition for quashing of the aforesaid FIR as well as the order of charge. 4. In the petition, the petitioner has made the following four submissions in support of his prayer :- (i) The competent authority, by taking conscious decision, had rejected the prayer of the investigating agency for grant of sanction under Section 19 of the P.C. Act. Therefore, prosecution of the petitioner cannot be allowed to proceed merely on the ground that when the challan was filed, the petitioner had already retired and in that situation, the court can take cognizance of the offence without there being any sanction under Section 19 of the P.C. Act. (ii) In addition to the sanction required under Section 19 of the P.C. Act, the sanction under Section 197 of the Code is also required for prosecution of the petitioner, who was a public servant at the time of the alleged occurrence, even though the petitioner ceased to be a public servant on the date of filing of the challan and taking of cognizance of the alleged offence. (iii) The petitioner has been exonerated in detailed departmental enquiry after registration of the impugned FIR. Therefore, criminal proceedings against him deserve to be quashed even after submission of the charge-sheet. (iv) The impugned FIR was registered at the behest of complainant Yash Pal Gupta, who was having a grudge against the petitioner, in connivance with the officials of the Vigilance Department. 5. It has been further stated in the petition that in the departmental enquiry, conducted by the Additional Deputy Commissioner, Hoshiarpur, version of the prosecution was found to be false and it was found that the petitioner was falsely implicated at the behest of the complainant. The petitioner was a Gazetted Officer at the relevant time and the investigating agency, without obtaining prior permission, registered criminal case and has, thus, violated circular dated 9.5.1978 (Annexure P-13). The petitioner was a Gazetted Officer at the relevant time and the investigating agency, without obtaining prior permission, registered criminal case and has, thus, violated circular dated 9.5.1978 (Annexure P-13). Further, the investigating agency, for the reasons best known to it, continued with the enquiry in violation of another circular of the Government dated 11.7.1978 (Annexure P-14), and did not complete the investigation even with the enquiry in violation of another circular of the Government dated 11.7.1978 (Annexure P-14), and did not complete the investigation even within a period of one year. Vide circular dated 4.7.1980 (Annexure P-15), issued by the Government, the investigating agency is required to file challan in the trap cases within a period of six months, but in this case, the investigating agency has acted mala fidely, and in spite of the rejection of sanction under Section 19 of the P.C. Act and recommendation by the Principal Secretary for dropping the proceedings, had filed the challan without there being any material. In view of these submissions, the petitioner prayed for quashing of the FIR as well as the consequential proceedings. 6. I have heard counsel for the parties and gone through the contents of the petition as well as the impugned order. 7. The first question, which arises for consideration, is whether challan in the impugned FIR could have been filed and cognizance could have been taken by the court after the retirement of the petitioner, when the sanction sought by the investigating agency to prosecute the petitioner under Section 19 of the P.C. Act was rejected. Section 19 of the P.C. Act provides that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act alleged to have been committed by a public servant, except with the prior sanction of the appropriate Government. It is now well settled that the sanction as contemplated in Section 19 of the P.C. Act is mandatory if the accused public servant continues to be a public servant, when the court takes cognizance of the offence, but if he ceases to be public servant by that time, the court can take cognizance without such sanction. The protection provided under Section 197 of the Code is not available in case of a retired public servant. The protection provided under Section 197 of the Code is not available in case of a retired public servant. In this regard reference can be made to the decisions of the Supreme Court in Kalicharan Mahapatra v. State of Orissa, 1998(3) RCR(Criminal) 771 : 1999(1) SCT 634 : 1998(6) SCC 411; State of Kerala v. V. Padmanabhan Nair, 1999(3) RCR(Crl.) 442 (SC) : 1999(5) SCC 690 and Rakesh Kumar Mishra v. State of Bihar and others, 2006(1) RCR(Criminal) 456 : 2006(1) Apex Criminal 175 : 2006(1) SCC 557. In view of this legal position, the refusal of sanction sought by the investigating agency after retirement of the petitioner or not obtaining sanction before filing challan after retirement is of no consequence. Undisputedly, in this case, the FIR was lodged on 31.5.2002 and the petitioner retired on 31.8.2002 on attaining the age of superannuation. The challan was filed subsequently after his retirement and when cognizance was taken by the court, the petitioner had already retired. The sanction was sought by the investigating agency and was rejected by the appropriate government after retirement of the petitioner. In my opinion, merely because sanction was rejected after retirement, it cannot be held that the court was not competent to take cognizance of the matter in absence of necessary sanction under Section 19 of the P.C. Act. Thus, I do not find any merit in the first contention raised by counsel for the petitioner. 8. The second question raised by counsel for the petitioner is that in addition to the sanction under Section 19 of the P.C. Act, sanction under Section 197 of the Code is also required for prosecution of the petitioner, who was a public servant at the time of the alleged offence. While referring to Sections 22 and 28 of the P.C. Act, counsel for the petitioner submitted that provisions of the Code will apply to the proceedings under the P.C. Act subject to certain modifications. He submitted that Section 197 of the Code is applicable to the proceeding against the petitioner under P.C. Act and sanction u/s 197 of the Act is mandatory for prosecuting the petitioner under the P.C. Act, even though challan was filed after his retirement. He submitted that Section 197 of the Code is applicable to the proceeding against the petitioner under P.C. Act and sanction u/s 197 of the Act is mandatory for prosecuting the petitioner under the P.C. Act, even though challan was filed after his retirement. Counsel for the petitioner referred to the decision of the Supreme Court in R. Balakrishna Pillai v. State of Kerala, 1996(2) RCR(Crl.) 765 (SC) and a decision of this Court in Brahm Dev v. State of Punjab, 2003(3) RCR(Crl.) 517 (P&H), wherein it was held that sanction for prosecution under Section 197 of the Code is required even after the retirement of the public servant. I had an occasion to consider this question in Surinder Kumar Bansal v. State of Punjab, 2006(1) RCR(Crl.) 743 (P&H) and had observed as under :- "7. Now, the question for consideration is whether the additional sanction under Section 197 of the Code is also required for prosecution of a retired public servant, if the alleged offence is under the P.C. Act, for which offence no sanction under Section 19 of the P.C. Act is necessary. In my opinion, this question had been answered by the Honble Apex Court in Kalicharan Mahapatras case (supra), wherein it was observed 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 cannot 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 P.C. Act was materially imported in the new P.C. Act, 1988 without any change in spite of the change made in Section 197 of the Code." 9. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former P.C. Act was materially imported in the new P.C. Act, 1988 without any change in spite of the change made in Section 197 of the Code." 9. In V. Padmanabhan Nairs case (supra) it has been again held by the Honble Apex Court there is no necessity at all to obtain sanction under Section 197 of the Code to proceed against accused public servant under the provisions of the P.C. Act. It had been observed that the correct legal position is that an accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court took cognizance of the said offences. So it was held that the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the P.C. Act. Regarding the offences under the IPC, it has been averred that the Honble Apex Court has already stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR 1955 SC 287 and Amrik Singh v. State of Pepsu, AIR 1955 SC 309 that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code. It is not part of the duty of a public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in a criminal misconduct. Thus, taking of the bribe cannot be said to be part of the official duty. In State of H.P. v. M.P. Gupta, JT 2003(10) SC 32 : 2004(1) RCR(Crl.) 197 : 2004(2) Apex Criminal Judgments 112 (SC) the Honble Apex Court has again held that an accused facing prosecution for offences of corruption cannot claim any immunity on the ground of want of sanction under Section 197 of the Code, when he ceased to be a public servant on the date when the Court took cognizance of the offences. This protection has certain limits and is reasonably connected with the discharge of his official duties. This protection has certain limits and is reasonably connected with the discharge of his official duties. If in doing his official duties, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the prosecution. Before sanction under Section 197 of the Code can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. It is not part of the duty of a public servant while discharging his official duty to commit any forgery or to take the bribe. 10. During the course of arguments, learned counsel for the petitioner heavily relied upon the judgment of the Honble Supreme Court in R. Balakrishna Pillais (supra). In that case, two charges were framed against the accused public servant. The first charge was relating to an offence punishable under Section 120-B of the IPC for entering into criminal conspiracy to sell electricity to the State of Karnataka to be supplied by one private firm. The second charge was relating to the commission of an offence punishable under Section 5(2) read with Section 5(1)(d) of the Old P.C. Act. The prosecution was launched after the appellant ceased to hold the office on the date of taking of the cognizance. He was convicted for both the charges and his conviction was upheld by the High Court. Against the judgment of the High Court, the appellant R. Balakrishna Pillai filed appeal before the Honble Apex Court. The Honble Apex Court set aside the conviction only with regard to the charge of conspiracy on the ground that the sanction as required under Section 197 of the Code was not taken. As far as second charge is concerned, the view taken by the High Court was not disturbed. Regarding the second charge, counsel for the appellant did not contend before the Honble Apex Court that any sanction under Section 197 of the Code is required in so far as the charge regarding corruption is concerned. As far as second charge is concerned, the view taken by the High Court was not disturbed. Regarding the second charge, counsel for the appellant did not contend before the Honble Apex Court that any sanction under Section 197 of the Code is required in so far as the charge regarding corruption is concerned. In view of these facts, it cannot be said that in the said judgment, it was observed that previous sanction under Section 197 of the Code is also necessary for the prosecution of a public servant under the P.C. Act." Counsel for the petitioner contends that in the aforesaid judgment, the impact of Sections 22 and 28 of the P.C. Act has not been considered. In my opinion, these two sections provide that while conducting the proceedings under the P.C. Act, the provisions of the Code will be applicable. Even if it is held that Section 197 of the Code is applicable in the proceedings under the P.C. Act, that will make no difference, as it is not every offence which requires sanction under Section 197 of the Code. The sanction is required only if the alleged offence has been committed by the public servant while acting or purporting to act in discharge of his official duty. "Official duty" implies that act of omission must have been done by the public servant in the course of his service and that it should fall within the range and scope of his official duty. It is well settled that to take the bribe is not part of duty of a public servant while discharging his official duty. Therefore, Section 197 of the Code will not be applicable in case of a public servant, who is alleged to have committed the offence under the P.C. Act. Thus, I do not find any force in the contention of learned counsel for the petitioner that in addition to sanction under Section 19 of the P.C. Act, sanction under Section 197 of the Code was also required in the instant case. 11. Counsel for the petitioner submitted that in the instant case, after registration of the impugned FIR, the matter was thoroughly considered in departmental enquiry on the complaint made by the petitioner as well as the other staff members. The Principal Secretary, Government of Punjab, Department of Food and Supplies got conducted a detailed departmental enquiry, which was conducted by Addl. Counsel for the petitioner submitted that in the instant case, after registration of the impugned FIR, the matter was thoroughly considered in departmental enquiry on the complaint made by the petitioner as well as the other staff members. The Principal Secretary, Government of Punjab, Department of Food and Supplies got conducted a detailed departmental enquiry, which was conducted by Addl. Deputy Commissioner, who examined 13 witnesses and also considered various documents produced before him and then came to the conclusion that in the aforesaid FIR, the petitioner was falsely implicated and he did not demand or accept any bribe or illegal gratification. It was found that the complainant Yash Pal Gupta in connivance with the Vigilance Department had tried to falsely implicate the petitioner in the case. In these circumstances, learned counsel for the petitioner submits that if the charges which are identical cold not be established against the petitioner in the departmental proceedings, then continuation of the criminal proceedings on the same charges is an abuse of the process of law. Learned Counsel relied upon decision of the Supreme Court in P.S. Rajya v. State of Bihar, 1996(3) RCR(Criminal) 261 : 1996(4) S.C.T. 21(SC) and decisions of this Court in Gurnam Singh v. State of Haryana, 1998(1) RCR(Criminal) 51 (P&H) and Nirmal Singh v. State of Punjab, 2001(3) RCR(Criminal) 228 (P&H). In these judgments, it has been held that if an accused is exonerated in departmental proceedings and the charges in the departmental proceedings and the criminal proceedings are one and the same, then nothing remains to be proceeded against him in the criminal proceedings. It has been further observed that the standard of proof required to establish the guilt in the criminal cases is far higher than the standard of proof required to establish guilt in departmental proceedings. If the accused was exonerated at the departmental level and no higher proof is available against him, it cannot be accepted that the prosecution will be able to get conviction on the judicial side where the prosecution is supposed to prove the charges beyond reasonable doubt. 12. The aforesaid judgments and the principle laid down therein are not applicable in the facts and circumstances of this case. In this case, there was no departmental enquiry against the petitioner on the same charges. 12. The aforesaid judgments and the principle laid down therein are not applicable in the facts and circumstances of this case. In this case, there was no departmental enquiry against the petitioner on the same charges. As referred above, a complaint was made by the petitioner and the staff of the Food and Supplies Department that the petitioner was falsely implicated by the Vigilance Department in the aforesaid case. In that complaint, an enquiry was marked by the Principal Secretary, Government of Punjab, Department of Food and Supplies to the Deputy Commissioner, Hoshiarpur, which was further marked to Addl. Deputy Commissioner, who after recording statements of some employees, came to the conclusion that in the aforesaid case, the petitioner was falsely implicated at the instance of the complainant in connivance with the officials of the Vigilance Bureau. It was found that no bribe was demanded and accepted by the petitioner. A perusal of the enquiry report, copy of which has been annexed as Annexure P-5, shows that in the said enquiry statements of 13 witnesses were recorded, most of whom belong to the department, but the statement of the complainant as well as other witnesses who have been cited in the aforesaid criminal case were not recorded. The scope and purpose of the said enquiry was different. In my opinion, it cannot be said that the same allegations, which have been levelled in the impugned FIR, were enquired into the said enquiry. In the said enquiry, none of the prosecution witnesses was examined. The scope of enquiry in the criminal trial is entirely different. Merely on the basis of the finding given in the aforesaid enquiry conducted by the Addl. Deputy Commissioner, it cannot be held that no alleged offence has committed by the petitioner. The fact as to whether the petitioner has committed the alleged offence or not will be established during the course of trial on the basis of evidence to be led by the prosecution, which was not available in the aforesaid enquiry. Therefore, merely on the basis of the said enquiry, criminal proceeding, in my opinion, cannot be dropped. The fact as to whether the petitioner has committed the alleged offence or not will be established during the course of trial on the basis of evidence to be led by the prosecution, which was not available in the aforesaid enquiry. Therefore, merely on the basis of the said enquiry, criminal proceeding, in my opinion, cannot be dropped. In the similar circumstances, the Rajasthan High Court in Shyam Sunder Mathur v. State of Rajasthan, 1998(4) RCR(Criminal) 819 (Rajasthan) has held that merely because the accused has been exonerated in the departmental enquiry is no ground to discharge him in a criminal case registered under the Corruption Act. It has been further held that the finding recorded in the departmental enquiry is not relevant under Sections 40 and 42 of the Evidence Act and such evidence must be regarded as irrelevant. In this case, the charge has been framed against the petitioner on the basis of the material collected by the investigating agency which was submitted to the court with the report under Section 173 of the Code. Merely because in the aforesaid enquiry, it has been found that allegations levelled against the petitioner are false and he has been falsely implicated, the criminal proceedings cannot be dropped. Thus, I do not find any substance in this contention of learned counsel for the petitioner. 13. The next contention raised by learned counsel for the petitioner is that in the instant case, the Vigilance Bureau has not acted bona fidely and has falsely implicated the petitioner in this case in connivance with the complainant Yash Pal Gupta, who was having grudge against the petitioner as he under the orders of Deputy Commissioner, Hoshiarpur, organized raid on the business premises of Yash Pal Gupta on account of illegal and unauthorised sale of bricks in the Hoshiarpur City. Counsel for the petitioner referred to various circulars issued by the Government, which have been violated by the investigating agency while conducting the enquiry. In this regard, the petitioner referred to circular dated 9.5.1978 (Annexure P-13), according to which before registering a case against the public servant on the basis of vigilance enquiry, prior permission of the Government has to be taken. Counsel also referred to the circular dated 4.7.1980 (Annexure P-15) which provides for speedy disposal of vigilance enquiry cases. In this regard, the petitioner referred to circular dated 9.5.1978 (Annexure P-13), according to which before registering a case against the public servant on the basis of vigilance enquiry, prior permission of the Government has to be taken. Counsel also referred to the circular dated 4.7.1980 (Annexure P-15) which provides for speedy disposal of vigilance enquiry cases. The circular further provides that in trap cases, the investigating agency will try to submit the challan to the competent Court within a period of six months. Learned counsel for the petitioner submitted that in this case, even the Government did not grant sanction to the investigating agency to launch prosecution against the petitioner. In spite of that, the challan was filed against the petitioner while observing that no sanction under Section 19 of the Act is necessary after the retirement of a public servant. In my opinion, the aforesaid FIR as well as consequential proceedings cannot be quashed on the ground that the prosecution was launched by the Vigilance Bureau against the petitioner with mala fide intention and oblique motive at the behest of the complainant in connivance with the officials of the Vigilance Bureau. Such a plea taken by the petitioner, in my opinion, requires evidence and on such a plea, the FIR and the subsequent proceedings cannot be quashed, particularly when charge against the accused has been framed. Recently, the Supreme Court in State of Orissa and another v. Saroj Kumar Sahoo, 2006(1) RCR(Criminal) 324 : 2006(1) Apex Criminal 63 (SC) has held that the mala fide against the informant are of no consequence and cannot by themselves be the basis of quashing of proceedings under Section 482 of the Code. It has been held that the powers of proceedings by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The inherent power should not be exercised to strifle a legitimate prosecution. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. Thus, in my opinion, at this stage, on the basis of allegations of mala fide, the FIR as well as consequent proceedings including the order framing charge cannot be ordered to be quashed. The Special Judge, on the basis of material collected by the investigating agency, has come to the conclusion that prima facie there is material to proceed against the accused. 14. In view of the aforesaid discussion, I do not find any ground to quash the FIR or the impugned order framing charge, passed by the trial Court. 15. Dismissed.