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2006 DIGILAW 504 (ORI)

Chittaranjan Das v. State of Orissa

2006-07-11

P.K.TRIPATHY

body2006
JUDGMENT P. K. TRIPATHY, J. : Accused in T.R. Case No.113 of 1999 of the Court of Special Judge (Vigilance), Bhubaneswar has filed this application with the prayer to quash the order dated 09.06.2004. passed by learned Special Judge. 2. To resolve the controversy in support of the aforesaid prayer, it is not necessary to go into the details of the facts save and except mentioning that while serving as an O.A.S., Class-I in the State Secretariat at Bhubaneswar, petitioner faced a house-search by the Vigilance Police on 17.03.1992 followed with the investigation, during which the investigating agency opined that petitioner was in possession of disproportionate movable assets to the tune of Rs.5,36,252.46 (five lakh thirty six thousand two hundred and fifty two rupees and forty six paise) and immovable assets of Rs.5,58,752.46 (five lakh fifty eight thousand seven hundred and fifty two rupees and forty six paise). During pendency of investigation, i.e., about fag end of the investigation, sanction of the Government was applied for to prosecute the petitioner but on 31.07.1998 Government refused to accord sanction. In the meantime, further investigation was con¬tinued. After completion of investigation, charge-sheet was submitted on 10.09.1998. On perusal of the charge-sheet, the trial Court took cognizance of the offence on 02.08.1999. After his appearance in the trial Court, accused-petitioner on 26.03.2004 filed application to call for the documents, i.e., refusal of the sanction order by the State Government and to discharge him. On 09.06.2004 learned Special Judge (Vigilance) after hearing the parties, rejected that application on the ground that in view of the principle of law enunciated by the Apex Court in the case of State of Himachal Pradesh v. M. P. Gupta, (2004) 27 OCR (SC) - 315, an order of cognizance cannot be quashed on the ground of want of sanction when by the date of submission of charge sheet and refusal of order of sanction, the public servant had already retired from service. At this stage it may be indicated that petitioner stated in his date-chart that he retired from service on 30.06.1997. 3. At this stage it may be indicated that petitioner stated in his date-chart that he retired from service on 30.06.1997. 3. Learned Standing Counsel for the Vigilance at the outset stated that since the trial is pending and the matter relating to want of sanction and maintainability of the prosecution can be taken up at the stage of trial, therefore, application before the trial Court for discharge and the present application under Section 482, Cr.P.C. before this Court is premature. In reply to that, learned counsel for the petitioner relying on the case of Kishore Chandra Sahu v. State of Orissa (Vigilance), (2005) 31 OCR - 748, argued that the settled posi¬tion of law is that such a question can be raised at any stage. On consideration of the aforesaid rival contention and ratio in the case of Kishore Chandra Sahu (supra), this Court finds that want of sanction as a defence, to get rid of the prosecution, can be raised at any stage after the order of cognizance, but it is the duty of the Court to consider as to at what stage such a plea of the accused is to be considered. Therefore, contention of learned Standing Counsel to reject the application under Section 482, Cr.P.C. in limine is not correct. 4. Learned counsel for the petitioner argued that sanction under Section 19 of the Prevention of Corruption Act, 1988 (in short ‘Act, 1988’) is the backbone to sustain a prosecution against a public officer. In support of that submission, he relied on the ratio in the cases of P.A. Mohandas v. State of Kerala, (2005) 30 OCR (SC) - 355; Manoranjan Prasad Choudhary v. State of Bihar, (2005) 30 OCR (SC) - 370; and State of Goa v. Babu Thomas, (2005) 32 OCR (SC) - 553. On the other hand learned Standing Counsel (Vigilance) referring to the case of M.P. Gupta (supra), N. Bhargavan Pillai (dead) by L.Rs. and another v. State of Kerala, A.I.R. 2004 S.C. 2317; and Romesh Lal Jain v. Naginder Singh Rana & Ors., (2006) 33 OCR (SC) - 90, argued that when the accused-petitioner retired from service much prior to completion of the investigation and on the date when charge-sheet was filed he was no more in service, therefore, refusal of sanction by the Government is non-consequential and the order of cognizance is not liable to fail. 5. 5. In the above noted cases cited by the petitioner, the Apex Court has consistently held that sanction is a pre-requirement to prosecute an officer under the Act, 1988. But in none of those cases accused was a retired officer as in this case. On the other hand, in the citations relied on by the oppo¬site party and more particularly in the case of N. Bhargavan Pillai (supra) it has been held by the Apex Court that : “8. The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New 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. But the position is differ¬ent in cases where Section 197 of the Code has application.” That ratio has been followed by learned Special Judge (Vigilance) while rejecting the application of the petitioner. 6. On a conspectus of the facts and circumstances involved in the case and the position of law in the matter of sanction vis-a-vis the impugned order, this Court does not find any ille¬gality in that order so as to invoke the inherent power with a view to quash the impugned order. Be that as it may, it is made clear that the disputed question as to whether in the present case a sanction order is necessary and whether that was refused by the State Government and what is the consequence thereof, may be gone in to at the time of trial if raised by the accused-petitioner notwithstanding rejection of his application by the impugned order inasmuch as the foregoing discussion by this Court in any manner does not interfere with that right of the accused to be pursued, if so legally advised, at the time of trial. 7. With the aforesaid observation, the application under Section 482, Cr.P.C. is rejected and the Criminal Misc. Case is accordingly dismissed. Crl. Misc. case dismissed.