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2008 DIGILAW 710 (JHR)

Siyawar Singh v. State of Jharkhand

2008-07-11

D.K.SINHA

body2008
Order This Cr. Rev. is directed against the orders dated 5.9.2007 and 10.12.2007 passed by the Special Judge, Vigilance, Ranchi in Special Case No. 29 of 2004 whereby and whereunder the discharge petitions filed on behalf of the petitioner on 30.4.2007 and 18.8.2007 were rejected by order dated 5.9.2007 and the charge was framed against him on 10.12.2007. 2. The prosecution story in short was that the informant Uday Nath Dubey was running M/s U. Enterprises which used to supply the vehicles on hire to the Headquarter of Jharkhand State Electricity Board. He presented a written complaint before the Superintendent of Police (Vig.) Bureau, Ranchi stating inter alia that the bills raised as against supply of the vehicles on hire to the Headquarter of Jharkhand State Electricity Board used to be disbursed on the recommendation of the Electrical Executive Engineer against the sanction order of the Joint Secretary-II. The bills up to 31.3.2004 were paid to him which were sanctioned by the Joint Secretary-II yet, for the bills raised between the period 31.3.2004 till the presentation of the complaint on 25.11.2004, the informant pursued for sanction and disbursement of his pending bills which were finally sent to the Joint Secretary-II petitioner herein, after recommendation of the Executive Engineer and Superintendent Engineer according to prescribed rules. The informant then approached the petitioner Siyawar Singh Joint Secretary-II, JSEB, who in turn demanded gratification of Rs.15,000/- for sanction of bills for three vehicles and again Rs.800/- per month per vehicle. On 25.11.2004 the informant when approached the petitioner for sanction of the pending bills, it was alleged that the petitioner became ready to do his work against gratification at Rs.10,0001- but as the informant was not inclined to gratify the petitioner, he lodged a written complaint before the S.P., Vigilance Bureau, Ranchi on 25.11.2004 and a preliminary enquiry was directed to be conducted and upon being satisfied prima facie with allegation, a trap was laid and the petitioner was apprehended, accepting bribe of Rs.10,0001- from the informant on 27.11.2004. The Investigating Officer obtained sanction order under Section 197 of Cr. P.C. and submitted charge-sheet against the petitioner under Sections 7 and 13(2) read with Section 13(1 )(d) of Prevention of Corruption Act, 1988. The learned Special Judge (Vig.) took cognizance of the offence under Sections 7, 13(2) r/w 13(1 )(d) of the Prevention of Corruption Act 1988. The Investigating Officer obtained sanction order under Section 197 of Cr. P.C. and submitted charge-sheet against the petitioner under Sections 7 and 13(2) read with Section 13(1 )(d) of Prevention of Corruption Act, 1988. The learned Special Judge (Vig.) took cognizance of the offence under Sections 7, 13(2) r/w 13(1 )(d) of the Prevention of Corruption Act 1988. The petitioner preferred W.P.(Cr) No. 65 of 2007 before this Court challenging the sanction order dated 26.4.2006 and the cognizance order dated 3.6.2006. The aforesaid writ was ultimately withdrawn. 3. After investigation of the case the prosecution submitted charge-sheet against the petitioner for the offence under Sections 7 and 13(ii) read with Section 13(1 )(d) of the Prevention of Corruption Act, 1988. The Special Judge, Vigilance having been satisfied with the prima facie materials on record took cognizance on 3.6.2006 under Sections 7, 13(ii) and 13(1 )(d) of the Prevention of Corruption Act. During the pendency of such writ petition the petitioner filed a discharge petitions under Section 227 of Cr. P.C. on 30.4.2007 and 18.8.2007 but the same was rejected on 5.9.2007 by the Special Judge (Vig.), Ranchi in Special Case No. 29 of 2004 which is under challenge herein. 4. Mr. Manoj Kumar Tandon, the learned counsel submitted that the written complaint against the petitioner was lodged on 25.11.2004 and the so-called sanction for prosecution against the petitioner was granted on 26.4.2006 under Section 197 Cr. P.C. which did not refer any resolution of the Jharkhand State Electricity Board (hereinafter referred to as the "Board") whereby the sanction was accorded. 5. Mr. Tandon further submitted that the petitioner filed discharge petition on 30.4.2007 and again on certain grounds on 18.8.2007 stating therein that his criminal prosecution was not maintainable for want of sanction under Section 19(1 )(b) of the Prevention of Corruption Act, 1988. He pointed out that the petitioner was holding the substantive post of Executive Engineer and was removable from his office only by the "Board". Mr. Tandon explained that the Board consisted of different authorities related to Transmission, Generation, Distribution, Administration, Finance, Revenue, Rural electrification, Energy Secretary, Finance Commissioner and without their consultation the petitioner could not be removed from his office. 6. Advancing his argument the learned counsel further submitted that the sanction order dated 26.4.2006 was granted in exercise of powers conferred under Section 197 of Cr. 6. Advancing his argument the learned counsel further submitted that the sanction order dated 26.4.2006 was granted in exercise of powers conferred under Section 197 of Cr. P.C. and admittedly there was no sanction under appropriate Section 19(1 )(b) of the Prevention of Corruption Act for the Criminal prosecution of the petitioner under Sections 7, 13(2) r/w 13( 1)( d) of the Prevention of Corruption Act which is Sine Qua Non. 7. Mr. Tandon pointed out that when it was detected that the sanction, which was accorded under Section 197 of Cr. P.C., was not appropriate for the criminal prosecution of the petitioner under the Prevention of Corruption Act. 1988, the Superintendent of Police, Vigilance Bureau, Ranchi took up the matter With the Jharkhand State Electricity Board vide letter No. 1256 dated 29.3.2007 requesting the Chairman for sanction to be accorded under Section 19(1 )(b) of the said Act for the criminal prosecution of the petitioner by modifying the earlier sanction order which was accorded erroneously under Section 197 of Code of Criminal Procedure. 8. Upon constant persuasion by the Vigilance Department, the Chairman of the Board made consultation with several members and other officers and also took advise from the Senior Law Advisor and having been satisfied with their opinions, observed that no offence was made out against the petitioner. The view of the Board was communicated by Sri. S.S. Prasad, Add!. Secretary of the Board by resolution No. 4854 dated 6.8.2007 in the following manner:- "And whereas, on due consideration the Chairman gone through the all records and file along-with committee report and found that the alleged officer was not dealing with that job for which bribe was allegedly demanded, the subject was not jurisdiction of Sri Siyawar Singh (petitioner), the then Joint Secretary-II, as such, why should anyone pay him for that work and so it was a clear case of conspiracy. So he ordered to decline the request of Vigilance Department in respect of according sanction of prosecution an~ also absolve the officer of the allegation on the basis of enquiry report. Hence sanction of prosecution is declined and he is absolved from the allegation." Xerox copy of the said resolution finds annexed with the main petition at page No. 34. 9. The prayer for discharge of the petitioner under Section 227 Cr. Hence sanction of prosecution is declined and he is absolved from the allegation." Xerox copy of the said resolution finds annexed with the main petition at page No. 34. 9. The prayer for discharge of the petitioner under Section 227 Cr. P.C. was refused by the Special Judge Vide Impugned order dated 5.9.2007 on the wound that the contention raised by the petitioner would be looked into at the time of passing final order and that the court had only to ascertain at that stage as to whether a prima facie case was made out against the petitioner or not. Having gone through the materials on the record, the court found prima facie case to frame charge against the petitioner under Sections 7 and 13(2) read with Section 13(1 )(d) of the P.C. Act. 10. Mr. Tandon further submitted that any kind of error, omission or irregularity in the sanction order for prosecution of an accused under the P.C. Act would occasion failure of justice and placed his reliance upon the decision, reported in (2005)8 SCC 130 . The Apex Court of India in the case of State of Goa VS. Babu Thomas observed:- "Learned counsel for the appellant, however, referred to sub-section 3 of Section 19 of the Act. Sub-section 3 of Section 19 read as under: 19(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 i~ a failure of justice. .(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 i~ 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." Referring to the aforesaid provisions, it is contended by learned counsel for the appellant that the court should not, in appeal, reverse or alter any finding, sentence or order passed by a Special Judge on the ground of the absence of any error, omission or irregularity in the sanction required under sub-section (1), unless the court finds that a failure of justice has In fact been occasioned thereby. In this connection, a reference was made to the decision of this Court rendered in the case of State vs. T. Venkatesh Murthy. Reference was also made to the decision of this Court in the case of Durga Dass vs. State of H.P. where this Court has taken the view that the court should not interfere in the finding or sentence or order passed by a Special Judge and reverse or alter the same on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1). unless the court finds that a failure of justice has in fact been occasioned thereby. According to the counsel for the appellant no failure of justice has occasioned merely because there was an error, omission or irregularity in the sanction required because evidence is yet to start and in that view the High Court has not considered this aspect of the matter and it is a fit case to intervene by this Court. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission In the order of sanction as required under sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission In the order of sanction as required under sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not 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 as stated in clauses (a), (b) and (c). As already noticed. the sanction order .is not a mere irregularity, error or omission. the first sanction order dated 2.1.1995 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7.9.197 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14.9.1994, which IS bad. The cognizance was taken by the Special Judge on 29.5.1995. Therefore. when the Special Judge took cognizance on 29.5.1995, there was no sanction order under the law authorizing him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction. 11. A counter affidavit has been filed on behalf of the Opposite Party NO.2 i.e. the Chairman, JSEB on 21.2.2008, which was sworn by the officer of the rank of the Joint Secretary, stating therein that the Jharkhand State Electricity Board took a decision vide resolution No. 4854 dated 6.8.2007 whereby sanction of prosecution as required by the Superintendent of Police, Vigilance Cell, Ranchi vide letter no. 1256 dated 29.3.2007 was denied and the petitioner was absolved from the charges (Annexure-A). 12. On the other hand, Mr. A.K. Kashyap, the learned Senior Counsel for and on behalf of the State Vigilance, submitted that the petitioner was apprehended red handed while accepting Rs.10,000/- as bribe from the complainant/opposite party No. 2 in presence of two independent witnesses and when the hands and pocket of the petitioner were washed and its residue mixed with the solution of solution bicarbonate, the colour of the solution turned pink which proved that the petitioner had accepted the bribe money which was tendered by the complainant/ opposite party No.2. 13. 13. Sanction was obtained under Section 197 Cr. P.C. by the Investigating Officer who submitted charge-sheet for criminal prosecution of the petitioner in the relevant sections of the P.C. Act. He further contended that the sanction accorded under Section 197. Cr. P.C. by the Chairman, Jhakhand State Electricity Board was communicated through an officer of the rank of Addl. Secretary (Annexure-2) and there was no impediment in such sanction order which was accorded according to the provisions of law. 14. Heard the learned counsel on behalf of the parties. The object under Section 197 of Cr. P.C. is to protect the public servants against irresponsible, frivolous and vexatious proceeding for the acts done in discharge of official duty and to see that no prosecution is started unless there is some foundation for the charge brought about against the officer and to secure the well considered opinion of a superior authority before the prosecution. The appropriate authority must be satisfied before according sanction that there was a prima facie case for starting the prosecution and this prima facie satisfaction has been imposed as a safeguard before the actual prosecution commence. This policy, according to the settled law, do not settled an officer above the common law. It is also settled that demand for illegal gratification is not an official act so as to call for sanction under Section 197 of Cr. P.C. but at the same time, when a public servant is prosecuted under the Prevention of Corruption Act, sanction under appropriate provision of law is must. In order to necessitate sanction there must be a reasonable connection between the act and discharge of official duty, the act must bear such relations to the duty that he could lay a reasonable but not a pretended and fanciful claim that he did it in course of performance of his duty. 15. In the instant case, I find that sanction accorded under Section 197 Cr. P.C. at the first instance for the criminal prosecution of the petitioner under the Prevention of Corruption Act was issued under the signature of the officer of the rank of Additional Secretary of JSEB and to quote:- "Having been satisfied with report of Investigating Officer and all relevant documents pertaining thereto about the existence of criminal misconduct against the accused, Jharkhand State Electricity Board, Ranchi in exercise of powers conferred on it under Section 197 Cr. P.C. and under Section 13(1 )(d) Prevention of Corruption Act, 1988 is pleased to accord sanction for prosecution vigilance P.S. Case No. 25/04 dated 25.11.2004 against Sri Siyawar Singh, presently EEE, Board Headquarter, Ranchi under Sections 7/13(2) read with Section 13(1 )(d) of Prevention of Corruption Act, 1988 and the same is being communicated. This has got the approval of competent authority." 16. I further find that since the Superintendent of Police, Vigilance Cell, Ranchl had reason to believe that sanction accorded as aforesaid suffered certain error as the sanction was required to be given under Section 19(1 )(b) of the Prevention of Corruption Act, he requested the Chairman of the Jharkhand State Electricity Board vide Memo No. 1256 dated 29.3.2007 to accord the sanction for the criminal prosecution for the petitioner Siyawar Singll under Section 19(1 )(b) of the P.C. Act by modifying the previous sanction order. The Superintendent of Police. Vigilance Cell was conscious that the petitioner cannot be proceeded for want of proper sanction and therefore, he requested to carry out modification in the earlier sanction order and by issuing fresh sanction under Section 19(1 )(b) of the Prevention of Corruption Act. 17. I find from the resolution No. 4854 dated 6.8.2007 issued by the Jharkhand State Electricity Board that upon due consideration and perusal of the records and file along-with report of the Committee, the Chairman found that the alleged officer was not dealing with that job for which bribe was allegedly demanded, the subject was not within the jurisdiction of the petitioner (Sri Siyawar Singh), the then Joint Secretary-II, as such why should anyone pay him for that work and so it was a clear case of conspiracy. In such situation the Chairman declined the request of Vigilance Department in respect of according sanction of prosecution and also absolve the officer of the allegation on the basis of enquiry report. 18. In such situation the Chairman declined the request of Vigilance Department in respect of according sanction of prosecution and also absolve the officer of the allegation on the basis of enquiry report. 18. In the facts and circumstances of the case, it is evidently clear that the first sanction, which was accorded for the criminal prosecution, was not in accordance with law as it was not under Section 19(1 )(b) of the Prevention of Corruption Act whereas, when the prosecution agitated for modified sanction order in the relevant section, the Chairman of the Jharkhand State Electricity Board in consultation with other departments and the Members of the Board, declined to accord sanction of prosecution of the petitioner and he absolved him from the allegation having been satisfied with the enquiry report. 19. In the facts and circumstances of the case, I find and hold that the mandatory provision of law as required under Section 19(1 )(b) of the P.C. Act, 1988 has not been complied and so the criminal prosecution of the petitioner for the alleged offence under Sections 7, 13(2) read with Section 13(1)(d) of P.C. Act cannot sustain. 20. Section 19 of the Prevention of Corruption Act, 1988 deals with the previous sanction necessary for prosecution; 19(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— (b) ill the case of a person who is employed in connection with the affairs of a state and is not removable from his office save or with the sanction .of the State Government, of that Government. Therefore, in view of the proposed charge against the petitioner under Sections 7 and 13 the sanction under Section 19(1 )(b) is condition precedent which must be complied. 21. In my opinion,' the error and irregularity in the sanction order accorded under Section 197 of Cr. P.C., occasioned the failure of justice on the grounds that it was neither accorded by a competent person nor in the appropriate section required under Section 19(1)(b) of the P.C. Act. It is further evident that when the prosecution detected error and took the matter for modification to be carried out in the previous sanction under Section 197 Cr. P.C., occasioned the failure of justice on the grounds that it was neither accorded by a competent person nor in the appropriate section required under Section 19(1)(b) of the P.C. Act. It is further evident that when the prosecution detected error and took the matter for modification to be carried out in the previous sanction under Section 197 Cr. P.C. by replacing it under Section 19(1 )(b) of the P.C. Act, 1988, the same was declined by absolving the petitioner from his criminal liability. 22. In the circumstances for want of appropriate sanction under Section 19(1 )(b) for the alleged offences under Sections 7 and 13 of the P.C. Act the petitioner cannot be criminally prosecuted. There appears merit in the Cr. Rev. and accordingly, criminal prosecution of the petitioner in the alleged offence under Sections 7, 13(2) read with Section 13( 1)( d) of the Prevention of Corruption Act, 1988 arising out of Special Case No. 29 of 2004 pending in the Court of Special Judge, Vigilance, Ranchi cannot sustain and it is set aside accordingly. 23. This Cr. Rev. is allowed.