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2010 DIGILAW 1001 (MP)

Ram Manohar Pandey v. State of Madhya Pradesh

2010-10-01

I.S.SHRIVASTAVA, S.R.WAGHMARE

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JUDGMENT S.R. Waghmare, J. 1. These are two revision petitions filed by a single applicant Shri Ram Manohar Pandey, being aggrieved by order dated 31.3.2010 passed by the same Special Judge Ujjain, (under the provisions of Prevention of Corruption Act) in Special Case No. 16/2004 and 17/2004 with respect to Crime No. 66/93 and 67/93 respectively. By the said order, the learned Judge has taken cognizance against the applicant for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. This common judgment shall govern the disposal of both the cases. 3. The brief facts of the case in a nut shell are that the applicant is a retired employee of the Municipal Corporation Ratlam. At the relevant point of time when the applicant was working on deputation in the Municipal Corporation Ujjain, from 1991 to 1993 as City Engineer, and there were certain charges of corruption against him and the Dy. Superintendent of Police Special Police Establishment Lok Ayakut Ujjain, filed complaint against the applicant which was registered as Crime No. 66/93 for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. 4. Counsel has stated that the challan and its subsequent proceedings were challenged by the applicant before this Court in M. Cr.C. No. 465/2007 stating that the State Government had not granted sanction for the prosecution and hence, the entire proceedings were vitiated and the applicant had prayed for quashment of the order taking cognizance of the complaint and issuance of challan and this Court was pleased to direct that: (i) Petitioner shall file objections before the trial Court at the appropriate stage regarding non- grant of previous sanction, which is necessitated prior to taking cognizance against him as well as of belated action. If such objection is raised, the trial Court shall decide the same in accordance with law. If such objection is raised, the trial Court shall decide the same in accordance with law. (ii) Merely filing of challan before the trial Court shall not be considered to be deemed cognizance taken by the court, because the issue of refusal of sanction against the petitioner is involved as per Section 19(1)(b) of Prevention of corruption Act of previous sanction prior to taking cognizance is mandatorily required and subsequently objections of the applicant has been considered by the Trial Court and rejected by the impugned order dated 9.9.2009 and the Trial Court is proceeding in the matter and hence, the present petition has been filed. 5. Another important point stressed by the Counsel for the applicant was that the delay that has occasioned in prosecuting the applicant is almost 13 years and primafacie there was no case as the respective Municipal Corporations (both at Ujjain as well as Ratlam) have declined sanction for prosecution of the applicant on two occasions. 6. Counsel for the petitioner stated that the learned Judge of the Lower Court could not have taken cognizance in the matter against the applicant since sanction has not been accorded as required under Section 19 of the Prevention of Corruption Act. Counsel stated that not only once but on two occasions sanction has been refused by the competent authorities. 7. The Chairman of the Ratlam Municipal Corporation by letter dated 7.10.2004 has refused sanction to proceed against the present applicant after a resolution was passed by the Corporation. Similarly, the Corporation at Ujjain, had also refused permission to proceed against the present applicant and malafidely the respondents waited till the applicant retired and have moved against him deliberately after the retirement. 8. Counsel relied on several cases to bolster his submissions that when there are allegations of corruption and those acts are said to be done by the employee while performing the official duties then sanction for prosecution of such an employee would be required before proceeding against him in a court of law. He relied on State of Orissa and Ors. v. Ganesh Chandra Jew AIR 2004 SC 2179 to state that protection was afforded to a public servant and sanction was required to prosecute him under Section 197 of the Indian Penal Code and the expression "no court shall take cognizance of such offence except the previous sanction", makes the protection mandatory. He relied on State of Orissa and Ors. v. Ganesh Chandra Jew AIR 2004 SC 2179 to state that protection was afforded to a public servant and sanction was required to prosecute him under Section 197 of the Indian Penal Code and the expression "no court shall take cognizance of such offence except the previous sanction", makes the protection mandatory. The use of the words "no court shall, "bars the very taking of cognizance of the complaint and hence, counsel states that the impugned order taking cognizance of the offence against the present applicant was bad in law and prayed that the same be set-aside. He also relied on State of M.P. v. Sheetla Sahai and Ors. 2009 CRI. L.J. 4436 and Louis Peter Surin v. State of Jharkhand 2010 STPL (Web) 574 SC to state that sanction was necessary even under the Prevention of Corruption Act not by mere analogy but the Apex Court had directed the same. 9. Counsel for the respondent/Department on the other hand, objected the submissions and stated that the analogy cannot be drawn with Section 197 of the Criminal Procedure Code since Section 19 of the Prevention of Corruption Act is worded differently. Moreover, Prevention of Corruption Act is a special act and the special act would prevail over the general provisions of the Criminal Procedure Code. Stating that Section 19 of the Prevention of Corruption Act employed the words that "in case of a person who is employed..."thereby it mandates that the person who is to be prosecuted should be still in the employment of the government i.e., either the Union Government or the State Government and does not include employees who have retired and for this interpretation he placed his reliance on N. Bhargavan Pillia through L.Rs. and Anr. v. State of Kerala AIR 2004 SC 2317 and 1998 Cri.L.J. 4003 Kalicharan Mahapatra v. State of Orissa. A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the Court takes cognizance of the offence. But if he ceases to be a public servant by that time the Court can take cognizance of offence without any such sanction. 10. But if he ceases to be a public servant by that time the Court can take cognizance of offence without any such sanction. 10. Counsel countered that the distinction of sanction to be obtained under Section 197 of the Criminal Procedure Code and that to be obtained under the Prevention of Corruption Act was made out in the case of N. Bhargavan Pillai (supra) whereby the Apex Court while considering the sanction for prosecution under Section 19 of the Prevention of Corruption Act held thus: 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 different in cases where Section 197 of Criminal P.C. 1974 has application. And Counsel for the respondent/department further drew the attention of this Court to the fact that Section 19(3) of the Prevention of Corruption Act provides thus: (3) (a) no finding, sentence or order passed by a special judge shall be reversed or altered by a Court in appeal, confirmation of 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; 11. Thereby indicating that even if the impugned order of taking cognizance of the complaint by the Trial Court in the present case is without sanction from the Corporation it would not be vitiated or bad in law. It could at the most termed to the irregularity and not an illegality. Counsel prayed that the petitions be dismissed as they are devoid of merit. 12. It could at the most termed to the irregularity and not an illegality. Counsel prayed that the petitions be dismissed as they are devoid of merit. 12. On considering the above submissions, we find that the authorities relied on by the Counsel for the applicant are of no help to him since basically they pertain to requirement of sanction for prosecution of the public servant for offences committed under the Indian Penal Code and under Section 197 of the Criminal Procedure Code comes into operation whereas in the instance case the offences are against the applicant are recorded under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and in our considered opinion the provisions of Section 19 of the Prevention of Corruption Act would apply even if the case of the Apex Court in the matter of State of M.P. v. Sheetla Sahai (supra) is considered. The learned Apex Court has in para 60 of the said judgment categorically held that "there exists distinction between a sanction for prosecution under Section 197 of the Prevention of Corruption Act and Section 19 of the Code of Criminal Procedure and it held that whereas in terms of Section 19 it would not be necessary to obtain sanction in respect of those persons who had ceased to be public servant. Section 197 of the Code of Criminal Procedure requires sanction, both for those who were or are public servants. (emphasis mine) 13. Similarly considering the case of Louis Peter Surin (supra) we find in para 6 of the judgment the Apex court had clearly held thus: 6. We may however clarify that this judgment should not be read to mean that sanction would be required in a case where an employee has in the meanwhile superannuated. 14. Thereby clearly indicating that sanction under Section 19 of the Prevention of Corruption Act would not be required for a person who has ceased to be in the employment of the Government or ceased to be a public servant and hence we do not find any infirmity in the order taking cognizance 15. 14. Thereby clearly indicating that sanction under Section 19 of the Prevention of Corruption Act would not be required for a person who has ceased to be in the employment of the Government or ceased to be a public servant and hence we do not find any infirmity in the order taking cognizance 15. Consequently considering the alternative prayer of the Counsel for the applicant to remand the case for a decision on the ground that the Trial Court has not considered the fact that the sanction has been refused twice as in the case decided by the Apex Court in the matter of Louis Peter Surin (supra) we find that the prayer cannot be accepted. The argument though attractive cannot be allowed in the light of the fact that we cannot stifle the prosecution and as submitted by Counsel for the respondents the case is also hit by Section 19 (3) of the Prevention of Corruption Act whereby, at the most, refusal of sanction by the competent authority to proceed against the applicant could be an irregularity but cannot be termed to be an illegality. 16. And directions of the Supreme Court as indicated above in the matter of Sheetla Sahai (supra) we find that the liability of the retired public servant who committed an offence under the provisions of the Prevention of Corruption Act such an employee cannot claim immunity on the ground of want of sanction merely because he has ceased to be a public servant. 17. We find no merit in these petitions, the same are dismissed as such. Registry is directed to maintain a copy of this order in Criminal Revision No. 803/2010.