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Madhya Pradesh High Court · body

2010 DIGILAW 1141 (MP)

O. P. Shukla v. State of M. P.

2010-11-18

R.C.MISHRA, VIMLA JAIN

body2010
ORDER R.C. Mishra, J. 1. In this revision, subject matter of challenge is the order dated 8/3/2010 passed by the Special Judge [ under the Prevention of Corruption Act, 1988 (for brevity the 'Act')], Satna, in relation to Crime No. 1/2006 registered at SPE (Lokayukta), Rewa, against the Petitioner and two others namely R.K. Shrivastava and S.K. Trivedi, in respect of the offences punishable under Sections 409, 420, 468, 471, 477-A and 120-B of the IPC as well as Section 13(l)(d) read with Section 13(2) of the Act. 2. Allegations as against the Petitioner, in short, are that in pursuance of a conspiracy, he, while working as General Manager of M.P. State Civil Supplies Corporation Limited (for short "Corporation"), was involved in forgery and cheating the State Exchequer by claiming allowances for his lodging and boarding at Satna in connection with a meeting organized on 30.05.2003, despite the fact that entire expenditure incurred on his stay at Hotel Savera was borne by the Corporation and in this way, by abusing his position as a public servant, obtained for himself pecuniary advantage through illegal or corrupt means. 3. The Petitioner is a member of State Administrative Services. He was appointed as Deputy Collector in the General Administration Department, Government of M.P. in the year 1993. At the relevant point of time, he was on deputation to the Corporation having its head quarters at Bhopal whereas on the date of filing of charge sheet also, he was holding the post of Special Assistant to Minister for Cultural Affairs, Govt. of M.P. at Bhopal. 4. Admittedly, no sanction was obtained under Section 19 of the Act for prosecution of anyone of the accused in respect of the offences under the Act and, by the time the investigation was completed, co-accused S.K. Trivedi, who made the payment of hotel expenses in his official capacity as District Manager of the Corporation at Satna, had already retired. The other two accused viz. the Petitioner and R.K. Shrivastava, the then Regional Manager in the Corporation at Katni, raised preliminary objection against taking of cognizance of the offences under the Act in absence of sanction under Section 19 of the Act thereof. The other two accused viz. the Petitioner and R.K. Shrivastava, the then Regional Manager in the Corporation at Katni, raised preliminary objection against taking of cognizance of the offences under the Act in absence of sanction under Section 19 of the Act thereof. However, learned trial Judge, for the reasons assigned in the impugned order, proceeded to uphold the objection so far as it related to co-accused R.K. Shrivastava who had continued to be in the services of the Corporation. However, he further took the view that the objection raised by the Petitioner was not sustainable in the light of the principles laid down by the Apex Court in Parkash Singh Badal v. State of Punjab AIR 2007 SC 1274. 5. Learned Senior Counsel, while placing reliance on a decision of the Supreme Court in V.K. Sharma v. State (Delhi Administration) (1975) 1 SCC 784 , has strenuously contended that no cognizance of the offences under the Act could be taken against him in absence of sanction by the Government of M.P. through G.A.D (General Administration Department) that still continues to be the dismissing authority. Reference has also been made to the following observations made in Para 3 of the judgment in Parkash Singh Badal's case (ibid)- It is stated that though the High Court primarily relied on a Constitution Bench decision of this Court in R.S. Nayak v. A.R. Antulay ( 1984 (2) SCC 183 ), the said decision was rendered in the context of the Prevention of Corruption Act, 1947 (in short the 'Old Act'). It is submitted that the provisions contained in Section 6 thereof are in part material to Section 19 of the Act so far as relevant for the purpose of this case; the effect of Section 6(2) of the Old Act (corresponding to Section 19(2) of the Act) was lost sight of The decision in the said case was to the effect that if an accused is a public servant who has ceased to be a public servant and/or is a public servant of different category then no sanction in terms of Section 19(1) of the Act corresponding to Section 6(1) of the Old Act is necessary. In response, learned Special Public Prosecutor, has submitted that the impugned order, being well merited, does not warrant interference. 6. At the outset, it may be observed that there exists a distinction between "transfer" and "deputation". In response, learned Special Public Prosecutor, has submitted that the impugned order, being well merited, does not warrant interference. 6. At the outset, it may be observed that there exists a distinction between "transfer" and "deputation". "Deputation" connotes service outside the cadre or outside the parent department in which an employee is serving. "Transfer", however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications (See. Prasar Bharati v. Amarjeet Singh (2007) 9 SCC 539 ). 7. V.K. Sharma (above), a quasi-permanent Lower Division Clerk of the Central Secretariat Clerical Service, Grade II, who was borne on the cadre of Community Development and Co-operation, had come temporarily to the Rationing Department with his lien on his post on the Central Secretariat. The sanction was granted by Deputy Secretary of the Department, who was competent to remove V.K. Sharma from his office within the meaning of Clause (c) of Sub-section (1) of Section 6 of the Act. It was on these facts that the Apex Court while holding that the sanction was granted by the competent authority had rejected the contention that the sanction ought to have been granted by the Chief Controller, Rationing. 8. There cannot be any dispute with the proposition that by virtue of Rule 20 of the M.P. Civil Services (Classification, Control and Appeal), Rules, 1966, powers of termination of services of the Petitioner even when he was on deputation to the Corporation continued to vest in the appointing authority viz. the State Government. For this, reference may also be made to the decision of a single Bench of this Court in Kanchan Singh v. State of M.P 2005 (1) MPLJ 476 . 9. However, the question germane for decision of this revision is as to whether State Government's sanction, under Section 19(1) of the Act, was necessary for prosecution of the Petitioner in respect of the offences under the Act? 10. Section 19 of the Act corresponds to Section 6 of the Prevention of Corruption Act, 1947. 9. However, the question germane for decision of this revision is as to whether State Government's sanction, under Section 19(1) of the Act, was necessary for prosecution of the Petitioner in respect of the offences under the Act? 10. Section 19 of the Act corresponds to Section 6 of the Prevention of Corruption Act, 1947. As pointed out by the Constitution Bench in R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183 ), the expression 'office' denotes that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused and this interrelation between the office and its abuse is the key to understand the provision providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the Court against the public servant. 11. The obvious conclusion was couched in these words- It unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office, which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. 12. Further, for re-affirming the principle that sanction for prosecution in case the public servant is no longer holding the post/office during the holding of which the alleged offence was committed, the following illustration, given by the Constitution Bench in R.S. Nayak's case (supra), was reproduced in Parkash Singh Badal's case (above)- Now if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law Courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to us. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned Counsel that a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the Court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal law, and was holding that office on the date on which Court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. One can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time Court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the Court can take cognizance of the offence committed by such public servant/while abusing one office which he may have ceased to hold. Such an interpretation is contrary to all canons of construction and leads to an absurd and product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue's charter. (See Davis and Sons Ltd. v. Atkins [1977] I C R 662) [Emphasis supplied] Accordingly, there was no necessity of sanction by the State Government for prosecution of the Petitioner in respect of the offences under the Act allegedly committed by him as General Manager of the Corporation. 13. The Apex Court in K. Karunakaran v. State of Kerala, (2007) 1 SCC 59 has already declined the prayer to have a fresh look at the view expressed in R.S. Nayak's case (ibid). Moreover, as pointed out in Lalu Prasad v. State of Bihar (2007) 1 SCC 49 , the plea that the effect of the Law Commission's Report and that of the Committee headed by Dr. Moreover, as pointed out in Lalu Prasad v. State of Bihar (2007) 1 SCC 49 , the plea that the effect of the Law Commission's Report and that of the Committee headed by Dr. Bakshi Tek Chand has not been considered by the legislature and therefore this is a case of "casus omissus" has also been rejected in Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411 with these observations- 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 PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code. 14. In the light of the factual scenario as highlighted above and the well-settled position of law holding that Section 19(1) of the Act is time and offence related, the question deserves to be answered in the negative. As such, learned trial Judge did not commit any error of jurisdiction in rejecting the objection as to want of sanction for prosecution of the Petitioner for the offences under the Act. 15. Consequently, no interference with the order-dated 8/3/2010 (supra) is called for under the revisional jurisdiction. 16. The revision, therefore, stands dismissed.