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2010 DIGILAW 1153 (MP)

Bramha Swaroop Saini v. State of M. P.

2010-11-19

R.C.MISHRA, VIMLA JAIN

body2010
ORDER R.C. Mishra, J. 1. This revision has been preferred against the order-dated 11/03/2010 passed by Special Judge [under the Prevention of Corruption Act, 1988] (for short the 'Act'), Bhopal in Special Case No. 07/2010, rejecting preliminary objection regarding sanction, as contemplated under Section 19(1) of the Act, for prosecution of the Petitioner in respect of the offence punishable under Section 13(1)(e) read with 13 (2) thereof. 2. Allegations against the Petitioner, in substance, are that while working as Executive Engineer in Division No. 1 of the Madhya Pradesh Housing Board, a statutory body created under Section 3 of the MP. Griha Nirman Mandal Adhiniyam, 1972, at Bhopal, he committed criminal misconduct by acquiring assets, disproportionate to his known sources of income for which he could not satisfactorily account. However, the charge sheet was submitted at the time when he was posted as Executive Engineer of Division No. 5 of the Board at Bhopal only. 3. A bare reading of the impugned order would show that the objection raised against taking of cognizance of the offence without previous sanction was overruled in view of the fact that the Petitioner had ceased to hold office of the Executive Engineer, Division No. 1, allegedly abused or misused by him. For this, learned Special Judge placed implicit reliance on the following observations made by the Apex Court in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1 - The main contention advanced by Shri Venugopal, learned Senior Counsel appearing for the Appellant is that a public servant who continues to remain so (on transfer) has got to be protected as long as he continues to hold his office. According to the Learned Counsel, even if the offending act is committed by a public servant in his former capacity and even if such a public servant has not abused his subsequent office still such a public servant needs protection of Section 19(1) of the Act. According to the Learned Counsel, the judgment of this Court in R.S. Nayak case (1984) 2 SCC 183 holding that the subsequent position of the public servant to be unprotected was erroneous. According to the Learned Counsel, the public servant needs protection all throughout as long as he continues to be in the employment. The plea is clearly untenable as Section 19(1) of the Act is time and offence related. According to the Learned Counsel, the public servant needs protection all throughout as long as he continues to be in the employment. The plea is clearly untenable as Section 19(1) of the Act is time and offence related. However, while doing so, learned trial Judge completely lost sight of the guideline reiterated in that case only that a decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context. Other guiding principles to be followed in applying a decision of the Supreme Court may be summed up as under: - The judgment of a Court has not to be interpreted like a Statute where every word, as far as possible, has to be given a literal meaning and no word is to be ignored. The observations made have to be understood in the context of the facts and contentions raised (Kesar Devi v. Union of India AIR 2003 SC 4195 ). Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. (Ashwani Kumar Singh v. U.P. Public Service Commission AIR 2003 SC 2661 ). A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of Supreme Court divorced from the context of the question under consideration and treat it to be complete law decided by Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions, which were before Supreme Court (Mehboob Dawood Shaikh v. State of Maharashtra AIR 2004 SC 2890 ). 4. Accordingly, after reading the judgment rendered in Parkash Singh Badal's case as a whole, it can easily be concluded that the word 'transfer' used in the observations referred to by learned Special Judge implies change of authority competent to accord sanction under Section 19(1) of the Act viz. 4. Accordingly, after reading the judgment rendered in Parkash Singh Badal's case as a whole, it can easily be concluded that the word 'transfer' used in the observations referred to by learned Special Judge implies change of authority competent to accord sanction under Section 19(1) of the Act viz. the one competent to remove him from the office which he alleged to have misused or abused with corrupt motive. For laying down the proposition 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 observations made by the Constitution Bench in R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183 ) were quoted by a two-Judge Bench of the Apex Court in Parkash Singh Badal's case (above) - The expression "office" in the three sub-clauses of Section 6(1) [that corresponds to Section 19(1) of the Act] would clearly denote 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. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. and this interrelation clearly provides a clue to the understanding of the provision in Section 6 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. Therefore, 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. ... Therefore, 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. ... 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. [Emphasis supplied] ... upon a true construction of Section 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him. 5. Adverting to the facts of the case, it may be observed that even after the posting of the Petitioner as Executive Engineer of Division No. 5, the authority competent to remove him from the office held by him in his former capacity as Executive Engineer of Division No. 1 remained unchanged. In other words, for the purpose of Section 19(1) of the Act, he continued to remain in the same office though in a different capacity. 6. In this view of the matter, the preliminary objection raised by the Petitioner ought to have been upheld. In other words, for the purpose of Section 19(1) of the Act, he continued to remain in the same office though in a different capacity. 6. In this view of the matter, the preliminary objection raised by the Petitioner ought to have been upheld. As such, learned Special Judge committed a serious error of jurisdiction in taking cognizance of the offence under the Act without sanction of the competent authority for prosecution of the Petitioner therefore. 7. For these reasons, the revision is allowed and the impugned order-dated 11.03.2010 is hereby set aside. As an obvious consequence, the Petitioner stands released. Needless to say that nothing contained herein shall prevent the Respondent from filing the charge sheet after obtaining necessary sanction from the competent authority.