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2011 DIGILAW 604 (MP)

R. P. Dewangan v. State of M. P.

2011-05-13

R.C.MISHRA, VIMLA JAIN

body2011
ORDER : R.C. Mishra, J. This revision is directed against the order dated 26-6-2009 passed by Special Judge (under the Prevention of Corruption Act, 1988) (for brevity 'the Act'), Rewa in Special Case No. 2/08,'rejecting petitioner's objection as to want of sanction under Section 197 of the Criminal Procedure Code (for short "the Code") for his prosecution. 2. The petitioner is facing trial upon the charges of the offences punishable under Sections 420 read with 120-B of the IPC and Section 13 (1) (d) read with Section 13 (2) of the Act. The charges, in substance, are that in pursuance of a conspiracy hatched between him and the persons arraigned as co-accused, he had accorded permission to sell certain lands belonging to Ujjaini Maharani Public Trust Anathalaya, Rewa against the interest of the Trust and the corresponding sale transactions ultimately resulted into a total loss of Rs. 26,23,321/- to the Trust. 3. Being aggrieved by the order dated 27-12-2008 framing the aforesaid charges, the petitioner also preferred a revision inter alia on the ground of absence of sanction under Section 197 of the Code as well as that of statutory protection under Section 3 of the Judges (Protection) Act, 1985 (for short "Act of 1985") before this Court. However, observing that the question of sanction was not projected against the backdrop of its refusal by the State of Madhya Pradesh, a co­ordinate Bench of this Court, vide order dated 28-1-2009 passed in Criminal Revision No. 79/09, disposed of the revision with liberty to raise the plea of sanction before the Trial Court. Accordingly, the petitioner raised the objection before the Trial Court by way of an application on 4-2-2009 but, as pointed out already, it was rejected by the order forming subject-matter of challenge in this revision. 4. The following facts are not in dispute :- (i) The petitioner was a member of State Administrative Service in the undivided State of Madhya Pradesh. At the relevant point of time, he was working as SDO and Registrar, Public Trust, Rewa. 4. The following facts are not in dispute :- (i) The petitioner was a member of State Administrative Service in the undivided State of Madhya Pradesh. At the relevant point of time, he was working as SDO and Registrar, Public Trust, Rewa. (ii) After due investigation, the report and the corresponding records were forwarded to Principal Secretary, Department of Law and Legal Affairs, Bhopal along with a letter of request for grant of sanctions under Section 197 of the Code and Section 19 (1) of the Act to prosecute the petitioner as well as other public servants, namely :- (i) Omkarnath Pandey, Deputy Collector (ii) Vineet Tiwari, Superintendent Land Records (iii) Suresh Kumar Agrawal, Tehsildar (iv) Surendra Deo Pathak, Sub-Registrar (v) Ramsevak Chaturvedi, Record Keeper in the office of Sub-Registrar (vi) Partheshwar Pandey, Patwari (vii) Nagendra Singh, Patwari In respect of the offences under Sections 120-B, 420, 467, 468 and 471 of the IPC and also under Section 13 (1) (d) read with Section 13 (2) of the Act. However, for the reasons recorded in the order dated 8-11-2007, the Secretary in the Department declined to grant the sanctions. (iii) Taking note of the fact that consequent to reorganisation of State of M.P., the petitioner was allotted to State of Chhattisgarh, that was brought into existence w.e.f. 1-11-2000, the Investigating Agency applied for sanctions of the new State. The Additional Secretary, Department of Law and Legislative, Government of Chhattisgarh by way of order dated 16-5-08, accorded the sanctions as prayed for. (iv) On the date of filing of the charge-sheet, the petitioner was posted as Additional Collector, Distt. Kawardha (Chhattisgarh). 5. Learned Counsel for the petitioner, while placing reliance on the pronouncement of the Apex Court in R.R. Chart Vs. State of U.P., AIR 1962 SC 1573 , has strenuously contended that State of Madhya Pradesh alone was competent to grant the sanction as, at the relevant point of time, he was employed in connection with the affairs of that State. According to him, the State of Chhattisgarh that was not even in existence during the corresponding period, was not expected to know as to whether the petitioner had committed the offences while acting or purporting to act in the discharge of his official duty. Making reference to the decision of the Supreme Court in State of Punjab Vs. Mohd. According to him, the State of Chhattisgarh that was not even in existence during the corresponding period, was not expected to know as to whether the petitioner had committed the offences while acting or purporting to act in the discharge of his official duty. Making reference to the decision of the Supreme Court in State of Punjab Vs. Mohd. Iqbal Bhatti, (2009) 17 SCC 92 , he has further urged that power to review Competent Authority's earlier order refusing sanction could not be exercised on the same material. In response, learned Govt. Advocate has submitted that the State of Madhya Pradesh had no authority to consider the question of grant/refusal of the sanction. 6. It will also be appropriate at this stage to refer to the provisions of Section 197 (1) of the Code :- "Section 197. Prosecution of Judges and Public Servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or as the case may be was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government." (Emphasis supplied) 7. Services of R.R. Chari (supra), who was a public servant under Assam Government, were lent to Central Government and offences under Sections 161 and 165, IPC were allegedly committed whilst in service under Central Government. In this factual scenario, the Supreme Court laid down the following test for determining the Sanctioning Authority :- "What is relevant for the purpose of deciding as to who should give the sanction under Section 197, Cr.PC (as it stood in 1949), is to ask the question : where is the public servant employed at the relevant time ? In this factual scenario, the Supreme Court laid down the following test for determining the Sanctioning Authority :- "What is relevant for the purpose of deciding as to who should give the sanction under Section 197, Cr.PC (as it stood in 1949), is to ask the question : where is the public servant employed at the relevant time ? If he is employed in the affair of the Federation, it must be the Governor-General in spite of the fact that such employment may be temporary and may be the result of the fact that the services of the public servant have been loaned by the State Government to the Government of India." 8. We cannot resist the temptation to quote the relevant observations made in Para 19 of the judgment rendered in R.R. Chari's case (supra), as they contain necessary guideline to decide the issue involved in this revision :- "That takes us to the question as to whether the Government of India was competent to grant the sanction even if the appellant was at the relevant time a person employed in connection with the affairs of the Federation. Mr. Chari contends that in the case of the appellant whose services had been loaned by the Assam Government to the Government of India, it could not be said that he was a person permanently employed in connection with the affairs of the Federation and so, clause (a) of Section 197 (1) would not apply to him at all. He was a person permanently employed in connection with the affairs of a State and that took the case under clause (b), which means that it is the Governor of Assam exercising his individual judgment who could have accorded valid sanction to the appellant's prosecution. We are not impressed by this argument. He was a person permanently employed in connection with the affairs of a State and that took the case under clause (b), which means that it is the Governor of Assam exercising his individual judgment who could have accorded valid sanction to the appellant's prosecution. We are not impressed by this argument. It is clear that the first part of Section 197 (1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a Criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197 (1) clearly is to save public servants from frivolous prosecution, vide Afzalur Rahman Vs. Emperor, 1943 FCR 7 at p. 12 = (AIR 1943 FC 18 at p. 21). That being the object of the section, it is clear that if persons happened to be employed in connection with the affairs of the Federation, it was the Governor-General who gave sanction and if persons happened to be employed in connection with affairs of the State, it was the Governor. Therefore, having regard to the fact that at the relevant time the appellant was employed in connection with the affairs of the Federation, it was the Governor-General alone who was competent to accord sanction. Therefore, our conclusion is that the sanction granted by the Governor-General for the prosecution of the appellant is valid." As an obvious consequence, the State, in connection with affairs of which the petitioner was employed at the relevant point of time, was competent to grant sanction under Section 197 of the Code. Therefore, our conclusion is that the sanction granted by the Governor-General for the prosecution of the appellant is valid." As an obvious consequence, the State, in connection with affairs of which the petitioner was employed at the relevant point of time, was competent to grant sanction under Section 197 of the Code. However, fact of the matter is that by virtue of sub-section (2) of Section 69 of the Madhya Pradesh Reorganisation Act, 2000, all services prior to the appointed day rendered by the petitioner in connection with the affairs of the State of Madhya Pradesh are deemed to have been rendered in connection with the affairs of State of Chhattisgarh. For a ready reference, the entire Section may be reproduced as under :- "69. Provisions relating to other services.- (1) Nothing in this section or Section 68 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State : Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Madhya Pradesh or to the State of Chhattisgarh under Section 68 shall not be varied to his disadvantage except with the previous approval of the Central Government. (2) All services prior to the appointed day rendered by a person- (a) if he is deemed to have been allocated to any State under Section 68, shall be deemed to have been rendered in connection with the affairs of that State; (b) if he is deemed to have been allocated to the Union in connection with the administration of the Chhattisgarh shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service. (3) The provisions of Section 68, shall not apply in relation to members of any All India Service." (Emphasis supplied) 10. In view of the deeming fiction created by sub-section (2) (supra), it was only the State of Chhattisgarh, which could accord the sanction under Section 197 of the Code for prosecution of the petitioner. 11. (3) The provisions of Section 68, shall not apply in relation to members of any All India Service." (Emphasis supplied) 10. In view of the deeming fiction created by sub-section (2) (supra), it was only the State of Chhattisgarh, which could accord the sanction under Section 197 of the Code for prosecution of the petitioner. 11. Reverting to the contention as to review, it may be observed that after decline of sanction by the State of Madhya Pradesh and before grant of sanction by the State of Chhattisgarh, an additional material in the form of a common order dated 21-4-2008 passed by this Court in M.Cr.C. No. 3901/07 and connected M.Cr.C. Nos. 3107/2007 and 3114/2007, dismissing the petitions under Section 482 of the Code, filed by the petitioner and some of the co-accused, had also come into existence. Thus, even for the sake of argument, it is assumed that, in effect, the order dated 8-11-2007 refusing sanction was reviewed by way of order dated 16-5-2008, exercise of the power to review the administrative order was justified in the light of the ratio propounded in Mohammed Iqbal Bhatti's case (supra). 12. For these reasons, the objection as to want of sanction under Section 197 of the Code has no merit or substance. 13. Although, sub-section (1) of Section 3 of the Act of 1985, affords protection to the person, who is or was a Judge as defined in Section 2 yet, sub­section (2) thereof expressly saves power of the State Government to take action even by way of criminal proceedings against such person. Moreover, taking into consideration the nature of offences, it is difficult to hold that they were committed by the petitioner, in the course of acting or purporting to act in the discharge of his official or judicial duty or function. As such, the petitioner was also not entitled to protection under Section 3 of the Act of 1985. 14. Thus, viewed from any angle, the impugned order does not require interference under the revisional jurisdiction. 15. In the result, the revision stands dismissed.