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2012 DIGILAW 332 (HP)

RAM DASS PANWAR v. STATE OF H. P.

2012-06-11

KULDIP SINGH

body2012
JUDGMENT : KULDIP SINGH, J. 1. This revision has been filed against order dated 16.11.2010 passed by learned Special Judge, Bilaspur, H.P. in Corruption Case No. 3 of 2009 State of H.P. vs. Meena Kumari and others. It has been stated in the petition that one Meena Kumari forged/fabricated certificate from the Board of School Education for obtaining the job on compassionate ground after the demise of her husband Trilok Chand. An FIR No. 3 of 2002 was registered on 24.9.2002 at State Vigilance and Anti Corruption Bureau, Bilaspur under Sections 419, 420, 467, 468, 471 and 120-B IPC read with Section 13 (1) and 13(2) of the Prevention of Corruption Act, 1988 (for short 'Act'). The petitioner in the year 2008 has been implicated as an accused. The petitioner at the relevant time was serving as Additional District Magistrate, Bilaspur. The allegation against the petitioner is that he attested the affidavit as Additional District Magistrate. The affidavit was entered in the register on an ante date and Meena kumari was mentioned as Meena Soni. The petitioner has been falsely implicated in the case. 2. The police submitted 173 Cr.P.C. report in the year 2009 and the petitioner was summoned without application of mind. There is no sanction to prosecute the petitioner u/s 197 Cr.P.C. The learned Special Judge has erred in framing charge against the petitioner. The submission has been made for quashing the charge framed against the petitioner. 3. Heard. The learned counsel for the petitioner has submitted that learned Special Judge has framed charge against petitioner u/s 465 IPC read with Section 120-B IPC, Section 468 IPC read with Section 120-B IPC, Section 13 (1) (b) (d) and 13 (2) of the Prevention of Corruption Act read with Section 120-B IPC. It has been submitted that petitioner allegedly attested the affidavit in question as government servant and, therefore, he cannot be prosecuted for want of sanction u/s 197 Cr.P.C. He has relied judgment dated 27.6.2011 in Criminal Revisions No. 98, 99 of 2011 decided on 27.6.2011. The learned Additional Advocate General has submitted that no sanction is required for prosecuting the petitioner either u/s 197 Cr.P.C. in view of nature of offence committed by him or u/s 19 of the Prevention of Corruption Act. The petitioner has already retired and no sanction under Prevention of Corruption Act is required for prosecuting a retired public servant. 4. The learned Additional Advocate General has submitted that no sanction is required for prosecuting the petitioner either u/s 197 Cr.P.C. in view of nature of offence committed by him or u/s 19 of the Prevention of Corruption Act. The petitioner has already retired and no sanction under Prevention of Corruption Act is required for prosecuting a retired public servant. 4. In Criminal Revisions No. 98, 99 of 2011 decided on 27.6.2011 petitioners were charged u/s 13(2) read with Section 13(1) of the Prevention of Corruption Act read with Section 120-B IPC. The learned Single Judge noticed State of Madhya Pradesh Vs. Sheetla Sahai and Others, (2009) CriLJ 4436 and held that there can now be no doubt that sanction u/s 197 would be required even if the public servant has retired. In both the cases, sanction was declined by the Sanctioning Authority, therefore, the learned Single Judge proceeded to hold that charge u/s 13(2) read with Section 13(1) of the Prevention of Corruption Act read with Section 120-B IPC cannot continue. In Sheetla Sahai (supra), the Supreme Court has held that there exists a distinction between a sanction for prosecution u/s 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants. 5. The Supreme Court in State of H.P. Vs. M.P. Gupta, (2003) 10 JT 32 has held: the contention of the respondent for offence under Sections 406, 409 read with Section 120-B IPC, sanction u/s 197 of the Code is a condition precedent for launching prosecution is equally fallacious. In Shreekantiah Ramayya Munipalli Vs. The State of Bombay, AIR 1955 SC 287 and in Amrik Singh Vs. The State of Pepsu, AIR 1955 SC 309 the legal position has been stated that it is not every offence committed by a public servant which requires sanction for prosecution u/s 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position, it was held in Harihar Prasad, etc. Vs. Following the above legal position, it was held in Harihar Prasad, etc. Vs. State of Bihar, (1972) CriLJ 707 as follows:- As far as the offence of criminal conspiracy punishable u/s 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5 (2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction u/s 197 of the Code of Criminal Procedure is, therefore, no bar. 6. The Supreme Court in State of Kerala Vs. V. Padmnabhan Nair, AIR 1999 SC 2405 has observed that Sections 467, 468 and 471 relate to forgery of valuable security, Will etc.; forgery for the purpose of cheating and using as genuine a forged document respectively. The Supreme Court held that it is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction u/s 197 of the Code is, therefore, no bar. The petitioner has been charged u/s 465 IPC read with Section 120-B IPC, Section 468 IPC read with Section 120-B IPC, Section 13(1) (b) (d) and Section 13 (2) of the Prevention of Corruption Act read with Section 120-B IPC. 7. In M.P.Gupta (supra), the Supreme Court has noticed Harihar Prasad (supra) wherein it has been held offence of criminal conspiracy punishable u/s 120-B read with Section 409 of the Indian Penal Code and also Section 5 (2) of the Prevention of Corruption Act cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. It is no part of the duty of a public servant, while discharging his official duties to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction u/s 197 of the Code of Criminal Procedure is, therefore, no bar. Harihar Prasad (supra) and Padmanabhan Nair (supra) are fully applicable in so far contention of petitioner framing charge for want of sanction u/s 197 Cr.P.C. is concerned. Want of sanction u/s 197 of the Code of Criminal Procedure is, therefore, no bar. Harihar Prasad (supra) and Padmanabhan Nair (supra) are fully applicable in so far contention of petitioner framing charge for want of sanction u/s 197 Cr.P.C. is concerned. It is not part of the duty of the public servant to commit offence of the nature for which petitioner has been charged nor it was part of the duty of the petitioner to enter into criminal conspiracy or indulge in criminal misconduct. In these circumstances, the framing of charge against petitioner for want of sanction u/s 197 Cr.P.C. cannot be said to be wrong. The petitioner has retired from service, therefore, sanction to prosecute him under the Prevention of Corruption Act is not required. There is no merit in the revision, hence dismissed. The pending application, if any, is also disposed of.