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2013 DIGILAW 292 (ALL)

ARUN KUMAR CHOWDHARY v. STATE OF U. P.

2013-01-24

SUNIL HALI

body2013
JUDGMENT Hon’ble Sunil Hali, J.—Heard Sri V.C. Misra, learned Senior Advocate, assisted by Sri Vivek Misra, learned counsel for the applicant and Sri Anurag Khanna, learned counsel for the C.B.I. 2. The present application has been filed with a prayer to quash the impugned order dated 8.11.2012 passed by Special Judge, Anti-Corruption, C.B.I. Ghaziabad in Sessions Trial NO. 16/12 (C.B.I. v. Chandrajeet Yadav and others). Two fold submissions have been made by the learned counsel for the applicant; (a) that while taking cognisance under Section 191-B Cr.P.C. the Magistrate is to issue process only for the offences which have been reflected in the charge-sheet. (b) that cognisance has been taken in violation of Section 197 Cr.P.C. as no sanction was granted to prosecute the applicant for having committed offences under Sections 407, 468 and 471 IPC. 3. From the perusal of the allegations contained in the charge-sheet the applicant can only be found to be negligent and not having committed mis-conduct as defined under Prevention of Corruption Act. The allegation, in brief, as mentioned in the FIR is that during investigation of the case, Case crime No. 115 of 2011, Police Station Wazirganj, Lucknow, relating to murder of two Chief Medical Officers of department of Family Welfare, Lucknow by U.P. Police, it transpired that the funds allotted for the National Rural Health Mission (in short NRHM) have been rampantly misused by Sri A.K. Shukla, Chief Medical Officer, Lucknow, Dr. Y.S. Sachan, Deputy Chief Medical Officer, Family Welfare and other officials/officers in connivance with contractors and firms by way of making fraudulent reimbursement claims relating to hiring of vehicles, man power and purchase of medicines etc. The specific allegation against the applicant is that he was working as Additional Chief Medical Officer. 4. The investigation has revealed that so far as the process of approval for payments in respect of these activities is concerned, all the bills/vouchers in respect of above mentioned activities at the Chief Medical Officer level are submitted to the Clerk/Accountant. He verifies the vouchers in respect of amount, the availability of the fund and whether the bill is as per PIP and submits the same to the second signatory for approval. Chief Medical Officer and Administrative officer/District Health Education Information Officer (DHEIO)/Additional Chief Medical Officer/Deputy Chief Medical Officer, NRHM are the joint signatories for all payments/disbursements at district level. He verifies the vouchers in respect of amount, the availability of the fund and whether the bill is as per PIP and submits the same to the second signatory for approval. Chief Medical Officer and Administrative officer/District Health Education Information Officer (DHEIO)/Additional Chief Medical Officer/Deputy Chief Medical Officer, NRHM are the joint signatories for all payments/disbursements at district level. The second signatory signs on the vouchers and cheques and submits it further for the final signature of the Chief Medical Officer. The Chief Medical Officer finally signs on the voucher and the cheque. Thereafter, the cheque is given to the party by the accountant. All such payments at the district level are to be made through Account Payee Cheques. The second signatory and the first signatory are responsible equally in respect of passing of any bill. Both the signatories have to ensure that bills (Transport Bills) have been verified by the users, i.e. Superintendent of Balmahila Chikitsalaya, Community Health center, Additional Chief Medical Officer, Urban or any authority who has utilized the vehicle for official purpose. Both the Signatories are also responsible to ensure that the bills reflect the ambulance number and the vehicle number. It is revealed from the charge-sheet that the applicant was functioning as Additional Chief Medical Officer, Lucknow and was assigned the work of Second Signatory between 8.7.2007 to 12.8.2009 and has passed 27 bills as second signatory without ensuring that the bills contained the vehicle number and the enclosed log book reflect the vehicle numbers supplied by the contractor M/s. Om Raj Enterprises. 5. After conclusion of the enquiry, the matter was referred to the State Government for grant of sanction. The sanction was granted by His Excellency the Governor on 20.8.2012. The order of sanction reflects that the sanction has been accorded for offence Section 19 of the Prevention of Corruption Act read with Section 13(1) and 13(1) (d) of Prevention of Corruption Act, 1988 and for offence under Section 420 IPC under Section 197. The sanction order also makes a mention that the order would be effective in respect of any other offence which might have been added. 6. The case set up by the applicant is that no sanction was accorded to prosecute the applicant for the offences in added Section 467, 468, 471 IPC. The sanction order also makes a mention that the order would be effective in respect of any other offence which might have been added. 6. The case set up by the applicant is that no sanction was accorded to prosecute the applicant for the offences in added Section 467, 468, 471 IPC. The charge-sheet submitted by the C.B.I. does not refer the commission of offence under Sections 467, 468, 471 IPC. The contention raised is that Section 197 acts as bar for initiation of any prosecution unless sanction is granted for the offences added. The Court while relying upon the report submitted by C.B.I. issued process against the applicant in respect of those offences for which no sanction was granted by the competent authority. 7. The stand of the respondents is that the sanction has been accorded for the offence under Section 19 of the Prevention of Corruption Act. It is a special Act. In view of this, no sanction is required under Section 197 Cr.P.C. It is stated on behalf of the petitioner that Section 197 Cr.P.C. provides that any person who is a public servant cannot removable from his office without obtaining sanction of the Union or State Government if 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 cognisance of such offence except with the previous sanction. His grievance is that cognisance should not have been taken by the trial Court as there was no sanction for the offences committed under Sections 467, 468, 471 IPC. 8. The stand of the respondent is that sanction has been accorded under Section 19 of the Prevention of Corruption Act read with Section 13(1) and 13(1) (d) of Prevention of Corruption Act, 1988 and for offence under Section 420 IPC under Section 197. This by itself is sufficient compliance of law and no further sanction is required to be given under Section 197 Cr.P.C. It is contended that Section 197 Cr.P.C. nowhere suggests that the sanction is required under the said provision over and above and in addition to sanction provided under said order. He has placed reliance on a Full Bench decision of this Court in Smt. Neera Yadav v. C.B.I. (bharat sangth), 2006(2) ADJ (FB). He has placed reliance on a Full Bench decision of this Court in Smt. Neera Yadav v. C.B.I. (bharat sangth), 2006(2) ADJ (FB). While dealing with the similar set of facts, the Full Bench has made following observations : “Once the authority competent to remove a public servant, has recorded its satisfaction and has granted the sanction, the requirement of any further sanction may create substantive obstruction in the way of prosecution of such public servant. There is no reason or compulsion to assume a similar scrutiny by a different authority particularly when the appointing authority itself has analyzed the matter and has recorded its satisfaction. It would not only be superfluous but may frustrate the very object of grant of sanction.” “108. Secondly, the contention of the learned Counsel is self-contradictory with reference to interpretation of Section 19 of the Act of 1988. Section 19 specifically requires previous sanction before cognisance of an offence punishable under Sections 7, 10, 11, 13 and 15 of Act of 1988 is taken. It does not talk of any further sanction under any other provision. Sub-section (3) of Section 19 of the said Act provides that in respect to certain irregularities etc. in the matter of sanction, no Court shall interfere in certain circumstances affecting the proceedings under the Act of 1988. Taking an illustration, under Sections 7, 10, 11, 13 and 15 of the Act of 1988, any irregularity in sanction would not by itself vitiate the prosecution, by virtue of Sub-section (3), irrespective of anything contained in the Code of Criminal Procedure 1973, yet can it be said that the aforesaid provision shall be rendered ineffective by application of Section 197 Cr.P.C. In our view, apparently, the answer would be in negative. Thus, the argument that, where the act is in discharge of official duties, for prosecution under the provisions of the Act of 1988, sanction Section 197 Cr.P.C. will also be required, is clearly fallacious. Any other interpretation would amount to adding certain words in Section 19 of Act of 1988 and making the Special Act subservient to Section 197 Cr.P.C., which is not permissible. Any other interpretation would amount to adding certain words in Section 19 of Act of 1988 and making the Special Act subservient to Section 197 Cr.P.C., which is not permissible. When the provisions of statute are clear, categorical and unambiguous, the Court is not required to read anything more, or make an addition to it.” “Further while considering Section 6 of the Act of 1947 and Section 197 Cr.P.C. the Hon’ble Apex Court in S.A. Venkataraman v. State (Supra) observed “Section 6 of the Act must be considered with reference to the words used in the Section independent of any construction which may have been placed by the decisions on the words used in Section 197 Cr.P.C. In this regard reference may be made to a very recent observation of Hon’ble Apex Court in Criminal Appeals No. 982-983 of 2003 Dilawar Singh v. Parvinder Singh @ Iqbal Singh and another, decided on 8.11.2005: The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected there with. Here, the principle expressed in the maxim Generalia special bus non-derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Venkateshwar Rao v. Government of Andhra Pradesh, State of Bihar v. Yogendra Singh and Maharashtra State Board of Secondary Education v. Paritosh Bhupesh Kumar Sheth, AIR 1984 SC 1543 . Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.P.C A Special Judge while trying an offence under the Provisions of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine quo non for taking cognizance of the offence qua that person.” “We are conscious of the fact that in the present case the petitioners have raised the issue of sanction at the beginning of the proceeding. However, it is not a case where no sanction has been accorded. However, it is not a case where no sanction has been accorded. The employer, who is the authority competent to remove, has considered and applied its mind and thereafter granted sanction in no uncertain terms permitting prosecution under Section 13(1)(d) and (2) in Act of 1988 as well as Section 120B, I.P.C. and other provisions of other enactments. The public interest has been served and the probability and possibility of vexatious prosecution stands excluded. Now, with the assistance of legal brains raising threadbare and hair splitting arguments, the petitioners are making an attempt to foil the entire prosecution so as to prevent trial of senior members of Indian Administrative Services, i.e., Country’s Principal Civil Service and other important persons. Such an attempt would certainly be against larger public interest.” 9. In view of the law laid by the Apex Court, it is crystal clear that once the sanction has been accorded Section 19 of the Prevention of Corruption Act read with Section 13(1) and 13(1) (d) of Prevention of Corruption Act, 1988, which is a special Act, no further sanction is required under Section 197 Cr.P.C. In the result, I find no merit in the writ petition. It is accordingly dismissed. ——————