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2014 DIGILAW 188 (ORI)

Nimai Charan Sahu v. State of Odisha

2014-03-21

S.K.MISHRA

body2014
JUDGMENT : ” The petitioner, being the accused in V.G.R. Case No.11/2002 (T.R. Case No.6/2013) of the court of learned Addl. District and Sessions Judge-cum-Special Judge (Vigilance), Keonjhar, has assailed the order dated 30.4.2013 taking cognizance of the offence under Section 13(2) read with Section 13(1)(d) and Section 7 of the Prevention of Corruption Act, 1988 and issuing process against the petitioner. 2. The petitioner was working as a T.B. and Chest Specialist in District T.B. Centre, Keonjhar. The informant being a T.B. patient got admitted in the District T.B. Centre , Keonjhar on 7.3.2002 and was discharged on 19.3.2002. While the informant was being treated at the hospital, the present petitioner allegedly demanded money and the informant as per his capacity was paying and in the process he had paid around Rs.100/-. At the time of the discharge of the informant, the petitioner allegedly demanded Rs.100/-, but the informant was not able to meet the demand for which the petitioner got annoyed and asked the informant not to come to the District T.B. Centre unless he comes with at least Rs.100/-. Due to such illegal and unethical demand of the petitioner, the informant approached the Superintendent of Police, Vigilance, Balasore for which a F.I.R. was lodged and the Officer-in-charge of the Balasore Police Station was directed to register the same and take up investigation of the case. In the process a trap was laid. As per the direction of the Vigilance Police, a preparation was made and the hundred rupee note was smeared with phenolphthalein and handed over to the informant, who kept the same in his shirt pocket. Thereafter as per the plan and preparation the hundred rupee note was recovered from the money purse of the petitioner and the Vigilance Department took up the follow up actions after the trap. 3. After gathering all materials, the Vigilance moved the Government in G. A. Department for according necessary sanction to prosecute the petitioner. However, then Government in G.A. Department ordered to initiate Departmental Proceeding against the petitioner. Thereafter the Vigilance Department submitted Final Report No.45 2002 on 12.12.2002 before the Chief Judicial Magistrate, Keonjhar, who submitted the case to the Special Judge (Vigilance), Bhubaneswar for further orders. 4. On 30.8.2011 as per communication written from this Court, the case was transferred to the court of learned Addl. District Judge-cum-Special Judge, Vigilance, Keonjhar. Thereafter the Vigilance Department submitted Final Report No.45 2002 on 12.12.2002 before the Chief Judicial Magistrate, Keonjhar, who submitted the case to the Special Judge (Vigilance), Bhubaneswar for further orders. 4. On 30.8.2011 as per communication written from this Court, the case was transferred to the court of learned Addl. District Judge-cum-Special Judge, Vigilance, Keonjhar. A notice was issued to the informant regarding the submission of the final form. The service report on the informant returned with the report that he has died in the mean time and the case was posted to 30.4.2013. 5. In the meantime, the petitioner has retired from Government service. On 30.4.2014 the case was taken up by the learned Special Judge (Vigilance), Keonjhar, who has passed the following order:-” ' S. R. from the complainant returned with report that the complainant is dead. Perused the F.I.R., 161 sheets and other connecting documents available in the case record and charge-sheet No.45 dated 23.3.2012 under Section 13(1) read with Section 13(1)(d) /7 P.C. Act received against the accused Nimai Ch. Sahu. A prima facie case is made out against the accused Nimai Ch. Sahu. Hence cognizance is taken. Issue summons to the accused and put up on 3.6.2013 for appearance' -. 6. Learned Senior Advocate appearing for the petitioner contended that the order taking cognizance is illegal as the sanction has not been granted against the present petitioner and after his retirement on the self-same material, the learned Special Judge (Vigilance), Keonjhar cannot take cognizance of the offence especially when no sanction has been accorded by the sanctioning authority. He relies upon a letter issued by the under Secretary to the Government to the Director-cum-Additional D.G. of Police, Vigilance, Orissa, Cuttack, which reads as follows: ' From: Shri R.C. Samantaray, Under Secretary to Government. To The Director-cum-Additional D.G. of Police, Vigilance, Orissa, Cuttack. Sub: Sanction of Persecution against Dr. Nimain Charan Sahu, T. B. and Chest Specialist, T. B. Centre, Dis- trict Headquarters Hospital, Keonjhar in Balasore Vigilance P. S. Case N.11 dated 23.3.2002. Sir, I am directed to refer to your office Letter No. 3400/VCR(N) dated 2.8.2002 on the subject mentioned above and say that after careful consideration, Government have been pleased to pass orders for initiating Major Penalty proceeding u/R. 15 of the O.C.S. (CCA) Rules, 1962 against Dr. Nimain Charan Sahu, T. B. & Chest Specialist, District Hqrs. Hospital, Keonjhar. Sir, I am directed to refer to your office Letter No. 3400/VCR(N) dated 2.8.2002 on the subject mentioned above and say that after careful consideration, Government have been pleased to pass orders for initiating Major Penalty proceeding u/R. 15 of the O.C.S. (CCA) Rules, 1962 against Dr. Nimain Charan Sahu, T. B. & Chest Specialist, District Hqrs. Hospital, Keonjhar. It is, therefore, requested that Draft charges and Memo of Evidences etc. may kindly be furnished to the H & F.W. Department for initiating Penalty Proceedings against Dr. Sahu, under intimation to this Department immediately. Yours faithfully, Under Secretary to Government.' - 7. On receipt of such letter, direction has been issued to the Investigating Officer and he has submitted the final report against the present petitioner on 12.12.2002. Examination of the same reveals that the Inspector of Police, Vigilance, has reported that since the Government was pleased to pass orders for initiating major penalty Proceeding u/R. 15 of the O.C.S. (CCA) Rules, 1962 against Dr. Nimai Charan Sahu, T. B. and Chest Specialist, District Headquarters Hospital, Keonjhar, the case was submitted as Final Report No.45 dated 12.12.2002. He therefore prayed the same may be accepted. 8. Now the question remains to be considered here is that whether the Court is competent to take cognizance of the offence where the offence was committed by a public servant while holding office and the sanctioning authority did not issue any sanction order. However, in the meantime, the public servant has retired and demitted his public office. 9. In Chittaranjan Das v. State of Orissa; (2011) 7 Supreme Court Cases 167 : ( AIR 2011 SC 2893 ), the Supreme Court has examined the situation where the application for sanction was rejected by the Government, the employee retired from service and cognizance was taken. The Supreme Court has held that once a public servant ceases to be so on the date when the Court takes cognizance of the offence, there is requirement of sanction under the Prevention of Corruption Act. However, the position is different in a case where Section 197 of the Code of Criminal Procedure has application. However, taking the facts of the reported case into consideration, the Supreme Court took note of the fact that the Vigilance Department has asked the Government to grant sanction while the appellant therein was in service which the Government refused. However, the position is different in a case where Section 197 of the Code of Criminal Procedure has application. However, taking the facts of the reported case into consideration, the Supreme Court took note of the fact that the Vigilance Department has asked the Government to grant sanction while the appellant therein was in service which the Government refused. Not only that the Vigilance Department sought for reconsideration of the decision of the State Government which prayer was also rejected. In fact the State Government reiterated that there is no prima facie case against the appellant and the assets held by him were not disproportionate to the known sources of his income. The Supreme Court reiterated that sanction is a device provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the guilty. The Supreme Court further held that in the case in hand, the appellant was in service sanction sought for his prosecution was declined by the State Government. The Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, the Vigilance Department requested the State Government to reconsider its decision, which was not only refused but the State Government while doing so clearly observed that no prima facie case of disproportionate assets against the appellant is made out. Notwithstanding that the Vigilance Department chose to file a charge-sheet after the retirement of the appellant and on that the Special Judge had taken cognizance and issued process. The Supreme Court, therefore, quashed the cognizance and held that the cognizance taken in the absence of sanction is bad. 10. In Kalicharan Mahapatra v. State of Orissa; (1998) 6 Supreme Court Cases 411 : ( AIR 1998 SC 2595 ), the Supreme Court has held that a public servant, who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public service when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction. In other words, the public servant who committed the offence while he was a public servant, is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution. The Supreme Court further held that there is no indication anywhere in the provisions of the Act that an offence committed by a public servant under the Act would vanish off from penal liability at the moment he demits his office as public servant. His being a public servant is necessary when he commits the offence in order to make him liable under the Act. He cannot commit any such offence after he demits his office. The Supreme Court further held that if the interpretation now sought to be placed by the appellant is accepted, it would lead to the absurd position that any public servant could commit the offences under the Act soon before retiring or demitting his office and thus avert any prosecution for it or that when a public servant is prosecuted for an offence under the Act, he can secure an escape by protracting the trial till the date of superannuation. 11. In N.Bhargavan Pillai (dead) by L.Rs. and another v. State of Kerala; AIR 2004 SC 2317 , the Supreme Court held that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court took cognizance of the said offences. But the position is different in cases where S.197 of the Criminal Procedure Code, 1974 has application. 12. In Prakash Singh Badal and another v. State of Punjab and others; (2007) 1 Supreme Court Cases 1 : (AIR 2007 SC 1274), the Supreme Court held that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 19 is the date on which the court is called upon to take cognizance of the offence of which he is accused. The use of expression ' is' - in Section 19 of the Prevention of Corruption Act, 1988 vis-a-vis the expression ' is' - or ' was' - used in Section 197 Cr.P.C., 1973 is indicative of the legislative intent. Though certain changes were incorporated while enacting Section 197 Cr.P.C. no corresponding change was made in the 1988 Act. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant-” s own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity. So where the act performed under the colour of office is for the benefit of the officer or for his own pleasure section 19(1) will come in. Therefore, Section 19(1) is time and offence related. 13. In applying these principles to the case in hand, this Court sees that though sanction was sought from the State Government, the same was not refused expressly. The letter issued in this connection by the State Government does not say that the sanction has been refused. In the meantime, the Investigating Officer, interpreting it as denial of sanction, has submitted final report. In the meantime, the accused retired and matter came before the learned Special Judge (Vigilance), Keonjhar. The Special Judge has taken cognizance of the offence. This act of taking cognizance cannot be found fault with in view of the fact that at the time of taking cognizance the prosecution need not obtain sanction from the sanctioning authority. The facts of the case of Chittaranjan Das v. State of Orissa ( AIR 2011 SC 2893 ) (supra) on which major emphasis is laid on by Sri S. S. Das, learned Senior Advocate for the petitioner, are different from the facts of the case in hand. 14. The facts of the case of Chittaranjan Das v. State of Orissa ( AIR 2011 SC 2893 ) (supra) on which major emphasis is laid on by Sri S. S. Das, learned Senior Advocate for the petitioner, are different from the facts of the case in hand. 14. So in applying the principles laid down in the aforesaid cases, this Court comes to the conclusion that the learned Special Judge (Vigilance), Keonjhar has not committed any error by taking cognizance of the offence, especially in view of the fact the accused has retired in the meantime and sanction is not required to be taken in cases of persons, who had demitted the public office. With these observations, the Cri. Rev. is dismissed. The pending Misc. Case is also dismissed. Petition dismissed.