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2014 DIGILAW 316 (CHH)

Neelam Bhardwaj v. State of Chhattisgarh

2014-08-20

SANJAY K.AGRAWAL

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ORDER Sanjay K. Agrawal, J. 1. Questioning the impugned order the instant revision has been filed by the applicant herein by which her application for discharge has been rejected by the Special Judge under the Prevention of Corruption Act, 1988 (henceforth 'the Act, 1988'). The applicant was charge-sheeted by the State of Chhattisgarh through Anti-Corruption Bureau, Bilaspur for offence under Sections 7, 13(1)(d) and 13(2) of the Act, 1988 with a charge that on 22.09.2012 while working as a resident doctor in the Chhattisgarh Institute of Medical Sciences, Bilaspur (henceforth 'the CIMS') she demanded Rs. 1,500/- from complainant Prahalad and accepted cash of Rs. 1,300/- from him in the CIMS for treatment and giving medicine to the son of complainant Prahalad and on a complaint made she was trapped by the Anti-Corruption Bureau. It is further case of the prosecution that she was dismissed from the service on 22.09.2012/24.09.2012 and, therefore, sanction for prosecution under Section 19 of the Act, 1988 is not required. 2. Upon filing the charge-sheet the present applicant filed an application for discharge stating inter alia that previous sanction under Section 19 of the Act, 1988 is necessary for her prosecution. It was further stated that no Court can take cognizance of an offence punishable under Sections 7,13(1)(d) and 13(2) of the Act, 1988 without previous sanction of the State Government as she was a duly appointed doctor by the CIMS. The aforesaid application was opposed by the non-applicant/State stating inter alia that she was already dismissed from the service by the Dean of the CIMS on 22.09.2012. The learned Special Judge by the impugned order rejected the application holding that the services of the applicant had already been dismissed by the competent authority on 24.09.2012 and thereafter the cognizance of the offence was taken up on filing the charge-sheet on 24.09.2012, therefore, the previous sanction under Section 19 of the Act, 1988 is not necessary. 3. Against this order, the instant revision has been filed by the applicant/accused. 4. Shri V.C. Ottalwar, learned counsel appearing for the applicant would submit that the Special Judge has committed grave legal error in holding that no previous sanction is necessary under Section 19 of the Act, 1988. 3. Against this order, the instant revision has been filed by the applicant/accused. 4. Shri V.C. Ottalwar, learned counsel appearing for the applicant would submit that the Special Judge has committed grave legal error in holding that no previous sanction is necessary under Section 19 of the Act, 1988. He would further submit that the charge-sheet was filed on 22.09.2012 under Sections 7, 13(1)(d) and 13(2) of the Act, 1988 and in the meanwhile, time to time the Magistrate has already passed order under Section167 of the Code of Criminal Procedure, 1973 (henceforth 'Cr.P.C.') authorizing further detention of the accused in police custody, therefore, the order impugned deserves to be set aside. 5. On the other hand, Shri R.K. Gupta, learned Deputy Advocate General for the State/non-applicant on advance copy would submit that there was no necessity for sanction under Section 19 of the Act, 1988 as on the date of taking cognizance the applicant was already dismissed from the service and no longer public servant. Therefore, the revision deserves to be dismissed. 6. Section 19(1) of the Act, 1988 provides as under:-- "19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office (sic) by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office." 7. The question what is a relevant date with reference to which valid sanction is pre- requisite for prosecution of a public servant for an offence enumerated in Section 6 of the Prevention of Corruption Act, 1947 came up for consideration before a Constitution Bench of the Supreme Court in R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684 , and it has been held as under:- "19.................Existence thus of a valid sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the Court therefore, when the Court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Ss. 161, 164, 165, I.P.C. and S. 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the Court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the Court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under Section 6 has been held to be a trial without jurisdiction by the Court. (See R.R. Chari v. State of U.P., (1963) 1 SCR 121 : ( AIR 1962 SC 1573 ) and S.N. Bose v. State of Bihar, (1968) 3 SCR 563 : ( AIR 1968 SC 1292 )). In Mohd. Iqbal Ahmed v. State of A.P., (1979) 2 SCR 1007 : ( AIR 1979 SC 677 ), it was held that a trial without a sanction renders, the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the Court is called upon to take cognizance of the offence. In Mohd. Iqbal Ahmed v. State of A.P., (1979) 2 SCR 1007 : ( AIR 1979 SC 677 ), it was held that a trial without a sanction renders, the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the Court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the Court is called upon to take cognizance of the offence alleged to have been committed by him as public servant. Section 6 is not attracted." 8. Thereafter, again in a Constitution Bench decision in K. Veeraswami v. Union of India, (1991) 3 SCC 655, the Supreme Court while construing Section 6 of the Prevention of Corruption Act, 1947 held that no sanction under Section 6 of the Prevention of Corruption Act, 1947 was necessary for prosecution of the concerned public servant since he had retired from the service on attaining the age of superannuation and was not a public servant on the date of filing the charge-sheet. Paragraph 62 of report states as under:- "62. It remains only to deal with one short point in this part of the discussion. The High Court has expressed the view that no sanction for prosecution of the appellant under Section 6 was necessary since he has retired from the service on attaining the age of superannuation and was not a public servant on the date of filing the charge-sheet. The view taken by the High Court appears to be unassailable. The High Court has expressed the view that no sanction for prosecution of the appellant under Section 6 was necessary since he has retired from the service on attaining the age of superannuation and was not a public servant on the date of filing the charge-sheet. The view taken by the High Court appears to be unassailable. The scope of S. 6 was first considered by this Court in S.A. Venkataraman case, where it was observed (at p. 1048) : ( AIR 1958 SC 107 , p. 112), that 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 of the Cr.P.C. The court after analysing the terms of the section further observed (at p. 1046) that "there is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed." This view has been followed in C.R. Bansi v. State of Maharashtra? and also in K.S. Dharmadatan v. Central Government and finally reiterated in a Constitution Bench decision in R.S. Nayak v. A.R. Antulay. The question is, therefore, no longer res integra". 9. The aforesaid decision has been followed by their Lordships of the Supreme Court in Habibulla Khan v. State of Orissa and another, AIR 1995 SC 1124 . 10. From the aforesaid enunciation of law, it is quite vivid, if the accused has ceased to be public servant at the time, when the Court is called upon to take cognizance of offence alleged to have been committed by him as public servant. Section 19 of Prevention of Corruption Act, requiring previous sanction for prosecution is not attracted. 11. 10. From the aforesaid enunciation of law, it is quite vivid, if the accused has ceased to be public servant at the time, when the Court is called upon to take cognizance of offence alleged to have been committed by him as public servant. Section 19 of Prevention of Corruption Act, requiring previous sanction for prosecution is not attracted. 11. If the facts of the case are examined in the light of the principles laid down by the Supreme Court in the aforementioned cases, it would appear that the applicant was a senior resident doctor in the CIMS with effect from 04.02.2008 appointed on contractual basis and she has been dismissed from service on 22.09.2012 and as such on the date of filing the charge-sheet on 22.09.2013 against her for offence under Sections 7,13(1)(b) and 13(2) of the Act 1988, she had ceased to be a public servant and therefore, no previous sanction was required for taking cognizance for the aforesaid offences under Section 19 of the Prevention of Corruption Act, 1988. 12. In view of the fact that she had ceased to be a public servant on the date of filing the charge-sheet, therefore, the learned Special Judge was absolutely justified in rejecting the application filed by applicant for discharge. I do not find any illegality in the same. The revision being sans substratum is dismissed at the admission stage. Petition dismissed.