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Madhya Pradesh High Court · body

2016 DIGILAW 1012 (MP)

Suraj Kero v. State Of M. P.

2016-11-08

S.C.SHARMA, VED PRAKASH SHARMA

body2016
ORDER : VED PRAKASH SHARMA, J. This petition under section 397 of the Code of Criminal Procedure, 1973 (for short ‘the Code) has been preferred against the order dated 21-3-2016 passed by Special Judge (under the Prevention of Corruption Act, 1988 – for short ‘the Act of 1988’) Indore, in Special Case No. 08/2015, whereby the learned trial Court has rejected the application preferred by the petitioner Suraj Kero under section 19 of ‘the Act of 1988’ read with section 197 of ‘the Code’ praying for discharge on the ground that requisite sanction to prosecute him for offences under section 13(1)(d) read with section 13(2) of ‘the Act of 1988’ and section 218, 466, 471, 474 and 120-B of Indian Penal Code, 1861 (for short ‘IPC’) has not been obtained by the prosecution. 2. The petitioner has been charge-sheeted by the respondent for offences under section 13(1)(d) read with section 13(2) of ‘the Act of 1988’ and section 218, 466, 471, 474 and 120-B, Indian Penal Code on the basis of allegations that during 2000 to 2003 in the capacity of Corporator of Indore Municipal Corporation (for short ‘IMC’) and Member of the Mayor in Council (for short ‘MIC’) he, misusing his official position caused wrongful total loss of Rs. 5,66,771/- + Rs. 27,93,551/- = Rs. 33,60,322/- to Municipal Corporation Indore by conferring undue advantage to Meghdoot Corporation in whose favour contract for maintenance and development of Meghdoot Upvan was granted by resolution No. 263 dated 29-3-2001. Allegedly, an amount of Rs. 5,66,771/- was not recovered from this firm and an amount of Rs. 27,93,551/- was wrongfully paid to it and that a forged working plan was prepared in order to justify the acts and omissions by showing that a meeting was held on 21-11-2002, though the working plant was scribed on a paper printed in 2003. 3. The petitioner, vide his application under section 19 of ‘the Act of 1988’ and section 197 of ‘the Code’ prayed for discharge on the ground that during 2000 to 2003 he in the capacity of Corporator of ‘IMC’, was a public servant. 3. The petitioner, vide his application under section 19 of ‘the Act of 1988’ and section 197 of ‘the Code’ prayed for discharge on the ground that during 2000 to 2003 he in the capacity of Corporator of ‘IMC’, was a public servant. At the time of filing of the charge-sheet on 16-6-2015 he was also Corporator having been elected for 5 years w.e.f. 4-2-2015, therefore, his prosecution without obtaining sanction under section 19 of ‘the Act of 1988’ and section 197 of ‘the Code’ is bad-in-law, hence he was entitled to be discharged. The learned counsel for the petitioner referring to pronouncement of this Court in Chhotelal Yadav @ Ramprakash Yadav vs. State of M.P. through S.P.E. Lokayukt in Cr. R. No. 1296/2015 Bench Indore and Criminal Revision No. 1417/14 (Chhotelal Yadav vs. State of M.P.) and the pronouncement of Apex Court in D. T. Virupakshappa vs. C. Subhash, AIR 2015 SC 2022 , has vehemently contended before us that the learned trial Court without properly appreciating the relevant legal position has declined the prayer for discharge made by the petitioner, therefore, the impugned order, being contrary to law, is liable to be set aside. It is further contended that on 16-6-2015, the date of filing of the charge-sheet, the petitioner was holding the office of Corporator of ‘IMC’, therefore, the learned trial Court had no jurisdiction to take cognizance against him in absence of sanction under section 19 of ‘the Act of 1988’ and section 197 of ‘the Code’. 4. Per contra, learned counsel for the respondent/State supporting the impugned order has submitted that the alleged acts of misconduct were committed by the petitioner while holding the office of Corporator of ‘IMC’ pursuant to his election as Corporator for a term of 5 years w.e.f. 7-1-2000, 6-1-2005. On completion this term, the petitioner in 2015 again contested election for Corporator of ‘IMC’ and was elected for a new term of 5 years w.e.f. 4-2-2015. It is contended that the first term of the petitioner as Corporator commencing from 2000 and his second term commencing from 2015 are altogether 2 different aspects and that the second term was not in continuation of the first term. It is contended that the first term of the petitioner as Corporator commencing from 2000 and his second term commencing from 2015 are altogether 2 different aspects and that the second term was not in continuation of the first term. It is further submitted that the alleged acts of misconduct were committed by him during the first term between 2002 – 2003 which has nothing to do with his second term for which he was elected in February, 2015, therefore, no sanction was required either under section 19 of ‘the Act of 1988’ or section 197 of ‘the Code’. 5. We have heard the learned counsel for the parties and have carefully gone through the record. As regards factual aspects, it is not a matter of dispute that the petitioner was elected as Corporator of ‘IMC’ on 7-1-2000 for a term of 5 years which came to an end on 6-1-2005 meaning thereby by virtue of his election as Corporator, he enjoyed a fixed tenure of 5 years as Corporator. His re-election in February, 2015 again as Corporator for a term of 5 years was not in continuation of his earlier election in the year 2000. The first election as Corporator conferred on the petitioner right to hold office of Corporator only till 6-1-2005. His liability for acts or omissions or for that matter, the acts of alleged misconduct during his term of Corporator between 7-1-2000 to 6-1-2005 had no nexus or relationship with his subsequent election as Corporator in February 2015 for a term of 5 years. A sheer co-incidence that on the date of filing of the charge-sheet on 16-6-2015 he was a Corporator will not make any difference because in 2015, he came to occupy the office of Corporator on the basis of fresh election and further the alleged acts of misconduct were for the earlier period and not for the subsequent period. 6. A sheer co-incidence that on the date of filing of the charge-sheet on 16-6-2015 he was a Corporator will not make any difference because in 2015, he came to occupy the office of Corporator on the basis of fresh election and further the alleged acts of misconduct were for the earlier period and not for the subsequent period. 6. The learned trial Court in the impugned order has dealt with this issue in an elaborate manner and referring to the pronouncements of the Apex Court in Abhay Singh Chotala vs. CBI, 2011 AIR SCW 3955, R. S. Naik vs. A. R. Antule, AIR 1984 SC 684 , Subramaniam Swamy vs. Manmohan Singh, AIR 2012 SC 1185 and Balkrishan Ravi Menon vs. Union of India, (2007) 1 SCC 45 , has rightly come to the conclusion that the question of obtaining sanction under section 19 of ‘the Act of 1988’ is relatable to the time of holding of the office when the offence was alleged to have been committed and in the case when the person is not holding the said office as he might have retired, superannuated, discharged or dismissed then the question of sanction would not arise. In the instant case, the term of the office of Corporator held by the petitioner from 7-1-2000 to 6-1-2005 came to an end by efflux of time. Simply because he was again elected as Corporator in February, 2015 will not go to relate back his position as Corporator to his earlier election in 2000 to the same post. Subsequent election in 2005 was not by virtue of his holding the office of Corporator due to his election in 2000, rather it was on account of his fresh electoral mandate, therefore, the two offices were different for the purpose of prosecution under ‘the Act of 1988’. 7. The pronouncement of Apex Court in Abhay Singh Chotala (supra) to the effect that if public servant continues to be a public servant but in a different capacity or holding a different office which he is alleged to have abused, there will be no question of sanction. In the instant case though the petitioner was holding the office of the Corporator in 2015, however, it was on the basis of fresh election and not because he was earlier a Corporator. In the instant case though the petitioner was holding the office of the Corporator in 2015, however, it was on the basis of fresh election and not because he was earlier a Corporator. In Bal Krishnan’s case (supra) the Apex Court has made it very clear that if on the date when the cognizance is taken, a public servant is not continuing to hold that very office, no sanction will be required. 8. In the light of the aforesaid legal position as propounded by the Apex Court, reliance by the petitioner on the decision of a Division Bench of this Court in Chotelal Yadav (supra) and other cases cannot be much help to the petitioner. The legal dictum as laid down by the Apex Court in a series of decision, being specific and clear, has to be respected and followed. 9. As regards plea relating to absence of sanction under section 197 of ‘the Code’ the learned trial Court referring to decisions of the Apex Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam and another, 2015 Cri.L.J. 2942 (SC) has rightly held that acts of cheating, fabrication of records or misappropriation of public money cannot be said to be a part of official duty of a public servant, therefore, in such matters sanction for prosecution is not required under section 197 of ‘the Code’. 10. In Shambhoo Nath Misra vs. State of U.P. and others, (1997) 5 SCC 326 , (para 5) Hon’ble the Apex Court has held that : “5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.” 11. In Rajib Ranjan and others vs. R. Vijaykumar, (2015) 1 SCC 513 (para18) it has been held as under : “even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such is demeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of section 197 of the Code will not be attracted”. 12. In view of the aforesaid, we do not find any infirmity, illegality or impropriety in the impugned order, therefore, this petition having no merits, deserves to be and is accordingly, hereby dismissed.