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2016 DIGILAW 1046 (ORI)

ATUL KUMAR MOHANTY v. STATE OF ODISHA

2016-11-04

B.K.NAYAK

body2016
ORDER B.K. Nayak, J. - Heard learned counsel for the petitioner and the learned Additional Standing Counsel for the Vigilance Department Perused the records. 2. Petitioner challenges the order dated 19.07.2014 passed by the learned Special Judge (Vigilance), Mayurbhanj, Baripada in VGR No.47 of 2011 (T.C.No.13S of 2013), corresponding to Balasore Vigilance P.S. Case No.52 of 2011, rejecting the petition filed by the petitioner for discharge from offence under Section 13(2) read with 13(1)(d) and Section 7 of the Prevention of Corruption Act (in short, "P.C. Act"). 3. It is alleged that the petitioner while working as a Clerk in Mayurbhanj Law College, demanded bribe of Rs. 2000/- for issuing the first, second and third semester mark-sheets to the informant, who was a Post Graduate student of the said college. F.L.R. being lodged, a trap was laid and the petitioner was caught red-handed and the tainted money was recovered from him. 4. Learned counsel for the petitioner urged two points. First, that the Mayurbhanj Law Collage being purely a private un-aided college, the petitioner cannot be treated to be a public servant within the meaning of the P.C. Act, and, therefore, no prosecution lies against him under the said Act. Secondly, it is urged that the sanction order for prosecution was invalid as the sanctioning authority was not competent to pass the sanction order. 5. Learned Additional Standing Counsel for the Vigilance Department submits that in view of the materials on record that Mayurbhanj 'Law College, though purely a private college, received - some grants from the University Grants Commission; the petitioner being an employee of the said college can be treated to be a public servant within meaning of Section 2(c)(xii) of the P.C. Act read with explation-I, under the said section. It is also submitted by him that the question of validity of sanction cannot be gone into at the stage of framing of charge in view of sub-section (3) of section 19 read with the Explanation attached-to the section. 6. It is also submitted by him that the question of validity of sanction cannot be gone into at the stage of framing of charge in view of sub-section (3) of section 19 read with the Explanation attached-to the section. 6. Sub-section (3) of section 19 provides as under : "(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974); (a) no finding, sentence or order passed by a special Judge shall be revesed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, Or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (4)--------- Explanation : For the purposes of this section : (a) error includes competency of the authority to grant sanction;" 7. Section 2(c) of the Act which defines "public servant" of different categories enumerated under the said clause reads as under : "Section 2(c) "public servant" means : XXX XXX XXX (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority. Explanation 1 : Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not . Explanation 2 : Wherever the words "Public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation." 8. On a plain reading Section 2(c)(xii) of the P.O. Act goes to show that if any educational institution in whatever manner established I receives or had received any financial assistance from the Central Government or any State Government, or local or other Public Authority, every employee or office bearer of such institution shall be treated to be a "public servant" within the meaning of the expression. The definition does not indicate that financial assistance received from the Government or the local or other Public Authority must be towards the employee concerned. No such interpretation is deducible from the language used in the definition. The definition does not indicate that financial assistance received from the Government or the local or other Public Authority must be towards the employee concerned. No such interpretation is deducible from the language used in the definition. Therefore, the contention of the learned counsel for the petitioner that the grant given by University Grants Commission was not towards the salary component of the petitioner for which the petitioner cannot be treated to be a public servant, has no force. 9. With regard to the second contention, it has been held by the Hon'ble Supreme Court in the case of State of M.P. v. Virendra Kumar Tripathi (2009) 43 OCR (SC) 497 in para-6 of the judgment as under; "Para 6. Further the High court has failed to consider the effect of Section 19(3) of the Act. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under Sub-section (1) of Section 19 unless in the opinion of the Court a failure of justice has in fact been occasioned thereby In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this failure is to be established is yet to be reached since the case is at the stage of framing of charge whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led." 10. It is crystal clear from the aforesaid observation of the Hon'ble Supreme Court that the question of validity of sanction and failure of justice for invalidity or error in the sanction order, can be determined only during trial on the basis of evidence to be led by the parties. 11. In the instant case, undisputedly the Additional District Magistrate was the President of the Governing Body of the Mayurbhanj Law College and he has issued the sanction order stating that he is competent to issue such order. 11. In the instant case, undisputedly the Additional District Magistrate was the President of the Governing Body of the Mayurbhanj Law College and he has issued the sanction order stating that he is competent to issue such order. Whether the President of the Governing Body was competent to grant the sanction order for prosecution or he was only communicating the decision of the Governing Body of the college concerned or whether the sanction order is irregular for any reason and whether it has resulted in failure of justice, is to be considered only on the basis of evidence to be led during trial and not at the stage of framing of charge. Therefore, the second contention of the learned counsel for the petitioner also fails. Learned Special Judge (Vigilance) has given good reasons for rejecting petition of the petitioner. 12. For the reasons stated above, there is no merit in this application. Accordingly the CRLMC stands dismissed. Final Result : Dismissed