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2016 DIGILAW 460 (ORI)

CH. AMRITALINGAM v. STATE

2016-06-24

S.PUJAHARI

body2016
JUDGMENT : S. Pujahari, J. - I have heard the learned counsel for the petitioner and the learned Senior Standing counsel appearing for the Vigilance Department. 2. The order dated 08.09.2010 of the learned Special Judge, Vigilance, Bhubaneswar passed in T.R. No.59 of 2006 is under challenge in this revision petition. 3. Brief facts of the case is that the present petitioner was working as Executive Director (Finance) and co-accused - Swasti Ranjan Mohapatra was working as Company Secretary of ORHDC and both of them along with the co-accused-builder-S.R.K.K. Rajabahadur entered into a criminal conspiracy and the above officials of the Corporation committed criminal misconduct and showing undue official favour to the co-accused - S.R.K.K. Rajabahadur sanctioned and disbursed Rs.20 lacs without proper documentation and ignoring the opinion of the retainer of the Corporation. After availing the loan, the co-accused - S.R.K.K. Rajabahadur absconded by abandoning the project and the real landowner cancelled the power of attorney and the present liability in respect of the loan is Rs.95 lacs. The above accused persons were charge-sheeted under Section 13(2) read with Section 13(1)(d) of the P.C. Act and under Sections 120-B/420 of I.P.C. The present petitioner filed one petition before the learned Special Judge, Vigilance, Bhubaneswar praying for his discharge and the learned Special Judge, Vigilance considering the materials on record held that there was prima-facie allegation against the present petitioner. But, so far question of sanction under Section 197 Cr.P.C., learned Special Judge, Vigilance, Bhubaneswar held that the order dated 18.05.2006 taking cognizance against the present petitioner and others, had not been challenged and discharging the petitioner at the stage of consideration of charge amounts to quashing the order taking cognizance which is beyond jurisdiction. The Court also held that it was not proper stage and the matter relating to sanction under Section 197 Cr.P.C. is to be decided at the stage of trial. 4. During course of hearing of this revision petition, learned counsel for the petitioner submitted that the order of the lower Court is self-contradictory and the very order of cognizance in absence of sanction under Section 197 Cr.P.C. is not sustainable in law and question of sanction can be raised at any stage of the proceeding. That apart, the allegations are false, fabricated and groundless. That apart, the allegations are false, fabricated and groundless. Moreover, the materials on record taken at the face value, even if taken to be true, do not make out any offence against the present petitioner. So, the impugned order should be set-aside. 5. On the other hand, learned senior standing counsel appearing for the Vigilance Department supported the impugned order. 6. Perused the materials on record. Admittedly, there is no sanction order under Section 19 of the Prevention of Corruption Act or under Section 197 Cr.P.C. for proceeding against the present petitioner. Fact remains that as on the date of taking cognizance, i.e., 18.05.2006, the present petitioner had already retired from service. The Apex Court in the case of State of M.P. v. Sheetla Sahai, (2009) 8 SCC 617 has held as follows :- "...... There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Cr.P.C. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants." So, in view of such position of law, no sanction under Section 19 of the Prevention of Corruption Act is required. 7. The learned Special Judge, Vigilance, Bhubaneswar in the impugned order has observed that when the order taking cognizance was not challenged, the question of requirement of sanction under Section 197 Cr.P.C. was not to be considered at the stage of consideration of charge. In this regard, it would be appropriate to refer to a decision of the Apex Court in the case of Parkash Singh Badal and another v. State of Punjab and others, (2007) 1 SCC 1 , wherein in paragraph-38 it has been held as follows :- "38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage." In view of such settled position of law, the learned Special Judge, Vigilance, Bhubaneswar should have considered the question of sanction by the time of considering the question of charge. This is a case of the year 2005. Already more than one decade has elapsed. So, in the interest of justice, this Court thinks it proper to consider and decide the question of requirement of sanction in this revision petition, moresover when both the counsels have addressed the said issue. 8. Learned counsel for the petitioner contended that even though the petitioner has ceased to be a public servant, sanction under Section 197 Cr.P.C. for his prosecution is a legal requirement. In this context, it would be appropriate to refer to a decision of the Apex Court in the case of Rajib Ranjan and others v. R. Vijaykumar, (2015) 1 SCC 513 , at paragraph-18 held as follows :- "18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor 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. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied." In view of such settled position of law, no sanction under Section 197 Cr.P.C. was required for prosecution of the present petitioner who had been charge-sheeted for commission of offence under Sections 120-B/420 of IPC. 9. The only question is as to whether on the facts of the present case, the same has been correctly applied." In view of such settled position of law, no sanction under Section 197 Cr.P.C. was required for prosecution of the present petitioner who had been charge-sheeted for commission of offence under Sections 120-B/420 of IPC. 9. Coming to the factual aspects, it is noticed that the present petitioner was working as Executive Director (Finance) of the Corporation. It is alleged that the co-accused - S.R.K.K. Rajabahadur applied for housing loan of Rs.20 lacs for construction of a multistoried apartment in the schedule property which belonged to one Manash Ranjan Ray and Gouri Ray who had executed an unregistered General Power of Attorney in favour of the co-accused - S.R.K.K. Rajabahadur for construction of apartment. The loan proposal was scrutinized by the retainer of the Corporation who in his legal opinion dated 26.03.1997 had suggested that; (1) the land owners as well as the Developers may be asked to submit affidavit declaring that they are the owners in peaceful possession of the property and the same is free from litigation and they had neither encumbered the property nor shall encumber the same till all the dues of the Corporation are cleared; (2) taking shortage of the aforesaid property, the Developer may be asked to submit the collateral security over and above the shortage. The then C.M.D. of the Corporation had sanctioned the loan on 02.04.1997 with conditions that; (1) Tripartite agreement should be executed by the owner of the Project land, S.R.K.K. Rajabahadur and ORHDC; (2) Landowners to join as confirming party to the loan transaction with the Builder; (3) Owner of the land should furnish affidavits declaring his "No Objection"; and (4) Guarantee be obtained from the collateral surety. But, ignoring the legal opinion and the conditions imposed by the C.M.D., the final instalment of loan of Rs.10 lacs was released on 01.05.1997 and the present petitioner had approved the proposal of co-accused - S.R.K.K. Rajabahadur. Similarly, without spot verification, the co-accused recommended for release of the final instalment and the present petitioner approved the proposal and released the loan to the owner on 09.06.1997. 10. The learned Special Judge, Vigilance, Bhubaneswar on consideration of the materials on record has rightly held that there is prima-facie material against the present petitioner. Similarly, without spot verification, the co-accused recommended for release of the final instalment and the present petitioner approved the proposal and released the loan to the owner on 09.06.1997. 10. The learned Special Judge, Vigilance, Bhubaneswar on consideration of the materials on record has rightly held that there is prima-facie material against the present petitioner. So, I do not find any illegality in the impugned order requiring interference by this Court in this revision petition. 11. Hence, this revision petition being devoid of any merit stands dismissed. L.C.R. received be sent back forthwith along with a copy of this order. Final Result : Dismissed