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2018 DIGILAW 609 (RAJ)

LAL BHADUR RAI v. STATE OF RAJASTHAN

2018-02-21

BANWARI LAL SHARMA

body2018
JUDGMENT : Banwari Lal Sharma, J. The present misc. petition is preferred by the petitioner-accused assailing the impugned order dated 18th September, 2017 passed by learned Special Judge, A.C.B., Bharatpur in Criminal Case No. 12/2015 (State vs. Lal Bhadur Rai) whereby application of present petitioner submitted under Section 197 Cr.P.C. was dismissed relating to the offence punishable under Sections 7, 13 (1) (D), 13 (2) of P.C. Act and Section 120-B of IPC. 2. The brief facts of the case are that on the complaint of Balveer Singh dated 27.12.2010 after being satisfied about the demand of Rs. 2,000/- out of which Rs. 1500/- was payable to Executive Engineer (petitioner-accused) and Rs. 500/- to be retained by co-accused Narendra Jain, clerk, trap proceedings were arraigned in pursuance of demand made on 27.12.2010, demand of bribe of Rs. 2,000/- was found true and Narendra Jain co-accused was trapped on 29.12.2010 and petitioner-accused and co-accused Narendra Jain were arrested. Thereafter FIR No. 02/2011 dated 04.01.2011 was registered at Police Station ACB, Jaipur. At the relevant time on 29.12.2010, petitioner-accused was posted as Executive Engineer and was retired on 31.12.2012 after attaining age of superannuation, therefore for the purpose of taking prosecution sanction under Section 19 of P.C. Act was not required and prosecution sanction under Section 13 of P.C. Act was accorded against co-accused Narendra Jain and after investigation charge-sheet was filed against the present petitioner-accused and co-accused Narendra Jain for offences punishable under Sections 7, 13 (1) (D), 13 (2) of P.C. Act, 1988 and Section 120-B of IPC before the trial Court. Thereafter, cognizance was taken by the learned trial Court for the aforesaid offences. Thereafter, co-accused Narendra Jain expired on 04.01.2016. 3. Thereafter, after hearing on charge vide order dated 26.10.2016, charge was framed for aforesaid offences against the present petitioner-accused. After framing charge, petitioner-accused moved an application under Section 197 Cr.P.C. before learned trial Court which was dismissed by the learned trial Court vide impugned order dated 18th September, 2017 (Annexure-1) which is under challenge in this misc. petition. 4. Mr. D.G. Chaturvedi learned counsel appearing on behalf of petitioner-accused submits that since at the relevant time petitioner-accused was posted as Executive Engineer and was a public servant. petition. 4. Mr. D.G. Chaturvedi learned counsel appearing on behalf of petitioner-accused submits that since at the relevant time petitioner-accused was posted as Executive Engineer and was a public servant. He submits that from the material collected during investigation, the offence was committed while acting or purporting to the act in discharging of his official duty, therefore Section 197 Cr.P.C. attracts in this matter. For the offence punishable under Section 120-B IPC, without sanction under Section 197 Cr.P.C., learned trial Court cannot proceed against the petitioner-accused. Without considering this fact, learned trial Court wrongly dismissed the application of present petitioner, therefore the impugned order may be quashed and set aside and petitioner-accused may be discharged from the alleged offences. 5. Learned counsel relied on Nanjappa vs. State of Karnataka, 2015 (4) CJ(Cri) 1065, State of Punjab vs. Labh Singh, (2015) 1 RajLW 236 (SC), N.K. Ganguly vs. Central Bureau Of Investigation, New Delhi, (2016) 2 SCC 143 and Amal Kumar Jha vs. State of Chhattisgarh And Another, (2016) 6 SCC 734 . 6. Learned Public Prosecutor supported the impugned order and submitted that the demand of bribe and receiving of bribe for official act which is legally official act, cannot be termed as acting or purporting to act in the dischargee of official duty, therefore sanction under Section 197 Cr.P.C. in case of demanding or receiving bribe is not required at all, equally the same is not required for criminal conspiracy for the aforesaid offences. 7. He submits that when the IPC offence of 120-B is made out for other offences punishable under the special Act then the nature of IPC offence of 120-B will be same as of the Special Act offences and the sentence is also same as provided in the Sections of offence of Special Act, therefore this writ petition may be dismissed. 8. I have considered the submissions made at Bar. 9. Since the allegation against the present petitioner is regarding demand of bribe of Rs. 2,000/- and receiving the bribe amount of Rs.2,000/- from the complainant for the work, for which he was legally bound to do in his official capacity without receiving the bribe amount, therefore it cannot be said that offence committed by the petitioner was while acting or purporting to act in the discharge of his official duty. 2,000/- and receiving the bribe amount of Rs.2,000/- from the complainant for the work, for which he was legally bound to do in his official capacity without receiving the bribe amount, therefore it cannot be said that offence committed by the petitioner was while acting or purporting to act in the discharge of his official duty. Accordingly, the provision of Section 197 Cr.P.C. does not at all attracts in this matter. Not only this, learned counsel for the petitioner himself admits that Section 197 doesn't attract for offence punishable under Sections 7, 13 (1) (D) and 13 (2) of P.C. Act. It is settled law that when the offence of criminal conspiracy is committed for the offence of special acts or other Sections of IPC then the nature of Section 120-B IPC will be same as of the main offence, for which criminal conspiracy was committed. 10. Here in the case in hand, it is admitted position that for offences committed under Sections 7, 13 (1) (D) and 13 (2), no prosecution sanction is required under Section 197 Cr.P.C., therefore the criminal conspiracy committed for the aforesaid P.C. Act offences, no sanction is at all required even being IPC offence for offence under Section 120-B IPC. 11. So far as the case laws submitted by learned counsel for the petitioner are concerned, in Nanjappa vs. State of Karnataka, State of Punjab vs. Labh Singh, N.K. Ganguly vs. Central Bureau Of Investigation, New Delhi and Amal Kumar Jha vs. State of Chhattisgarh And Another. 12. None of the aforesaid case law relates to direct demand or receiving bribe, therefore the facts of all these cases are altogether different from the present case. In the present case, there is direct allegation of demand and receiving of bribe amount. In the matter of State of Punjab vs. Labh Singh Hon'ble Supreme Court observed that :- "However as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike section 19 of the POC Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement. Unlike section 19 of the POC Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned. As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen, the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material." 13. The aforesaid legal preposition is not disputed but this case law relates to offence punishable under Section 218, 409, 465, 467 and 120-B IPC along with Section 13 (1) (C) with Section 13 (1) (D) of P.C. Act and it was alleged in the FIR that semi-Government letter dated 04.03.1994 had stated that pursuant to certain raids conducted at the site for checking the earth work done on Bhakra main line, it was found that as regards four projects cross sections/estimates were not prepared before doing any work and that it appeared that the estimates were actually prepared by the concerned Government servants after completion of work thereby violating provisions of PWD code and causing loss to the tune of Rs.3,69,603/- to the exchequer. Pursuant to said FIR crime was registered and investigation was undertaken by the Vigilance Bureau, therefore the allegations in the FIR were in regard to discharging the official duty of the accused. 14. But, here in the case in hand, the allegation is regarding demand and receiving of bribe amount for the work, for which petitioner-accused was legally bound to do so, therefore aforesaid preposition does not help in this matter to the petitioner-accused. 15. In the matter of N.K. Ganguly vs. Central Bureau Of Investigation, New Delhi, in para No. 18 and 19 it was observed that :- "At this stage, it is important to examine the concept of criminal conspiracy as defined in IPC. 15. In the matter of N.K. Ganguly vs. Central Bureau Of Investigation, New Delhi, in para No. 18 and 19 it was observed that :- "At this stage, it is important to examine the concept of criminal conspiracy as defined in IPC. Section 120-A of the IPC reads as under : "When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. In the instant case, it is alleged in the charge-sheet that the appellants entered into an agreement to commit an illegal act, which is an offence punishable under Section 120B of IPC. Therefore, the provision of Section 197 of CrPC is squarely applicable to the facts of the case. Prior sanction of the Central Government was required to be taken by the respondent before the learned Special Judge took cognizance of the offence once the final report was filed under Section 173(2) of CrPC. In this regard, Mr. Gopal Subramanium, learned senior counsel appearing on behalf of the appellant has very aptly placed reliance on the decision of a three judge bench of this Court in the case of R.R. Chari v. State of Uttar Pradesh, wherein, while examining the scope of Section 197 of CrPC, this Court made an observation indicating that the term "cognizance" indicates the stage of initiation of proceedings against a public servant. The Court placed reliance upon the judgment of the Calcutta High Court delivered in the case of Superintendent and Remembrance of Legal Affairs, West Bengal v. Abhani Kumar Bannerjee, wherein it was held that before taking cognizance of any offence, a Magistrate must not only be said to have applied his mind to the contents of the petition." 16. Thereafter in para No. 35, it was observed that :- "From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. Thereafter in para No. 35, it was observed that :- "From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence." 17. But this case is also not in regard to demand of bribe for work for which accused was legally bound to do, therefore the facts of this case are also altogether different from the present case. 18. Therefore, the case laws cited by learned counsel for petitioner doesn't help him and the criminal misc. petition devoids merit which deserves to be dismissed. 19. Accordingly, this misc. petition is dismissed.