Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2726 (ALL)

Bhupendra Pal Singh v. State of U. P.

2019-12-06

DINESH KUMAR SINGH I

body2019
ORDER : 1. Heard Sri. Gulab Chandra, learned counsel for the applicant and Sri. Rahul Srivastava, learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire criminal proceedings of Criminal Case No. 04 of 2018 (State of U.P. vs. Bhupendra Pal Singh) including charge-sheet dated 31.05.2018 cognizance order dated 08.06.2018 and subsequent charge-sheet dated 20.04.2019 and others, arising out of Case Crime No. 1089 of 2016, under Sections 13(1) read with Section 13(2) of Prevention of Corruption Act, Police Station Baradari, District Bareilly, with a further prayer to stay further proceedings of the aforesaid case. 3. The submission made by the learned counsel for the applicant is that the cognizance order dated 08.06.2018 taken on the charge-sheet is bad in law because the sanction to prosecute the applicant was initially given by Joint Director Education Bareilly, Division Bareilly by order dated 04.05.2018 was subsequently stayed by order dated 05.06.2018 of the same officer and despite that cognizance on the charge-sheet has been taken on 08.06.2018. Secondly it was argued that the court concerned had issued a notice to the inspector who had conducted the investigation and submitted the charge-sheet on 05.01.2019 directing him to give his explanation as to why charge-sheet was submitted in court despite the order having been passed for re-investigation. Therefore, it was argued that even court had taken objection to filing the charge-sheet on which cognizance has been taken, therefore charge-sheet and the entire criminal proceedings initiated against the applicant deserves to be quashed. 4. Learned counsel for the applicant placed reliance on Para 13 and 133 of State vs. Mukesh Kumar Singh and Another, 2018 (0) Supreme (Del) 501 relevant Para of which is quoted herein-below: “13. On 09.02.2009, the Additional CP (Crime) granted sanction for prosecution (hereinafter referred to as “the first sanction order”) under Section 19 of POC Act. On 25.03.2009, charge-sheet was prepared and submitted in the court of Special Judge on 01.04.2009. On 22.04.2009, the Special Judge recorded an order taking cognizance of offences punishable under Sections 7/13(1)(d) of POC Act. 133. For the foregoing reasons, this court finds the fresh sanction under Section 19 of POC Act to be vitiated rendering the proceedings in the criminal case based thereupon impermissible. On 22.04.2009, the Special Judge recorded an order taking cognizance of offences punishable under Sections 7/13(1)(d) of POC Act. 133. For the foregoing reasons, this court finds the fresh sanction under Section 19 of POC Act to be vitiated rendering the proceedings in the criminal case based thereupon impermissible. In the given facts and circumstances, this court also holds that the prosecution of A1, A2 or A3 for offences under the general criminal law (IPC offences) is also impermissible, there being no sanction under Section 197 Cr.P.C. Further, this court concludes that no case of charge is made out on the available material to put A1, A2 or A3 on trial on the reports under Section 173 Cr. PC presented in the case of ACB.” 5. Further reliance has been placed by the learned counsel for the applicant on Para 53 and 54 of Ayush Kumar and Others vs. State of U.P. and Another, 2019 (0) Supreme (All) 451, relevant Para of which is quoted herein-below: “53. In view of aforesaid discussion under the given facts and circumstances, this Court is of the view that it is clear that the act done by the applicants regarding which, a criminal prosecution/proceedings has been initiated against them was intrinsically connected with discharge of their official and statutory duty. As such the applicants are entitled for the benefit of Section 168 Electricity Act. The protection under Section 197 Cr.P.C. from prosecution is also very much available to applicants. They could not have been prosecuted without prior sanction under the given facts and circumstances of this case. The Investigating Officer committed legal error in submitting impugned charge-sheet against the applicants without obtaining prior sanction under Section 197 Cr.P.C. from the authority concerned. The learned Magistrate has also committed legal error in taking cognizance on the aforesaid impugned charge-sheet in absence of sanction order under Section 197 Cr.P.C. In view of above, the impugned summoning order dated 30.04.2011 and further criminal proceedings pursuant thereto against the applicants are liable to be quashed in order to secure the end of justice. 54. The learned Magistrate has also committed legal error in taking cognizance on the aforesaid impugned charge-sheet in absence of sanction order under Section 197 Cr.P.C. In view of above, the impugned summoning order dated 30.04.2011 and further criminal proceedings pursuant thereto against the applicants are liable to be quashed in order to secure the end of justice. 54. In the result, the impugned summoning order dated 30.4.2011 passed by Additional Chief Judicial Magistrate, Court No. 12, Agra and proceedings of Criminal Case No. 2572 of 2010 (State vs. Ayush Kumar and Others) arising out of Case Crime No. 418 of 2010, under Sections 467, 471, 120-B, 192 I.P.C. Police Station Etmuddula, District Agra pending in the Court of Additional Chief Judicial Magistrate, Court No. 2, Agra are hereby quashed.” 6. On the other hand learned A.G.A. has vehemently opposed the prayer for quashing and has argued that the Section 19 of Prevention of Corruption Act, 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:- (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 save 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. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (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 reversed 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. (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation - For the purposes of this section:- (a) error includes competency of the authority to grant sanction. (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.” 7. In view of the above provision it is argued that nowhere in the provision it has been provided that the sanction once granted by competent authority could be withdrawn. The only remedy available in such a situation where sanction is wrongly given, is that a writ petition would lie to get the said sanction quashed. He further argued that the proceedings cannot be quashed even if the sanction is erroneous, irregular or suffers from some infirmity unless that results in great prejudice to the accused applicant. 8. Reliance has been placed upon P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704 , relevant Para of which is quoted herein-below: “15. He further argued that the proceedings cannot be quashed even if the sanction is erroneous, irregular or suffers from some infirmity unless that results in great prejudice to the accused applicant. 8. Reliance has been placed upon P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704 , relevant Para of which is quoted herein-below: “15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.” 9. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.” 9. Further reliance has been placed upon Prakash Singh Bada vs. State of Punjab AIR 2007 SC 1274 , relevant Para of which is quoted herein-below: “43. 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.” 10. Further reliance has been placed upon K. Kalimuthu vs. State by D.S.P. 2005 (52) ACC 793 relevant Para of which is quoted herein-below: “7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. 10. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. 10. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression “no court shall take cognizance of such offence except with the previous sanction.” Use of the words ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or power to try and determine causes. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. 11. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. 11. Such being the nature of the provision the question is how should the expression, any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, be understood? What does it mean? ‘Official’ according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Others vs. M.S. Kochar, 1979 (4) SCC 177 , it was held: “The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.” 12. Use of the expression ‘official duty’ implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.” 11. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.” 11. Further reliance has been placed upon B. Saha and Others vs. M.S. Kochar, 1979 (4) SCC 177 , relevant Para of which is quoted herein-below: “17. The words “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for “it is no part of an official duty to commit an offence, and never can be.” In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami J. in Baijnath vs. State of Madhya Pradesh “it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. 18. In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. 19. 18. In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. 19. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J. of the Federal Court in Hori Ram v. Emperor is generally applied with advantage. After referring with approval to those observations of Varadachariar J. Lord Simonds in H.H.B. Gill vs. The King tersely reiterated that the “test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office. 20. Speaking for the Constitution Bench of this Court, Chandrasekhar. Aiyer J. restated the same principle, thus: “.....in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty...there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” 12. Now, I would like to refer to the merits of the case. As per the F.I.R. the case of the prosecution is that the applicant is senior clerk in the office of Basic Siksha Adhikari, Bareilly. A complaint was made against him regarding his indulging in corrupt practices and having earned wealth beyond his all known sources of income. In the check period beginning from 01.11.2006 to 31.03.2012 his total income was found to be 23,74,52,800/- while the total expenditure including his acquisition of properties was found to be worth Rs. 28,99,205.00/- therefore, he was found to possess the excess Rs. 5,24,67,700/- beyond his all known sources of income. The matter was investigated and charge-sheet was submitted against him. In the check period beginning from 01.11.2006 to 31.03.2012 his total income was found to be 23,74,52,800/- while the total expenditure including his acquisition of properties was found to be worth Rs. 28,99,205.00/- therefore, he was found to possess the excess Rs. 5,24,67,700/- beyond his all known sources of income. The matter was investigated and charge-sheet was submitted against him. The cognizance has been taken on 31.01.2018 on the charge-sheet pursuant to the prosecution sanction which was given by Joint Director Education Dr. Anjana Goyal on 04.05.2018 annexed at page 77 of the paper-book. 13. Subsequently, it appears that the said officer had stayed the order of sanction on 04.05.2018, which is annexed at page 78 of the paper book. It has been argued that because of this stay order the sanction, on the date of taking cognizance would not be treated to be in force and hence, the cognizance taken by the trial court is bad in law. 14. I do not subscribe to the view taken by the learned counsel for the applicant because once the cognizance was given vide order 4.05.2018, whether right or wrong, the remedy available for the same was to file a writ petition to get the same quashed as there is no such provision that the same could be stayed or recalled. Therefore, the order dated 05.06.2018 alleged to have been passed by Joint Director Education appears to beyond her jurisdiction and she did not have any such authority to stay the order once the sanction had been granted. 15. The other argument that the Special Judge of P.C. Act/trial court had issued notice to the investigating officer which is at page 89 of the paper book, on 05.01.2019, to submit his explanation as to why he submitted the charge-sheet despite there being order of re-investigation, even that argument does not hold good in the eye of law because it is prerogative of the investigating officer to submit the charge-sheet after investigation. The trial court's role is only confined to making trial of the accused against whom the charge-sheet has been filed. 16. Therefore, I do not find any substance in arguments of the learned counsel for the applicant that the said order dated 05.01.2019 passed by the trial court calling for explanation of the investigating officer would adversely affect the prosecution case. 17. 16. Therefore, I do not find any substance in arguments of the learned counsel for the applicant that the said order dated 05.01.2019 passed by the trial court calling for explanation of the investigating officer would adversely affect the prosecution case. 17. It is absolutely clear that charge-sheet has been submitted and cognizance has been taken. The said order is not found to be suffering from any infirmity. 18. It would also be in the fitness of things to say here that the law which has been cited above clearly indicates that the protection to the Government Officer under Section 19 of the P.C. Act as well Section 197 Cr.P.C. is extended only in order to enable them to perform their function of the government without any fear but the act for which protection may be extended should have direct nexus with his official duty. In the present case, it is apparent that the allegation against the applicant is that he has amassed huge wealth disproportionate to his all known sources of income. Amassing such huge wealth by some illegal means would certainly be not covered in the official duty. Otherwise also in case there was no sanction under Section 197 Cr.P.C. or under Section 19 of P.C. Act, the prosecution would not suffer. 19. One more thing this Court would like to clarify that in P.K. Pradhan's Case (supra), it has been made absolutely clear that the question of sanction under Section 197 of the Code (Pari materia to Section 19 of P.C. Act) can be raised at any time after cognizance, may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively as to whether the act said to be an offence was performed within the official duty because that would require giving opportunity to the defence to establish by adducing evidence that the said act was in discharge of his official duty. Therefore, at the initial stage it was not required to nip the prosecution of the applicant into bud without giving opportunity to prosecution and defence to lead evidence in respect of this offence. 20. Therefore, at the initial stage it was not required to nip the prosecution of the applicant into bud without giving opportunity to prosecution and defence to lead evidence in respect of this offence. 20. Having regard to all the facts as well as position of law, I am not inclined to interfere under inherent jurisdiction of this court in the present matter. 21. This application deserves to be dismissed and is accordingly dismissed.