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2019 DIGILAW 347 (ORI)

Madhusudan Dash v. State of Odisha

2019-04-25

J.P.DAS

body2019
JUDGMENT : J.P. Das, J. This is an application under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.") assailing the order of cognizance passed by the learned Special Judge, Vigilance, Cuttack against the present petitioner and others in T.R. Case No.47 of 2016 by order dated 25.11.2016 for the offences punishable under section 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, 1988 (in short, "P.C.Act") read with Sections 409/465/468/471/ 420/120-B,I.P.C. 2. The petitioner assails the impugned order so far as he only is concerned on the ground that the cognizance has been taken wrongly by the learned trial court in absence of valid sanction of the competent authority to prosecute the petitioner for the alleged offences. 3. The prosecution case is that while the petitioner was working as Block Development Officer of Rasulpur Block, an allegation of misappropriation of Government money was reported and an enquiry was taken up. In course of enquiry, it was found out that one "Dapanala" an industrial canal located in Odisho Grama Panchayat of Rasulpur Block, Jajpur belongs to the Minor Irrigation Division, Cuttack. The said Irrigation Division framed estimate of Rs.3,00,000/-(three lakh) on 04.10.2008 for renovation work of the canal and completed the work between 25.02.2009 to 26.03.2009. But, it was alleged that the same work was again taken up for execution by Odisho Grama Panchay at under NREGS 2008-09. One co-accused, Junior Engineer, prepared an estimate of Rs.5,00,000/-(five lakh) on 19.05.2009 and it was sanctioned by another co-accused Assistant Engineer. The Sarpanch of concerned Grama Panchayat provided administrative approval and issued Work Order on 20.05.2009 in favour of the Executive Officer of the said Grama Panchayat. The said work was shown to be completed on 15.06.2009 and final bill of Rs.2,22,260/- was paid. It was found out that neither the permission of the Irrigation Division was taken to undertake the said work nor it was actually taken up since it was completed earlier by the concerned Irrigation Division. It was found out that the present petitioner as the then B.D.O. of Rasulpur Block, had instructed for preparation of estimate in the month of May, 2009 and had also passed orders for issuance of muster rolls to the concerned Executive Engineer and Junior Engineer of the Block for the alleged project. He had also recommended some job cards without recommendation of the concerned Grama Panchayat. He had also recommended some job cards without recommendation of the concerned Grama Panchayat. Finding the allegations to be prima-facie true, the chargesheet was prepared and sanction was sought for from the concerned competent authority of the present petitioner and separately for other coaccused persons. So far as the other co-accused persons are concerned, sanction was accorded by the concerned authority. But so far as the present petitioner is concerned the appropriate authority namely, General Administration Department of the Government of Odisha refused to accord sanction against the present petitioner mentioning that orders have been passed for initiation of departmental proceeding against the present petitioner for his lack of supervision of the work on the grounds of gross negligence of duty in violation of NREGS guidelines and loss of government money. The said rejection order was issued on 22nd August, 2016. 4. The Vigilance Department submitted charge-sheet dated 29.09.2016 against all the accused persons including the present petitioner for the offences as aforesaid mentioning therein that no sanction was necessary for the present petitioner since he was no more holding the post of B.D.O., Rasulpur Block which he was holding during the check period for having been transferred on promotion and holding a different post in view of the decision of the Hon'ble Apex Court in Criminal Appeal No.721 of 2016 (L.Narayana Swamy vs State of Karnatake and others). The learned Special Judge, Vigilance by his order dated 25.11.2016 took cognizance of all the offences against the present petitioner and all other co-accused persons by the impugned order. 5. It was submitted by the learned counsel for the petitioner that in absence of a valid sanction as required under Section 19 of the Prevention of Corruption Act as well as Section 197 of the Code of Criminal Procedure, the learned trial court could not have taken cognizance against the petitioner and hence, the impugned order is liable to be set-aside. That is the sole contention raised on behalf of the petitioner in assailing the impugned order. 6. That is the sole contention raised on behalf of the petitioner in assailing the impugned order. 6. Per contra, it was strenuously contended by Mr.Maharana, Additional Standing Counsel for the Vigilance, that in view of the specific observation of the Hon'ble Apex Court in L.Narayan Swamy case (Supra) relying upon a large number of earlier decisions on similar line that no sanction order is necessary for prosecuting a public servant if he has ceased to hold the post which he held during the check period for either being on transfer or on promotion the impugned order of cognizance is unassailable. Learned counsel also placed some other decisions on similar line that no sanction is necessary under Section 19 of the P.C. Act, if the Officer concerned has already ceased to hold the same post which he was holding during the check period. It was submitted by Mr.Dhal, learned counsel for the petitioner, that the position of law as relied upon by the Vigilance Department, though not disputed, is absolutely distinguishable in the present case for the reason that in the instant case necessary sanction was sought for and it has been refused. 7. The sole question remains to be answered in this case is whether the learned trial court was correct in taking cognizance of the offences against the present petitioner in absence of valid sanction. The charge-sheet was submitted specifically mentioning that in view of the decision of the Hon'ble Apex Court in the case of L.Narayan Swami (Supra) there was no necessity of sanction since the present petitioner has already seized to hold the office which he was holding during the check period. As seen from the impugned order, the learned Special Judge, Vigilance, has not made any discussion or reference of the said position of law and has simply passed the order of cognizance. The learned counsel for the State, Vigilance, harped upon the said position of law relying upon certain other case laws in submitting that no sanction is necessary in the present case in view of the fact that the petitioner is holding a different post presently. 8. The learned counsel for the State, Vigilance, harped upon the said position of law relying upon certain other case laws in submitting that no sanction is necessary in the present case in view of the fact that the petitioner is holding a different post presently. 8. One aspect gains importance in the present case differentiating it from the cases as cited and decided by the Hon'ble Apex Court in relation to necessity of sanction that in the present case, sanction has been refused by the competent authority under whom the petitioner was working at the relevant time of check period. In the case of L.Naryan swami it has been categorically observed that if the public servant had abused entirely different office or offices than the one, which he was holding on the date when cognizance was taken, there was no necessity of sanction under Section 19 of the P.C. Act. It was further observed that: "Therefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This interrelation and interdependence between individual and the office he holds is substantial and not severable. Each of the three clauses of subsection(1) of Section 6 (pre-amended) uses the expression office and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office." xxx xxx xxx "Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants." 9. In the case of L.Naryan Swami the accused persons were holding different office at the time of taking cognizance for the offence from the office they held during the check period. Thus, it was the observation of the Hon'ble Apex Court that since the competent authority to remove the accused persons from the office has been changed, there was no necessity for obtaining sanction. But, in the present case, the Vigilance Department after preparation of charge-sheet, sought for sanction from the competent authority namely, State Government in the G.A. Department in its letter dated 18.08.2018 and the Government of Odisha in G.A Department in its letter dated 22.08.2018 was pleased not to accord sanction of prosecution against the present petitioner, Ex-B.D.O, Rasulpur Block, District Jajpur at present Sub-collector, Puri, further mentioning that orders have been passed for initiation of Departmental Proceeding against the petitioner for his lack of supervision of the work on the ground of gross negligence in duty, violation of NREGS guidelines and loss of Government money. Thus, it was apparent from the letter that the appropriate authority on analysis of the material facts came to the conclusion that no criminal offence has been committed by the petitioner but he was liable for being proceeded against in a departmental proceeding for negligence in his official duty. In the stated circumstances, I am of the humble view that the present case of the petitioner stands absolutely on a different footing than the cited case laws where neither any sanction was sought for nor it was required. In the instant case, the sanction having been specifically refused by the competent authority, the bar provided under Section 19 of the P.C. Act or Section 197 of the Cr.P.C. comes into play prohibiting any court to take cognizance of any offence against the present petitioner. 10. In the instant case, the sanction having been specifically refused by the competent authority, the bar provided under Section 19 of the P.C. Act or Section 197 of the Cr.P.C. comes into play prohibiting any court to take cognizance of any offence against the present petitioner. 10. It was further contended by the learned counsel for the State, Vigilance, that even if necessary sanction was refused for prosecuting the petitioner under Section 13 of the P.C. Act in view of the bar under Section 19 of the P.C.Act, still the petitioner can be prosecuted for the offences under Sections 409/465/468/471/420/120-B, I.P.C. since the alleged acts did not relate to his performance of official duties but for his personal gain. It was submitted that the grant or sanction is a mandatory requirement for launching prosecution if the alleged act is done in discharge of his official duties. But, the Section does not extend its protective cover to wrong act or every act of omission or commission done by a public servant. Relying on the decision in the case of Prakash Singh Badal and another vrs State of Punjab and others,2007 36 OCR 233 (SC), it was submitted that the offence of cheating under Section 420 I.P.C. or for that matter the offences relatable to Sections 467/468/471/120-B, I.P.C. can by no stretch of imagination by their very nature being regarded as having been committed by any public servant while acting or purporting to act in discharge of his official duty. Further referring to another decision in the case of Rajiv Ranjan and others vrs R.Bijay Kumar, (2014) AIRSCW 5924, it was submitted that it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Cr.P.C nor even every act done by him while he was actually engaged in the performance of his official duty, but if the act complained of is directly concerned with his official decision so that, if questioned it could be claimed to have been done by virtue of office, then sanction would be necessary. 11. The position of law as submitted and mentioned above are not at all in dispute. 11. The position of law as submitted and mentioned above are not at all in dispute. But again to reiterate, it can be mentioned that the alleged acts committed by the petitioner have been considered by the competent authority and having found not to have made out any criminal offence, necessary sanction has been refused, deciding to proceed against the petitioner departmentally for his negligence in duty while functioning as the B.D.O of the concerned Block during the relevant period. In such circumstances, when it has been considered and sanction has been refused by the competent authority, it does not lie in the mouth of the investigating agency to say that no sanction is necessary. 12. In this regard learned counsel for the petitioner relied upon a decision reported in State of Punjab Vrs. Labh Singh,2015 60 OCR 390 (SC) wherein it was observed by the Hon'ble Apex Court that if the matter was considered by the authority and the sanction to prosecute was rejected, the court could not have taken cognizance in so far as the offences punishable under the Indian Penal Code are concerned. It was further observed that as laid down by the Hon'ble Apex Court in the case of State of Himachal Pradesh Vrs Nishant Sarin, (2010) 14 SCC 527 , the recourse in such cases is either to challenge the order of sanctioning authority or to approach it again if there is fresh material. 13. In view of the said position of law, when the sanction has been refused by the appropriate authority, the prosecuting agency could not have filed chargesheet mentioning that no sanction is necessary, which is again a matter to be considered by a competent court of law, and further the learned trial court could not have taken cognizance of the offences even without whispering a single word about the refusal of sanction. 14. Accordingly, I am of the considered view that the impugned order dated 25.11.2016 in T.R.Case No.47 of 2016 passed by the learned Special judge, Vigilance, Cuttack in taking cognizance of the offences punishable under Section 13 of the P.C.Act and other offences under the Indian Penal Code against the present petitioner on the face of refusal of sanction by appropriate authority is not sustainable in law and is accordingly set-aside. The CRLMC is disposed of accordingly.