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2021 DIGILAW 703 (GAU)

. v. State of A. P.

2021-11-17

ROBIN PHUKAN

body2021
JUDGMENT : Robin Phukan, J. 1. This petition, under section 482 of the Cr.P.C., is preferred by Shri Marnya Ete, S/o. Late Gomar Ete, R/o Village-Darka, P.O./P.S.-Aalo, West Siang District, Arunachal Pradesh for quashing the impugned supplementary Charge-Sheet, dated 19.09.2012, in connection with SIC (VIG.) P.S. Case No. 06/2007, under Sections 120 (B)/420/468/471 of the Indian Penal Code read with Section 13 (1)(c) (d) & 13 (2) of the PC Act, 1988 and the impugned order, dated 10.10.2012, in Spl. (Vig.) (T) Case No. 05/2012, passed by the learned Special Judge, North Lakhimpur. It is to be mentioned here that vide impugned order the ld. Special Judge, North Lakhimpur has taken cognizance of the offence and issued summon to the petitioner to appear before him to stand trial, without prosecution sanction. 2. The factual background leading to filing of this criminal petition is briefly stated as under:- "In the year, 2007, the Special Investigation Cell (SIC), Vigilance, Itanagar registered several cases against various officials of the District Food and Civil Supplies, Directorate of the Food and Civil Supplies and Deputy Commissioners of East Siang, West Siang and the Upper Siang districts including the present petitioner in connection with Spl. (VIG) P.S. Case No. 06/2007, under Sections 120(B)/420/468/471 of the Indian Penal Code, read with Section 13 (1) (c) (d) & 13 (2) of the PC Act, 1988. The allegation levelled against the officials is that Levy Sugar is not enlisted as an item of Hill Transport Subsidy (HTS) claims, under the Hill Transport Subsidy Schemes, but despite being so, during the period from 1999 to 2004, those officials entered into a criminal conspiracy with the carriage contractors and got false HTS bills passed in respect of transportation of Levy Sugar fraudulently from the Food Corporation of India (for short, 'FCI') and thereby causing wrongful loss to the State Exchequer to the tune of crores of rupees and wrongful gain to the carriage contractors by illegally abusing their official position. As such, they are guilty of criminal misconduct. Thereafter, investigation was carried out and the same culminated in submission of Charge-Sheet No. 2, dated 16.07.2010, before the learned Special Judge, North Lakhimpur, Assam against different officials. It is to be mentioned here that the name of the petitioner finds no mention in the said Charge-Sheet. As such, they are guilty of criminal misconduct. Thereafter, investigation was carried out and the same culminated in submission of Charge-Sheet No. 2, dated 16.07.2010, before the learned Special Judge, North Lakhimpur, Assam against different officials. It is to be mentioned here that the name of the petitioner finds no mention in the said Charge-Sheet. But, subsequently, the investigating officer submitted a supplementary Charge-Sheet, dated 19.09.2012, against the petitioner and other officials. It is also stated that the allegation of misconduct levelled against the accused petitioner relates to the discharge of his official duties as Deputy Commissioner and the same took place during his tenure as such, and hence the investigating authority for the prosecution of the petitioner, sought for prosecution sanction, under Section 19 of the PC Act, 1988 from the Chief Secretary, Govt. of Arunachal Pradesh, vide letter No. SIC/VIG/17/PRO-SAN/05-10 dated 12.07.2010. But, the request for prosecution sanction, in respect of the petitioner was rejected by the competent authority, vide letter No. VIG-132/15, dated 28.09.2015, after assessment of the materials placed before it and finding no prima facie case made out against the petitioner. On receipt of the same, the investigating agency has communicated the same to the learned Special Judge, North Lakhimpur vide letter No. SIC/VIG/PS/FIR-06/2007, dated 07.10.2015. But, despite absence of prosecution sanction from the competent authority, the learned Special Judge, North Lakhimpur has taken cognizance of the offence against the accused petitioner and summoned him to stand trial, vide order dated 10.10.2012. 3. Being highly aggrieved by the impugned order dated 10.10.2012, passed by the learned Special Judge, North Lakhimpur, Assam in Spl. (Vig.) (T) Case No. 05/2012, which is without jurisdiction and is liable to be set aside and quashed, the petitioner has approached this court to set aside and quash the supplementary Charge-Sheet, dated 19.09.2012, and the impugned order dated 10.10.2012, passed by the learned Special Judge, North Lakhimpur, Assam in Spl. (Vig.) (T) Case No. 05/2012. 4. Heard Mr. M.A. Islam, the learned counsel for the petitioner and also heard Mr. O. Pada, the learned Standing counsel for the SIC (VIG) - respondent No. 3 & 4 as well as Ms. R. Basar, the learned Junior Govt. Advocate representing the State respondent Nos. 1 & 2. 5. Mr. (Vig.) (T) Case No. 05/2012. 4. Heard Mr. M.A. Islam, the learned counsel for the petitioner and also heard Mr. O. Pada, the learned Standing counsel for the SIC (VIG) - respondent No. 3 & 4 as well as Ms. R. Basar, the learned Junior Govt. Advocate representing the State respondent Nos. 1 & 2. 5. Mr. M.A. Islam, the learned counsel for the petitioner submitted that while the investigating officer has submitted supplementary Charge-Sheet against the accused petitioner, then no prosecution sanction was accorded and the petition for according prosecution sanction was pending before the authorities. But, sanction as requested by the investigating officer, was rejected by the competent authority on 07.10.2015, and the same was communicated to the learned Special Judge, North Lakhimpur, Assam vide letter No. SIC/VIG/PS/FIR-06/2007, dated 07.10.2015. But, prior to rejection of prosecution sanction, the learned Court below, vide order dated 10.10.2012, took cognizance of the offence against the accused petitioner. Drawing pointed attention of this Court to the Section 19 of the PC Act., the learned counsel for the petitioner submits that taking of cognizance without prosecution sanction is manifestly illegal and as such, the impugned order dated 10.10.2012 is not sustainable and therefore, it is contended to set aside the impugned order along with supplementary Charge-Sheet. 6. Further submission of Mr. Islam is that with malafide intention the case has been registered by the SIC, under the influence of the then SP (SIC), namely, M.S. Chohan and the said vigilance Superintendent was himself guilty of conspiracy in registering false cases and falsification of record, for which he had to face criminal charges and investigation by the SIC and the CBI and the said communication is reflected in Paragraph Nos. 5 & 6 of the rejection order dated 28.09.2015 passed by the Chief Secretary, Govt. of Arunachal Pradesh. 7. Mr. Islam, also referred one case law of this Court in Arambam Thomchou Singh-vs-Union of India and Others (2010) 1 GLR 714, and two case laws of Hon'ble Supreme Court in N.K. Ganguly-vs.-CBI, New Delhi (2016) 2 SCC 143 and Surinderjit Singh and Another-vs-State of Punjab and Another (2016) 8 SCC 722 , and two judgment of this Court in Crl. Petn. No. 20 (AP) 2017 (Dr. Petn. No. 20 (AP) 2017 (Dr. Ashish Chandra Verma-vs-State of A.P. & 3 others) and in WP (Crl.)10/2017 (Shri Abraham Vaichamackal-vs-State of A.P. & 3 others) to contend that entire proceeding in such cases, in absence of prosecution sanction, which is necessary prerequisite, are without jurisdiction. 8. On the other hand, Mr. O. Pada, the learned Standing counsel SIC (VIG), in his usual fairness, submitted that the impugned order of taking cognizance was passed by the learned Special Judge, North Lakhimpur without prosecution sanction. Producing one letter of one Inspector of SIC (VIG) Police Station, dated 18.09.2021, Mr. Pada has confirmed that prosecution sanction in respect of the petitioner- Shri Marnya Ete, former Deputy Commissioner, West Siang District, Aalo was rejected and as such, Mr. Pada, the learned Standing counsel, has not disputed the submission made by the learned counsel for the petitioner. 9. Having heard the submission of the learned Advocates of both the sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the scanned copy of the record and Case Diary of the learned Court below. 10. It appears that SIC (VIG) P.S. Case No. 06/2007, has been registered on the basis of one FIR lodged by one S.C. Jadav, DSP, SIC (VIG.), Itanagar against various officials of District Food and Civil Supply, Directorate of Food and Civil Supply and Deputy Commissioners of East Siang, West Siang, Upper Siang. The allegations against those officials is that they entered into criminal conspiracy with various contractors and got false HTS bills passed in respect of transportation of Levy Sugar fraudulently from FCI and thereby causing wrongful loss to the State Exchequer to the tune of crores of rupees and caused wrongful gain to the contractors. Thereafter, investigation was carried out and the same culminated in submission of Charge-Sheet before the learned Special Judge, North Lakhimpur. In the said Charge-Sheet, the name of the accused petitioner finds no mention. But, subsequently, supplementary Charge-Sheet dated 19.09.2012, is submitted against the accused petitioner. Further, it appears that the Charge-Sheet was submitted before the learned Special Judge, North Lakhimpur without prosecution sanction. The investigating agency sought for prosecution sanction against the accused petitioner vide application dated 12.07.2010. But, the competent authority has rejected the petition vide order dated 28.09.2015. The rejection order was forwarded to the learned Special Judge, North Lakhimpur, Assam on 07.10.2015. Further, it appears that the Charge-Sheet was submitted before the learned Special Judge, North Lakhimpur without prosecution sanction. The investigating agency sought for prosecution sanction against the accused petitioner vide application dated 12.07.2010. But, the competent authority has rejected the petition vide order dated 28.09.2015. The rejection order was forwarded to the learned Special Judge, North Lakhimpur, Assam on 07.10.2015. It also appears that the learned Special Judge, North Lakhimpur, Assam despite absence of prosecution sanction, has taken cognizance of the offence against the accused petitioner vide order dated 10.10.2012. It is not in dispute that at the time of submission of Charge-Sheet against the accused petitioner there was no prosecution sanction. Prosecution sanction was rejected vide order dated 28.09.2015, and it was communicated to the learned Special Judge, North Lakhimpur, Assam vide letter dated 07.10.2015. But, much prior to that, the learned court below took cognizance of the offences on 10.10.2012, and issued summon to the petitioner to appear before it and to stand trial. 11. Now, the question to be seen is that whether the learned Court below was justified in taking cognizance of the offences against the petitioner under Sections 120(B)/420/468/471 of the Indian Penal Code read with Section 13 (1) (c) (d) & 13 (2) of the PC Act, 1988 without prosecution sanction and further whether the accused petitioner can be prosecuted in absence of prosecution sanction which was rejected vide order dated 28.09.2015 by the competent authority. It is to be mentioned here that the investigating officer has sought prosecution sanction, under section 197 IPC and section 19 of the Prevention of Corruption Act, as it appears from the charge sheet, vide letter No. SIC/VIG/17/PRO-SAN/05-10, dated 12.07.2010. 12. Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under:- "19. 12. Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads 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." 13. Hon'ble Supreme Court in Dilwar Singh Vs. Pervinder Singh @ Iqbal Singh & Anr, (2005) 12 SCC 709, held as under:- "Thus, it appears that this section creates a complete bar on the power of the court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 & 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. 14. In State v. Raj Kumar Jain (1998) 6 SCC 551 , Hon'ble Supreme Court, while examining the scope of Section 6(1) of the Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 of the Act, after quoting the provisions of Section 6(1) of the Prevention of Corruption Act, 1947, it was held as under in para 5 of the Report: (SCC pp. 552-53) "5. From a plain reading of the above section it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. 552-53) "5. From a plain reading of the above section it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions." 15. Thus, the impugned order of taking cognizance under Section 13(1)(c)(d) & 13(2) of the PC Act, 1988 dated 10.10.2012, passed by the learned Special Judge, North Lakhimpur, without prosecution sanction and further, summoning of the accused petitioner to stand trial, is vitiated and the proceeding is void ab initio. Reference in this context can also be made to a decision of Hon'ble Supreme Court in Mohd. Iqbal Ahmad v. State of A.P., (1979) 4 SCC 172 . 16. Now, it is to be seen whether prosecution sanction, under section 197 Cr.P.C. is necessary here in this case as the petitioner has been charge sheeted under section 120(B)/420/468/471 IPC also. It appears that prosecution sanction from the Chief Secretary, Govt. of Arunachal Pradesh was sought for vide letter No. SIC/VIG/17/PRO-SAN/05-10, dated 12.07.2010, under Section 19 of the PC Act, 1988 only. The investigating officer, in fact, did not asked for prosecution under section 197 IPC although he has reflected the same in the Charge Sheet. 17. In the case of Prakash Singh Badal and Another Vs. State of Punjab and other: AIR 2007 SC 1274 , Hon'ble Supreme Court has held as follows:- "35. 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. 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. 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 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. This aspect makes it clear that the concept of Section 197 does not immediately get attracted on institution of the complaint case. 18. In the case of Rajib Ranjan and others Vs. R. Vijoykumar, (2015) 1 SCC 513 , it has been observed as follows: "15. The sanction, however, is necessary if the offence alleged against public servant is committed by him "while acting or purporting to act in the discharge of his official duties". In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, following yardstick is provided by this Court in Dr. In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, following yardstick is provided by this Court in Dr. Budhikota Subbarao in the following words: "6. ........ If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed." 16. This principle was explained in some more detail in the case of Raghunath Anant Govilkar v. State of Maharashtra, which was decided by this Court on 8-2-2008 in SLP (Crl.) No. 5453 of 2007, in the following manner: (SCC pp. 298-99, para 11) "11. 7. .... "66. ....... On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli v. State of Bombay and Amrik Singh v. State of Pepsu was as follows: (Amrik Singh case, AIR p. 312, para 8) '8....... It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. The real question therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Sections 120-B read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar." 19. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar." 19. In the case of N.K. Ganguli Vs. Central Bureau of Investigation, New Delhi, (2016) 2 SCC 143 , referred by the ld. Counsel for the petitioner, Hon'ble Supreme Court held 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." 20. 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 misdemeanour 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. 21. Now, coming to the factual matrix of the case in hand, I find that at the material time of occurrence the petitioner was serving as Deputy Commissioner, West Siang District, Aalo. The allegation against him is that in his capacity as Deputy Commissioner, he has passed the bills relating to HTS claims in respect of Levy Sugar, which is not enlisted as an item of HTS. The allegation against him is that in his capacity as Deputy Commissioner, he has passed the bills relating to HTS claims in respect of Levy Sugar, which is not enlisted as an item of HTS. The petitioner has claims that he has passed the bills as per Govt. rules and the said bills were prepared by the Food and Civil Supply Branch of his office. It also appears that he did not receive any communication or instructions from the Govt. of Arunachal Pradesh or Directorate of Food and Civil Supplies as to whether Levy Sugar was a HTS claims item or not. The order rejecting prosecution sanction, dated 28.09.2015, confirmed non-receipt of communication from the higher authorities by the petitioner. It also appears that earlier Levy sugar was enlisted for HTS claim and HTS was paid on transportation of Levy sugar to the state government by the FCI/GOI up to 2003-2004. Further, it appears that the State Cabinet, vide its decision in the meeting held on 15th March 2008, decided that HTS will be paid on account of levy sugar by the State Government as earlier and formal order was issued to that effect on 26th March, 2008. 22. Further, it appears from the order rejecting prosecution sanction that vide order dated 15.06.2007, in PIL No. 50/2004, this court has directed the SP, SIC for investigation of the alleged conspiracy of officers with contractors in respect of illegal payment of HTS bills of Levy sugar to the contractors, and thereby, causing wrongful loss to the public fund. And taking undue advantage of the said order, the SP, SIC indulged in alleged misdemeanour, such as falsification of record, fake self kidnapping etc. for which the SIC and CBI had recommended registration of criminal case and commencement of investigation, and presently, three cases under IPC and PC Act are pending against the SP, SIC - Shri M.S. Chohon and prosecution sanction has been granted in the same. It also appears that in the present case, and in several other cases, recommended for prosecution by Shri Chohon, were held back till the investigation and sanction of prosecution against Shri Chohon is finalised so that fair finding could emerge. 23. In the given factual matrix it cannot be said that the petitioner did commit any criminal misconduct as alleged by passing HTS claim bills in respect of the Levy Sugar. 23. In the given factual matrix it cannot be said that the petitioner did commit any criminal misconduct as alleged by passing HTS claim bills in respect of the Levy Sugar. And he did so, in his capacity as Deputy Commissioner and in discharge of his official duty. The acts complained of are directly concerned with the official duties of the petitioner as Deputy Commissioner. The investigating agency has neither produced document to show wrongful payment so made to the contractors, resulting pecuniary gain direct or indirect to the petitioner, nor there is evidence of disproportionate assets emerged and alleged money trail was not investigated at all. Even the statement of the petitioner is also not found on the record. Therefore, to the considered opinion of this court prosecution sanction is necessary to prosecute the petitioner under the IPC offences also and the provision of section 197 Cr.P.C. is attracted. 24. I have considered the submission of Mr. Islam, ld. Counsel for the petitioner and I find sufficient force in the same. Also, I have carefully gone though the case laws Arambam Thomchou Singh-vs-Union of India and Others (supra) and Surinderjit Singh and Another-vs-State of Punjab and Another: (supra) referred by Mr. Islam and find that the ratio laid down in the same fully supported his submission. 25. While no prosecution sanction is granted against the petitioner either under section 197 Cr.P.C. for prosecution under section 120 (B)/420/468/471 of the Indian Penal Code or under section 19(1) of the PC Act for prosecution Section 13 (1) (c) (d) & 13 (2) of the PC Act, 1988, the impugned order dated 10.10.2012 in Spl. (Vig.) (T) Case No. 05/2012 passed by the learned Special Judge, North Lakhimpur taking cognizance of the offence under section under the aforementioned sections, is void ab-initio and liable to be set aside. Accordingly, in view of discussion in forgoing para, the impugned supplementary Charge-Sheet, dated 19.09.2012, in connection with SIC (VIG.) P.S. Case No. 06/2007, under Sections 120(B)/420/468/471 of the Indian Penal Code read with Section 13 (1) (c) (d) & 13 (2) of the PC Act, 1988 and the impugned order, dated 10.10.2012, in Spl. (Vig.) (T) Case No. 05/2012, passed by the learned Special Judge, North Lakhimpur, Assam stands quashed and set aside. No order as to cost.