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2022 DIGILAW 2306 (BOM)

Sudarshan Kumar Abrol v. Union of India

2022-10-18

AMIT B.BORKAR

body2022
JUDGMENT 1. The applicants-original accused nos.5 and 7 in CBI Special Case No.67 of 2013, are challenging the order dtd. 26/9/2018, passed in Special Case No.67 of 2013, rejecting the discharge Application of applicants for offences punishable under Ss. 120B read with 406, 420, 467, 468, 471 of the Indian Penal Code, 1860 and under Sec. 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988. The gist of allegations against the applicants is that they conspired to cheat and defraud the Syndicate Bank, Shivaji Nagar Branch, Pune, to Rs.54.68 Crores during 2004-2007 in cash credit account of M/s. Satav Infrastructures Pvt. Ltd. in sanction and release of various credit facilities to the said company. 2. On 6/3/2009, the Chief Vigilance Officer of Syndicate Bank filed a complaint with CBI against M/s. Satav Infrastructures Pvt. Ltd. alleging they conspired with other accused to cheat and defraud the Syndicate Bank from 2004-2007. 3. On 26/3/2009, CBI registered a crime vide FIR No.RC-8(E)/2009/CBI/B.S.&F.C.Mumbai against M/s. Satav Infrastructures Pvt. Ltd. Applicant no.1 (original accused no.5) was Regional Head at Pune from 7/5/2002 to 23/10/2006, and applicant no.2 (original accused no.7) was the Chief Manager of Syndicate Bank, Shivaji Nagar Branch, Pune, from 1/9/2005 till 12/7/2009. 4. The competent authority of Syndicate Bank on 4/1/2011 and 10/1/2011 refused to accord sanction under Sec. 197 of the Code of Criminal Procedure, 1973 to prosecute applicants holding that they had acted in accordance with the rules and regulations of the bank. On 28/10/2011, the competent authority refused sanction for the second time. Finally, on 16/5/2012, the competent authority refused sanction for the third time. 5. On 31/12/2012, applicant no.1 retired from the Bank on superannuation. On 28/2/2013, applicant no.2 retired from the Bank on superannuation. 6. On 29/4/2013, the CBI submitted a charge sheet before the Special Court vide CBI Special Case No.67 of 2013 against the applicants and other accused. 7. Applicants, therefore, filed an Application for discharge alleging that the competent authority had refused sanction thrice earlier while Applicants were in service, and therefore, the prosecution could not be launched after the retirement of applicants. 8. On 15/11/2014, the learned Special Judge rejected the Application for discharge. The applicants challenged vide order dtd. 15/11/2014 before this Court. 7. Applicants, therefore, filed an Application for discharge alleging that the competent authority had refused sanction thrice earlier while Applicants were in service, and therefore, the prosecution could not be launched after the retirement of applicants. 8. On 15/11/2014, the learned Special Judge rejected the Application for discharge. The applicants challenged vide order dtd. 15/11/2014 before this Court. This Court, on 16/8/2016, set aside the order of rejection of discharge and directed the learned Special Judge to decide the Application for discharge on its own merits. 9. On 26/9/2018, the learned Special Judge again rejected the Application for discharge, holding that there is no need for sanction under Sec. 197 of the Code of Criminal Procedure, 1973. Aggrieved thereby present Revision Application has been filed. 10. Learned advocate appearing for the applicants relied upon the judgment of the Apex Court in the case of Chittaranjan Das vs the State Of Orissa, 2011 (7) SCC 167 to urge that once the competent authority refused the sanction for prosecution while the public servant was in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for the prosecution under Prevention of Corruption Act, 1988, is necessary after the retirement of a public servant. 11. Per contra, the learned advocate for the CBI submitted that competent authority, by order dtd. 10/4/2013, granted sanction as per the advice of the Ministry of Finance, Department of Financial Services, Vigilance Division. He submitted that the competent authority held that since the applicants have been superannuated from the services of the bank, there is no requirement of sanction for the prosecution of the applicants. He submitted that issue of the validity of the sanction cannot be gone into at this stage, as Special Court would decide the issue at the time of trial. 12. Having carefully considered the submissions on behalf of both sides, in my opinion, the following factual scenario emerges: (i). The competent authority Syndicate Bank refused to accord sanction to prosecute applicants three times in 2011 and 2012 while the applicants were in service. (ii). On 31/12/2012 and 28/2/2013, applicants nos.1 and 2, respectively, retired from the bank on superannuation. (iii). On 28/4/2013, CBI submitted a charge sheet against the applicants and others. 13. On perusal of the order dtd. The competent authority Syndicate Bank refused to accord sanction to prosecute applicants three times in 2011 and 2012 while the applicants were in service. (ii). On 31/12/2012 and 28/2/2013, applicants nos.1 and 2, respectively, retired from the bank on superannuation. (iii). On 28/4/2013, CBI submitted a charge sheet against the applicants and others. 13. On perusal of the order dtd. 4/1/2011 and 10/1/2011 refusing sanction to prosecute applicant nos.1 and 2, respectively, it appears that the competent authority had considered allegations made against the applicants in its report regarding irregularities in providing facilities to M/s. Satav Infrastructures Pvt. Ltd. held that if any material did not support the allegations against the applicants, the request for sanction of prosecution of applicants was rejected. 14. On 28/10/2011 and 16/5/2012, sanctioning authority rejected the request for sanction of Applicants. 15. In the meantime, in view of the difference of opinion between the CBI and the disciplinary authority of Syndicate Bank in the matter of sanction of prosecution against the applicants, CBI requested advice from Central Vigilance Commission. On 10/1/2011, CBI was informed as follows:- "The respective Competent Authority for sanction of Prosecution, having considered the Report furnished by the Central Bureau Of Investigation and the finding of the Disciplinary Inquiry conducted against the captioned Officials (All the 5 Bank officers) and the relevant materials and also taking into consideration their past records in the Bank are of the view that there is no element of conspiracy in respect of the allegations made against the Bank in as much as the Consortium of 5 Banks have provided certain facilities to M/s. Satav Infrastructure Pvt. Ltd. Therefore it cannot be said that the Officials of our Bank might have conspired with the Officers of the Consortium of 5 Banks along with M/s. Satav Infrastructure Pvt. Ltd. in defrauding the Banks in the absence of justifiable/sufficient materials." 16. The Central Vigilance Commission (for short "CVC") vide order dtd. 20/3/2012 adviced competent authority Syndicate Bank to take a stand of its own and proceed in accordance with the advice tendered earlier. 17. Ministry of Finance, by order dtd. 11/12/2012, endorsed the view of competent authority Syndicate Bank refusing sanction for prosecution of applicants. 18. CBI did not challenge the refusal of sanction by the competent authority on the earlier three occasions in the Superior Court. 19. 17. Ministry of Finance, by order dtd. 11/12/2012, endorsed the view of competent authority Syndicate Bank refusing sanction for prosecution of applicants. 18. CBI did not challenge the refusal of sanction by the competent authority on the earlier three occasions in the Superior Court. 19. At this stage, it would be relevant to consider paragraph 14 of the Judgment of Apex Court in the case of Chittaranjan Das vs State Of Orissa (supra), which reads as under:- "14. We are of the opinion that in a case in which sanction sought for is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of the public servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility." 20. In the case of D.L. Rangotha Vs. State of Madhya Pradesh 2015 (12) SCC 733 , the Apex Court applying ratio in the case of Chittaranjan Das vs State Of Orissa (supra) held that once sanction was refused by the State Government for the prosecution of Appellant therein while he was in service, he would not be prosecuted after retirement, and therefore, the prosecution was quashed. 21. In the case of State of Madhya Pradesh Vs. Ram Manohar Pandey, 2015 (12) SCC 726 , the Apex court held that in a case in which the sanction sought is refused by the competent authority while the public service is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under Prevention of Corruption Act, 1988, is necessary after the retirement of public service. It is held that in any other view, being rendered the protection of illusory. 22. Learned advocate appearing for the CBI submitted that the competent authority, by order dtd. 10/4/2013, granted sanction to prosecute the applicants. Therefore, it is not open for the applicants to challenge the validity of the sanction order in a proceeding arising from the rejection of the discharge Application. It is, therefore, necessary to consider the relevant text of the order dtd. 10/4/2013, granted sanction to prosecute the applicants. Therefore, it is not open for the applicants to challenge the validity of the sanction order in a proceeding arising from the rejection of the discharge Application. It is, therefore, necessary to consider the relevant text of the order dtd. 10/4/2013, which reads as under:- "As regards according sanction for prosecution against the following two officials, we wish to inform you that both these officials have since superannuated from the service of the Bank as mentioned below and hence, there is no requirement of sanction for prosecution of these retired officers from our Bank. Sri Sudershan Kumar Abrol (superannuated on 31/12/2012) Sri K S Venugopal (superannuated on 28/2/2013)." 23. Reading of aforesaid paragraph makes it clear that the competent authority granted no sanction, but it was informed that since the applicants were superannuated, there was no requirement for sanction. Therefore, in my opinion, the order dtd. 10/4/2013 cannot be construed as an order granting sanction to prosecute applicants. Even otherwise, the law is well settled that once sanction to prosecute under Sec. 197 of Code of Criminal Procedure, 1973 is refused, it cannot be reviewed. 24. In the result, in my opinion, the issue involved is covered by the Judgment of Chittaranjan Das vs State Of Orissa (supra) as the competent authority refused sanction under Sec. 197 while the applicants were in service. Therefore, they cannot be prosecuted after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act, 1988, is necessary after the retirement of public service. Hence, the following order is passed:- (i). The impugned judgment and order passed by learned Special Judge vide order dtd. 26/9/2018 below Exhibit-23 in Special Case No.67 of 2013 arising out of RC-8(E)/2009/ CBI/B.S.&F.C.Mumbai is quashed and set aside. (ii). Application below Exhibit-23 in CBI Special Case No.67 of 2013 for discharge of accused nos.5 and 7 is allowed. (iii). Applicants/accused nos.5 and 7 stand discharged from Special Case No.67 of 2013 pending before Special Judgment, CBI, Mumbai for offences punishable under sec. 120B read with 406, 420, 467, 468, 471 of the Indian Penal Code, 1860 and under Sec. 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.