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2023 DIGILAW 1069 (RAJ)

Hari Shanker Sharma v. State of Rajasthan

2023-05-09

CHANDRA KUMAR SONGARA

body2023
ORDER : Chandra Kumar Songara, J. Instant petition under Section 482 r/w 483 of the Code of Criminal Procedure, 1973 has been preferred on behalf of the accused-petitioner with the prayer for quashing of impugned F.I.R. No.526/2013 dt.07.12.2013 registered at Police Station, Pradhan Aarakshi Kendra, Anti-Corruption Bureau, Rajasthan, Jaipur. It is further prayed that the impugned order dated 02.06.2016 passed by the Court of Special Judge, Sessions Court, Prevention of Corruption Act, No.2, Jaipur, in Criminal Miscellaneous Application No.42/2015, whereby, while rejecting the application filed by petitioner under Sections 227 & 239 r/w Section 245 of Cr.P.C., cognizance had been taken under Sections 8 & 9 of the Prevention of Corruption Act, 1988, be quashed & set aside. 2. It has been submitted by learned counsel appearing for the accused-petitioner that the registration of impugned F.I.R. against sixty-two named persons amounts to an abuse of process of the law, as no allegation has been levelled against the present petitioner and he was not even named as an accused in the said F.I.R. Counsel has further submitted that the charge-sheet dated 26.02.2014 was filed without obtaining sanction against the petitioner. The case of petitioner was put up for grant of sanction before Competent Authority and the said Authority, had refused to grant sanction vide its order dated 21.04.2014 (Annexure-3). The order of refusing sanction (Annexure-3) by Competent Authority was again examined & approved by the Joint Secretary (Police) vide its letter dated 01.09.2014 (Annexure-4). Further, the case of petitioner was put up before Commissioner, Chief Vigilance, who also approved for refusal of sanction, vide its order dated 23.06.2014 (Annexure-5). 3. Counsel appearing for the accused-petitioner has contended that the learned trial Court, while dismissing the application moved by petitioner under Sections 227 & 239 r/w Section 245 of Cr.P.C. has taken cognizance for offences under Sections 8 & 9 of the Act of 1988, vide its order dated 02.06.2016 (Annexure-6) against the petitioner, without considering the material available on record, which amounts to an abuse of process of law. It was argued before the learned trial Court that there is no evidence against the petitioner, in these circumstances, sanction was not granted against the petitioner. It was argued before the learned trial Court that there is no evidence against the petitioner, in these circumstances, sanction was not granted against the petitioner. Counsel has further contended that the learned trial Court had observed that no sanction is required under Sections 8 & 9 of the Act, 1988, as these two provisions of the Act, 1988 are not related to the public servant. The word "whoever" used in these Sections, clearly indicates that the commission of offence is related to other person and not to the public servant. Thus, in these circumstances, taking cognizance against the petitioner under Sections 8 & 9 of the Act, 1988, amounts to an abuse of process of law. Lastly, counsel has prayed that the present petition be accepted and impugned F.I.R. be quashed & set-aside. The order dated 02.06.2016 passed by the Court of Special Judge, Sessions Court, Prevention of Corruption Act, No.2, Jaipur, whereby, while rejecting the application filed by petitioner under Sections 227 & 239 r/w Section 245 of Cr.P.C. and cognizance taken under Sections 8 & 9 of the Prevention of Corruption Act, 1988 against the petitioner, be also quashed & set aside. 4. During the course of arguments, in support of his submissions, learned counsel appearing for the accused-petitioner, has placed reliance upon the following judgements :- (i) Chittaranjan Das v. State of Orrisa, AIR 2011 SC 2893 and (ii) General Officer Commanding v. CBI & Another, AIR 2012 SC 1890 . 5. Learned Additional Advocate General appearing for the respondents has opposed the submissions made herein-above and prayed for dismissal of the present petition. 6. Heard learned counsel appearing for the accused-petitioner and learned Additional Advocate General appearing for the respondents. Perused the material made available on record as well as the judgements cited herein-above. 7. In the case of Chittaranjan Das (Supra), Hon'ble Apex Court, in Para No.8, has observed as under :- 8. We do not find any substance in the submission of Mr. Tripathy and the decision relied on is clearly distinguishable. Sanction is a devise provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. Tripathy and the decision relied on is clearly distinguishable. Sanction is a devise provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the guilty. Here in the present case while the appellant was in service sanction sought for his prosecution was declined by the State Government. Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, Vigilance Department requested the State Government to reconsider its decision, which was not only refused but the State Government while doing so clearly observed that no prima-facie case of disproportionate assets against the appellant is made out. Notwithstanding that Vigilance Department chose to file charge-sheet after the retirement of the appellant and on that Special Judge had taken cognizance and issued process. We are of the opinion that in a case in which sanction sought 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 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." 8. In the case of General Officer Commanding (Supra), Hon'ble Apex Court, in Para Nos.24 & 30, has observed as under :- "24. In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative. It is so, for the reason that the power of the State is performed by an executive authority authorised in this behalf in terms of the Rules of Executive Business framed under Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Article 162 thereof. (See : State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92 . 30. In S.B. Saha & Ors. v. M.S. Kochar, AIR 1979 SC 1841 , this Court dealt with the issue elaborately and explained the meaning of "official" as contained in the provisions of Section 197 Cr.P.C., observing: "In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged........ 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 under the said provision." 9. Learned trial Court, while passing its impugned order dated 02.06.2016 (Annexure-6) had observed that sanction for prosecution has not been granted by the Director General of Police, Jaipur against the accused-petitioner. Learned trial Court, while passing its impugned order dated 02.06.2016 (Annexure-6) had observed that sanction for prosecution has not been granted by the Director General of Police, Jaipur against the accused-petitioner. The learned trial Court had further observed that though the sanction for prosecution has not been granted by the D.G.P. Shri Omendra Bhardwaj but there is no requirement of sanction for prosecution under Sections 8 & 9 of the P.C. Act, 1988. 10. Sections 8 & 9 of the Prevention of Corruption Act, 1988, before substitution, stood as under :- "8. Taking gratification, in order, by corrupt or illegal means, to influence public servant.-Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine." 9. Taking gratification, for exercise of personal influence with public servant.-Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine." 11. The present F.I.R. (Annexure-1) was registered against sixty-two named persons. The petitioner was not even named as an accused in the F.I.R. It is clear that charge-sheet dated 26.02.2014 was filed without obtaining sanction against the accused-petitioner. The competent authority, after going through the record, refused to grant sanction vide its order dated 21.04.2014 (Annexure-3). 12. The order of refusing sanction (Annexure-3) was examined by the Joint Registrar (Police) while approving the order of refusal of grant of sanction vide its letter dated 01.09.2014 (Annexure-4). The Chief Vigilance also approved the order of dismissal of sanction vide its order dated 23.06.2014 (Annexure-5). 13. It is admitted fact that no sanction for prosecution was granted against the accused-petitioner. 14. Learned trial Court has observed that no sanction is required under Sections 8 & 9 of the Act, 1988. From a bare perusal of these two provisions of the Act, it is clear that these two provisions are not related to the public servant. The word "whoever" is used in this Section, clearly indicates that commission of offence is related to other person and not to the public servant. 15. From a bare perusal of these two provisions of the Act, it is clear that these two provisions are not related to the public servant. The word "whoever" is used in this Section, clearly indicates that commission of offence is related to other person and not to the public servant. 15. In view of the discussion made herein-above and also in the light of judicial pronouncement of the Hon'ble Apex Court, this Court is of the view that the learned trial Court has committed error in passing its impugned order (Annexure-6) & taking cognizance while dismissing the application moved by the petitioner. 16. Consequently, the present petition is allowed. The impugned F.I.R. No.526/2013 (Annexure-1), qua the petitioner & the impugned order dated 02.06.2016 (Annexure-6) passed by the trial Court by taking cognizance against the petitioner under Sections 8 & 9 of the Act are, hereby, quashed & set aside. Miscellaneous application, if any, also stands disposed of.