Rajasthan High Court - Jaipur
Ram Charan Gupta vs State on 29 November, 2011
In The High Of Judicature For Rajasthan Bench At Jaipur SB Criminal Revision Petition No.191/2005 Ram Charan Gupta v. The State through C.B.I. Date of order 29.11.2011 Hon'ble Dr. Meena V. Gomber, J. Mr. A.K. Gupta, for petitioner (accused) Mr. Tej Prakash Sharma, Special Public Prosecutor, for CBI Reportable This criminal revision petition, under Section 397 read with 401 of the Code of Criminal Procedure (hereafter to be referred to as 'the Code') filed by the revisionist, is directed against the order dated 31.1.2005 passed by the Special Judge, C.B.I. Cases, Jaipur, Rajasthan, whereby the court below has taken cognizance and framed charges against him for offences under Sections 5(2) read with 5(1)(e) of the Prevention of Corruption Act, 1947 (Section 15(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988). Briefly stated facts of the case, relevant for the purpose of disposal of this criminal revision, are that the revisionist was working in the Post & Telegraph Office, as a Clerk and remained posted in Stock Depot since 24.3.1956 to 27.11.1985 as a public servant. At the relevant time, he was serving as U.D.C. in the Office of the Postmaster General, Rajasthan Circle, Jaipur. As per the case of prosecution, the revisionist was dealing with local purchases, pertaining to the Office of P.M.G., Rajasthan Circle, Jaipur, and he, in connivance with private parties, is alleged to have accumulated illegal money and in this way, it has been alleged that he had assessed assets, which were disproportionate to his known sources of income. A search was conducted at his residence and disproportionate property to the tune of Rs.1,26,719.90, in excess to his known sources of income, was found from his possession. The revisionist could not furnish satisfactory explanation regrading his income and possession of assets found. A criminal case vide FIR no.40/1985 was registered against him on 25.11.1985 and after investigation, challan to proceed against him for offences under Sections 5(2) read with 5(1)(e) of the Prevention of Corruption Act, 1947 [Section 15(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988], was filed against him. However, the then Special Judge, C.B.I. Cases, Jaipur, Rajasthan, vide the order dated 9.12.1991, in criminal case no.8/1989, discharged the revisionist on the ground that the sanction for his prosecution was improper and it was not given by the authority competent to remove him from the office, reserving liberty for the department to initiate fresh prosecution proceedings against the revisionist after obtaining requisite sanction from the competent authority. Thereafter the revisionist retired and thereby ceased to be a public servant with effect from 30.11.1992. After the revisionist had retired from service on 30.11.1992, fresh challan was filed by the prosecution against him on 12.4.1993 without obtaining fresh sanction from competent authority. It is pursuant to this subsequent challan filed by prosecution, the court below vide this impugned order dated 31.3.2005 took cognizance and has framed charges against the revisionist for offences under Section 5(2) read with 5(1)(e) of the Act of 1947 (Section 15(2) read with 13(e) of the Act of 1988). The trial court, while taking cognizance and framing charges against the revisionist, has taken a view that sanction for prosecution is not required in the case of a public servant after his retirement. Aggrieved by the said order of court below, the present revision has been filed by the revisionist. This court has heard the arguments of the learned counsel for the parties and have also perused the record of the case to appreciate the rival contentions advanced by both the parties. Mr. A.K. Gupta, learned counsel appearing on behalf of the revisionist, has vehemently argued that the impugned order of taking cognizance and framing charges against the revisionist, suffers from jurisdictional error, as according to him, the prosecution could not have filed fresh challan against the revisionist without obtaining sanction for prosecution from the competent authority in terms of court's earlier order dated 9.12.1991. In support of his contention, learned counsel for the petitioner has placed reliance on two judgments of Hon'ble Supreme Court viz. Chittaranjan Das v. State of Orissa, 2011 (7) Scale 461, and State of Orissa & others v. Ganesh Chandra Jew, 2004 AIR SCW 1926. On the strength of these two judgments, it was argued by the learned counsel for revisionist that a public servant, even after his retirement, cannot be prosecuted under the Prevention of Corruption Act, without obtaining sanction of competent authority, for prosecution in terms of mandatory provisions contained in Section 197 of the Code. Per contra, learned counsel appearing on behalf of the State, placed reliance on several judgments of the Hon'ble Apex Court, and relying on them, he has argued that both the judgments, Chittaranjan Das v. State of Orissa (supra) and State of Orissa & others v. Ganesh Chandra Jew (supra), on which reliance is placed by the revisionist, are distinguishable and do not apply to the facts of present case. The judgments on which reliance is placed by learned counsel for the State, on the other hand, are Prakash Singh Badal & another v. State of Punjab & others, (2007) 1 SCC 1; R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183; C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537; and S.A. Venkataraman v. State, 1958 SC 107. On the strength of above judgments of Hon'ble Apex Court, it was contended by learned counsel for the State, that no sanction for prosecution is required for prosecuting a public servant after his retirement. The submission of learned counsel for the State was that since the revisionist had retired from service on 30.11.1992, in view of above judgments of Hon'ble the Supreme Court, no fresh sanction for his prosecution was required despite dismissal of earlier prosecution case for want of proper sanction. According to him, the impugned order of taking cognizance and framing charges against the revisionist, cannot be upset for want of sanction in revisional jurisdiction. I have given my anxious thought to the above rival arguments advanced by the learned counsel for the parties, on the point of requirement of sanction for prosecution after retirement of a public servant. In view of various judgments of the Hon'ble Apex Court starting from S.A. Venkataraman v. State (supra) down to Prakash Singh Badal's case (supra), the legal position on the point of requirement of sanction for prosecuting a public servant after his retirement, seems to be well settled. The correct legal position culled out from catena of judgments on the subject referred to herein-above, is that an accused facing prosecution under the Prevention of Corruption Act, old or new, cannot claim immunity on the ground of want of sanction, if he ceases to be a public servant on the date when the court took cognizance for the said offences. The position of law is reiterated by the Hon'ble Supreme Court even in the case of Chittaranjan Das (supra), on which reliance is placed by the learned counsel for revisionist. In para 6 of the judgment in Chattaranjan Das's case, it was reiterated by Hon'ble the Supreme Court, that once a public servant ceases to be so on the date when the court takes cognizance of the offences, there is no requirement of sanction for his prosecution. Therefore, as far as law on the subject is concerned, I have no manner of doubt left in my mind, except to hold that no sanction for prosecuting a public servant is required after his retirement. Now I proceed to examine the effect of the earlier order dated 9.12.1991, by which the prosecution filed against the revisionist was dismissed for want of proper sanction. It is no doubt true that the prosecution has filed fresh challan against the revisionist on same accusations after his retirement without obtaining sanction from competent authority for his prosecution. It is also true that the prosecution earlier filed by the respondents against the revisionist, was dismissed by the court vide order dated 9.12.1991 for want of proper sanction reserving liberty for the department to file fresh prosecution after obtaining proper sanction.
In Chittaranjan Das's case (supra), the facts are distinguishable from the facts of the present case. In that case, sanction was refused by the government for prosecuting the public servant before his retirement. Prosecution was launched by the department against him after his retirement without obtaining any fresh sanction, though sanction before retirement was refused. In that context, it was held by the Hon'ble Apex Court that the prosecution filed against the public servant after his retirement was incompetent and not maintainable as permission for his prosecution was categorically refused by the department while the public servant was still in service. However, in the case in hand, the prosecution filed against the revisionist was dismissed earlier vide order dated 9.12.1991 for want of proper sanction. A perusal of the earlier order dated 9.12.1991, would show that liberty was granted to the department to file fresh prosecution against the revisionist after obtaining proper sanction, as required under Section 197 of the Code. A perusal of the sanction order dated 18.11.1988, passed by the Assistant Postmaster General (PLI), Rajasthan Circle, Jaipur, whereby sanction for prosecution of the revisionist was given while he was in service, would show that mind was applied by the authority concerned, by whom the sanction was granted and dismissal of the earlier prosecution was only on technical ground. Relevant portion of the earlier sanction order dated 18.11.1988 is extracted below :-
AND WHEREAS I, B.D.BANSAL, Asstt. Postmaster General, (PLI) being the authority competent to remove said Shri R.C.Gupta, U.D.C., Office of the Post Master General, Rajasthan Circle, Jaipur after fully and carefully examining the material documents and evidence before me in regard to the said allegations and circumstances of case, consider that the said Shri R.C.Gupta should be prosecuted in the court of law.
NOW, THEREFORE, I B.D.BANSAL, Asstt. Postmaster General (PLI) do hereby accord sanction for the prosecution of Shri R.C.Gupta, U.D.C., Office of the POST MASTER General, Rajasthan Circle, Jaipur as envisaged U/s 6(1) (c) of the P.C. Act (Act II of 1947) for the said offence and any other offence punishable under the other provisions of law in respect of the Acts aforesaid and for taking cognizance by the court of competent jurisdiction.
After dismissal of the earlier prosecution vide order dated 9.12.1991 on technical ground for want of proper sanction, the question that craves for an answer is whether it was incumbent upon the department to obtain a proper sanction from the competent authority for prosecution of revisionist, even after his retirement? In the opinion of this court, the only logical conclusion that can be drawn from the earlier order dated 9.12.1991, by which prosecution was dismissed for want of proper sanction, is that there was no valid sanction for the prosecution of revisionist till his retirement. If there was no valid sanction for prosecution of the revisionist till his retirement, then law on the subject laid down by Hon'ble the Apex Court, is that no such sanction is required for his prosecution after his retirement. Hence, in my opinion, the judgment in Chittaranjan Das's case (supra), on which reliance is placed by revisionist's counsel, does not help or advance the case of revisionist in any manner.
Judgment of Hon'ble the Supreme Court in Ganesh Chandra Jew's case (supra), relied by revisionist's counsel, is also of no consequence and does not apply to the facts of the present case. In that case, the complaint filed by the complainant against six public servants for offences punishable under various Sections (341, 323 IPC), was dismissed by the Apex Court not for want of sanction under Section 197 of the Code, but as it was found mala fide and motivated. The Hon'ble Supreme Court did not go into the question of grant or non grant of sanction in that case.
In view of my above discussion, I do not find any merit in the arguments of the learned counsel for revisionist that the impugned order of taking cognizance and framing charges, suffers from any jurisdictional error for want of sanction.
It was next argued by the learned counsel for revisionist that the impugned order of framing charges, even otherwise, is not sustainable because the learned court below failed to appreciate the explanation put forward by the revisionist in regard to the amount spent by him on the education and marriages of his two daughters and also on the cost of construction of his house, taken by authorities while working-out his disproportionate assets. The grounds taken in paras 'j' and 'k' of the revision petition, in this regard, are relevant, which are extracted below :-
(j) Because, in the facts and circumstances of the case it is clear that the conclusion of the investigating agency regarding expenditures incurred by the petitioner are based on assumptions and presumptions and there is no evidence to support the same. The Investigating Agency has calculated expenditure for the education of one daughter of the petitioner born in the year 1956 as Rs.40/- per month when the monthly salary of the petitioner was Rs.55/-. In the year 1962 when the daughter of the petitioner started to go to school, the education was completely free and it cannot be believed that there was expenditure of Rs.40/- per month during those days. Similar is the position in connection with the education of other children. The Investigating Agency has also wrongly calculated expenditure of Rs.50,000/- in the marriage of the daughters. There is difference of so many years in the marriages of both the daughters and thus, it cannot be believed that the same amount was spent in both the marriages. In such circumstances it is clear that the calculation of the expenditures is not based on any cogent and reliable evidence and thus, there was no occasion for the learned trial court to place reliance on such type of calculation and to frame charge against the petitioners.
(k) Because, the learned trial court has again failed to consider this aspect of the case that the cost of construction in the year 1974 and in the year 1985 cannot be the same. It is clear that the petitioner constructed the house in the year 1974 and the calculation of the assets has been made in the year 1985. Thus, the assessment of the Investigating Officer regarding assets is totally illegal and is not based on any evidence. From a bare perusal of the impugned order it is clear that the learned trial court has failed to consider this aspect of the case and thus, committed material irregularity and jurisdictional error.
It was argued by the learned counsel for revisionist that in case proper and reasonable expenditure incurred by the revisionist on the education and marriages of his two daughters, and construction of house, had properly been taken into account, then he was not in possession of any disproportionate asset. He has, therefore, prayed for setting aside the impugned order framing charges under the Prevention of Corruption Act.
I have given my anxious consideration to the above submissions on merits of the charges urged before this court on behalf of the revisionist, but I could not persuade myself to agree with the same. A perusal of the impugned order would show that the court below has already given a deduction of Rs.52,000 under various heads against the disproportionate assets of Rs.1,26,719.90, found from his possession at the time of raid. This court would not like to make any comment on the amount of deduction of Rs.52,000, given by the court below to the revisionist while working-out his disproportionate assets, as it is likely to cause prejudice to either of the parties at the time of final decision on the charges against him. Suffice it to say, that despite giving deduction of Rs.52,000 to the revisionist, he was still found in possession of disproportionate assets worth Rs.73,919.90, for which charges have rightly been framed against him. His contention regarding less amount being shown towards expenditure under the head of education and marriages of his daughters as also under the head of cost of construction of his house, are matters of evidence on which it would be difficult to give any verdict at this stage. It is for the revisionist to explain his income and expenditure for the relevant period during trial, on the basis of which alone, it may be decided one way or the other, as to whether he was in possession of disproportionate assets or not.
Corruption in society is increasing leaps and bounds and this court is of the view that a public servant can possess assets more than his known sources of income, only if he acquires such assets through illegal means. Any person found indulged in corruption has to be dealt with iron hands and no leniency would be shown to him. However, this court is further of the view that no public servant, unless found guilty in a trial, should be punished unnecessarily. In the present case, the revisionist is yet to face trial and will have adequate opportunity to prove his innocence at trial. Nothing said or observed in this order shall prejudice the trial against him.
The trial court is directed to decide the case pending against the revisionist strictly on merits, without getting itself influenced in any manner, by any observation contained in this order. Having regard to the fact that the revisionist had retired from service long ago in 1992, and has to face trial for possessing disproportionate assets, the trial court is directed to expedite the trial and make an endeavour to conclude it as early as possible, but not later than eight months of the receipt of certified copy of this order. Both the parties are also directed that they shall cooperate with the trial court in the progress of trial and will not ask for any unnecessary adjournment of dates of trial, that may be fixed by the trial court.
In view of the foregoing, I do not find any merit in the revision petition, which fails and is hereby dismissed, but with no order as to costs.
(Dr. Meena V. Gomber) J.
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