Punjab-Haryana High Court
N.K.Mehta vs Central Bureau Of Investigation on 29 May, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Misc. No. M-36778 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM No. M-36778 of 2010
Date of Decision:-29.5.2012
N.K.Mehta ...Petitioner
Vs.
Central Bureau of Investigation, Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Argued by:- Mr.R.S.Rai, Senior Advocate with
Mr.Manoj Bajaj, Advocate for the petitioner.
Mr.Sumeet Goel, Standing counsel for the respondent-CBI.
Mehinder Singh Sullar, J.
Exhibiting the deep concern with regard to the corruption in public life, the Hon'ble Apex Court in case Dr. Subramanian Swamy v. Dr. Manmohan Singh And Another 2012(1) Recent Apex Judgments (R.A.J.) 201 : 2012(1) R.C.R. (Criminal) 720, has ruled that "Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
Criminal Misc. No. M-36778 of 2010 -2-
2. Sequelly, in case Billa Nagul Sharief v. State of A.P. 2010(11) SCC 575, the Hon'ble Supreme Court has noticed the feeling of a common man that "when the work is enshrined to different persons bribe is demanded by one of them, when all are invariably in collusion, cannot be lost sight of. If Senior Officers ensure that the works of the citizens are done without payment of bribe, Junior Officers and employee may abandon the demand and this country would not have prominently figured as one of the most corrupt nations of the World, as it is widely accepted that the corruption flows from the top." India is passing through a very crucial phase of corruption. Perhaps, time has now come, for one and all of us, to take effective steps to control it. The enactments of The Prevention of Corruption Act, 1988 (hereinafter to be referred as "the P.C.Act) and The Central Vigilance Commission Act, 2003 (for brevity "the CVC Act") are the appropriate steps in the right direction to eradicate the corrupt practice by certain categories of public servants and for matters connected therewith or incidental thereto.
3. The epitome of the relevant facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that, petitioner N.K.Mehta, during his posting as Deputy General Manager in Punjab National Bank (in short "the PNB"), Credit Division, Zonal Office, Chandigarh from 26.4.2005 to 5.4.2007, was stated to have indulged in the rampant corruption being a public servant alongwith other bank officers and other co-accused. Now he has retired from his service with effect from 28.2.2010. According to the prosecution that the Promoter-Directors of M/s Balaji Manganese Private Limited (for short "the Company") had approached the branch office of PNB, Industrial Area, Chandigarh for grant of loan, for setting up a Ferro Manganese Unit. Mr.B.P.Chopra was the General Manager, whereas petitioner N.K.Mehta and R.S.Alag were working as Deputy General Manager of PNB Zonal Office at the Criminal Misc. No. M-36778 of 2010 -3- relevant time. Mr.Manoj Goel, his wife Neeru Goel and Pawan Bansal were the Promoter-Directors of the Company. They prepared the false, fabricated documents and used the same as genuine, which were accepted as such by the bank officers (accused). They were successful in fraudulently obtaining the loan of about Rs.16 crores in violation of the rules & regulations, for extraneous consideration, for installing a Captive Power Plant. The petitioner and other accused bank officers were instrumental to sanction and disbursed the term loan on forged and fabricated documents. The Promoter-Directors of the Company did not set up the Captive Power Plant, instead syphoned off, misappropriated the loan amount and committed the fraud with the bank in this regard.
4. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the prosecution claimed that petitioner alongwith his other co-accused B.P.Chopra, R.S.Alag etc. hatched a criminal conspirary with Manoj Goel, his wife Neeru Goel and other Promoter-Directors of the Company. They prepared the false documents, advanced the loan of Rs.16 crores against the rules & regulations, for illegal gratification, on the basis of forged documents/bills, caused huge wrongful loss and cheated the bank. In the background of these allegations, a criminal case was registered against the petitioner-accused and his other co-accused, by means of FIR, bearing No.RCCHG2008A0017 dated 5.5.2008 (Annexure P9), on accusation of having committed the offences punishable under Sections 120-B, 418, 420, 471, 477-A & 201 IPC and Section 13 (2) read with Section 13(1)(d) of the P.C.Act by the Central Bureau of Investigation (in brevity "the CBI"), Chandigarh.
5. After the completion of the investigation, the CBI approached the competent authority of the bank to grant sanction to prosecute the accused. Although the competent authority granted the sanction to prosecute B.P.Chopra, General Manager and other officers of the bank, but refused to grant sanction to Criminal Misc. No. M-36778 of 2010 -4- prosecute the petitioner, by way of order dated 30.1.2010 (Annexure P10). The investigating agency submitted the final police report against the remaining accused for trial of pointed offences in the Court.
6. Subsequently, in pursuance of the letter dated 17.6.2010 of Central Vigilance Commission (for short "the CVC"), the matter was re-considered and the competent authority of the bank granted sanction to prosecute petitioner N.K.Mehta under Section 19(1)(c) of the P.C.Act, by virtue of impugned order dated 24.8.2010 (Annexure P11). Thereafter, the CBI submitted the supplementary challan (Annexure P12) to prosecute him as well.
7. The petitioner did not feel satisfied and preferred the present petition to quash the impugned FIR (Annexure P9), sanction order (Annexure P11) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC.
8. The case set up by the petitioner, in brief in so far as relevant, was that he has only handled the credit port folio w.e.f. 1.8.2005 to 10.7.2006, initially loan was sanctioned by the other officers of the bank and he has been falsely implicated in the instant case. According to the petitioner that taking into consideration his role & involvement, the competent authority, initially declined to grant the sanction to prosecute him (petitioner), vide order (Annexure P10), but subsequently, the grant of sanction by it, by means of impugned order (Annexure P11) is arbitrary. It was claimed that the competent authority did not have the power to review its earlier order on the 2nd application of the investigating agency. The competent authority did not take into consideration the earlier order, while granting the sanction. As there was no fresh material on record to prosecute the petitioner, therefore, the impugned sanction order (Annexure P11) was stated to be non-speaking & illegal and the criminal prosecution against him is liable to be set aside. On the strength of aforesaid grounds, the petitioner sought to quash the Criminal Misc. No. M-36778 of 2010 -5- impugned FIR (Annexure P9), sanction order (Annexure P11) and all other consequent proceedings arising thereto in the manner described here-in-before.
9. The CBI refuted the prayer and filed the reply, inter-alia pleading that the petitioner hatched a criminal conspiracy and is directly involved in the sanction of term loan and released the amount to the tune of Rs.16 crores on the basis of forged and fabricated bills/documents in violation of the terms and conditions contained in the relevant rules & regulations, alongwith his other co-accused. It was claimed that in fact, initially, the competent authority declined the sanction, without any basis, vide order (Annexure P10). Since there was enough evidence on record to prosecute the petitioner, so, the matter was taken up with the CVC. A joint meeting was called by the CVC, in which, the officers of the CBI & bank were present. In the meeting, the entire case was discussed at length and after that the competent authority rightly granted the sanction to prosecute the petitioner. Instead of reproducing the entire contents of the reply and in order to avoid the repetition of facts, suffice it to say that the CBI has reiterated the allegations contained in the impugned FIR and final police reports. However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.
10. Taking the undue advantage of his usual ability and assailing the impugned FIR & order, the learned counsel contended with some amount of vehemence that the competent authority has (initially) rightly declined the sanction to prosecute the petitioner, through the medium of order (Annexure P10) and as there was no fresh material to subsequently review its earlier order and to grant sanction to prosecute him, therefore, the impugned order (Annexure P11) is arbitrary and without jurisdiction. Thus, he prayed for acceptance of the petition and to quash the criminal prosecution against the petitioner. Criminal Misc. No. M-36778 of 2010 -6-
11. On the contrary, hailing the criminal prosecution and impugned sanction order, the learned counsel for CBI also vehemently urged that the competent authority has illegally declined the permission to prosecute the petitioner, without assigning any valid reason and even his complicity has been noticed in para 10 of the order (Annexure P10), which cannot be termed to be a legal order. He pointed out that since there was more than sufficient oral as well as documentary evidence to prosecute the petitioner, so, the matter was referred as per the CBI and CVC Manuals. The entire matter & evidence were considered and the CVC concurred with the CBI and decided that there is an adequate evidence to justify launching of prosecution against petitioner N.K.Mehta, vide letter dated 17.6.2010. Consequently, the competent authority rightly granted the permission to prosecute him, by means of impugned order (Annexure P11) and no fault could be found with it. Hence, he prayed for dismissal of the main petition.
12. Having heard the learned counsel for the parties at length, having gone through the record and legal position with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition.
13. As depicted here-in-above, the facts of this case are neither intricate nor much disputed. Above being the position on record, now the short and significant questions, though important that, arise for determination in this petition are, as to whether the impugned sanction order (Annexure P11) is illegal and the petitioner cannot be prosecuted or not ?
14. Having regard to the legal position, material on record and rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative in this context.
15. At the very outset, it cannot possibly be denied that Hon'ble Apex Court in a line of judgments has held that the very object of sanction to prosecute, Criminal Misc. No. M-36778 of 2010 -7- is to protect the eligible public servant from malicious and vexatious prosecution. The intention is not to put a wall around public servants, who act mala fidely. The policy is not to set an official above the common law and if he commits a common offence, then, he cannot avail peculiar privilege. The reliance in this respect can be placed on the law laid down (Para 29) by Hon'ble Supreme Court in Dr. Subramanian Swamy's case (supra).
16. Ex facie, the argument of learned counsel that as the competent authority did not have the jurisdiction to review its earlier order (Annexure P10), therefore, the subsequent impugned sanction order (Annexure P11), granting sanction to prosecute the petitioner is illegal, is neither tenable nor the observations of Hon'ble Apex Court in case State of Himachal Pradesh v. Nishant Sareen 2011(1) R.C.R. (Criminal) 193 : 2011 AIR (SC) 404, relied on his behalf, are at all applicable to the facts of the present case, wherein it was observed as under (para 12) :-
"12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by Criminal Misc. No. M-36778 of 2010 -8- the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course."
17. In that view of the matter, in the special circumstances of that case and without considering the statutory provisions of the CVC Act, it was held that the review of the sanction order on the same material is impermissible. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioner in the instant controversy.
18. As is evident from the record, the CBI claimed that the petitioner alongwith his other bank officers, co-accused, hatched a criminal conspiracy, accepted the forged, fabricated documents/bills from the Promoter-Directors of the Company, released the loan amount of Rs.16 crores after accepting the illegal gratification, thus defrauded and caused huge loss to the bank. No doubt, the sanction to prosecute the petitioner was earlier declined by the bank authorities, vide order (Annexure P10), but a perusal of this order would reveal that the main ground, which appears to have been weighed with the authority in doing so, was that the petitioner was only posted for a little over 11 months in the Credit Division of PNB, Zonal Office, Chandigarh, thus, he had a limited interaction with the parties and had no occasion to take unilateral decisions in according sanction of loan to the Company. At the same time, although the authority has also noticed the complicity and certain lapses on the part of petitioner (para 10) in preventing a wrong being done, but the same were just ignored by it.
19. Here, to my mind, the first sanctioning authority slipped into a deep legal error in this respect. It is not a matter of dispute that the authority exercises the statutory jurisdiction under Section 19(1)(c) of the P.C.Act, while granting or refusal to grant sanction to prosecute the accused. In that eventuality, it ought to have discussed the material & evidence brought on record and then to record the valid grounds, for forming a definite opinion that no ground to grant sanction is Criminal Misc. No. M-36778 of 2010 -9- made out. Such orders must be informed by reasons, fair, clear and must be structured by rational and relevant material/evidence on record, which are totally lacking in the present case. On the contrary, the first authority did not adhere to and just ignored the oral as well as the documentary evidence with impunity and declined the sanction to prosecute the petitioner on speculative and non-existent grounds. No reason whatsoever, much less cogent, has been depicted in the order (Annexure P10) and it declined the sanction on frivolous, foreign/alien grounds and in a very casual manner, in order to help the accused in a corruption case involving crores of rupees, for the reasons best known to it. Above-all, the 1st sanctioning authority has totally ignored the Bench mark set out by the Hon'ble Supreme Court in Dr. Subramanian Swamy's case (supra) while declining the sanction to prosecute the petitioner. Under these compelling circumstances, I cannot help/escape observing that the order (Annexure P10) is void, non-speaking, non-est and cannot possibly be termed to be a legal order. Therefore, the question of any review of such void and illegal order, did not arise at all under the present set of circumstances, as (contrary) argued on behalf of the petitioner. To me, it will not debar/preclude the CBI to proceed further in the matter in accordance with the statutory provisions of the CVC Act.
20. Not only that, subsequently, in the wake of letter dated 17.6.2010 of CVC, the competent authority has examined the evidence/material, complicity of the petitioner in the right perspective & duly noticed his involvement in paras 9, 12 to 14, 20 & 24 of the impugned order (Annexure P11), duly considered the material and has recorded the cogent & valid reasons to grant sanction to prosecute him.
21. This is not end of the matter. Para 22.15.2 of CBI Manual postulates that if an authority other than the President, is competent to sanction the prosecution, the CBI will forward its investigation report, containing the oral and Criminal Misc. No. M-36778 of 2010 -10- documentary evidence collected during the investigation, to such authority with a request to accord sanction to prosecute the public servant concerned, if sanction for the prosecution is not received within three months from the date of such request, then the CBI should pursue the matter with the concerned authority for expeditious disposal. If such authority declines to accord sanction, then its views, along with other records, should be sent to the CVC for advice through the Administrative Ministry/Department. Further action will be taken by the authority concerned on the basis of the advice of the CVC.
22. Likewise, sub-clause (d) of Para 1.3.3.2 of CVC Manual posits that in cases where an authority other than the President is competent to sanction prosecution and the authority does not propose to accord the sanction sought for by the CBI, the case will be reported to the Commission and the authority will take further action after considering the Commission's advice.
23. Sequelly, in exercise of this power, the CBI referred the matter to CVC. The joint meeting was held in the office of CVC on 1.4.2010 to resolve the difference of opinion in sanction for prosecution against the petitioner. The CVC concurred with CBI and sent a letter bearing No.1004/BNK/11-90927 dated 17.6.2010, which, in substance, is as follows :-
"2. It is observed in the case that the common interest of Shri N.K.Mehta, GM and Shri B.P.Chopra, GM, to unduly favour the party has been adequately brought out. Even conceding that Shri Mehta played a lesser role as compared to Shri Chopra, the facts clearly indicate that Shri Chopra could not have carried out the alleged favours to the party without the involvement of Shri Mehta who has played a crucial role. Thus the soft attitude of the Bank towards Shri Mehta is grossly misplaced and can cause severe damage to the CBI case as non prosecution of Shri Mehta would weaken the conspiracy angle and immensely benefit the borrowers. The defence of lesser involvement or no direct contact with the parties etc. does not merit any consideration at this stage. In view of the above, the Commission concurs with the CBI having adequate evidence to justify launching of prosecution against Shri N.K.Mehta, GM."
In pursuance thereof, the competent authority has rightly granted the Criminal Misc. No. M-36778 of 2010 -11- sanction to prosecute the petitioner, through the medium of impugned sanction order (Annexure P11). In this manner, no fault could be traced in it in this relevant direction.
24. However, the celebrated submission of learned counsel for petitioner that no implicit reliance can be placed on the CBI & CVC Manuals in the absence of legal sanctity, again sans merit. At the same time, the observations of Hon'ble Apex Court in case M.C.Mehta (Taj Corridor Scam) v. Union of India and others (2007) 1 SCC 110, relied on behalf of the petitioner, are not at all applicable to the facts of the present case, wherein, it was observed that "the CBI's powers of investigation are governed by the statutory provisions under the general law applicable to such investigation and cannot be curtailed by any executive instruction, CBI Manual is subject to provisions of Cr.P.C. and in case of conflict, Cr.PC shall prevail." Similarly, it was also held by Hon'ble Supreme Court in case Union of India v. Prakash P. Hinduja and another (2003) 6 SCC 195 that "the accused has no right to approach the CVC or to challenge the action of CBI in submission of a charge sheet in court on the ground of some purported irregularity in making a report to CVC regarding the progress of investigation." There can hardly be any dispute with regard to the aforesaid observations, but the same would not advance the cause of petitioner. The learned counsel did not point out as to how, in what manner, any provisions of law has been violated and prejudiced the case of petitioner in this respect. Moreover, the Hon'ble Apex Court has already recognized the validity and legality of CBI Manual in case Vineet Narain and others v. Union of India and another (1998) 1 SCC 226, in which, it was ruled that "the CBI Manual based on statutory provisions of the Cr.PC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. It cannot deviate from the established Criminal Misc. No. M-36778 of 2010 -12- procedure contained in its Manual."
25. Likewise, the CVC is a statutory body created under the CVC Act of 2003. Section 8 of it defines the functions and powers of the CVC, inter-alia, to exercise the control and superintendence over the functioning of CBI, as it relates to the investigation of offences alleged to have been committed under the P.C.Act. It has the statutory power to monitor the progress of investigations conducted by the CBI and review the progress of applications pending with the competent authorities for sanction of prosecution under the P.C.Act. Section 11 further empowers the Commission to hold inquiries and as per Section 12, the Commission shall be deemed to be a civil court and every proceeding before it shall be deemed to be a judicial proceeding. Not only that, the power and function of old Vigilance Commission were legally saved and assigned to existing Vigilance Commission under Section 24 of the said Act. Moreover, in such a situation, where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it, as per the law laid down by Hon'ble Supreme Court in Dr. Subramanian Swamy's case (supra). Therefore, it cannot possibly be saith by any stretch of imagination that the statutory Central Vigilance Commission has no legal power to advice the competent authority, to grant the sanction to prosecute the petitioner, as (contrary) urged on his behalf.
26. A similar question was decided by a Division Bench of Patna High Court in case Lalan Prasad Singh v. Union of India and others 2011 Cri.LJ 3462 :
2011 (4) R.C.R. (Criminal) 700. Having considered the statutory provisions of CVC Act, it was ruled that "the competent authority on advice of CVC, has every power to reconsider the matter and no illegality can be attached to such order of grant of sanction to prosecute the accused." Thus, the argument of learned counsel for the CBI that the impugned sanction order (Annexure P11) is valid and legal Criminal Misc. No. M-36778 of 2010 -13- order, has considerable force and the contrary contentions of the learned counsel for petitioner pale into insignificance, "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
27. The matter does not rest there. As indicated here-in-above, the Court has taken the cognizance of the case in pursuance of final police report (Annexure P12) on the basis of impugned sanction order (Annexure P11), granting sanction to prosecute the petitioner. Section 19(3) & (4) of the PC Act posit as under:-
"(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation-- For the purposes of this section--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
28. Meaning thereby, even otherwise, the initiation of criminal prosecution against the petitioner cannot be assailed or set aside on the ground of any error or irregularity in the impugned sanction order, as contemplated under Criminal Misc. No. M-36778 of 2010 -14- clauses (3) & (4) of Section 19 of the P.C.Act, as it has not remotely been pointed out by the learned counsel that how and in what manner, the impugned sanction order has occasioned or resulted in the failure of justice and prejudiced the case of petitioner in any manner. Hence, no ground, muchless cogent, to set aside the impugned sanction order (Annexure P11) is made out, in view of the law laid down by a Division Bench of this Court in case Surat Ram Sharma v. State of Punjab and another 2010(4) RCR (Criminal) 500.
29. There is yet another aspect of the matter, which can be viewed from entirely a different angle. What cannot possibly be disputed here is that the petitioner had already retired from service w.e.f. 28.2.2010. Even otherwise, since he ceased to be a public servant, so, no sanction is required. However, the submission of learned counsel that if the petitioner has retired from service, even then, sanction to prosecute him is essential, lacks merit and observations of Hon'ble Apex Court in case Chittaranjan Das v. State of Orissa 2011(7) SCC 167 :
2011 AIR (SC) (Cri) 1656 are not at all applicable to the facts of this case, wherein it was noticed that the appellant was a member of the Orissa Administrative Service and was serving as a Deputy Secretary to the Government of Orissa. The Vigilance Department searched his house after obtaining the search warrant from the Court. It led to registration of a criminal case. During the investigation, it was found that the accused possessed disproportionate assets. As the appellant was removable from service by the State Government, the Vigilance Department sought its sanction for prosecution under section 197 Cr.PC. The State Government declined to grant sanction, vide letter dated 13.5.1997. The appellant (therein) superannuated from service on 30.6.1997. Even after his retirement, the Vigilance Department wrote on 25.3.1998 for reconsideration of the earlier order refusing the sanction for prosecution of the accused. The State Government by its letter dated 31.7.1998 wrote back to the Vigilance Department and declined to Criminal Misc. No. M-36778 of 2010 -15- grant sanction for prosecution, as in its opinion there was no prima facie case against the appellant and the assets held by him were not disproportionate to the known sources of his income. Thus, the State Government reiterated that there is "no justification for reconsideration of the earlier orders refusing the sanction of the prosecution under section 197 Cr.PC" of the appellant. Notwithstanding the aforesaid refusal of the Government, the Vigilance Department on 10.9.1998 filed charge sheet against the appellant alleging acquisition of disproportionate assets and the Court took cognizance of the offence. It was held as under (para 6):-
"6. We do not have the slightest hesitation in accepting the broad submission of Mr. Tripathi that once the public servant ceases to be so on the date when the Court takes cognizance of the offence, there is no requirement of sanction under the Prevention of Corruption Act. However, the position is different in a case where Section 197 of the Code of Criminal Procedure has application. In fact, the submission advanced finds support from the judgment of this Court in the case of N. Bhargavan Pillai (dead) by LRs. & Anr. v. State of Kerala, 2004(2) R.C.R. (Criminal) 641 : 2004(2) Apex Criminal 707 : AIR 2004 SC 2317 where it has been held as follows :
"8. The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application."
30. Therefore, on the peculiar facts of that case, it was observed that in a case in which sanction sought u/s 197 Cr.PC 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 PC Act is necessary after the retirement of Public Servant. Accordingly, the indicated observations will not help the case of petitioner in any manner because in the instant case, the validity or otherwise of sanction order(Annexure P11) under Section 19 of the P.C. Act (not under section 197 Cr.PC) is involved. Again, it is not a matter of dispute that the Hon'ble Supreme Court in cases Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411 & Lalu Prasad v. State of Bihar Criminal Misc. No. M-36778 of 2010 -16- 2007 (1) SCC 49 held that "Section 197 of the Code and Section 19 of the P.C.Act operate in conceptually different fields." Since the petitioner has already retired from service, so, even otherwise, now no sanction is legally required to prosecute him u/s 19(1)(c) of the P.C.Act. This matter is no more res integra and is now well settled.
31. An identical question recently came to be decided by the Hon'ble Apex Court in case Abhay Singh Chautala v. C.B.I. 2011(7) SCC 141 : 2011 AIR (SC) (Cri) 1589. Having reiterated the law laid down in cases R.S.Nayak v. A.R.Antulay (1984) 2 SCC 183, State of Kerala v. Padmanabhan Nair AIR 1999 SC 2405 and Prakash Singh Badal v. State of Punjab 2007(1) SCC 1, it was authoritatively ruled that "in case a public servant ceased to hold the office by virtue of his retirement or otherwise, then sanction to prosecute him under section 19 of the P.C.Act is not at all required." The law laid down by Hon'ble Supreme Court in the indicated judgments "mutatis mutandis" is applicable to the facts of the instant case as well and is the complete answer to the problem in hand.
32. Thus, seen from any angle, if the entire material, statutory provisions, legal position and totality of other facts & circumstances oozing out, from the record, as discussed here-in-above, are put together and analyzed in the right perspective, then, to me, the conclusion is inescapable and irresistible that indeed, no illegality can either be attached to the impugned order (Annexure P11), nor any sanction to prosecute the petitioner, is legally required after he ceased to be a public servant (retirement). Therefore, no ground, much less cogent, is made out, to quash the criminal prosecution and the impugned order, in exercise of powers of this Court, as envisaged under Section 482 Cr.PC and Section 19 (3) & (4) of the P.C.Act in the obtaining circumstances of the case.
33. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
34. In the light of aforesaid reasons and without commenting further Criminal Misc. No. M-36778 of 2010 -17- anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such.
35. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits of the main case, as the same has been so recorded for a limited purpose of deciding the indicated controversy of sanction involved in the present petition. Since this matter is very old, so, the trial Court is directed to take all the effective steps, including day to day proceedings for expeditious disposal of this corruption case in accordance with law. The Registry is directed to send a copy of this judgment to the concerned Court forthwith for compliance. At the same time, the parties through their counsel are directed to appear before the trial Court on 25.7.2012 for further proceedings.
(Mehinder Singh Sullar) Judge 29.5.2012 AS Whether to be referred to reporter ? Yes/No