Jammu & Kashmir High Court - Srinagar Bench
Najam-Ud-Din Lone vs State And Ors on 6 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
Cue
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 83/2017
MP No. 01/2017
Date of Decision: 6.08.2018
Najam-ud-Din Lone Vs. State of J&K and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Salih Pirzada, Advocate
For respondent(s): Mr B. A. Dar, Sr. AAG.
__________________________________________________________________________________________
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
01. The moot questions raised for determination herein this case are
first, whether by subverting the process of the provisions of the
Prevention of Corruption Act, and second, the Code of Criminal
Procedure which require the sanction of the competent authority as a
condition precedent for the initiation of prosecution against an erring
accused can be diluted when the factual aspect prima facie disclose the
commission of an offence that falls within the fours of the Provisions of
the Prevention of Corruption Act or relates to the discharge of official
duties. In order to find out an answer to these questions a brief resume
of the facts of the case require to be narrated herein below and they are
as under:-
02. Najam-ud-din Lone, the petitioner while working as Zonal
Education Officer, Budgam, was placed under suspension by an Order
bearing No. 1088-Edu of 2013 dated 31.12.2013 issued by the Secretary
to Government, School Education Department, Jammu and Kashmir.
Simultaneously, an FIR bearing No: 333/2012 for the commission of
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offences under Section 409/420 RPC came to be registered against the
petitioner at Police Station Budgam on the basis of a complaint of the
complainant, namely, Jehangir Abdullah Dar, a resident of Beerwah,
addressed to the Inspector General of Police, Crime Branch, J&K, who
implicated the petitioner and others in a number of cases involving fake
appointments, misappropriation of school funds and midday meals etc.
(reckoned and calculated at Rs 5 lakhs approximately) with which the
investigation ensued. On the completion of the investigation of the case
a charge sheet was laid against the petitioner before the court of the
learned Chief Judicial Magistrate, Budgam, for the commission of the
aforesaid offences. By order dated 25.03.2017 of the trial court, the
petitioner was charged for the commission of offences under sections
420, 409 RPC.
03. Aggrieved by the order of charge dated 25.03.2017 of the Ld.
Chief Judicial Magistrate, Budgam , the petitioner filed a petition before
this Court under and in terms of Section 561-A of Code of Criminal
Procedure on the grounds, inter alia, that the prosecution could not
have been launched against him for the offences alleged to have been
committed by him while discharging the duties in official capacity
otherwise than by a sanction from the Government as required under
Section 197 Cr.P.C. especially in presence of the contemplated
departmental enquiry which has been initiated against him. It is further
stated that the trial court had no jurisdiction to take cognizance of the
case in absence of the sanction which has caused severe prejudice to
him and therefore, the proceedings are liable to be quashed.
04. Heard and considered.
05. Dealing with the first question it needs to be stated that the crux of
the arguments of the learned counsel for the petitioner is that the
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accusations levelled against the petitioner herein this case squarely falls
within the canons of the provisions of the Corruption laws which require
the sanction of the competent authority and without which prosecution
cannot be commenced. It has further been argued that by adhering to a
mode, i.e., in prosecuting the petitioner for offences under the penal
code, the petitioner has been deprived of a valuable right that would
accrue to him , had he been prose3cuted under the Corruption Laws
inasmuch as the competent authority was obliged to apply its mind to the
facts and circumstances of the case so as to ascertain, whether or not,
initiation of prosecution against the petitioner is warranted. This
subterfuge in prosecuting a public servant for the offences under the
ordinary provisions of the Penal Code by giving a complete goby to the
provisions of the Special enactment has the effect of the demolition of
the whole prosecution edifice as per the submission of the Ld. counsel
for the petitioner who has placed reliance on a catena of judicial
pronouncements to canvass his argument which will be dealt with
hereinafter.
06. The learned counsel for the respondents on the other hand is of
the view that the arguments as preferred by the learned counsel for the
petitioner are not in tune with the enactment of General Clauses Act,
which provides that where an act of omission constitutes an offence
under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either of those enactments, but shall not
be liable to be punished twice for the same offence. This being so the
learned Additional Advocate General has characterized the argument of
the counsel for the petitioner as a spurious argument which becomes
redundant in the face of what is postulated by General Clauses Act as
said herein before. As per the learned counsel for the respondents, thus
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the Court has to proceed with the trial of the case for offences under
section 409 and 420 RPC without the requirement of sanction.
07. To resolve the question raised hereinbefore counsel for the
petitioner has placed reliance on the law laid down in 1988 Cr.L.J. 1363
delivered by Hon'ble Mr. Justice B. L. Hansaria (later Judge of the
Supreme Court of India) and 1992 Cr.L.J. 1672. Both these authorities
have been taken note of by His Lordship Hon'ble Mr. Justice T. S.
Doabia, as he then was, while dealing with an identical matter titled as
Central Bureau of Investigation, through Superintendent of Police v. Sh.
Romesh Kumar in case 561-A Cr.P.C. No. 19/97 decided by a lucid
judgement dated 20.09.2000 which runs as follows:
"Respondent, Romesh Kumar, happened to be a
Stenographer / Confidential Assistant with the then
Chairman of Railway Recruitment Board, Jammu, Panel
No. 243 of 18 candidates for the post of Ticket Collector
was prepared on 24th July, 1992. The allegation against the
respondent was that later on, ten more candidates were
added to the said panel. Thus, instead of 18 candidates,
the names of 29 candidates with the application forms were
sent to the Divisional Officer, Parampur. This was done on
27th July, 1992. Not only this, another fake panel No. 243-A
dated 31st July, 1992 containing the forged signatures of
the then Chairman of the Board, is also said to have been
prepared by the respondents. The names of three more
candidates were included in this panel. This as shown to
have been issued by the Chairman of the Board. In all,
thirteen application forms of the candidates who never
came to be selected, came to be forwarded to the
Parampur Office. It was alleged that the respondent had
received handsome amount for this act of his. Evidence
was collected, one Lalit Kumar is said to have deposed that
the respondent had demanded a sum of Rs.60,000/- from
him. He stated that an amount of Rs. 30,000/- was paid to
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the respondent by him. The trial court came to the
conclusion that, no doubt, the respondent has been
charged under sections 420, 465, 468, 471 and 301 of the
Penal Code, but the case also fell within the parameters of
Prevention of Corruption Act, and therefore, unless and
until there is sanction of the competent authority, it would
not be apt to continue with the trial. The proceedings were
quashed at the challan stage. This order was challenged in
a revision petition before the Court of Session. The court of
Session upheld the order passed by the trial Magistrate
and in doing so, relied upon the view expressed by Gauhati
High Court in case reported as SH Choudhary v. State,
1992 Cr.L.J. 1472 and also the view expressed in the case
of Sudhandra Kumar Bhattacharjee v. State 1988 Cr. L.J.
1563."
08. The learned counsel for the respondents placing reliance on a Full
Bench decision of the Bombay High Court reported as 'State v.
PandurangBaburao, AIR 1955 Bombay 451, submits that the sanction is
not necessary as the prosecution under the penal provisions of the
Penal Code can go on notwithstanding the fact that the case fell within
the parameters of Prevention of Corruption Act.
09. The question which arises is as to whether a particular act falling
within two statutory provisions, one requiring sanction for prosecution
and the other not requiring, can be tried without obtaining sanction. The
present case involves the conduct of the petitioner as a public servant
for having abused of his official position for which the sanction to
prosecute is necessary under the provisions of Prevention of Corruption
Act. Therefore, the prosecution launched for the offences under RPC
cannot be resorted to for avoiding the necessary sanction as per the
principle of law emerging from the judgement of the Hon'ble Apex Court
supra.
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10. The Full Bench of the Bombay High Court decision on which
reliance has been placed by the learned counsel for the respondent
does support the view sought to be projected by him. As a matter of fact,
there was an earlier Full Bench decision of Bombay High Court reported
as State v. Sahebrao, AIR 1954, Bombay 549. In this decision, it was
pointed out that it was open to the State to prosecute a person under
section 409 of the Penal Code, according to the procedure laid down in
the Criminal Procedure Code, 1898, notwithstanding the special
provisions contained in the Prevention of Corruption Act. Later on,
another Division Bench of the Bombay High Court took a view that if one
enactment constituting a certain offence required sanction and another
enactment constituting an offence do not require sanction, then it was
obligatory upon the prosecution to continue under the enactment which
required a sanction. The view taken was that if the prosecution did not
do so, it would amount to evading a provision of law which required a
sanction, which was the procedure laid down for the benefit of an
accused. As a matter of fact, it was on account of the aforementioned
decision of the Division Bench that the necessity to constitute another
Full Bench arose. This Full Bench, i.e., in the case of State v.
PandurangBaburao, AIR 1955 Bom 451, expressed an opinion that it
was open to the prosecution to prosecute a person under the Penal
Code and it is not necessary to obtain a sanction. Reliance was placed
on Section 26 of the General Clauses Act. It was observed that there is
a clear Legislative Sanction in favour of the option to be exercised by the
prosecution where an act or omission constitutes an offence under two
different enactments and the Legislature has made it quite clear that if
offender is liable under the one or other enactment then he can be tried
under either of them. It was indicated that the only prohibition contained
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in Section 26 was to the effect that the offender is not liable to be
punished twice for the same offence.
11. Now the point of view put across by the petitioner be examined.
12. The counsel for the petitioner has basically placed reliance on a
decision of Gauhati High Court reported as 1988 Cr. L.J. 1563,
Sudhandra Kumar Bhattacharjee v. State. In the above cases, the
prosecution was launched under the Prevention of Corruption Act as
also under Section 409 of the Penal Code. The allegation was that the
appellant in this case had misappropriated a total amount of Rs.
2,281,82, B. L. Hansaria, J', later Judge of the Supreme Court of India,
expressed an opinion to the effect that the salutary requirement of
obtaining previous sanction cannot be set at naught by prosecuting a
public servant for an offence under the Penal Code for which no
sanction is necessary, though the offence attracts the mischief of
provision (a) of law mentioned in Section 6 of the Prevention of
Corruption Act. As per the Learned Judge, "such a course would really
frustrate the purpose for which previous sanction has been deemed
necessary by the Legislature". In doing so, the learned Judge placed
reliance on a decision of Andhra Pradesh High Court reported AIR 1957
Andhra 663, A. Veeraiah v. State, in which Subha Rao, C.J. (later Chief
Justice of India), was summarized in the following words:
"If the facts constitute an offence requiring either the
sanction of a superior authority or the filing of a complaint
by a Court, it cannot be evaded by adopting the device of
omitting one of the ingredients of the offence and
prosecuting him under some other section. This was
illustrated by saying that if a public servant received an
amount on behalf of the State and dishonestly
misappropriated the same, the offence directly fell under
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Section 5(1)(c) of the Act and he could be prosecuted only
with the previous sanction of the authority and the
prosecution could not, by adopting the device of ignoring
the fact that the accused was a public servant, evade the
requirement of previous sanction by filing a complaint
under S. 400 of the Penal Code."
13. Another decision on which reliance was placed by the Gauhati
High Court in the case of Sudhandra Kumar Bhattacharjee (supra), is
reported as K. P. Sinha v. Aftabuddin, AIR 1955 Pat 453, wherein again
the view expressed was that the law relating to obtaining of previous
sanction cannot be evaded by prosecuting the accused under a Penal
Provision which does not require sanction.
14. The learned counsel for the petitioner has also placed reliance on
the decision of the Supreme Court of India, reported as Hazir-ul-Haq v.
State of West Bengal, AIR 1963 SC 293. In this case the scope of
Section 195 of the Penal Code was examined. What was observed is
being quoted below:
"Though, in our judgement Section 195 does not bar the
trial of an accused person for a distinct offence disclosed
by the same facts and which is not included within the
ambit of that section, it has also to be borne in mind that
the provisions of that Section cannot be evaded by
resorting to devices of camouflages. The test whether there
is evasion of the section or not is whether the facts disclose
primarily and essentially an offence for which a complaint
of the court or the public servant is required. In other
words, the provisions of the section cannot be evaded by
the device of charging a person with an offence to which
that section does not apply and then convicting him of an
offence to which it does, upon the ground that such latter
offence is a minor offence of the same character."
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15. The above decision is again an authority for the proposition that if
a particular offence falls within two statutory enactments, one requiring
sanction and the other not requiring it, then the provision which requires
sanction cannot be evaded by resorting to devices of camouflages. In
this regard, it would be apt to refer to a decision of Punjab High Court
reported as 'State v. Gurcharan Singh, AIR 1952 Punj 89. This decision
takes note of General Clauses Act also. It was pointed out that whereas
under Section 409 of the Penal code, no sanction is required when a
person is prosecuted, the Prevention of Corruption Act requires a
sanction in the case of every accused. It was observed that as
Prevention of Corruption Act has introduced various important
procedural changes, an accused cannot be deprived of the same, some
other decisions which are for the proposition that if a particular condition
is a condition precedent for launching the prosecution, then it is not open
to prosecution to ignore that provision by saying that the offence also
falls under another provision, be also noticed.
16. These are 'Ram Nath v. King Emperor, 1925 Allahabad 230. This
case dealt with the impact of Section 195 of the Code of Criminal
Procedure and AIR 1929 Madras 21. Perianna Muthirian v. M. Vengu
Ayyar and others. This was also a case arising under Section 195 of the
Code of Criminal Procedure.
17. After having gone through the judgements noticed above, I am of
the opinion that, that interpretation which helps a citizen in a criminal
case should be preferred. Therefore, following the view expressed by
the Andhra Pradesh and Patna High Courts, which view was, in fact,
noticed by the Gauhati High Court, referred to above, and on which
decision reliance was placed by the Court of Revision, I am of the view
that the prosecution of the respondent is not possible unless sanction is
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obtained. This view is also supported by one of the earliest decision of
Punjab High Court, 'State v. Gurcharan Singh (supra).
18. This petition as such is found to be without merit and is dismissed."
19. Taking a cue from the law laid down above the irresistible
conclusion that can be drawn is that the prosecution of the petitioner
cannot be launched without obtaining a prior sanction as envisaged by
the provisions of the Code of Criminal Procedure because the act of the
accused constitutes an offence in discharge of the public duties.
Sanction is not a mere adherence to the laws but intended to act as a
shield to a public servant when prosecuted for an offence which puts his
honesty and integrity at stake. Prosecution will not be in accordance with
law where sanction is required but is given a goby and in that context it
will affect the jurisdiction of the Court to take cognizance.
20. Looking at the petition of the petitioner from yet another perspective
the question for consideration is as to whether the cognizance in a
matter like the present one can or cannot be taken on the analogy of
Section 197 of the Code of Criminal Procedure which requires to be
extracted herein below verbatim et literatim :-
" 197.Prosecution of Judges and public servants.- (1) When
any person who is Judge within the meaning of Section 19 of
the Ranbir Penal Code or when any Magistrate, or when any
public servant who is not removable from his office save by or
with the sanction of the State Government or the
Government of India, is accused of any offence alleged to
have been committed by him while acting or purporting to act
in the discharge of his official duties, no Court shall take
cognizance of such offence except with the previous
sanction-
(a) in the case of persons employed in connection with the
affairs of the Union of the Government of India; and
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(b) in the case of persons employed in connection with the
affairs of the State, of the Government.
(2) The Government of India or the State Government , as the
case may be, may determine the person by whom, the
manner in which, the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is to
be conducted, and may specify the Court before which the
trial is to be held".
21. Section 197 Cr.P.C extracted above has been interpreted and dealt
with quite efficaciously by the Hon'ble Apex Court of the country in case
titled Ajay Kumar v. M. K. Aiyappa and another reported as AIR 2014 SC
(Supp) 1801, the relevant excerpts of which are extracted herein below:
"The expression "cognizance" which appears in Section
197 Cr.P.C. came up for consideration before a three-Judge
Bench of this Court in State of Uttar Pradesh v. Paras Nath
Singh (2009) 6 SCC 372, and this Court expressed the
following view:
"6. .....And the jurisdiction of a Magistrate to take cognizance of
any offence is provided by Section 190 of the Code, either on
receipt of a complaint, or upon a police report or upon
information received from any person other than a police
officer, or upon his knowledge that such offence has been
committed. So far as public servants are concerned, the
cognizance of any offence, by any court, is barred by Section
197 of the Code unless sanction is obtained from the
appropriate authority, if the offence, alleged to have been
committed, was in discharge of the official duty. The section not
only specifies the persons to whom the protection is afforded
but it also specifies the conditions and circumstances in which it
shall be available and the effect in law if the conditions are
satisfied. The mandatory character of the protection afforded to
a public servant is brought out by the expression, 'no court shall
take cognizance of such offence except with the previous
sanction'. Use of the words 'no' and 'shall' makes it abundantly
clear that the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The very
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cognizance is barred. That is, the complaint cannot be taken
notice of. According to Black's Law Dictionary the word
'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction'
or 'power to try and determine causes'. In common parlance, it
means taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused
of an offence alleged to have been committed during discharge
of his official duty".
22. The ramifications of the dilution of statutory sanction has been
elucidated in the judgement of the Hon'ble Supreme Court delivered on
19th November, 2015 in the case of Prof. M. K. Ganguly v. CBI reported as
2016 (II) SCC 143 the relevant paragraph of which is detailed below:
"The case against them was registered under Section 120-
B read with Section 409 of IPC. While considering the
contention advanced that the said acts could not be said to
have been committed in discharge of official duty, Bose, J.
placed reliance upon the observations made by the Federal Court in the case of Dr. Hori Ram Singh v. Emperor, wherein Vardachariar, J observed that in respect of a charge under Section 409 of IPC, the official capacity is relevant only for entrustment, and not necessarily in respect of misappropriation or conversion which may be the act complained of. It was held by this Court that the correct position of law was laid down in the case of Hori Ram Singh, which is as under:-
"I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests." Bose, J., further held in Shreekantiah case referred to supra that there are cases and cases and each must be decided on its own facts. It was held as under:
"Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course, it is no part of an official's duty to CRMC No. 83/2017 Page 12 of 14 commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it." (emphasis laid by this Court) While considering the facts of the case, Bose J.
observed that the offence in question, could not have been committed any other way, and held as under:
"...If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately; there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the order, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it." (Emphasis laid by this Court) Mr. Gopal Subramanium, the learned senior counsel on behalf of some of the appellants has further rightly placed reliance upon the judgement of a three judge bench of this Court in the case of Amrik Singh v. State of Pepsu to buttress the contention that the issue of requirement of prior sanction under Section 197 of Cr.P.C. can be raised at any stage of the proceedings, and not just at stage of framing of charges. The decision in the case of Hori Ram Singh (supra) was also quoted with approval, especially the categorisation of situations in three scenarios, as under:
"a) Decision which held that sanction was necessary when the act complained of attached to the official character of the person doing it;
b) Judgments which held that sanction was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime; and Those which held it was necessary when the offence was committed while the accused was actually engaged in the performance of official duties."CRMC No. 83/2017 Page 13 of 14
From the gravamen of charge it becomes manifest that the case falls within the specie of the cases classified for the grant of statutory sanction as per the principle of law laid down and evolved in the above referred judgments. Therefore, there being no sanction, the cognizance taken by the learned Chief Judicial Magistrate, Budgam is bad in law and unless the same is quashed, it will be an abuse of the process of the Court.
23. Viewed thus, for all that have been said and done above the petition of the petitioner is allowed as a sequel to which both the charge dated 25.03.2017 framed against the petitioner for the commission of offences under sections 420/409 RPC and the prosecution initiated against him by the Court of the learned Chief Judicial Magistrate, Budgam, in File No. 208 are quashed.
24. Disposed of along with connected MP.
25. Record of the trial court be remitted by the Registry.
(M. K. Hanjura) Judge Srinagar 06.08.2018 "Manzoor"
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