Delhi District Court
Cbi vs . B.L.Bhadu & Ors. Cc No.: 42 / 11. on 7 June, 2013
CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013
IN THE COURT OF : SH. KANWALJEET ARORA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
FIR NO. : RC - 3A / 1998 / CBI/ ACUX
New Delhi dated 07.04.1998.
Under sec. : 120B r/w section 420 IPC
and 13 (2) r/w sec.13(1)(d) of
Prevention of Corruption Act
IN THE MATTER OF:
CBI VS. BRIJ LAL BHADU & ORS.
C.C.NO.: 42 / 2011.
th
Dated: 07 June 2013.
O R D E R :
1. Prosperity of the nation as a whole, is the quest for achievement of which every Indian is striving hard. Democratic polity of ours working through an 'elected government' lays down various policies and plans for upliftment of downtrodden, so that they can be made to mingle with the mainstream, socially, economically & politically without being discriminated against.
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2. Public servants in whatever capacities they are holding their offices, are supposed to give effect to these plans and policies, so that the benefits arising out of them should percolate down to the havenots. To achieve the object, for which these policies and plans are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.
3. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty. C.C.No.: 42 / 2011 Page No.2 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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4. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations.
5. The importance of provision of Section19 has been aptly epitomized in the words of Hon'ble Mr.Justice J.S.Verma (as his Lordship then was) in case titled "K.Veeraswami Vs. Union of India" reported as (1991) 3 SCC 655 as under: "The concept of sanction for prosecution by a superior is so inextricably woven into the fabric of the enactment that the pattern is incomplete without it. The provision for sanction is like the keystone in the arch of enactment. Remove the keystone of sanction and the arch crumbles. C.C.No.: 42 / 2011 Page No.3 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013
6. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated. A balanced approach is required to be adopted giving strict interpretation to the clauses of the penal provisions and simultaneously being mindful of the inviolable constitutional rights granted to the accused, so as to ensure fair trial.
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7. Accused herein, ie. Brij Lal Bhadu had invoked the jurisdiction of this Court under this very clause and sought indulgence for stopping the proceedings against him, on the grounds that the sanction to prosecute him was infact 'declined' by his department, therefore the present prosecution which is going on against him, be stopped and he be released / discharged with immediate effect. Seeking this relief, he had filed the present application dated 15.12.2011 which is now being disposed off by way of present order.
8. Although this application is filed on technical grounds, thereby pushing the factual matrix in oblivion, however, the facts which has given rise to filing of the present application interse as emanating from the material on record, are as under :
(a) Indian Council of Agriculture Research (ICAR) is an Apex Body for promotion of Science and Technology programmes in the area of agricultural research and education.
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(b) Indian Veterinary Research Institute (IVRI), having its head office at Izzatnagar, Bareilley, Uttar Pradesh was functioning directly under the control of ICAR.
(c) It is alleged that accused Brij Lal Bhadu, the applicant herein, being an officer of Central Secretariat Services (CSS), was functioning as Private Secretary to the then Minister of Agriculture, Government of India namely Sh.Balram Jhakhar.
(d) During the period 19911996, accused Brij Lal Bhadu while working as such, had official dealings with officers of ICAR and IVRI. It is alleged that accused Brij Lal Bhadu during the said period, using his contacts with the other accused persons ie. Accused no.3 Om Singh Verma, Accused no.4 Dr.H.P.S.Arya, Accused no.5 Dr.Pushkar Nath Bhat, Accused no.6 Dr.P.N.Mathur and accused no.7 Dr.Chandrika C.C.No.: 42 / 2011 Page No.6 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 Prasad, who were working as Scientists with ICAR and IVRI, had entered into a conspiracy with them and initiated a project for the purposes of having "Transfer of Technology (TOT) Project Camp" at Village Kurar, District Faarukhabad, U.P, for demonstration of livestock in that area.
(e) It is further alleged that in furtherance of the conspiracy, the project "Livestock Technology and Extension System for Rural Development" had been falsely prepared by accused no.3 Dr.Om Singh Verma and accused no.4 Dr.H.P.S.Arya, which was fraudulently approved by accused no.5 Dr.P.N.Bhat on 13.01.1992 and then sent to the ICAR, where accused no.7 Dr.Chandrika Prasad by bypassing the laid down procedures had formed a special committee to evaluate the aforesaid project proposal in ICAR and accused no.6 Dr.P.N.Mathur was nominated as Member Secretary of the Committee to obtain a favourable approval for the project, who dishonestly approved the same for causing C.C.No.: 42 / 2011 Page No.7 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 wrongful gain to accused no.1 B.L.Bhadu and his wife accused no.2 Smt. Bhagwanti Devi at the cost of government money.
(f) It is alleged that accused no.1 Brij Lal Bhadu, the applicant herein and his wife ie. accused no.2 Smt.Bhagwanti Devi, were having some barren / usar land at Village Kuraar, District Farukhabad, UP, which was not yielding anything.
(g) It is alleged that accused Brij Lal Bhadu had entered into a criminal conspiracy with others, for having this project at Village Kurar and proposed the barren / usar land, belonging to him and his wife, to be used for this project with the sole object of having this land developed at government expenses and also to earn rental for this land, during the course of the project.
C.C.No.: 42 / 2011 Page No.8 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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(h) It is alleged that accused Brij Lal Bhadu in conspiracy with other accused persons had misused his official position and had caused wrongful loss to Government of India to the tune of Rs.44 lacs, by having this amount used for development of their own barren land.
(i) It is further alleged that besides that, accused Brij Lal Bhadu and his wife Smt.Bhagwanti Devi had caused wrongful loss amounting to Rs.4.14 lacs to Government of India being paid to them towards "rental" of this land, besides having their barren land developed at government expenses.
(j) On the basis of these allegations, CBI after registration of FIR bearing number RC - 3A / 1998 / CBI/ ACUX, New Delhi, investigated the same and had filed the charge sheet in court for trial of the accused persons for offences under section 120B r/w section 420 IPC C.C.No.: 42 / 2011 Page No.9 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 and 13 (2) r/w sec. 13 (1) (d) of Prevention of Corruption Act,1988.
(k) Ld.Predecessor of this court had taken cognizance of the offence and had summoned the accused persons. After compliance of section 207 Cr.P.C, arguments were head on the point of charge.
(l) After hearing arguments on the point of charge, Ld.Predecessor of this court vide orders dated 14.11.2006 found primafacie case against all the accused persons and framed the requisite charges.
9. Prosecution was thereafter called upon to substantiate its case by examining its witnesses. To do so, prosecution had examined 50 of its witnesses and closed its evidence.
10. It is now when the case has reached the stage of recording of statement of accused, that the present C.C.No.: 42 / 2011 Page No.10 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 application has been filed on behalf of accused Brij Lal Bhadu seeking his discharge, stating that no cognizance could have been taken qua him.
11. I have heard the arguments advanced by Sh.Manoj Shukla, Ld.PP for CBI and Sh.A.K.Dass, Advocate, Ld.Counsel for accused / applicant Brij Lal Bhadu.
12. Leading a twopronged attack on the prosecution case, it is contended by Ld.Defence Counsel that the provisions of section 19 of Prevention of Corruption Act is a mandatory provision and the court does not have the jurisdiction to take cognizance when sanction to prosecute against a particular accused has been "declined" by the competent authority.
13. Ld.Defence Counsel in his quest to demolish the case of prosecution contended that sanction once refused by the competent authority, cannot be held as C.C.No.: 42 / 2011 Page No.11 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 "good" after demitting the public office by the public servant by way of retirement. He relying upon the law laid down by Hon'ble Apex Court in case titled "Chittaranjan Dass Vs. State of Orissa" reported as 2011(7) Scale 461, contended that in case, sanction sought is refused by the competent authority while the public servant is in service, he cannot be prosecuted after his retirement, as the same would render the protection "illusory".
14. To further his contention advanced by Ld.Defence Counsel, he contended that prosecution waited for the accused to retire from his service and thereafter filed the present charge sheet without making any further investigations qua him. He contended that prosecution did not approach the court with clean hands and failed to make a mention of this fact in the charge sheet.
15. He contended that they had been raising this contention from the very beginning, but the prosecution had failed to come forward with the actual facts that the C.C.No.: 42 / 2011 Page No.12 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 "sanction" was in fact declined by the government. He contended that it was only during the cross examination of the investigating officer, who was examined as last prosecution witness that this fact came on record, therefore they had filed the present application.
16. Next limb of the arguments advanced by Ld.Defence Counsel was that the allegations levelled against accused Brij Lal Bhadu by the prosecution are with respect to the acts, alleged to have been committed by him, in discharge of his official duties. He contended that in view thereof, the sanction as contemplated under section 197 (1) Cr.P.C. was also required for proceeding against the accused, which is also not there on record and on this ground also, the trial should not proceed and accused should be released forthwith.
17. On the other hand, it is contended by Ld.PP for CBI that the protection under section 19 of Prevention of Corruption Act, is available to only those public servants C.C.No.: 42 / 2011 Page No.13 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 who are still holding the public office, so that they can be protected from vexatious and malicious prosecution. He contended that the object of bringing this provision on record, was that the administration should not come to standstill; therefore this protection was given only to those public servants who were still holding their office and is not extended to the ones, who have already demitted their office, either by virtue of retirement or otherwise. He further contended that the judgement relied upon by Ld.Defence Counsel does not apply to the facts of the present case as the present application has been filed at the fag end of the trial, when the prosecution has already led its entire evidence on record.
18. I have given my thoughtful consideration to the rival contentions advanced in the light of precedents relied upon. I have also perused the other material on record.
C.C.No.: 42 / 2011 Page No.14 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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19. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which C.C.No.: 42 / 2011 Page No.15 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(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 subsection (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 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 subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in 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.C.C.No.: 42 / 2011 Page No.16 of 34
CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 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.
20. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant.
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21. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
22. The importance of this provision and the obligation of the sanctioning authority was stated by Hon'ble Apex Court in case titled "R.S.Nayak Vs. A.R.Antulay" reported as AIR 1984 SC 684, wherein it was held that :
"... In catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality, but a solemn and sacrosanct act which removes the umbrella of protection of Government C.C.No.: 42 / 2011 Page No.18 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 servants against frivolous prosecution and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against public servant."
23. In view of the aforementioned observations made by Hon'ble Apex Court, it is evident that any trial without a sanction renders the proceedings voidab initio. However "terminusaquo" with respect to a valid sanction is the time when the court is called upon to take cognizance of the offence, and not the time when the alleged offence has been committed by the public servant.
24. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone C.C.No.: 42 / 2011 Page No.19 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 the offence. Thus, such provision is to be construed on the basis of words used therein, without importing the words, which are not there.
25. Consequently, even if the offence is alleged to have been committed by the accused who was a public servant, but at the time when court is called upon to take cognizance of the offence committed by him, he has ceased to be a public servant then, "no sanction" would be necessary for taking cognizance under this provision.
26. This is the approach adopted by Hon'ble Apex Court and various High Courts, as the same is in accordance with the policy and object to achieve which, Section19 was brought on the Statute Book, ie. a public servant should not be exposed to harassment of frivolous and vexatious prosecution. Meaning thereby, that if he at the time when court is called upon to take cognizance has ceased to be a public servant, then this vital consideration ceases to exist, qua him.
C.C.No.: 42 / 2011 Page No.20 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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27. In the present case accused Brij Lal Bhadu had retired from his services on 31.07.2002 and charge sheet was filed against him on 23.08.2002 and cognizance of offence by Ld.Predecessor of this court was taken against this accused on 05.03.2003, ie. much after his retirement. Meaning thereby, that he was not a "public servant" when the court was called upon to take cognizance of the offence.
28. Ld.Defence Counsel to augment the submissions made by him, in the application under disposal, contended that the prosecution had not approached the Court with clean hands and had suppressed material facts from the Court.
29. He contended that CBI during the course of investigations, had applied for 'grant of sanction' for prosecution of accused B.L.Bhadu with the competent authority and the competent authority vide order dated 24.07.2002 had refused to grant sanction. Ld.Defence C.C.No.: 42 / 2011 Page No.21 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 Counsel contended that CBI waited for the accused to retire on 31.07.2002 and then filed the charge sheet in Court on 23.08.2002 after retirement of accused and failed to mention the factum of refusal of sanction for prosecution of B.L.Bhadu, by competent authority.
30. He further contended that the factum of refusal by the department to grant sanction for prosecution of accused B.L.Bhadu came to their knowledge for the first time only during cross examination of the Investigating Officer, therefore, the present application has been filed now. It is contended that as department had refused to grant sanction when accused was in service. CBI could not have filed the charge sheet against him, even after his retirement and no cognizance could have been taken on the same.
31. I have considered these submissions of Ld.Defence Counsel and have perused the record. C.C.No.: 42 / 2011 Page No.22 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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32. Perusal of the record belies the contention advanced by Ld.Defence Counsel. It is apparent that this ground was urged and raised on behalf of the accused, by Ld.Defence Counsel even at the time of advancing arguments on the point of charge. It is apparently evident from the order on charge dated 14.11.2006 passed by Ld.Predecessor of this Court that the said argument was taken into consideration. The complete order of the department dated 24.07.2002 (vide which the sanction for prosecution of accused Brij Lal Bhadu was refused) was reproduced by Ld.Predecessor of this Court, in her said order. After giving due consideration to the arguments advanced on behalf of the accused, his contention was turned down vide orders dated 14.11.2006.
33. In view thereof, the same contention of the accused at this stage cannot be permitted to be re agitated as I am not sitting in any Appeal or Revision against the orders passed by my Ld.Predecessor. The C.C.No.: 42 / 2011 Page No.23 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 remedy which was available to the accused at that point of time, could have been availed by him by approaching the superior courts in revision.
34. It is further evident from the record that this fact was very much in the knowledge of the accused at very initial stages of the present case and by no stretch of imagination, it can be inferred that the same came to his knowledge, only during crossexamination of the investigating officer, who was examined in the Court as PW48. Had that been so, then this application would have been filed after crossexamination of PW48, which was recorded on 16.03.2013, whereas the present application was filed much earlier ie. on 15.12.2011.
35. The judgement relied upon by Ld.Defence Counsel ie. Chittranjan Dass Vs. State (supra) does come to the rescue of the accused, as facts of the said case does not apply to the facts of the present case. C.C.No.: 42 / 2011 Page No.24 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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36. In the said case which came up before Hon'ble Supreme Court, the objection regarding refusal of sanction by the competent authority and subsequent filing of charge sheet after retirement of the public servant was taken at the earliest possible stage ie. immediately after filing of the charge sheet and taking cognizance of the offence by Ld.Special Judge. Whereas, in the present case, the present application has been filed at the fag end of the trial, when the prosecution has already led its entire evidence on record.
37. Besides that, in the said case before Hon'ble Supreme Court, CBI even after retirement of the accused, had again applied with the department for grant of sanction, which was refused by the department and therefore, they had filed the charge sheet. Whereas in the present case, CBI after retirement of Brij Lal Bhadu had not applied with the competent authority for grant of sanction and have filed the charge sheet after his retirement as no sanction u/s 19 of P.C.Act was required. C.C.No.: 42 / 2011 Page No.25 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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38. Apart from that, in the said case relied upon by Ld.Defence Counsel, Hon'ble Supreme Court in Para10 of the judgement had observed that even otherwise, the facts of the said case were so telling that prosecution of accused shall be an abuse of process of law. As in the said case of disproportionate assets, as per FIR the accused possessed disproportionate assets worth Rs. 5.58 lacs, whereas according to charge sheet, the disproportionate assets were only to the extent of Rs.1.44 lacs.
39. Thus in the said case, Hon'ble Apex Court was persuaded to arrive at the conclusion on the basis of its peculiar facts. Had that been not the case, there would have been no occasion with Hon'ble Apex Court to observe in Para10 of its judgement, that due to telling facts of the case proceeding with prosecution of the accused would be an abuse of process of law.
C.C.No.: 42 / 2011 Page No.26 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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40. In view of above, the precedent relied upon by Ld.Defence Counsel does not apply to the facts of the present case, which are distinctly different from the said case.
41. Even otherwise, As per Section 19 (3) read with section 19 (4), any defect, omission or irregularity in sanction raised at a belated stage, cannot be considered ipsofacto. On combined reading of these two subsections, it is clear that Legislature has reduced the rigors of the prohibition to take cognizance. It clearly states that mere error, omission or irregularity in sanction, cannot be considered fatal, unless it has resulted in "failure of justice" or "failure of justice" has occasioned thereby.
42. The expression "Failure of justice" has been incorporated by the Legislature with a view that the objections regarding sanction should be taken and considered at the initial stages of the case, which is in C.C.No.: 42 / 2011 Page No.27 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 conformity with the object of incorporation of the provision of Section 19 (1) of P.C.Act which is to protect the public servants from any prosecution sans a valid sanction from the competent authority. Meaning thereby, that this protection has to be made available to the public servant at the initial stages of the case, so as to prevent him from undergoing the ordeal of trial. Once the said public servant had undergone the entire process of trial, then the Court has to give a definite finding to the effect that failure of justice has resulted, before accepting the objections regarding any error or omission, visavis sanction.
43. In the present case, entire prosecution evidence has already come up on record and it is at this stage when the matter is listed for recording of statement of accused, that accused Brij Lal Bhadu has come up with the present application. Neither in the application nor during the course of arguments, I have found anything to infer that failure of justice would result, if the contention C.C.No.: 42 / 2011 Page No.28 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 raised by the accused at this stage is not considered. More particularly when this particular argument, was earlier raised on behalf of the accused and had been considered and rejected by my Ld.Predecessor vide orders dated 14.11.2006.
44. Consequently, this argument of Ld.Defence Counsel that no cognizance could have been taken against accused Brij Lal Bhadu, even after retirement is turned down.
45. This has brought me down to second limb of arguments advanced on behalf of the accused. Ld.Defence Counsel had contended that as per the allegations in the charge sheet, the alleged act was committed by the accused in discharge of his official functions, therefore sanction u/s 197 Cr.P.C was also required for trial of the accused, which has not been taken. Another facet of his contention was that, as per the amended section 197 Cr.P.C, the sanction for trial is required even for a retired public servant. C.C.No.: 42 / 2011 Page No.29 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
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46. I do find substance in the contention of Ld.Defence Counsel that Section 197 Cr.P.C applies to even retired public servant.
47. Perusal of section 197 Cr.P.C makes it evident that the necessity for previous sanction is made applicable to the former public servants also as, Legislature has used the words "when any person, who is or was, a public servant".
48. However, the sole question which requires consideration is that, whether section 197 Cr.P.C at all is attracted in the present case or not ??.
49. To my mind, the protection under section 197 Cr.P.C is available only when the alleged offence, complained of, against the accused is done by him in discharge of his official functions. However, the use of expression "official duty" implies that the act of omission must have been done by the public servant in the course of C.C.No.: 42 / 2011 Page No.30 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 his service and that, it should have been in discharge of his duty. This section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those act or omissions, which are done by a public servant in discharge of his official duty.
50. Section 197 Cr.P.C and Section 19 of Prevention of Corruption Act 1988, operate in conceptually different fields. In all the cases covered under Prevention of Corruption Act, in respect of the public servant who still is in service, the necessity of sanction is automatic, irrespective of the factual aspects which are of no consequence which inversely opposite to the case under section 197 Cr.P.C, as there the basic substratum of the facts have to be considered to find out the nexus of the alleged act, with the discharge of official duties of the public servant.
C.C.No.: 42 / 2011 Page No.31 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013
51. I am fortified to arrive at this conclusion in view of the observations made by Hon'ble Apex Court in case titled "Kalicharan Mahapatra Vs. State of Orissa" reported as 1998(2) GLH 622, wherein Hon'ble Apex Court has held as under:
13. ... It must be remembered that in spite of bringing such a significant change to Section 197 of the Code in 1973, the Parliament was circumspect enough not to change the wording in Section 19 of the Act, which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the Code concerns a public servant who "is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", whereas the offences contemplated in the P.C.Act are those which cannot be treated as act either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former P.C.Act was materially imported in the new P.C.Act 1988 without any change in spite of the change made in the Section 197 of the Code.
14. .... The result of the above discussion is thus : A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the C.C.No.: 42 / 2011 Page No.32 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013 sanction contemplated in Section 19 of the Act, if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of offence, without any such sanction. In other words, the public servant who committed the offence while he was a public servant, is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution.
52. Having regards to the observations made by Hon'ble Apex Court in the above referred case mentioned above and applying the principles laid down to the facts of the present case, it is apparent that as per the allegations in the charge sheet and the charge for which accused has been facing trial, it cannot be said that they are the offences of the nature mentioned in section 197 Cr.P.C. It is no part of the duty of the public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in criminal misconduct. Consequently, to my mind section 197 Cr.P.C does not have any application in the facts of the present case and want of sanction under section 197 Cr.P.C, is therefore no bar.
C.C.No.: 42 / 2011 Page No.33 of 34 CBI Vs. B.L.Bhadu & Ors. CC No.: 42 / 11.
Dated : 07.06.2013
53. Even otherwise, this contention was also raised by Ld.Defence Counsel before Ld.Predecessor of this Court, at the time of arguments on the point of charge, which was dealt with vide orders dated 14.11.2006. In view thereof, it does not lie with the accused to reagitate the same argument again at this stage.
54. Having regards to the above discussion, I do not find any merits in the application dated 15.12.2011 filed on behalf of the accused. The same is accordingly dismissed.
55. It is hereby made clear that whatever observations are made hereinbefore, the same are made only for the purposes of disposal of the present application and nothing mentioned hereinabove shall not tantamount to any expression on merits of the present case. Announced in open court on 07th Day of June, 2013.
(KANWAL JEET ARORA) SPECIAL JUDGE : CBI (PC ACT), DWARKA COURTS, NEW DELHI.
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