Madhya Pradesh High Court
Anju Singh Baghel vs Economic Offence Investigation Bureau on 18 October, 2016
Author: H. P. Singh
Bench: H. P. Singh
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Criminal Revision No.1210 of 2016.
Corum : Hon'ble Shri Justice S. K. Gangele &
Hon'ble Shri Justice H. P. Singh
Anju Singh Baghel
Versus.
Economic Offence Bureau
For applicant : Shri Ajay Mishra Senior Advocate
assisted by Shri Atul Nema, Advocate.
For respondent/State : Shri Pradeep Singh, Govt. Advocate.
ORDER
(passed on 18.10.2016) As per S.K. Gangele, J:
1. Petitioner has filed this petition against the order dated 18.04.2016 by which trial Court rejected the application of the petitioner filed under Section 19 of Prevention of Corruption Act read with Section 197 of Criminal Procedure Code, 1973 to the effect that charges framed against the petitioner be quashed and petitioner be acquitted from the charges on the ground that no proper sanction has been obtained from the competent Authority before taking cognizance against the petitioner.
2. At the relevant time the petitioner was posted as Collector Katni.
One Mr. Mohd. Abbas on 5.2.2008 submitted an application for exchange of land. The report was called and paper publication was made thereafter Gram Panchahyat submitted its report and Naib Tahsildar was directed for spot inspection. Naib Tahsildar submitted its report and Gram Panchayat also recommended the case for exchange of land. On 17.6.2008 statement of Mr. Abbas was recorded. Collector called a report from S. D. O. He submitted the report on 25.8.2008. Naib Tahsildar had also submitted its 2 report in favour of the exchange of land. The petitioner passed the order dated 14.11.2008 in regard to exchange of land.
3. The Collector who was posted after transfer of the petitioner had taken the matter in suo-motu revision and found certain illegalities. Thereafter, vide order dated 26.12.2009 subsequent Collector cancelled the order of allotment of land passed by the petitioner. Against the aforesaid order Mr. Abbas filed a petition before the Board of Revenue and the Board of Revenue vide order dated 4.3.2011 set aside the order passed by the subsequent collector on the ground that it was necessary to take permission from Board of Revenue in accordance with Section 51 of Madhya Pradesh Land Revenue Code before taking the matter in suo motu review. Because no such permission was take, hence, the order passed by the Collector setting aside the earlier order was illegal, consequently the Board of Revenue set aside the order passed by the Collector by which the order of exchange of land passed by the petitioner was cancelled.
4. In the meanwhile Economic Offence Bureau registered the offence against the petitioner and other persons for commission of offence punishable under Section 13 (1) (D) and 13 (2) of Prevention of Corruption Act r/w Section 120 of IPC. After investigation a charge sheet was filed before Competent Court of jurisdiction by EOW. The Court had taken cognizance. Charge sheet was filed on 5.12.2015. On the date of filing of the Charge sheet petitioner was already retired from service. It is an admitted fact that before filing the charge sheet and taking cognizance by the Court against the petitioner no sanction to prosecute the petitioner from the competent authority was taken.
5. The petitioner had taken an objection before the trial Court that she could not be prosecuted without sanction in accordance with Section 19 of the Prevention of Corruption Act and Section 197 of Cr. P. C. Trial Court rejected the application on the ground that after retirement no sanction is necessary under Section 19 of Prevention of Corruption Act to prosecute the petitioner. The sanction to prosecute the petitioner under Section 197 of Cr.
3P. C. is also not necessary because the petitioner did not act in pursuance to her official duties.
6. Learned senior counsel appearing on behalf of the petitioner has contended that order passed by the trial Court is contrary to law and it is necessary to obtain sanction to prosecute the petitioner. In support of his contentions learned Senior counsel relied on the following judgments:
(1) State of Maharashtra Vs. Dr. Budhikota Subbarao (1993) 3 SCC
339.
(2) State of H. P. Vs. M. P. Gupta (2004) 2 SCC 349.
(3) State of Orissa Vs. Ganesh Chandra Jew (2004) 8 SCC 40.
7. Contrary to this learned counsel appearing on behalf of the prosecuting agency has contended that it is not necessary to take any sanction before filing of the charge sheet against the petitioner because the petitioner was retired from service and the order passed by the trial Court is in accordance with law.
8. It is an admitted fact that the petitioner had retired from service when the charge sheet was filed against her before the competent Authority/ the Court of jurisdiction on 5.12.2015 by prosecuting agency. The offence alaleged against the petitioner is punishable under Section 13 (1) (D) and 13 (2) of Prevention of corruption Act and Section 120-B of IPC. The Apex Court in the matter of State of Punjab Vs. Labh Singh (Criminal Appeal No.2168 of 2010), after considering earlier judgments of Court has held that it is not necessary to take sanction against public servant after retirement, if he has already retired on the date on which the Court of competent jurisdiction has taken the cognizance under the provisions of Prevention of Corruption Act. The law is well settled on this point. Hence, the order passed by the trial Court that no sanction is necessary to prosecute the petitioner for commission of offence punishable under Sections 13 (1) (D) and 13 (2) of Prevention of corruption Act is in accordance with law.
9. Next question is in regard to sanction under Section 197 of Cr. P. C. for commission of offence punishable under Section 120-B of IPC. The Apex Court in the matter of State of Punjab Vs. Labh Singh (Supra), 4 after considering earlier judgments has held that sanction to prosecute public servant after his retirement under 197 of Cr. P. C. for commission of offence punishable under Indian Penal Code is necessary. The trial Court has further held that the offence which is alleged to be committed by the petitioner was not in furtherance of her public duty. Hence, no sanction was required in the facts of the case. We are not in agreement with reasoning assigned by the trial Court in this regard.
10. In the present case an application for exchange of land was filed before the petitioner. After considering the report of the revenue officers including Patwari, Naib Tahsildar and the S. D. O. the petitioner had passed the order of exchange of land. There may be some technical mistakes in the order. We are refraining ourselves to consider aforesaid aspect. Apart from this the order passed by the petitioner is still in existence. The order passed by the subsequent Collector setting aside the order passed by the petitioner for exchange of land has been set aside by the Board of Revenue and even for the last more than five years no application has been filed by the competent authority before the Board of Revenue to grant permission for review. It means that Government has accepted the order passed by the Board of Revenue for exchange of land. There is no allegation in the charge sheet that the petitioner had received any illegal gratification in passing the order of exchange of land. There is also no allegation or evidence that Mr. Abbas had approached the petitioner to secure the order in his favour.
11. The Apex Court recently in the matter of Amal Kumar Jha Vs. State of Chhatisgarh and another reported in (2016) 6 SCC 734 after considering earlier judgments has held as under :
It is apparent from the facts of the instant case that the allegation against the appellant is of omission in discharge of official duty in not providing Government vehicle for shifting the patient from Primary Health Centre to District Hospital, Raigad; whereas he himself travelled in the vehicle in question for attending the monthly official meeting at the District Headquarters. In our considered opinion, it was an act or 5 omission in discharge of the official duty. The sanction to prosecute was necessary. In this case, the accused was acting in discharge of his official duty when he refused to provide the official vehicle. The refusal is directly and reasonably connected with his official duty, thus sanction is required for prosecution as provided under section 197(1) Cr.PC. It is not disputed that no ambulance was provided to the Primary Health Centre. The question arises whether omission to provide the official jeep which was not meant for patients, would constitute an omission in discharge of his duty. Though public servant is not entitled to indulge in criminal activities in the course of his duty but the act in question had relation to discharge of official duty of the accused. It was clearly connected to the performance of his official duty. When such is the case, sanction is required.
12. In the present case, the petitioner passed the order of exchange of land in her official capacity. There is no allegation of receiving any illegal gratification. Hence, the act of the petitioner was connected with official duty and she passed the order when she was acting as District Collector and she was performing quasi-judicial work. In such a situation, in our opinion, it was necessary to obtain sanction before prosecuting the petitioner for commission of offence punishable under Section 120-B of IPC.
13. Hence, petition is partly allowed, order passed by the trial Court to the effect that no sanction is required for prosecution of the petitioner for commission of offence punishable under Sections 13 (1) (D) and 13 (2) of Prevention of corruption Act is hereby upheld while the order passed by the trial Court to the effect that no sanction is required for prosecution of the petitioner for commission of offence punishable under Section 120-B of IPC Act is hereby quashed. The prosecuting agency is at liberty to proceed in the matter if it requires after taking appropriate sanction from competent authority. It is further observed that this Court has not opined about merits of the case whether any offence is made out against the 6 petitioner for commission of offence punishable under Sections 13 (1) (D) and 13 (2) of Prevention of corruption Act or not.
14. Petition is partly allowed accordingly.
(S.K. Gangele) (H. P. Singh)
Judge Judge
kkc
7
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Criminal Revision No.1210 of 2016.
Corum : Hon'ble Shri Justice S. K. Gangele &
Hon'ble Shri Justice H. P. Singh
Anju Singh Baghel
Versus.
Economic Offence Bureau
For applicant : Shri Ajay Mishra Senior Advocate
assisted by Shri Atul Nema, Advocate.
For respondent/State : Shri Pradeep Singh, Govt. Advocate.
ORDER
For Consideration
(S.K. Gangele)
Judge
Hon'ble Shri Justice H. P. Singh
(H. P. Singh)
Judge
Post it for .10.2016
(S.K. Gangele)
Judge