Punjab-Haryana High Court
Surinder Kumar Bansal vs State Of Punjab on 4 January, 2006
Equivalent citations: 2006CRILJ1329
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
ORDER Satish Kumar Mittal, J.
1. The question for consideration in this revision petition, which has been raised by counsel for the petitioner, is : Whether in addition to the sanction required under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P.C. Act') the sanction under Section 197 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is also required for the prosecution of an accused public servant under the P.C. Act, even if he ceases to be a public servant on the date of taking cognizance of the alleged offence?
2. In order to appreciate the aforesaid question, certain facts of the case are necessary. At the time of the alleged occurrence, the petitioner was working as Chief Engineer, Irrigation, Punjab. Before him, an appeal arising from an order passed by the Executive Engineer was filed by the complainant Tarlochan Singh. The said appeal was decided by the petitioner on 5-12-2002 and the matter was remanded to the Executive Engineer for fresh adjudication. As per the complainant, the petitioner demanded a bribe of Rs. 5,000/- for deciding the said appeal, on which a trap was conducted on 28-1-2003 and an amount of Rs. 5,000/-was recovered from the petitioner. Hence, FIR No. 12 dated 28-1-2003 under Sections 7, 13(2) of the P.C. Act was registered at Police Station Vigilance Bureau, Patiala. Thereafter, on 31-1-2003, the petitioner retired from service. After his retirement, the challan was filed and charge was framed against the petitioner. At the stage of prosecution evidence, the petitioner moved an application for dropping the proceedings on the ground that the prosecution has not obtained the sanction as required under Section 197 of the Code as well as Section 19 of the P.C. Act, which is mandatory and sine qua non for taking cognizance of the offence under the P.C. Act. The learned Special Judge, Patiala, while following the decision of the Hon'ble Apex Court in State of Kerala v. M.M. Manikantan Nair 2001 (2) RCR (Cri) 657 : 2001 Cri LJ 2346 and Kalicharan Mahapatra v. State of Orissa , dismissed the said application while holding that no sanction under Section 197 of the Code and Section 19 of the P.C. Act is required for prosecution of a public servant after his retirement. Hence this petition.
3. learned Counsel for the petitioner, in view of the law laid down by the Hon'ble Apex Court in Kalicharan Mahapatra's case 1998 Cri LJ 4003 (supra) and State of Kerala v. Padmanabhan Nair , submitted that as far as sanction under Section 19 of the P.C. Act is concerned, the position of law is clear that in case of a public servant, such sanction is not necessary, if the Court takes cognizance of the alleged offence after the retirement of the public servant. However, learned Counsel submitted that in addition to the sanction as required under Section 19 of the P.C. Act, the prosecution has to obtain the sanction under Section 197 of the Code, even for the offences committed by the public servant under the P.C. Act and such sanction is mandatory even if the public servant has retired from service. In this regard, learned Counsel relied upon the decision of the Hon'ble Supreme Court in R. Balakrishna Pillai v. State of Kerala . While developing his arguments, he further submitted that in that case, two questions were considered by the Hon'ble Apex Court i.e. (i) whether sanction under Section 197(1) of the Code was required for the prosecution under the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the old P.C. Act'), and (ii) whether sanction under Section 6 of the old P.C. Act was a pre-requisite for the prosecution of accused public servant under Section 5 thereof even when such public servant had ceased to be a public servant on the date of taking cognizance of the offence by the Special Judge ? learned Counsel submitted that while rejecting the view taken by the Kerala High Court, the Hon'ble Apex Court has held that sanction under Section 197(1) of the Code is mandatory even after the retirement of the accused public servant. learned Counsel for the petitioner submitted that the protection provided under Section 197 of the Code is general in nature and it is applicable for all the offences whether alleged to have been committed under the IPC or under the P.C. Act. He submitted that such protection is needed as much after retirement of the public servant as before retirement. The protection afforded by Section 197 of the Code would be rendered illusory if it was open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. learned Counsel further submitted that M.M. Manikantan Nair's case 2001 Cri LJ 2346 (supra) does not pertain to Section 197 of the Code. In that case, the question was : Whether the sanction to prosecute under Sub-section (1) of Section 122 of the Kerala Panchayat Act is necessary, when the accused public servant ceased to hold the post under the Panchayat? In the light of the said provision, it was held by the Hon'ble Apex Court that in view of clear language of Sub-section (1) of Section 122 of the Kerala Panchayat Act, sanction is required under the said Sub-section only if a person holds the office of President, Executive Authority or any member and not otherwise. In view of these submissions, learned Counsel for the petitioner submitted that since no sanction under Section 197 of the Code has been obtained by the prosecution in the instant case, therefore, the proceedings against the petitioner are vitiated and liable to be dropped.
4. On the other hand, learned Counsel for the respondent-State has heavily relied upon the decision of the Hon'ble Apex Court in State of Kerala v. M.M. Manikantan Nair 2001 Cri LJ 2346 (supra) and Kalicharan Mahapatra v. State of Orissa 1998 Cri LJ 4003 (supra) and submitted that no separate sanction under Section 197 of the Code is required for the prosecution of a retired public servant under the P.C. Act. He submitted that even otherwise, taking of bribe cannot be considered and taken as a part of official duty, therefore, no sanction under Section 197 of the Code is required, even if that provision is held applicable in case of a retired public servant. Therefore, learned State counsel submitted that there is no illegality or infirmity in the impugned order, passed by the learned Special Judge.
5. After considering the rival submissions of learned Counsel for the parties and the various judgments cited on this point, I do not find any merit in the contention raised by learned Counsel for the petitioner.
6. Section 19 of the P.C. Act provides that 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 of the appropriate Government. The sanction contemplated in Section 19 of the P.C. Act is mandatory if the accused public servant continues to be a public servant, when the Court takes cognizance of the offence, but if he ceases to be public servant by that time, the Court can take cognizance of the offence without such sanction. The protection provided under Section 19 of the P.C. Act is not available in case of a retired public servant, whereas in Section 197 of the Code, it is mandatory to obtain sanction for prosecution of a public servant for the alleged offence, if the same was committed by him while acting or purporting to act in the discharge of his official duty, even in case of a retired public servant. The necessity for previous sanction under Section 197 of the Code is made applicable to a retired public servant by using the words "when any person who is or was a public servant". No such language has been used in Section 19 of the P.C. Act. Thus, keeping in view the language of Section 19 of the P.C. Act, it is clear that no previous sanction is necessary for prosecution of a public servant for the offence alleged to have been committed under the P.C. Act, if such a public servant ceases to be public servant at the time of taking cognizance by the Court.
7. Now, the question for consideration is whether the additional sanction under Section 197 of the Code is also required for prosecution of a retired public servant, if the alleged offence is under the P.C. Act, for which offence no sanction under Section 19 of the P.C. Act is necessary. In my opinion, this question has been answered by the Hon'ble Apex Court in Kalicharan Mahapatra's case 1998 Cri LJ 4003 (supra), wherein it was observed as under :
13. It must be remembered that in spite of bringing such a significant change to Section 197 of the Code in 1973, 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 PC Act are those which cannot be treated as acts 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 PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code.
8. In V. Padmanabhan Nair's case 1999 Cri LJ 3696 (supra) it has been again held by the Hon'ble Apex Court that there is no necessity at all to obtain sanction under Section 197 of the Code to proceed against accused public servant under the provisions of the P.C. Act. It has been observed that the correct legal position is that an accused facing prosecution for offences under the P.C. 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. So it was held that the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the P.C. Act. Regarding the offences under the IPC, it has been served that the Hon'ble Apex Court has already stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay and Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code. It is not part of the duty of a public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in a criminal misconduct. Thus, taking of the bribe cannot be said to be part of the official duty. In State of H.P. v. M.P. Gupta 2003 (10) JT 32 : AIR 2004 SC 730 the Hon'ble Apex Court has again held that an accused facing prosecution for offences of corruption cannot claim any immunity on the ground of want of sanction under Section 197 of the Code, when he ceased to be a public servant on the date when the Court took cognizance of the offences. This protection has certain limits and is available only when the alleged act done by the accused public servant is reasonably connected with the discharge of his official duties. If in doing his official duties, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the prosecution. Before sanction under Section 197 of the Code can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. It is not part of the duty of a public servant while discharging his official duty to commit any forgery or to take the bribe.
9. During the course of arguments, learned Counsel for the petitioner heavily relied upon the judgment of the Hon'ble Supreme Court in R. Balakrishna Pillai's case (supra). In that case, two charges were framed against the accused public servant. The first charge was relating to an offence punishable under Section 120-B of the IPC for entering into criminal conspiracy to sell electricity to the State of Karnataka to be supplied by one private firm. The second charge was relating to the commission of an offence punishable under Section 5(2) read with Section 5(1)(d) of the old P.C. Act. The prosecution was launched after the appellant ceased to hold the office on the date of taking of the cognizance. He was convicted for both the charges and his conviction was upheld by the High Court. Against the judgment of the High Court, the appellant R. Balakrishna Pillai filed appeal before the Hon'ble Apex Court. The Hon'ble Apex Court set aside the conviction only with regard to the charge of conspiracy on the ground that the sanction as required under Section 197 of the Code was not taken. As far as second charge is concerned, the view taken by the High Court was not disturbed. Regarding the second charge, counsel for the appellant did not contend before the Hon'ble Apex Court that any sanction under Section 197 of the Code is required in so far as the charge regarding corruption is concerned. In view of these facts, it cannot be said that in the said judgment, it was observed that previous sanction under Section 197 of the Code is also necessary for the prosecution of a public servant under the P.C. Act.
10. In view of the above, I do not find any merit in this revision petition and the same is, therefore, dismissed.