Karnataka High Court
R Rajendran S/O Late B Ranganath vs The State Of Karnataka on 3 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:8263
CRL.P No. 103948 of 2022
C/W CRL.P No. 103941 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 103948 OF 2022
C/W CRIMINAL PETITION NO. 103941 OF 2022
CRL.P. NO. 103948 OF 2022:
BETWEEN:
MANJUNATH H.B. S/O H. BHADRAIAH,
AGED ABOUT 59 YEARS, OCC. SUPERINTENDENT HOME
GUARDS, BENGALURU SOUTH DISTRICT,
R/AT. 121 SANTRUPTI NILAYA KSRTC LAYOUT,
ADJACENT TO GOVERNMENT PU COLLEGE,
NELAMANGALA TALUK, BENGALURU RURAL DISTRICT.
... PETITIONER
(BY SRI. ARAVIND D KULKARNI, ADVOCATE)
AND:
STATE OF KARNATAKA,
Digitally
signed by
THROUGH POLICE SUB-INSPECTOR,
VISHAL
VISHAL NINGAPPA ANKOLA POLICE STATION,
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.09.27
UTTAR KANNADA DISTRICT,
11:21:53
+0530 R/BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SRI. V S KALASURMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE ENTIRE CHARGE SHEET FILED BY THE
RESPONDENT POLICE FOR THE OFFENCES PUNISHABLE U/S 409,
465, 467, 468, 471, 420, 120B R/W 34 OF IPC WHICH IS PRODUCED
AS ANNEXURE-E AND ORDER DATED 20.12.2021 PASSED BY JMFC
ANKOLA IN CRIMINAL CASE NO. 1072/2021 AGAINST THE
PETITIONER/ACCUSED NO. 1 AND SAME IS MARKED AS
ANNEXURE-F.
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NC: 2023:KHC-D:8263
CRL.P No. 103948 of 2022
C/W CRL.P No. 103941 of 2022
CRL.P. NO. 103941 OF 2022:
BETWEEN:
1. R. RAJENDRAN S/O LATE B. RANGANATH,
AGE. 55 YEARS, OCC. DEPUTY COMMANDANT,
HOME GUARDS, KARWAR,
R/O. HOUSE NO. 116/E. SIDDIVINAYAK NILAYA,
SHIVAGIRI, DHARWAD-581007.
2. SATISH S/O SEETARAM NAIK,
AGE. 45 YEARS, OCC. SUPERINTENDENT,
HOME GUARDS OFFICE, DHARWAD,
R/O. CHIKKANKOD, GERUSOPPA ROAD,
TQ. HONNAVAR, DIST. UTTAR KANNADA-581361.
... PETITIONERS
(BY SRI. R H ANGADI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
(ANKOLA POLICE STATION),
R/BY STATE PUBLIC PROSECUTOR,
THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD-580011.
2. MALLIKARJUN M NALATWAD,
ADMINISTRATOR (IN CHARGE),
HOME GUARD OFFICE,
CENTRAL OFFICE, NO.1,
ANNASWAMI MUDILIYAR ROAD,
BENGALURU-560042.
... RESPONDENTS
(BY SRI. V S KALASURMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO ALLOW THE PETITION AND QUASH COMPLAINT, FIR,
CHARGE SHEET AND ORDER OF COGNIZANCE DATED 20.12.2021 IN
CC NO. 1072/2021, REGISTERED BY ANKOLA POLICE STATION AT
THEIR P.S. CRIME NO. 269/2018 FOR OFFENCES PUNISHABLE U/S
120(B), 409, 420, 465, 467, 468, 471 R/W 34 OF IPC ON THE FILE
OF CIVIL JUDGE AND JMFC COURT, ANKOLA AND ALL FURTHER
PROCEEDINGS PURSUANT TO THEREIN IN RESPECT OF PETITIONERS
WHO ARE ARRAYED AS ACCUSED NO. 2 AND 3 HEREIN.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:8263
CRL.P No. 103948 of 2022
C/W CRL.P No. 103941 of 2022
ORDER
1. The petitioners are accused Nos.1, 2 & 3 in C.C. No.1071/2021, which arose out of crime in Crime Nos. 124/2018 & 269/2018, it is therefore these cases are taken up together and considered by this common order.
2. Heard the learned counsel Shri Aravind D.Kulkarni for the petitioners and the learned HCGP Shri V.S. Kalasuramth appearing for the respondent -
State.
3. The facts in brief, germane are as follows:
The petitioners are Public Servants. A crime comes to be registered on 31.07.2018 on an allegation that, despite 68 persons attending the Home Guard training, a bill was raised by projecting attendance of 208 persons in the said training. This becomes a crime in Crime No.269/2018 for the offences punishable under Sections 465, 468, 471, 420, 120B read with Section 34 of the IPC. The Police after investigation filed a charge sheet against the petitioners and the concerned Court taking cognizance of the offences -4- NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 registers C.C. No.1071/2021. The registration of criminal case and issuance of summons is what drives the petitioners to this Court in the subject petitions.
4. Learned counsels Shri R.H. Angadi and Shri Aravind D.Kulkarni appearing for the petitioners would in unison contend that the petitioners being Public Servants, sanction ought to have been accorded for prosecuting the petitioners as they are alleged of certain acts in discharge of their official duties. The learned counsels would further contend that on the same set of facts, departmental enquiry was conducted. The enquiry officer has held the charges are not proved and the disciplinary authority has exonerated the petitioners of all the offences alleged against accused Nos.2 & 3. Insofar as accused No.1 is concerned, it is the submission that the respondents did not even find it fit to initiate any departmental enquiry.
5. On the other hand, learned HCGP would refute the submissions to contend that for the acts committed by the petitioners, no sanction is required as what is alleged -5- NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 is forgery, may be in the discharge of official duty as the attendance is tampered and 208 attendees are projected while only 65 did attend the training. He would submit that exoneration of the departmental enquiry would not ennure to the benefit of the petitioners. He would seek dismissal of the petitions.
6. I have given my anxious consideration to the submissions made by the respective learned counsels and have perused the material on record.
7. The allegation against the petitioners in Crime Nos.124/2018 & 269/2018 are for the offences punishable under Sections 465, 468, 471, 420, 120B read with Section 34 of the IPC. The substratum of the allegation is that the petitioners who are working as Superintendent at Home Guard Training, have projected 208 attendees, while only 65 persons had attended the training and had raised a bill for 208 attendees. This becomes a crime in the aforesaid crime and the Police after the investigation filed a charge sheet against the petitioners.
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8. The petitioners are alleged of the aforesaid offences in discharge of their official duties is cannot be in dispute. Therefore, the sanction as required under Section 197 of the Cr.P.C. ought to have been obtained prior to the concerned Court, taking cognizance of the offences and registering the criminal case against the petitioners as admittedly the petitioners are public servants and are alleged of certain forgery / tampering of the record in the discharge of their official duties. The issue with regard to whether the sanction would be required for the offences punishable under Sections 420 & 465 or otherwise is no longer res integra as the Apex Court in its latest judgment in the case of A. Srinivasulu Vs. State Rep. by the Inspector of Police reported in 2023 SCC OnLine SC 900, wherein it is held as under:
21. But the High Court found in paragraph 44 of the impugned judgment that the handwriting expert had not furnished any opinion in his report as to the comparison of the writings found in Exhibit P-75 with the demand draft application forms Exhibits P-66, P-76, P-90 and P-92. The High Court also found (in paragraph 49 of the impugned judgment) that the admitted handwritings and the signatures were not compared by the handwriting expert. After recording such a finding, the High Court took upon itself the task -7- NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 of making a comparison by itself, by invoking Section 73 of the Evidence Act. By so invoking Section 73, the High Court came to the conclusion that the signatures found in the demand draft applications were that of A- 7 and that the diversion of funds to M/s. Insecticides & Allied Chemicals is a circumstance which corroborated the same.
22. It was argued before the High Court on behalf of A-3 and A-4 that BHEL Administration had refused to accord sanction to prosecute them for the offences under the PC Act and that therefore they cannot be held guilty of other offences. But this contention was rejected by the High Court, on the ground that the decision taken by the Management of the Company cannot have a bearing upon the prosecution case.
23. On the basis of the above findings, the High Court dismissed the appeals and confirmed the conviction and sentence awarded by the Trial Court.
24. Appearing on behalf of A-1, Shri Huzefa Ahmadi, learned senior counsel contended:--
(i) Thatthere was no evidence to connect A-1 with the commission of any of the offences and that none of the charges stood established beyond reasonable doubt;
(ii) Thatthe substratum of the allegations was based entirely upon the statement of the approver (PW-16), but the same suffers from serious irregularities;
(iii) Thatthough no sanction was required to prosecute A-1 for the offences under the PC Act in view of his retirement before the filing of the final report, a previous sanction was necessary under Section 197(1) of the Code, but the same was not obtained; and
(iv) Thatthe prosecution failed to establish the necessary ingredient of "obtaining any valuable thing or pecuniary advantage either for himself -8- NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 or for any other person" for holding him guilty of the offences under Section 13(1)(d) of the PC Act.
25. Appearing on behalf of A-4, it was contended by Shri S.R. Raghunathan, learned counsel:--
(i) that A-4 played no role either in the preparation of tender or in choosing the tenderers;
(ii) that what was constituted on 23.12.1992, after the tenderers were shortlisted, allegedly by PW-16 at the instance of A-1, was only a Negotiation Committee;
(iii)that in the said Committee comprising of three members, namely A-3, A-4 and PW-16, he (A-4) was the one who was subordinate to the other two members and hence the logic applied to A-2 should have been extended to him also;
(iv) that both the Special Court and the High Court overlooked the evidence of PW-14 to the effect that no tender committee was constituted;
(v) that no wrongful loss was caused to BHEL;
(vi) that on the contrary, due to the role played by A-4, a bank guarantee to the tune of Rs. 4.84 crores was obtained from Entoma Hydro Systems;
(vii)that the bank guarantee was invoked and the entire amount paid by BHEL towards mobilization advance was recovered;
(viii) thatas a matter of fact a sum of Rs. 2.60 crores is due and payable by BHEL to Entoma Hydro Systems, after the bank guarantee was invoked and the accounts reconciled;
(ix) that despite repeated requests of the CBI, the Management of BHEL refused to give sanction to prosecute A-3 and A-4, on the ground that they acted in the best commercial interest of the Company; and -9- NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022
(x) that once A-4 is not held guilty of the offence under Section 120B, it was not possible to convict him for the other offences, especially in the facts and circumstances of the case.
26. Appearing on behalf of A-7, it was contended by Shri S. Nagamuthu, learned senior counsel:--
(i) that the confession statement of PW-16 was recorded by the XVIII Metropolitan Magistrate, Chennai, but pardon was granted by the Additional Chief Judicial Magistrate, Madurai and the final report was filed directly before the Special Court for CBI cases;
(ii) that since the Additional Chief Judicial Magistrate granted pardon in this case, this case is covered by Sub-section (1) of Section 306 and hence the prosecution ought to have followed the procedure prescribed under Section 306(4)(a) of the Code;
(iii) that there is no particular reason as to why the petition for pardon was made before the Additional Chief Judicial Magistrate, when the confession statement was recorded by the Metropolitan Magistrate and there is no reason why the prosecution chose to file the final report directly before the Special Court under section 5(1) of the PC Act, 1988;
(iv) that neither the evidence of PW-44 (I.O.) nor the evidence of PW-16 (approver) had anything incriminating A-7;
(v) that A-7 has been roped in, merely because of his relationship with A-5 and also on account of a sum of Rs. 1,52,50,000/- being transferred to the firm of which he is a partner, from out of the account of Entoma Hydro Systems;
(vi) that while the Special Court, without going into the report of the handwriting expert marked as Exhibit P-68 and without putting any question to A-7 under Section 313 of the Code in relation to his specimen signatures marked as Exhibit P-75 came to the conclusion that the applications for demand drafts
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 bore his handwriting and signatures, the High Court rejected the said reasoning but took to the route available under Section 73 of the Indian Evidence Act, 1872.
(vii) That the procedure under Section 73 of the Evidence Act is available to a Court only when there are admitted or proved handwritings, which were absent in this case;
(viii) That in any case there was no loss caused to BHEL, which is a sine qua non for the offence under the PC Act; and
(ix) That by a strange logic A-7 was convicted for the offence under Section 13(1)(e) of the PC Act.
27. Countering the submissions made on behalf of the appellants, it was argued by Shri Padmesh Mishra, learned counsel for the State:
(i) that there was cogent evidence, both oral and documentary, to connect all the accused with the offences for which they were found guilty;
(ii) that the evidence of the Approver (PW-16) stood corroborated by the testimonies of other witnesses, on all aspects such as the deliberate act of going in for limited tender, predetermining the person in whose favour the contract was to be awarded, sanction of an interest free mobilisation advance far in excess of the normal business norm, diversion of such advance by the contractor to another firm in which he was a partner along with is father and brother and the eventual termination of the contract on account of these malpractices;
(iii) that there is no requirement in law that actual loss should have been suffered for an offence under Section 13(1)(d) of the PC Act to be made out;
(iv) that in any case what was recovered by the invocation of the bank guarantee was the loss suffered in the first instance;
(v) that it is well settled that previous sanction to prosecute under Section 197(1) of the Code is
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 necessary only when the act complained of is in the discharge of official duties;
(vi) that an offence of cheating cannot by any stretch of imagination be seen as part of official duties;
(vii) that the power to grant pardon is available concurrently to the Chief Judicial Magistrate/Metropolitan Magistrate as well as the Court of Session;
(viii) that therefore there was nothing wrong in the Additional Chief Judicial Magistrate, Madurai granting pardon; and
(ix) that therefore the concurrent judgments of conviction of the appellants do not warrant any interference.
28. We have carefully considered the rival contentions. For the purpose of easy appreciation, we shall divide the discussion and analysis into three parts, the first dealing with the contention revolving around Section 197 of the Code, the second dealing with the correctness of the procedure adopted while granting pardon under Section 306 of the Code and the third revolving around the merits of the case qua culpability of each of the appellants before us. Discussion and Analysis.
Part-I (Revolving around Section 197 of the Code)
29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21 of the IPC, were 'public servants' within the definition of the said expression under Section 21 of the IPC. A-1 to A-4 were also public servants within the meaning of the expression under Section 2(c)(iii) of the PC Act. Therefore, there is a requirement of previous sanction both under Section 197(1) of the Code and under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 under the IPC and the PC Act.
30. Until the amendment to the PC Act under the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018), with effect from 26.07.2018, the requirement of a previous sanction under Section 19 (1)(a) was confined only to a person "who is employed". On the contrary, Section 197(1) made the requirement of previous sanction necessary, both in respect of "any person who is" and in respect of "any person who was" employed. By the amendment under Act 16 of 2018, Section 19(1)(a) of the PC Act was suitably amended so that previous sanction became necessary even in respect of a person who "was employed at the time of commission of the offence".
31. The case on hand arose before the coming into force of the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018). Therefore, no previous sanction under Section 19(1) of the PC Act was necessary insofar as A-1 was concerned, as he had retired by the time a final report was filed. He actually retired on 31.08.1997, after 7 months of registration of the FIR (31.01.1997) and 5 years before the filing of the final report (16.07.2002) and 6 years before the Special Court took cognizance (04.07.2003). But previous sanction under Section 19(1) of the PC Act was required in respect of A-3 and A-4, as they were inservice at the time of the Special Court taking cognizance. Therefore, the Agency sought sanction, but the Management of BHEL refused to grant sanction not once but twice, insofar as A-3 and A-4 are concerned.
32. It is by a quirk of fate or the unfortunate circumstances of having been born at a time (and consequently retiring at a particular time) that the benevolence derived by A-3 and A-4 from their employer, was not available to A-1. Had he continued in service, he could not have been prosecuted for the offences punishable under the PC Act, in view of the stand taken by BHEL.
33. It appears that BHEL refused to accord sanction by a letter dated 24.11.2000, providing reasons, but
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 the CVC insisted, vide a letter dated 08.02.2001. In response to the same, a fresh look was taken by the CMD of BHEL. Thereafter, by a decision dated 02.05.2001, he refused to accord sanction on the ground that it will not be in the commercial interest of the Company nor in the public interest of an efficient, quick and disciplined working in PSU.
34. The argument revolving around the necessity for previous sanction under Section 197(1) of the Code, has to be considered keeping in view the above facts. It is true that the refusal to grant sanction for prosecution under the PC Act in respect of A-3 and A-4 may not have a direct bearing upon the prosecution of A-1. But it would certainly provide the context in which the culpability of A-1 for the offences both under the IPC and under the PC Act has to be determined.
35. It is admitted bythe respondent-State that no previous sanction under section 197(1) of the Code was sought for prosecuting A-1. The stand of the prosecution is that the previous sanction under Section 197(1) may be necessary only when the offence is allegedly committed "while acting or purporting to act in the discharge of his official duty". Almost all judicial precedents on Section 197(1) have turned on these words. Therefore, we may now take a quick but brief look at some of the decisions.
36. Dr. Hori Ram Singh v. The Crown3 is a decision of the Federal Court, cited with approval by this court in several decisions. It arose out of the decision of the Lahore High Court against the decision of the Sessions Court which acquitted the appellant of the charges under Sections 409 and 477A IPC for want of consent of the Governor. Sir S. Varadachariar, with whose opinion Gwyer C.J., concurred, examined the words, "any act done or purporting to be done in the execution of his duty" appearing in Section 270(1) of the Government of India Act, 1935, which required the consent of the Governor. The Federal Court observed at the outset that this question is substantially one of
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 fact, to be determined with reference to the act complained ofand the attendant circumstances. The Federal Court then referred by way of analogy to a number of rulings under Section 197 of the Code and held as follows:--
"The reported decisions on the application of sec. 197 of the Criminal Procedure Code are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each ease; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language, of similar statutory provisions (see observations in Booth v. Clive. It does not seem to me necessary to review in detail the decisions given under sec. 197 of the Criminal Procedure Code which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it : cf. In re Sheik Abdul Khadir Saheb; Kamisetty Raja Rao v. Ramaswamy, Amanat Ali v. King- emperor, King-Emperor v. Maung Bo Maung and Gurushidayya Shantivirayya Kulkarni v. King- Emperor. In another group, more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed [see Gangaraju v. Venki, quoting from Mitra's Commentary on the (criminal Procedure Code). The use of the expression "while acting" etc., in sec. 197 of the Criminal Procedure Code (particularly its introduction by way of amendment in 1923) has been held to lend
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person, it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the Local Government"
37. It is seen from the portion of the decision extracted above that the Federal Court categorised in Dr. Hori Ram Singh (supra), the decisions given under Section 197 of the Code into three groups namely (i) cases where it was held that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it; (ii) cases where more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence; and (iii) cases where stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed. While preferring the test laid down in the first category of cases, the Federal Court rejected the test given in the third category of cases by providing the illustration of a medical officer committing rape on one of his patients or committing theft of a jewel from the patient's person.
38. In Matajog Dobey v. H.C. Bhari4 a Constitution Bench of this Court was concerned with the interpretation to be given to the words, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in Section 197 of the Code. After referring to the decision in Dr. Hori Ram Singh, the Constitution Bench summed up the result of the discussion, in paragraph 19 by holding : "There
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
39. In State of Orissa through Kumar Raghvendra Singh v. Ganesh Chandra Jew5, a two Member Bench of this Court explained that the protection under Section 197 has certain limits and that it is available only when the alleged act is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The Court also explained that if in doing his official duty, 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 of the protection.
40. The above decision in State of Orissa (supra) was followed (incidentally by the very same author) in K. Kalimuthu v. State by DSP6 and Rakesh Kumar Mishra v. State of Bihar7.
41. In Devinder Singh v. State of Punjab through 8 CBI , this Court took note of almost all the decisions on the point and summarized the principles emerging therefrom, in paragraph 39 as follows:
"39. The principles emerging from the aforesaid decisions are summarised hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities.
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
...."
42. In D. Devaraja v. Owais Sabeer Hussain9, this Court explained that sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority. This Court also held that to decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty.
43. Keeping in mind the above principles, if we get back to the facts of the case, it may be seen that the primary charge against A-1 is that with a view to confer an unfair and undue advantage upon A-5, he directed PW-16 to go for limited tenders by dictating the names of four bogus companies, along with the name of the chosen one and eventually awarded the contract to the chosen one. It was admitted by
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 the prosecution that at the relevant point of time, the Works Policy of BHEL marked as Exhibit P-11, provided for three types of tenders, namely (i) Open Tender; (ii) Limited/Restricted Tender; and (iii) Single Tender.
44. Paragraph 4.2.1 of the Works Policy filed as Exhibit P-11 and relied upon by the prosecution laid down that as a rule, only works up to Rs. 1,00,000/- should be awarded by Restricted Tender. However, paragraph 4.2.1 also contained a rider which reads as follows:
"4.2.1 ... However even in cases involving more than Rs. 1,00,000/- if it is felt necessary to resort to Restricted Tender due to urgency or any other reasons it would be open to the General Managers or other officers authorised for this purpose to do so after recording reasons therefor."
45. Two things are clear from the portion of the Works Policy extracted above. One is that a deviation from the rule was permissible. The second is that even General Managers were authorised to take a call, to deviate from the normal rule and resort to Restricted Tender.
46. Admittedly, A-1 was occupying the position of Executive Director, which was above the rank of a General Manager. According to him he had taken a call to go for Restricted Tender, after discussing with the Chairman and Managing Director. The Chairman and Managing Director, in his evidence as PW-28, denied having had any discussion in this regard.
47. For the purpose of finding out whether A-1 acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. Paragraph 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for Restricted Tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect.
48. Shri Padmesh Mishra, learned counsel for the respondent placed strong reliance upon the observation contained in paragraph 50 of the decision of this Court in Parkash Singh Badal v. State of Punjab10. It reads as follows:--
"50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
49. On the basis of the above observation, it was contended by the learned counsel for the respondent that any act done by a public servant, which constitutes an offence of cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty.
50. But the above contention in our opinion is far- fetched. The observations contained in paragraph 50 of the decision in Parkash Singh Badal (supra) are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences under sections 420, 468, 471 and 120B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 of the decision in Parkash Singh Badal cannot be taken as carving out an exception judicially, to a statutory prescription. In
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 fact, Parkash Singh Badal cites with approval the other decisions (authored by the very same learned Judge) where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the proposition laid down in Rakesh Kumar Mishra (supra) was distinguished in paragraph 49 of the decision in Parkash Singh Badal, before the Court made the observations in paragraph 50 extracted above.
51. No public servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in paragraph 50 of the decision in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous sanction will thus be rendered redundant by such an interpretation.
52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 an A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co- conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A
-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code.
53. In view of the above, we uphold the contention advanced on behalf of A-1 that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the IPC."
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9. In the light of the judgment in the case of A. Srinivasalu Vs. State Rep. by the Inspector of Police (Supra), it becomes unmistakably clear that even if the acts are beyond the discharge of official duties.
Section 197 of the Cr.P.C. would be necessary.
10. It is an admitted fact that there is no sanction accorded by the competent authority to prosecute the petitioners, this would become the first score on which the petitions deserves to be succeed. Learned counsel Shri R.H. Angadi for the petitioners in Crl.P. No.103941/2022, which concerns accused Nos.2 & 3 would submits that on the same set of facts, a departmental enquiry was conducted and after a full blown proceedings, the enquiry officer has exonerated the petitioners on the allegations which were similar to what is alleged in the criminal trial. If in a departmental enquiry were probabilities are preponderances, the respondents could not prove the allegations, they can hardly be proved in criminal trial which requires it to be proved beyond all
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 reasonable doubt. Therefore, on that score accused Nos.2 & 3 deserve to be succeed in the case at hand as permitting further proceedings in the teeth of the aforesaid facts would run foul of the judgment of Apex Court in the case of Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI and another reported in (2020)9 SCC 636, wherein it is held as under:
"8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1, the question before the Court was posed as follows:-
"3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission."
9. This Court then went on to state: (P.S. Rajya Case SCC p.5, para 17) "17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it."
10. This being the case, the Court then held:
(P.S. Rajya Case SCC p.5, para 23) "23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant.
We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3- 1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs."
11. In Radheshyam Kejriwal vs. State of West Bengal and Another, (2011) 3 SCC 581, this Court held as follows:- (SCC pp.594-96, paras 26, 29 & 31) "26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N.
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 Kashyap [AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27) "... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined." xxx xxx xxx
29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.
xxx xxx xxx
31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case."
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12. After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:-
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
13. It finally concluded: (Radheshyam Kejriwal case, SCC p.598, para 39)
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 "39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
14. From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated."
11. The Apex Court in the afore quoted judgments clearly lays down that if on preponderance of probability the allegations against the government servant could not be proved it would be difficult to be proved beyond all reasonable doubt and therefore would quash the proceedings if the facts obtaining in the case at hand is considered on the bedrock of the principles laid down by the Apex Court in the aforesaid judgments what would unmistakably a much is that permitting further proceedings against the petitioner would become an abuse of the process of the law. This would be insofar as the petitioner against whom departmental enquiry is
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NC: 2023:KHC-D:8263 CRL.P No. 103948 of 2022 C/W CRL.P No. 103941 of 2022 conducted and he has been exonerated and such exoneration is accepted by the disciplinary authority and case against him is closed. Insofar as the petitioner in the companion petitioner is concerned against whom no sanction is obtained for prosecuting the said petitioner the proceedings would cut at the root of the matter. Therefore on the aforesaid two grounds these petitions deserves to succeed.
12. For the aforesaid reasons, the following:
ORDER The petitions are allowed. The proceedings in C.C. No.1071/2021, which arose out of crime in Crime Nos.124/2018 & 269/2018, registered for the offences punishable under Sections 465, 468, 471, 420, 120B read with Section 34 of the IPC stand quashed.
Sd/-
JUDGE Vnp*/Ct:Bck List No.: 1 Sl No.: 73