Jharkhand High Court
Dr.Amreshwar Prashad vs State Of Jharkhand Thr.S.P.Vig on 25 September, 2012
Equivalent citations: 2013 (1) AJR 529
Author: R. R. Prasad
Bench: R.R.Prasad
Criminal Miscellaneous Petition No.1457 of 2010
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In the matter of an application under Section 482 of the
Code of Criminal Procedure.
Dr.Amreshwar Prasad ...................................................Petitioner
V E R S US
State of Jharkhand through S.P, Vigilance, Ranchi...Opposite Party
For the Petitioner : Mr.Sujeet Narayan Prasad, Advocate
For the Vigilance : Mr. Shailesh, Advocate
P R E S E N T
THE HON'BLE MR. JUSTICE R.R.PRASAD
By Court: This application has been filed for quashing of the order dated
28.5.2010 passed in Vigilance P.S case no.15 of 2009 (Special Case no.19 of 2009) whereby and whereunder cognizance of the offences punishable under Sections 420, 120(B), 467, 468, 471, 477A and 201 of the Indian Penal Code and also under Sections 7, 8, 9, 10, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been taken against the petitioner.
The facts giving rise to this application are that on 30.3.2009 the Ministry of Health, Medical Education and Family Welfare passed a resolution to appoint doctors in various faculties of AYUSH which concerns with medical treatment through different indigenous methods such as, Ayurveda, Yogo, Unani, Siddha and Homeopathy. For that purpose, directorate known as AYUSH was constituted for making appointments of teaching and non-teaching staffs. Subsequently, the Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand constituted a State Level Selection Committee of which petitioner was appointed as Chairman. Thereupon, an advertisement was issued for appointments of the doctors in the Department of Indigenous Medicines such as, Homeopathy, Unani and Ayurvedic and also for appointments of teaching and non-teaching staffs in the Directorate of AYUSH.
Pursuant to that, several applications were received whereupon criterias were laid down by the State for selection of the candidates on 2 the basis of academic achievement and marks obtained in interview. On receiving applications, Selection Committee proceeded with the selection of the candidates. After process of selection was finalized, Joint Secretary, Ministry of Health, Medical Education and Family Welfare, vide its memo no.261(3) and 263(3) dated 8.8.2008 published a list of successful candidates for appointment on the post of Homeopathic/Ayurvedic Medical Officer on contractual basis.
Before the result was published, one Harshdeo Gupta had lodged a complaint before the Vigilance Bureau on 21.7.2008 stating therein that he was also one of the applicants who had applied for appointment on the post of Homeopathy Medical Officer and had given interview on 12.5.2008. Thereupon this petitioner and one Dr.Jyotish Chandra Singh asked his to pay Rs.3,00,000/- if he wanted to be appointed but when he expressed his inability to meet demand of such huge amount, they asked to make payment of Rs.2,50,000/-. On 21.7.2008 Dr.Jyotish Chandra Singh called on his Mobile and asked to make payment, failing which it was told that he would not be selected.
Again a complaint was made by Dr.M.A. Rijwan wherein he also alleged that on the date of interview, i.e. 6.5.2008, one Kishori, agent of this petitioner told him that if he wants to be appointed, he needs to pay a sum of Rs.3,00,000/-. On negotiation he came down to Rs.2,00,000/-.
On the basis of aforesaid two complaints, a Complaint Case no.352 of 2008 was registered in the Vigilance Bureau. While the matter was being enquired into, one Harshdeo Gupta and Md. Hujefa Rahmani also made complaint about the irregularities committed by the members of the Selection Committee in the matter of appointment.
Again a compliant was made by one Dr.Nagendra Prasad Singh stating therein that he does have DVD wherein he has recorded the talk which was there in between Dr.Jyotish Chandra Singh and Dr.Rabindra Rai on the one hand and the candidates which would go 3 to show that they had asked for bribe for getting them successful. He also claimed to have recorded the voice of Dr.Amreshwar Prasad on his Mobile which he played before him.
In course of enquiry, it was found that certain amount had been deposited by different persons in the account of Dr.Jyotish Chandra Singh. Having enquiry being made, it was found that Dr.Jyotish Chandra Singh got the amount by different persons deposited in his account and this petitioner had played the role of negotiator in the matter of payment of the amount of bribe.
On such allegation, Vigilance P.S case no.15 of 2009 was instituted under Sections 420 and 120(B) of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioner and other accused persons.
After completion of investigation, charge sheet was submitted along with the order sanctioning prosecution against the petitioner, upon which cognizance of the offence was taken under Section 420, 120(B), 467, 468, 471, 477A and 201 of the Indian Penal Code and also under Sections 7, 8, 9, 10, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, vide order dated 28.5.2010 which is under challenge.
Mr.Sujeet Narayan Prasad, learned counsel appearing for the petitioner assailed the order taking cognizance mainly on two grounds. Firstly, on the ground that the sanctioning authority in exercise of power under Section 197(2) of the Code of Criminal Procedure granted sanction for prosecution not only for an offence under Section 420 and 120(B) of the Indian Penal Code but also under Sections 7, 8, 9, 10, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and therefore, any order under which cognizance of the offence has been taken under Sections 7, 8, 9, 10, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioner is bad as sanctioning authority as per the order dated 28.5.2010 4 (Annexure 24) never sanctioned prosecution in exercise of power as envisaged under Section 19 of the Prevention of Corruption Act.
Further it was submitted that sanctioning authority has granted sanction for prosecution for an offence under Section 420 read with Section 120(B) of the Indian Penal Code but the court has taken cognizance of the offence under Sections 467, 468, 471, 477A, 201 of the Indian Penal Code which would be quite bad in absence of any sanction for prosecution for the said offences being granted as whatever act has been done by the petitioner that has been done in discharge of his official duties.
In this regard, learned counsel has referred to a decision rendered in a case of Rakesh Kumar Mishra vs. State of Bihar and others [(2006) 1 SCC 557] and also in a case of Prakash Singh Badal and another vs. State of Punjab and others [(2007) 1 SCC 1].
Learned counsel further submitted that if the act alleged does have close nexus with the duty which was discharged by the public servant, then certainly sanction is necessary to be obtained for initiating prosecution for the said offences.
Under the circumstances, cognizance taken of the offences punishable under Sections 467, 468, 471, 477A and 201 of the Indian Penal Code and also under Sections 7, 8, 9, 10, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act is quite bad and that part of the order is fit to be set aside.
As against this Mr.Shailesh, learned counsel appearing for the Vigilance submitted that whatever argument has been advanced on behalf of the petitioner that, in the facts and circumstances, appears to be quite fallacious.
In this regard it was submitted that sanctioning authority while accordomg sanction has referred to the provision of Section 197(2) of the Code of Criminal Procedure under which he exercised the power 5 for granting sanction but from the reading of the entire order it would appear that he in exercise of power not only under Section 197(2) of the Code of Criminal Procedure but also under Section 19 of the Prevention of Corruption Act granted sanction for the prosecution under Sections 420 and 120(B) of the Indian Penal Code as well as for the offence under Sections 7, 8, 9, 10, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
It was further submitted that it is true that sanctioning authority, vide its order has not granted sanction for prosecution for offences under Sections 467, 468, 471, 477A and 201 of the Indian Penal Code, still the court cannot be said to have committed illegality in taking cognizance of the aforesaid offences as any act constituting aforesaid offences would never be deemed to have been done in discharge of the duties and thereby the order taking cognizance never warrants to be interfered with.
I do find sufficient substance in the submissions advanced on behalf of the Vigilance.
Protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceeding for offences alleged to have been committed by them while they are acting or purporting to act as public servants. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Before Section 197 can be invoked, it must be shown that official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. The official act can be performed both in discharge of the official duty as well in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. 6
At this stage, I may refer to a decision rendered in a case of P. Arulswami vs. State of Madras (AIR 1967 SC 776) wherein their Lordships has observed as follows:
" It is not therefore, every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but I the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. An offence may be entirety unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.
Subsequently, their Lordships in a case of Harihar Prasad vs. State of Bihar [(1972) 3 SCC 89] after examining the purport and the scope of the provision as contained in Section 197 of the Code of Criminal Procedure did hold as under:
" As far as the offence of criminal conspiracy punishable under Section 120(B) read with Section 409 of the Indian Penal Code is concerned and also under Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
The said view was reiterated in a case of State of Kerala vs. V. Padmanabhan Nair ((1999) 5 SCC 690].
In course of time, a question which is very akin to this case falls for consideration before the Hon'ble Supreme Court in a case of State of H.P. vs. M.P.Gupta [(2004) 2 SCC 349] as to whether an order under which cognizance of the offences punishable under 7 Sections 467, 468, 471, 477A and 201 of the Indian Penal Code and Section 5(2)(1)(d) of the Prevention of Corruption Act (the Old Act) corresponding to Section 13(1)(d) of the Prevention of Corruption Act (the New Act) was taken without there being order sanctioning prosecution is bad ? Their Lordships after examining the scope of the provision as contained in Section 197 and placing reliance on the decisions rendered in this respect did hold that Section 467, 468, 471, 477A of the Indian Penal Code relates to forgery of valuable security, will etc.; forgery for the purpose of cheating and using as genuine a forged document respectively. It never happens to be part of the duty of the public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is therefore, no bar.
In view of the law laid down by the Hon'ble Court in the case, as referred to above, the order under which cognizance of the offences punishable under Sections 467, 468, 471, 477A and 201 of the Indian Penal Code has been taken even in absence of order granting sanction for prosecution can never be said to be bad.
Further on going through the order passed by the competent authority sanctioning prosecution of the petitioner, it does appear that the sanctioning authority in exercise of power under Section 19 of the Prevention of Corruption Act and also under Section 197(2) of the Code of Criminal Procedure has granted sanction for prosecution under Sections 420 and 120(B) of the Indian Penal Code and also under Sections 7, 8, 9, 10, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and, therefore, I do not find any illegality in the order taking cognizance.
Thus, this application is devoid of any merit and hence, it is dismissed.
( R. R. Prasad, J.) Jharkhand High Court, Ranchi