Madhya Pradesh High Court
Hd Joshi (Hanumant Damodhar) vs The State Of Madhya Pradesh on 28 February, 2020
Equivalent citations: AIRONLINE 2020 MP 1546
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
-( 1 )- MCRC No. 1257/2020
MCRC No. 2844/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Misc. Criminal Case No. 1257/2020
Mahabir Prasad Jain & Others
Versus
State of Madhya Pradesh
AND
Misc. Criminal Case No. 2844/2020
H.D.Joshi and Another
Versus
State of Madhya Pradesh
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Shri Sunil Kumar Jain, learned counsel for the petitioners.
Shri S.C. Chaturvedi with Shri Ajit Sudele, learned Special Public
Prosecutor for the respondent-Economic Offence Wing.
Shri Pratip Visoriya, learned Government Advocate for the State.
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ORDER
(28/02/2020) Per Rajeev Kumar Shrivastava, J.:
This order shall govern the disposal of Misc. Criminal Case No. 1257/2020 (Mahabir Prasad Jain and Others vs. State of MP) and Misc. Criminal Case No. 2844/2020 (H.D. Joshi and Another vs. State of MP), as both the petitions are filed for getting similar relief.
2. Misc. Cri. Case No. 1257/2020 has been filed against the order dated 14.11.2019 and Misc. Cri. Case No. 2844/2020 has been filed against the order dated 13.3.2019, both passed by Special Judge under Prevention of Corruption Act, Gwalior in -( 2 )- MCRC No. 1257/2020 MCRC No. 2844/2020 Case No. 03/2020 SST. By both impugned orders the applications filed by the petitioners for their discharge for want of sanction have been rejected.
3. Facts of the case, in short, are that a criminal case has been registered against the officers of Harsi High Level Sindh Project Phase-II of Government of M.P. and also against the officers of LNU/Federation of State of MP on the allegation of financial irregularity during the period between 2006 to 2010 and Crime No. 29/2009 was registered. In FIR the allegations were made with regard to corruption in purchase, supply and erection of material/apparatus by officers of aforesaid Project for getting monetary benefit. After due investigation, charge-sheet was filed for the offences punishable under Sections 409, 420, 467, 468, 471, 120B of IPC read with Section 13(1)(D), 13(2) of Prevention of Corruption Act, 1988 (for brevity, the 'PC Act').
4. The petitioners filed applications alleging that the petitioners are retired government servants, who retired after attaining age of superannuation from Water Resources Department. Charge sheet was filed after the date of superannuation of the petitioners. The petitioner were retired in the year 2008 and charge sheet has been filed without prior sanction under Section 197 of CrPC and Section 19 of PC Act.
5. Learned counsel for the petitioners has contended that the impugned orders are not in accordance with law and are against the settled principles of law, hence liable to be set aside. The petitioners are public servants. The Trial Judge has failed to consider the fact of prior sanction under Section 197 of CrPC and Section 19 of PC Act. In support of his version, learned counsel for the petitioners has placed reliance on the judgments in the cases of N.K.Ganguly vs. CBI [(2016) 2 SCC 143] and Baijnath -( 3 )- MCRC No. 1257/2020 MCRC No. 2844/2020 Gupta vs. State of MP [AIR 1966 SC 220].
6. Learned counsel for the petitioners has contended that as no sanction was obtained by the respondent at the time of filing of charge sheet against the petitioners, the Court could not take cognizance in the matter, even charges could not be framed in absence of sanction. The petitioners were discharging their official duties, therefore, they are having shield of Section 197 of CrPC. The trial Court has erred in rejecting the application on the basis of amendment in the PC Act having effect of procedural sound and not substantial and applicability of law retrospectively has been considered wrongly. Hence, prayed to set aside the impugned orders.
7. Learned Special Public Prosecutor has opposed the submissions advanced by the learned counsel for the petitioners and urged that procurement of prosecution sanction is only essential where, the charge-sheet is filed against a retired government servant for the offences under the Indian Penal Code, committed by the public servant while discharging his official duty. He contended that no sanction is required for prosecuting a public servant or retired public servant for the offences under the Prevention of Corruption Act if he has superannuated and ceased to be a public servant before submission of charge-sheet. On these grounds, he implored the Court to dismiss the petition.
8. We have given our thoughtful consideration to the arguments advanced and have gone through the material available on record.
9. Section 197 of the Code of Criminal Procedure reads as follows :
"197. Prosecution of Judges and public -( 4 )- MCRC No. 1257/2020 MCRC No. 2844/2020 servants.--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government"
occurring therein, the expression "Central Government" were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, 5 [section 376A, section -( 5 )- MCRC No. 1257/2020 MCRC No. 2844/2020 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government"
occurring therein, the expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, -( 6 )- MCRC No. 1257/2020 MCRC No. 2844/2020 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
10. Section 19 of the PC Act runs as under :-
"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 1 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]--
(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.-( 7 )- MCRC No. 1257/2020 MCRC No. 2844/2020
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (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 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 sub-section (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 a 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 sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a 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.-( 8 )- MCRC No. 1257/2020 MCRC No. 2844/2020
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."
11. The impugned orders are mainly attacked on the point of prior sanction under Section 197 of CrPC. It is submitted that the prosecution did not procure a sanction for prosecuting the petitioners, who are retired government servants, as warranted by Section 197 CrPC as well as Section 19 of PC Act.
12. So far as the merits of the case are concerned, suffice it to say that the trial court has considered in detail, the entire factual matrix available on record and the material collected by the investigating agency in support of the charge-sheet and recorded sound and substantial reasons concluding that sufficient evidence is available to put the accused up for trial. Apart that, in the present case charges were framed on 10.01.2018. As the cognizance has been taken by the trial Court and charge sheet has already been filed, therefore, prior sanction which is indirectly a shield provided to the government servants to protect them for an act done in discharge of their official duties, will not be a ground for discharging the petitioners/accused. Similarly, the provisions which are procedural will not hamper the prosecution case on the ground of its retrospective or prospective effect. The above view finds support from the below mentioned judgments.
-( 9 )- MCRC No. 1257/2020 MCRC No. 2844/202013. In State of Punjab vs. Labh Singh, reported in 2015 (1) RLW 234 (SC), Hon'ble Apex Court in para No.7 of the judgment, has observed as below:
"In the present case the public servants in question had retired on 13.12.1999 and 30.04.2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13.09.2000 and later on 24.09.2003. The public servants having retired from service there was no occasion to consider grant of sanction under Sec. 19 of the POC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the POC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman vs. State [1958 SCR 1040] while construing section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with section 19(1) of the POC Act, This Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S. A. Venkataraman (supra) was adopted by this court in C.R. Bansi vs. State of Maharashtra [(1970) 3 SCC 537] and in Kalicharan Mahapatra vs. State of Orissa [(1998) 6 SCC 411] and by the Constitution Bench of this court in K. Veeraswamy vs. Union of India. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the POC Act was concerned."
14. Manifestly thus, the law is well settled that no sanction is required to prosecute a public servant who has ceased to hold office when prosecution is for the offences under the Prevention of Corruption Act.
15. In R. Balakrishna Pillai vs. State of Kerala and another, [AIR 1996 SC 901], it was clearly held that the charge under the Prevention of Corruption Act would not be disturbed -( 10 )- MCRC No. 1257/2020 MCRC No. 2844/2020 even if the sanction was not taken because the public servant concerned had retired by the date of taking of cognizance.
16. In view of the above discussion, finding no shortcoming, either factual or legal, in the impugned orders dated 13.03.201 and 14.11.2019 passed by the Special Judge under Prevention of Corruption Act, Gwalior in Case No. 03/2020 SST, we are of the view that both these petitions have no merit and are dismissed as such. The trial court shall expedite the trial.
Let a copy of this order be sent to the concerning trial Court for information and compliance.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2020.02.29
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
14:00:26 +05'30'