Madhya Pradesh High Court
Rajendra Prasad vs The State Of Madhya Pradesh on 9 May, 2018
THE HIGH COURT OF MADHYA PRADESH
CR.R. No.-1426-2015
(RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 09-05-2018
Shri Ajay Mishra, Sr. Advocate with Shri Ankit
Gupta, learned counsel for the petitioner.
Shri S.D. Khan, learned GA for the
respondent/State.
Heard on admission.
The petitioner has preferred this revision under Section 397, read with Section 401 of the Cr.P.C., challenging the order dated 06.05.2015, passed by Ninth Additional Sessions Judge, Bhopal, in S.T. No. 193/2018, whereby the objection raised by the petitioner/accused Rajendra Prasad that, without seeking prior sanction under Section 197 of the Cr.P.C., the Court has taken cognizance and framed charges against the petitioner. Therefore, the order of the Court passed in S.T. No. 193/2014 for offence under Sections 466, 467, 468, 471, 472, 420, 477-A and 120-B of IPC.
Bereft of the unnecessary details the prosecution story in brief is that on 20.10.2013, Special Task Force (STF) received information, the accused Kaushal Saraswat has been preparing false mark-sheets of Madhya Pradesh State Open School Examination and is selling the same to persons for high prices. Accused, Kaushal Saraswat was apprehended. From his possession, marksheet, certificates, rubber, stamps, etc. were seized. The accused Devendra Gupta, Pradeep THE HIGH COURT OF MADHYA PRADESH CR.R. No.-1426-2015 (RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH) 2 Bairagi, Akhilesh Chauhan, were also associated with accused Kaushal Saraswat, therefore, they were also arrested. During investigation, it is also disclosed that the petitioner-Rajendra Prasad, the Director of the Madhya Pradesh State Open School Examination, in connivance with Assistant Director, Rajesh Upadhyay along with some of the staffs manipulated the counterfoils of the answer papers of Higher Secondary Examination of May, 2013 and by making overwriting passed some candidates. The accused Sandeep Rane, Sangeeta Rane and Gaytri Negi were also assisted the petitioner accused Rajendra Prasad in this manipulation. From the State Open School Office, thousands of such counterfoils have been seized. Accused Vinod Panchal and Baldev Panchal were also co-operating with the petitioner Rajendra Prasad. After due investigation, charge-sheet has been filed. Ninth Additional Sessions Judge, Bhopal framed charges against the accused persons including the petitioner Rajendra Prasad for offence under Sections 466 467, 468, 471, 472, 420, 477-A and Section 120-B of the IPC.
The main contention of the petitioner before the learned trial Court under Section 197 Cr.P.C. is that the applicant is protected for he was working as Director in the Madhya Pradesh State Open School Examination. Hence, without sanction, the prosecution is defective. Hence, he be discharged.
THE HIGH COURT OF MADHYA PRADESH CR.R. No.-1426-2015 (RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH) 3 The learned trial Court vide the impugned order dated 06.05.2015 dismissed the same, Hence, this revision.
On behalf of the petitioner, it is claimed that the petitioner is a government servant. The order dated 06.05.2015 is contrary to law and legally not sustainable. There is no material available on record to show that the petitioner participated in the alleged tempering of mark-sheet directly or indirectly.
It is also contended that trial Court failed to see and appreciate the order in proper perspective. The applicant was performing his duty with sufficient care and due diligence and thereby the petitioner was the overall incharge of the functioning and supervision of the subordinate staffs to perform the day to day work. There is no allegation or material available on record to show that the petitioner was responsible for any tampering or manipulation of mark-sheets. The petitioner claimed that the so called tempering, if controverted, the allegation made in the complaint, so that it is unseparable from his official work. Therefore, without proper sanction, the cognizance taken by the learned trial Court is not good in the eyes of law.
On behalf of the respondent/State, argument has been placed that the applicant was Director, and the statement of the witnesses, and on the investigation, it THE HIGH COURT OF MADHYA PRADESH CR.R. No.-1426-2015 (RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH) 4 was found that the applicant is actively involved in the commission of the crime referring to paragraph No. 7 and 8 of the order impugned. It is argued that the accused allegedly were actively involved in the tempering of the mark-sheet and conspired along with the other accused persons to issue false certificate, which is not the official duty of the petitioner/accused. Hence, sanction under Section 197 Cr.P.C. is not necessary to prosecute the applicant.
Perused the record. This Court would restrict the discussion so far as the applicability of Section 197 Cr.P.C. is concerned. For the benefit, it would be appropriate to mention that the essential conditions to be satisfied for the application of section 197 Cr.P.C. are that-
"(1) The offence mentioned therein must be committed by a public servant. (2) The public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government as the case may be.
(3) The protection 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.
(4) If in doing his official duty, he acted in excess of duty, but there is reasonable THE HIGH COURT OF MADHYA PRADESH CR.R. No.-1426-2015 (RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH) 5 connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of protection.
(5) The question is not as to the nature of the offfence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity.
(6) Before Section 197 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 the discharge of his offical duty. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection this action is available if the act falls within the scope and range of his official duty.
(7) The act can be performed in discharge of his official duty as well as in dereliction thereof."
On behalf of the petitioner, reliance has been placed on Rakesh Kumar Mishra Vs. State of Bihar reported as 2006(1) SCC 557, wherein the Apex Court has held that for the prosecution of a retired public servant sanction is necessary under Section 197 for offence under the Prevention of Corruption Act. He cannot claim immunity on the ground of point of THE HIGH COURT OF MADHYA PRADESH CR.R. No.-1426-2015 (RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH) 6 sanction, if he ceases to be a public servant in the date when the Court took cognizance of the offence.
The Apex Court in Paragraph 17 has given verdict that if a person ceases to be public servant on the date when the Court took cognizance of the offence under the Prevention of Corruption Act but the position is different in Section 197 Cr.P.C., the petitioner has been retired but the act committed by him for manipulating the mark-sheet with the help of the several members is not his official duty therefore, sanction for prosecution is not necessary for the illegal act hence, the case of Rakesh Kumar Misrha (supra) is of no avail to the applicant, in the present circumstances.
In the case of S.S. Trivedi Vs. State of M.P. reported as 2007 Cr.L.J. (NOC) 873 (MP), this Court has held that where the offence under Sections 420, 467 and 468 of IPC were alleged to have been committed by the accused in his capacity of public servant, sanction under Section 197 Cr.P.C., was not found necessary.
In the case of Ramesh Lal Jain Vs. Nagendra Singh Rana 2006 SC 336, the Apex Court has held that where there are allegations of misappropriation and corruption against the Sub-Inspector during the discharge of official duty. Sanction under Section 197 Cr.P.C., of the State Government would not be necessary. The actions of the petitioner even if held to be a public THE HIGH COURT OF MADHYA PRADESH CR.R. No.-1426-2015 (RAJENDRA PRASAD Vs STATE OF MADHYA PRADESH) 7 servant (since retired) cannot be justified that preparing false mark-sheet or certificates or changing the marks by using fluid or whitener with the help of the other staffs, who were also engaged in connivance with the applicant. The learned trial Court has referred the case of Prakash Singh Badal Vs. State of Punjab AIR 2007 SC 1274. Center for Public Interest Litigation Vs. Union of India, AIR 2005 SC 4413, Omkar Dhankar Vs. State of Haryana AIR 2012 SC (Supplementary) 58, Shambhunath Mishra Vs. State of U.P. 1997 2491, which aptly applies in the present case. Therefore, this petition is devoid of merit and is dismissed.
(SUSHIL KUMAR PALO) JUDGE kundan Digitally signed by KUNDAN SHARMA Date: 2018.05.15 23:45:37 -07'00'