Madhya Pradesh High Court
V.P. Sheth vs State Of Madhya Pradesh on 10 September, 1999
Equivalent citations: 2000CRILJ1767
Author: R.P. Gupta
Bench: R.P. Gupta
ORDER R.P. Gupta, J.
1. In this revision petition the preliminary question involved is whether in case of a public servant who has been compulsorily retired, when he is sought to be prosecuted for offence under Section 120B, I.P.C. and under Sections 13(1)(d)(ii) read with 13(2) of the Prevention of Corruption Act, 1988, a sanction as precondition for his prosecution under Section 19 of the Prevention of Corruption Act, 1988 or Section 197, Cr.P.C. is essential. The petitioner in this case was a member of Indian Administrative Service. At the relevant time of offence he was employed as Managing Director of M.P. Leather Development Corporation. The period was the year 1988-89. The allegation is that during that period he committed criminal misconduct punishable under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. Section 13(1)(d) of this Act declared the following conducts of the public servant as criminal misconducts :
13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence or criminal misconduct.-
(a) to (c)...
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e)...
Section 13(2) provides extent of punishment for the said misconduct.
2. Section 19 of this Act makes sanction of the Central Government or the State Government or the authority competent to remove him from office as essential if at the time of taking cognizance by the Court of such an offence of criminal misconduct, he is employed in connectipm with affairs of the Union of the State and not removable from office save with the sanction of Central or State Government respectively. In other cases the sanction of authority competent to remove him is sufficient.
3. In the present case the allegation of mis-conduct against the petitioner is that in his capacity as Managing Director during the year 1988-89 he made purchases of certain stores such as Gumti, time resset, sewing machine, Shoelast machine, Cobbler's tools etc. without following the procedure prescribed by the Rules and Regulations or instructions and also paid exorbitant sums of money as price for the same much beyond the market price. He allegedly committed financial irregularities for illegal benefit for himself and for others fromwhom he allegedly made the purchases. The prosecution against him was started before the Special Court on 2-7- 1992 by presenting a charge sheet under Section 173, Cr.P.C. by the Economic Officers Wing of the Police.
4. This accused was compulsorily retired by the Central Government by order dated 4-1-1989 with effect from 10-1-1989. He approached the Central Administrative Tribunal and challenged that order in case No. 130/89. The Tribunal vide order dated 25-1-1990 set aside the order of his compulsory retirement, but, the Union of India presented an appeal before the Supreme Court of India. The Tribunal's order was stayed by the Supreme Court till the final decision of the appeal on 4-3-1991. It was thereafter that the challan against him was filed on 2-7-1991 for offence under Section 120B, I.P.C. read with Section 13(1)(d)(ii) read with 13(2) of the Prevention of Corruption Act, 1988. No sanction has been granted by the Central Government or any of the authority to prosecute him for that offence either under Section 19 of the Prevention of Corruption Act, 1988 or under Section 197 of the Cr.P.C.
5. By the impugned order dated 19-3-1993 the Special Judge, Bhopal dismissed his objection that the prosecution could not be started nor continued without proper sanction as noted above. The Special Judge has observed that the sanction under Section 19 is required if the Court take cognizance while the accused is still a public servant. But if he is removed from service or retired already, he is no longer a public servant and sanction under Section 19 of the Prevention of Corruption Act is not needed at that stage, although the offence be such xxx for which sanction would have been needed, had he continued to be public servant. The Court further observed that the sanction was not required even under Section 197(1)(a), Cr.P.C. as the acts alleged for offence committed by him could not be called as committed in performance of his duties. It was held that it was no part of his duty to commit criminal misconduct or to obtain for himself or for any other person, any pecuniary advantage or valuable thing by illegal acts.
6. The contention raised before this Court is firstly, that the stay order of the Supreme Court does not mean that he does not continue to be a public servant; secondly that at worst the allegation is that he allegedly committed breach of some instructions regarding procedure of purchase of material. He was authorised to take steps for purchase on behalf of the Corporation as part of his duty. He performed those duties. If there was any alleged irregularity in the same, his act would be called as having been done in performance of his duties or under the colour of his duties bonafidely and not totally dehors his duties and so even if and not totally dehors his duties and so he be considered as having been compulsorily retired at the time of filing of the charge-sheet against him, sanction under Section 197(1)(a) of the Cr.P.C. would be pre-condition against him, for starting any prosecution for such irregularities, whether they be falling under Section 13(1)(d) of the Prevention of Corruption Act or any Penal provision.
7. After considering the arguments of learned counsel for the pertitioner, it is clear to this Court that this petitioner was compulsorily retired much before charge sheet was filed against him. The order of the Central Administrative Tribunal which restored him to service has been stayed by the Supreme Court of India before the charge sheet was filed. So for all practical purpsoe the order of the Central Administrative Tribunal is non-existent so long as the order of stay by the Supreme Court continues. The order of the Tribunal has no effect whatsoever. So his retirement continues. Thus, he was no longer a public servant when the charge sheet was filed against him and the Court took cognizance.
8. Section 19 of the Prevention of Corruption Act, 1988 requires sanction for prosecution of a public servant. Its wording is that at the time of filing of charge sheet against him, he should be employed in connection with the affairs of the Union or the State. It does not show that the sanction would be needed if he was a public servant when he committed the offence, but, has ceased to be so when the prosecution is started. So the relevant point of time for requiring sanction for prosecution is that he should be a public servant when the charge sheet is filed against him which is also the time when the Court takes cognizance. Nothing much was argued against that proposition.
9. The counsel for the petitioner has, however, asserted that at least under Section 197(1), Cr.P.C. sanction is needed from the Central Government in this case as he was working in the affairs of the State Government and was not removable except with the sanction of the Central Government being a member of Indian Administrative Service which is All India service under the Central Government. Section 197, Cr.P.C. in its relevant portion is as under :
197. Prosecution of judges and public servant.-
(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-
(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) ...
10. The Supreme Court of India was recently faced with the similar question in the case of State of Kerala v. Padnabhan Nair cited at 1999 (4) JT (SC) 499 : 1999 Cri LJ 3696. In this case their Lordships said that "the correct legal position, therefore, is that an accused facing prosecution for offence under the Prevention of Corruption Act cannot claim any aminity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court taking cognizance of the said offence." Regarding effect of changes introduced in Section 197, Cr.P.C. in such circumstances, the Court said "when the newly worded section appeared in the Code (Section 197) with the words "when any person who is or was a public servant" (as against the truncated empression "is" in the corresponding provision of the old Code of Criminal Procedure 1898), a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa 1998 (5) JT (SC) 269 : 1998 Cri LJ 4003, that the legal position must be treated as changed even in regard to offence under the Prevention of Corruption Act also. This contention was repelled by the Court in that case where two Judges judgment held that a public servant who committed an offence mentioned in the Act, while he was a public servant can be prosecuted without sanction contemplated in Section 19 of the Act, if he ceases to be a public servant when the Court take cognizance of the offence.
11. Again with regard to necessity of sanction under Section 197(1) of the Cr.P.C. in such case, the Court relied upon its own observation in the case of Harihar Prasad v. State of Bihar 1972 (3) SCC 89 : 1972 Cri LJ 707 wherein it was observed that "as far as offence of criminal conspiracy punishable under Section 120B read with Section 409 of the Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code. It is no part of duty of a public servant while discharging his official duty, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197, Cr.P.C. is, therefore, no bar to a prosecution under Section 120B read with Section 409 of the Penal Code".
12. Thus, assuming that the petitioner, being a member of Indian Administrative Service, was employed in connection with the affairs of the Central Government and was removable only by sanction of the Central Government, the law is that it cannot be said that the criminal misconduct allegedly committed by him was withn the ambit of Section 197. It cannot be said to have been committed in discharge of his official duties or purported discharge of his official duties. So, sanction under Section 197 of the Code was not needed. Similarly sanction under Section 19 of the Prevention of Corruption Act, 1988 was also not needed.
13. There is another angle to this case. The petitioner was employed as Managing Director of a Corporation. It may have been a semi-Govt. Corporation and the petitioner would therefore, be a public servant in his capacity as such, but, in order to attract Section 19 of the Prevention of Corruption Act, or Section 197 of the Cr.P.C. he cannot be said to be an employee of the Central Government or State Government for the purpose of protection under Section 197, Cr.P.C.
14. The Supreme Court considered the position of an officer of such semi-Govt. Corporation vis-a-vis protection under Section 197, Cr.P.C. in the case of Mohd. Hadi Raja v. State of Bihar cited at 1998 (3) JT (SC) 507 : 1998 Cri LJ 2826 and observed as under at page 2833; of Cri LJ :
On the plan language of Section 197 of the Code of Criminal Proceudre, the protection by way of sanction is not available to the officers of the public undertaking because being a juridical person and a distinct legal entity such instrumentality stands on a different footing than the Government departments. The legislature, in its wisdom, did not think it necessary to expressly include the officers of such instrumentality or the Government company for affording protection by way of sanction under Section 197, Cr.P.C. If the legislature had intended to include officers of instrumentality or agency for brining such officers under the protective umbrella of Section 197, Cr.P.C. it would have done so expressly. Therefore, it will not be just and proper to bring such persons within the ambit of Section 197 by liberally construing the provisions of Section 197. Such exercise of liberal construction will not conform to the permissible limit of interpretation of a statute by a Court of law but will amount to legislation by Court.
15. Thus, in his capacity as Managing Director of M.P. Leather Development Corporation, the accused could not seek protection of Section 197, Cr.P.C.
16. In any view of the matter regarding his status, his contention that prior sanction either under Section 197, Cr.P.C. or under Section 19 of Prevention of Corruption Act, 1988 was necessary to prosecute him for alleged offence has no substance. The revision petition is, therefore, dismissed. A copy of this order be sent to the trial Court at once.