Orissa High Court
Sudhansu Sekhar Bhuyan vs State Of Odisha .... Opp. Party(S) on 9 August, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2246 of 2022
Sudhansu Sekhar Bhuyan .... Petitioner(s)
Mr. Subir Palit, Senior Advocate
along with Mr. A. Kejriwal, Advocate
-versus-
State of Odisha .... Opp. Party(s)
Mr. N. Maharana, ASC (Vigilance)
CORAM: JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 09.08.2024
13. 1. Heard Mr. Subir Palit, learned Senior Counsel for the
petitioner and Mr. N Maharana, learned Additional Standing
Counsel for the Vigilance Department.
2. The petitioner has invoked the inherent jurisdiction of this
Court under Section 482 Cr.P.C. seeking quashing of the order
07.12.2017 passed by the learned Special Judge, Vigilance,
Bhubaneswar in T.R. Case No.29 of 2017, whereby the learned
Court below has taken cognizance of offences under Sections
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13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 (for short
P.C. Act) read with Section 120 of the I.P.C. against the petitioner.
3. The petitioner was a Block Development Officer,
Nimapara (hereinafter called as <BDO=) from the year 2001-2006
and managing the funds allotted for the Indira Awas Yojana
(hereinafter called as <IAY=). According to the Government
guidelines, the said funds were to be deposited with the
Nationalized Bank or Rural Regional Bank. The petitioner during
that tenure had deposited huge amount of IAY funds in the Capital
Credit Co-operative Society in contravention of the Government
guidelines. The transaction of IAY funds were done through two
saving accounts. On the basis of the aforementioned allegation, an
F.I.R. was registered against the petitioner for abusing his official
position to misappropriate the Government funds and advance
undue official favour to the Capital Credit Co-operative Society
Limited in violation of the guidelines issued by the Government
under the Panchayati Raj Department as such allegedly causing
wrongful loss to the Government.
4. After investigation, charge-sheet was filed on 17.11.2017.
In the preliminary charge-sheet, the petitioner was not named.
However, accomplished three other accused persons were named.
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The petitioner9s name surfaced in the supplementary charge-sheet
dated 17.11.2017 on further investigation. The Court below had
taken cognizance of offences against the other three accused
persons on 21.08.2017. In so far as the present petitioner is
concerned, the trial Court has taken cognizance of the offences as
mentioned above vide impugned order dated 07.12.2017.
5. It appears from the record that the prosecution sought for
sanction from the G.A. Department of the Government of Orissa
under Section 19 of the P.C. Act to prosecute the petitioner. The
Government in G.A. Department after examining the entire material
on record refused to accord sanction for prosecution of the
petitioner due to insufficient evidence vide the Office Order dated
25.10.2016. The refusal order reads as under:-
<Sub: Sanction of prosecution against Sri Sudhansu Sekhar Bhuyan, OAS, Ex-BDO, Nimapara Block, Dist- Puri, at present Land Officer, General Administration Department in Bhubaneswar Vigilance P.S. Case No.29, dt.28.05.2010.
Sir, I am directed to invite reference to your office letter No.2804/V. Cr. (S), dt. 20.06.2015 on the subject mentioned above and to say that Government have been pleased to decline sanction of prosecution against the suspect officer Sri Sundhansu Sekhar Bhuyan, OAS, Ex-BDO, Nimapara Block, Dist- Puri, at present Land Officer, General Administration Department in Bhubaneswar Vigilance P.S. Case No.29, dt. 28.5.2010 and orders have been passed for initiation of Regular Department Action against Sri Bhuyan under the OCS Page 3 of 10 (CCA) Rules, 1962 by the Administrative Department as deemed proper.
You are, therefore, requested to please transmit the draft charges alongwith memo of evidence to the Administrative Department concerned i.e. General Administration Department at the earliest for initiating regular departmental action against Sri Bhuyan.=
6. Section 19 of the P.C. Act mandates departmental sanction for prosecuting the government officers for the purpose of the offences under the P C Act. The provision reads as under:-
"19. Previous Sanction necessary for prosecution-
(1) No Court shall take cognizance of an offence punishable under [sections 7, 11, 13 and 15] alleged to have been committed by a public servant, 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 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, 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 and is not removable from his office save by or with 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.= It is no res integra that pre-sanction for prosecution is mandatory and the trial Court cannot take cognizance of the offences sans such sanction.Page 4 of 10
7. Mr. Palit, learned Senior Counsel for the petitioner submitted that Section 19(1) of the P.C. Act, 1988 precisely states that prior sanction for prosecution of a public servant is mandatory. The mandatory character of the protection afforded to a public servant is brought out by the expression, 8no court shall take cognizance of any offence except with the previous sanction9. The use of terms 8no9 and 8shall9 makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. He has relied upon the judgment of the Hon9ble Supreme Court in the case of State of Maharashtra through Central Bureau of Investigation v. Mahesh G. Jain, reported in (2013) 8 SCC 119, which held as under:-
<Grant of sanction is a sacrosanct act and is intended to provide safeguard to public servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is essential to validate an order granting sanction.=
8. Mr. Palit, further relied upon the judgment of the Hon9ble Supreme Court in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh reported in AIR 1979 SC 677. The said judgment inter alia ruled that:-
<It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has Page 5 of 10 been made out constituting an offence and the same should be done in two ways either.
(i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, and
(ii) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.= In the case of The State of Karnataka vs. Ameerjan reported in (2007) 11 SCC 273, it is held that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
The Hon9ble Supreme Court in the case of Nanjappa vs. State of Karnataka reported in (2015) 14 SCC 186, held as under:-
<22. The legal position regarding the Importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction In terms of Clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the Accused so much depends upon the existence of a valid sanction. In case Page 6 of 10 the sanction is found to be invalid the court can discharge the Accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non- est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.=
9. Mr. Maharana, learned Additional Standing Counsel for the Vigilance submits that there is no quarrel on the position of law in so far as the applicability of Section 19 of the P.C Act to a government servant is concerned. Therefore, he cannot be prosecuted for the offences under the P.C. Act. However, even without sanction, the petitioner can be prosecuted for penal offences. Since Section 120-B of the I.P.C. is also alleged against the petitioner. That being a substantive offence, he could be independently tried for the said offences along with other co- accused persons without there being any sanction. Therefore, the learned trial Court ought to have taken cognizance of offences under Section 120-B of the I.P.C. against the petitioner, if not for the offences under the P.C. Act.
10. To substantiate his argument, Mr. Maharana, has also relied upon the judgment of the Hon9ble Supreme Court in the case Page 7 of 10 of Ajay Aggarwal vs. Union of India, reported in (1993) 6 SCC 609, which reads as under:-
<10. In Mohammed Usman. Mohammad Hussain Manivar & Anr. v. State of Maharashtra [1981] 3 SCR 68, it was held that for an offence under section 120B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act. The agreement may be proved by necessary implication. In Noor Mohammed Yusuf Momin v. State of Maharashtra [1971] 1 SCR 119, it was held that s. 120-B IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means. If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect. In R. K. Dalmia & Anr. v. The Delhi Administration It 963] 1 SCR 253, it was further held that it is not necessary that each member of a conspiracy must know all the details of the conspiracy. In Shivanarayan Laxminarayan & Ors. State of Mahrashtra & Ors. [1980] 2 SCC 465, this court emphasized that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.
11. The question then is whether conspiracy is continuing offence. Conspiracy to commit crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.
12. Per majority, Jaganmohan Reddy, J. held that the gist of the offence defined in s. 120-A IPC, which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means, subject, however, to the proviso that where the agreement is not an agreement to commit an offence, the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a Page 8 of 10 meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means.=
11. The provision of sanction contemplated under the special statute is a devise provided by the law to safeguard the public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon on the hands of the sanctioning authority to protect the innocent public servants from malicious prosecution but not to intend to shield the guilty.
12. In the instant case, the competent authority has declined sanction to the prosecuting agency to prosecute the petitioner rather recommended for departmental proceeding. Mr. Palit, learned Senior Counsel for the petitioner submits that even departmental proceeding has been dropped against the petitioner.
13. In the impugned order, the learned trial Court has compositely taken cognizance of offences punishable under Sections 13(2)/13(1)(d) of the P.C. Act read with Section 120-B of I.P.C. Since the cognizance of the offences punishable under the provisions of P.C. Act is taken by the learned trial Court in the impugned order without there being any sanction, the impugned order is bound to be set aside. However, keeping in view the fact Page 9 of 10 that the learned trial Court has taken cognizance of offences under the P.C. Act as well as the penal offence together, it would be expedient to leave it to the parties to argue before the Court below, the issue as to whether cognizance of penal offence namely under Section 120-B of the I.P.C. independently can be taken without the substantive offence under the P.C. Act.
14. Regard being had to the aforementioned, I set aside the impugned order dated 07.12.2017 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.29 of 2017. However, the parties are relegated to the Court below to argue the matter afresh regarding the cognizance of offences under the penal provisions.
15. With this observation, the CRLMC is disposed of.
(S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 14-Aug-2024 19:11:39 Page 10 of 10