Jharkhand High Court
Ajay Kumar Mishra vs State Of Jharkhand And Ors. on 21 June, 2004
Equivalent citations: [2004(3)JCR399(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In this writ petition, petitioner has prayed for quashing the communication contained in letter No. 6112, dated 10.12.2003 of the Government of Jharkhand in the Department of Personnel and Administrative Reforms by which it has been conveyed to the Vigilance Commissioner, Bihar, Patna that the Government of Jharkhand has accorded sanction under Section 197 Cr PC to prosecute the petitioner and further for quashing the communication contained in letter No. 6814, dated 15.12.2003 of the Government of Jharkhand on the Department of Personnel and Administrative Reforms Department informing the Director, Vigilance DOPI, Government of India, New Delhi that the State Government has accorded sanction under the Prevention of Corruption Act to prosecute the petitioner and a request has been made to the Government of India to accord sanction.
2. The facts of the case as pleaded by the petitioner inter alia are that he is an IAS Officer of 1970 batch and was allotted Jharkhand Cadre. He was posted as the Chief Secretary, Government of Jharkhand from 1st April, 2003 to 1st November, 2003. In 1980-82 the petitioner was holding the post of Managing Director, Bihar State Credit and Investment Corporation (in short BICICO). In the year 1983, a complaint was lodged against one Mr. C. Singh, Financial Advisor and Chief Accounts Officer, BICICO. On the basis of the aforesaid complaint FIR was lodged under Sections 120B, 109, 409, 420, 467, 468 and 471 IPC read with Sections 5(2), 5(1) (c) and (d) of Prevention of Corruption Act and a case was registered on 22.1.1985 in the Vigilance Police Station bearing case No. 05/85. In the said FIR many Officers of the BICICO including the petitioner were implicated. It was alleged in the FIR that the petitioner sanctioned a loan amount of Rs. 15 lakhs to a firm named M/s Biscay Data Products (P) Ltd. and later on the said firm was closed. The petitioner along with other Officers in criminal conspiracy is alleged to have misused their official position for financial gain. It was further alleged that the petitioner without inviting any tender allotted the work to one Advertising Agency and put the BICICO to financial loss. Petitioner's further case is that in the aforementioned Vigilance case through investigation by the IB of the State Cabinet (Vigilance) Department was made and after four years of intensive investigations no evidence could be collected against the petitioner. In the progress report of the Investigating Officer dated 21.4.1986 it was clearly observed that no evidence of any criminal act, motive or malafide could be established against the petitioner. On 12.10.1987 the charge sheet was filed by the IB in which not a single word regarding any criminal liability against the petitioner was mentioned. The IB finally recommended departmental proceeding against the petitioner and has also forwarded draft charges and evidence for the same. It is contended by the petitioner that after examining the whole matter, all the charges against the petitioner was found baseless and as such it was decided to drop the criminal case. In 1990, the Government of Bihar informed the Government of India that the complaint which was registered against the Officers of BICICO in which the petitioner was made accused was dropped against him. However, in 1993 the Vigilance Department vide letter dated 17.11.1993 wrote to the Managing Director, BICICO asking for sanction of persecution regarding the FIR against some Officer of the BICICO. The Managing Director, BICICO refused to accord sanction against the Officers of BICICO on the ground that the case was dropped against the petitioner. Petitioner's further case is that he requested the Chief Minister to be relieved from the assignment of the Chief Secretary and he was subsequently transferred. In the meanwhile, the Chief Minister of Jharkhand illegally and with a malafide intention gave sanction for prosecution of the Officers including the petitioner.
3. The case of the respondent/State of Jharkhand is that although Government of Bihar at one stage decided to withdrew the complaint in vigilance Case No. 5/85 but during investigation it was found that the petitioner was also responsible for ordering distribution of loan disregarding the recommendation of Subordinate Officer of BICICO. The Government of Bihar therefore after taking opinion of the Advocate General decided to proceed against the petitioner for sanction of prosecution under Section 197(1) Cr PC and the Government of Jharkhand was requested to grant sanction for prosecution of the petitioner.
4. Mr. Chitaranjan Sinha, learned counsel for the petitioner assailed the impugned order sanctioning prosecution of the petitioner as being illegal, arbitrary and wholly without jurisdiction. Learned counsel firstly submitted that the concerned respondent was not at all justified either in law or in facts to reopen the criminal case in the year 2003-04 which was registered in year 1985 and dropped in the year 1988. Learned counsel submitted that the impugned order grating sanction for prosecution of the petitioner suffers from the vice of non application of mind of the sanctioning authority.
5. Mr. A.K. Sinha, learned Advocate General on the other hand submitted that the charge sheet was submitted on 12.10.1987 but the investigation against the petitioner was pending. Learned counsel submitted that although the Chief Minister passed the order in 1988 to drop the case against the petitioner but the case was never dropped rather investigation was stopped. Learned counsel submitted that there is no bar in law to reopen a case and to grant sanction for prosecution of an officer who is involved in a criminal case.
6. It is well settled that sanction for prosecution as contemplated under the Act is not a mere formality rather the provision should be observed with complete strictness. The Supreme Court in the case of Md. Iqbal Ahmed v. State of A.P., (1979) 4 SCC 172, has observed that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions.
7. In the instant case, as noticed above, petitioner who is as IAS Officer of 1970 batch was allowed Jharkhand Cadre. In 1980-82 he was holding the post of Managing Director of Bihar State Credit and Investment Corporation (BICICO). In the year 1983 a complaint was lodged against one Mr. C. Singh, Financial Advisor and Chief Accounts Officer, BICICO. On the basis of the aforesaid complaint an FIR was lodged and a case was registered being case No. 5/85 under various sections of Indian Penal Code read with Section 5 of the Prevention of Corruption Act. In the said case many officers including the petitioner were implicated. So far petitioner is concerned, the allegation against him was that he sanctioned a loan to a firm which firm was subsequently closed. Further allegation against the petitioner was that he alongwith others in criminal conspiracy misused their official position for financial gain. The matter was investigated at length by the IB of the State Cabinet (Vigilance) Department and in the Investigation Report dated 21.4.1986 it was reported that no evidence of criminal act, notice or malafide could be established against the petitioner. It further appears that in 1987 charge sheet was filed by IB but in the said charge sheet no charge of criminal liability against the petitioner was mentioned. In 1990 the matter was against examined at length and all the charges against the petitioner was found baseless. Consequently, it was decided to drop the criminal case against the petitioner. The Government of Bihar accordingly informed the Government of India that the complaint which was registered against the officers of the BICICO for which petitioner was made accused was dropped against him and the proposal to drop the proceeding against the petitioner was finally approved by the Chief Minister. It has also not been disputed by the respondents that in, 1993 Vigilance Department vide letter dated 17.11.1993 asked the Managing Director, BICICO to sanction prosecution against the other officers of BICICO and in response to the said letter the Managing Director, BICICO refused to grant sanction for prosecution on the ground that prosecution has already been dropped against the petitioner.
8. At this stage, it is worth to be noticed here that in the meantime because of satisfactory service record of the petitioner he reached upto the highest post of Chief Secretary. However, for the reasons best known to the respondents a decision was taken at the level of Deputy Inspector General of Police Incharge of IB to reopen the matter after seeking opinion from the Additional Advocate General. In para 33 of the writ petition it has been categorically stated by the petitioner that the Chief Secretary vide his note dated 17.2.1997 informed the Chief Minister regarding the request for reopening of the case of the petitioner. The Chief Secretary in his note stated that there does not appear to have been any further investigation against the petitioner after the case against him was closed. The Government of Jharkhand in this context vide letter dated 4.12.2001 requested the Government of Bihar to inform them the basis on which they have decided to reopen the case which was closed against the petitioner. Curiously enough, without proper justification, the impugned order sanctioning prosecution of the petitioner has been issued by the respondents.
9. Admittedly, the incident is of 1983 and on the basis of FIR a case was registered in 1985. After thorough investigation for about four years when no evidence was found against the petitioner it was decided to close the criminal case and the Chief Minister also approved to drop the proceeding. It was after about 13 years i.e. in 1998 opinion was sought for from the Additional Advocate General for reopening of the proceeding and in 2003 the impugned order was communicated to the petitioner according sanction for prosecution. In my considered opinion after lapse of 17 years it will not be just and fair to grant sanction in mechanical way for prosecution of the petitioner.
10. The object of Section 197 Cr PC is to protect the public servant against irresponsible and frivolous proceeding for the act done in discharge of his official duty and not to use it as a weapon with a malafide intention to malign and humiliate the public servant. The provision is to be strictly construed. The Apex Court in the case of R.R. Chari, v. State of U.P., AIR 1962 SC 1573, observed that before according sanction the appropriate authority must be satisfied that there is a prima facie case for starting prosecution and this prima Jade satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197 is to save public servant for frivolous prosecution.
11. In the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622, the Supreme Court has elaborately considered the object and purpose for sanction prosecution as contemplated under Section 197 Cr PC. Few paragraphs of the said decision is worth to be quoted herein below :--
"Para 17.--Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty."
"Para 18.--The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were- considered by the sanctioning authority."
"Para 19.--Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority [ should not be under pressure from any quarter nor should nay external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
12. Nothing has been brought on record by the respondents which were considered by the Sanctioning Authority and the authority after application of mind independently and without any basis has accorded sanction by passing a reasoned order.
13. As discussed above, petitioner who is an IAS Officer of 1970 Batch. Because of satisfactory record of service he reached upto to the post of Chief Secretary of the Government of Jharkhand and at no point of time the said case of 1985 came in the way of the petitioner for his promotion to the higher post since the matter stood dropped. No satisfactory explanation has been given by the respondents for reopening of the matter. In my considered opinion, the concerned authority of the respondents is not acted independently rather passed order under the instruction of other authority and therefore the impugned order sanctioning prosecution is liable to be quashed.
14. For the reasons aforesaid, this writ application is allowed and the impugned order issued by the respondents sanctioning prosecution of the petitioner is hereby quashed.