Karnataka High Court
Smt Amita Prasad Ias Retd vs State Of Karnataka on 1 September, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.10068 OF 2022 (GM-RES)
BETWEEN:
1 . SMT. AMITA PRASAD, IAS (RETD.)
D/O LATE B.S.PRASAD
AGED ABOUT 60 YEARS
RESIDING AT:NO.468, 4TH MAIN ROAD
RMV, 2ND STAGE
DOLLARS COLONY
BENGALURU - 560 094.
SHOWN IN THE COMPLAINT AS:
SMT. AMITHA PRASADH, IAS
THE THEN PRINCIPAL SECRETARY
RURAL DEVELOPMENT AND PANCHAYATH
RAJ DEPARTMENT, 3RD GATE, 3RD FLOOR
M.S.BUILDING, DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
(FROM 16-05-2011 TO 08-06-2012)
PRESENTLY WORKING AS
ADDL. CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
3RD FLOOR, VIDHANA SOUDHA
BENGALURU - 560 001.
2. DR. E.V.RAMANA REDDY, IAS,
THE THEN PRINCIPAL SECRETARY
RURAL DEVELOPMENT & PANCHAYATH
RAJ DEPARTMENT, DR. AMBEDKAR VEEDI.
BENGALURU - 560 001.
2
(FROM 24.09.2012 TO 31.05.2023)
PRESENTLY WORKING AS
ADDL. CHIEF SECRETARY TO GOVERNMENT
COMMERCE AND INDUSTRIES DEPARTMENT
VIKASA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU -560 001.
3. T.M.VIJAYA BHASKAR, IAS (RETD),
THE THEN PRINCIPAL SECRETARY,
RURAL DEVELOPMENT AND PANCHAYATH
RAJ DEPARTMENT, 3RD GATE, 3RD FLOOR
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU -560 001
(FROM 31.05.2013 TO 25.04.2015)
AT PRESENT CHAIRMAN, KARNATAKA
ADMINISTRATIVE REFORMS COMMISSION
5TH FLOOR, EAST ENTRANCE, KANIJA BHAVAN,
RACE COURSE ROAD
BENGALURU - 560 001.
... PETITIONERS
(BY SRI. P.PRASANNA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
HALASURU GATE POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA BUILDING
OPP. VIDHANA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. STATE OF KARNATAKA BY
ANTI-CORRUPTION BUREAU
(REPLACED VIDE ORDER DATED 17.08.2022)
3
NOW REPRESENTED BY
THE KARNATAKA LOKAYUKTHA
DR.AMBEDKAR VEEDHI
M.S. BUILDING
BENGALURU - 560 001.
REPRESENTED BY
SPL. PUBLIC PROSECUTOR.
3. S.NARAYANSWAMY
S/O SRIRAMA
AGED ABOUT 55 YEARS
SOCIAL WORKER
R/AT SRIVENKATESHWARA NILAYA
NEAR SHANKAR VIDHYALAYA
MASTI LAYOUT
KOLAR - 563 102.
... RESPONDENTS
(BY SRI. MAHESH SHETTY, HCGP FOR R-1;
SRI. VENKATESH ARBATTI, SPL. PP FOR R-2;
SRI. UMAPATHI, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO (i) ISSUE A WRIT OR
ORDER IN THE NATURE OF CERTIORARI TO QUASH THE ORDER
DATED 13.01.2022 THEREBY TAKING COGNIZANCE FOR OFFENCES
PUNISHABLE UNDER SECTION 13(1) READ WITH 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988 AND SECTIONS 465, 467,
468 AND 471 OF THE INDIAN PENAL CODE, 1860 PASSED BY THE
LEARNED XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE (PC ACT), BENGALURU (CCH-24) IN PCR
NO.75/2021 (PRODUCED VIDE ANNEXURE-A AND ETC.,
4
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14.06.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question order 13-01-2022 by which cognizance is taken by the XXIII Additional City Civil & Sessions Judge and Special Judge (Prevention of Corruption Act), Bangalore City in P.C.R.No.75 of 2021 for offences punishable under Section 13(1) r/w 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short) and Sections 465, 467, 468 and 471 of the IPC and for certain consequential reliefs.
2. Facts adumbrated are as follows:-
The Ministry of Rural Development, Government of India in furtherance of necessity of providing drinking water to rural areas in India issued a framework for implementation of National Rural Drinking Water Programme and State Water and Sanitation Mission (hereinafter referred to as 'the Programme' for short). On 19-10-2010 in terms of what the Government of India thought of a memorandum of understanding or tripartite agreement was entered 5 into between the Department of Drinking Water Supply and Sanitation, Government of India, State Water and Sanitation Mission of Government of Karnataka and the then Syndicate Bank.
After signing of the said memorandum of understanding/tripartite agreement between the parties, as observed hereinabove, the 1st petitioner comes in as the Principal Secretary, Department of Rural Development and Panchayat Raj on 16-05-2011 and works up to 08-06-2012. Likewise, the 2nd petitioner assumes charge of the said post on 24-09-2012 and functions up to 31-05-2013. The 3rd petitioner takes charge from the 2nd petitioner on 31-05-2013 and works as Principal Secretary of the said Department up to 24-04-2015.
3. After the exit of the 3rd petitioner, on 04-05-2015 the Commissioner of the Programme submits a detailed report to the Government alleging certain mismanagement of funds of the Programme. The report did not indicate any misuse of funds by the officials in the Department, but the funds of the Programme in general. Pursuant to the said report, an audit was conducted and the audit report was also prepared on 01-10-2015 holding that one 6 P.Bore Gowda and Ramakrishna were responsible for mismanagement and alleged loss to the Government. Taking the audit report further, a crime comes to be registered in Crime No.440 of 2015 alleging misappropriation of funds allotted for the Karnataka Rural Water Supply and Sanitation agency. The complaint or the crime was not against the petitioners. During the pendency of investigation in Crime No.440 of 2015 a complaint comes to be filed before the 1st respondent/Police again on the basis of the audit report regarding misappropriation concerning the funds of the Programme. This becomes a crime in Crime No.118 of 2018 alleging offences punishable under Sections 408, 420 and 34 of the IPC. The crime is registered specifically against P. Bore Gowda and Ramakrishna.
4. The Police conduct investigation and file a 'B' report before the concerned Court on 09-01-2019. During the pendency of investigation in Crime No.440 of 2015 and consideration of 'B' report in Crime No.118 of 2018, the 3rd respondent filed a complaint before the Additional Director General of Police ('ADGP') of the then Anti-Corruption Bureau ('ACB') reiterating those very 7 allegations which formed the substance in Crime No.440 of 2015 and 118 of 2018. In none of the crimes narrated hereinabove, the petitioners were arrayed as accused. The Police who were conducting investigation in Crime No.440 of 2015 filed a charge sheet against 6 accused on 22-10-2021 alleging offences under Sections 409, 420, 120B and 34 of the IPC. The petitioners were not arrayed as accused even in the charge sheet. On 11-11-2021, the learned Magistrate on the charge sheet so filed in Crime No.440 of 2015 takes cognizance for the offences as afore-quoted against all the accused and registers C.C.No.31073 of 2021. There were, thus, three crimes on the same facts. In all the crimes, the petitioners were not arrayed as accused.
5. The 3rd respondent then files a private complaint in P.C.R. No.75 of 2021 making allegations against the petitioners which were hitherto never made and the learned Sessions Judge takes cognizance of the private complaint in P.C.R.No.75 of 2021 and registers a crime against the petitioners for offences punishable under Section 13(1) r/w 13(2) of the Act and Sections 465, 467, 468 and 471 of the IPC. The petitioners here are accused Nos. 1 to 8
3. After taking cognizance the learned Special Judge orders further investigation to be conducted by the then ACB under Section 202 of the Cr.P.C. It is at that stage the petitioners have knocked at the doors of this Court in the subject petition.
6. Heard Sri P.Prasanna Kumar, learned counsel appearing for the petitioners, Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent No.1, Sri Venkatesh Arbatti, learned Special Public Prosecutor appearing for respondent No.2 and Sri Umapathi, learned counsel appearing for respondent No.3.
7. The learned counsel for the petitioners would contend with vehemence that the 3rd respondent registers a private complaint which is third in line making allegations which are bald, vague and frivolous against the petitioners who were not named in a complaint before the ADGP of the ACB and as such the concerned Court could not have taken cognizance of the offences and directed further investigation by the ACB under Section 202 of the Cr.P.C. without at the outset sanction being accorded by the Competent Authority to prosecute the petitioners for the offences under the Act or under 9 the IPC. It is his submission that multiple FIRs are being registered on the same cause of action of misappropriation of funds of the Programme. Therefore, it is hit by the doctrine of sameness. He would further contend that there can be no vicarious liability in criminal law and these factors ought to have been borne in mind by the learned Special Judge prior to taking cognizance of offences.
8. The learned counsel representing the complainant/ respondent No.3 would seek to refute the submissions by taking this Court through the statement of objections filed by him contending that it is not hit by the doctrine of sameness, but every crime registered is different though it has emanated from the solitary fact of misappropriation of funds of the Programme. He would submit that protection under Section 19 of the Act or Section 197 of the Cr.P.C. would only be for acts in discharge of their official duties and not the ones that are alleged against the petitioners which is misappropriation of funds. He would seek dismissal of the petition.
109. Sri Venkatesh Arbatti, learned Special Public Prosecutor representing the ACB and now the Karnataka Lokayukta would submit that it is a matter of investigation and the concerned Court has directed conduct of investigation at the hands of the ACB then.
Therefore, if this Court were to direct conduct of investigation it would be carried out as is directed by the concerned Court.
10. The learned High Court Government Pleader would also toe the lines of the learned counsel appearing for the 3rd respondent.
11. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
12. The genesis of the Programme is not in dispute. It was a Rural Drinking Water and Sanitation Mission that led to drawing up of tripartite agreement or a memorandum of understanding.
Clause-16 of the Programme itself indicated flow of funds and directed maintenance of two saving accounts for the purpose of 11 flow of funds and their disbursement. Clause-16 of the Programme deals with this aspect and insofar as it is germane, is extracted for the purpose of quick reference:
"16. Flow of Funds:
16.1. The State Water and Sanitation Mission (SWSM) shall select a Bank branch of any Public Sector Bank with internet connectivity at the State Headquarters, for maintaining the two accounts namely Programme Account, and Support Activities Account under the National Rural Drinking Water Programme. These shall be saving accounts and once selected, the Accounts shall not be changed to any other branch or Bank without concurrence of DDWS.
16.2. There will be a written undertaking from the Bank that it will follow the Guidelines of Government of India for payments from the DDWS Funds. The concerned branch will maintain internet connectivity and enter the data into the relevant module of the Online Integrated Management Information System (IMIS).
16.3 The SWSM will communicate to the DDWS, Ministry of Rural Development the details of the Bank branch IFSC Code and the Account numbers. The DDWS, Ministry of Rural Development shall release the programme funds and support funds respectively into the programme and support accounts.
16.4. The SWSM shall credit the Support Account with funds for carrying out software activities as indicated in para-10 of the guideline and for proper functioning of the Water and Sanitation Support Organization. Such funds shall be credited to the Support Account of SWSM.
... ... ... ..."
(Emphasis added)
12
In furtherance of the Programme, as observed hereinabove, a memorandum of understanding or a tripartite agreement comes about on 01-10-2010. None of these petitioners were parties to the agreement, as they were not holding the posts, under which the Mission/Programme had to be implemented.
13. The 1st petitioner steps in as Principal Secretary of the Rural Development and Panchayat Raj on 16-05-2011 and works for over a year and gets transferred on 8-06-2012; the 2nd petitioner enters on 24-09-2012 and exit on 31-05-2013 and the 3rd petitioner enters on 31-05-2013 and exit on 24-04-2015. It is the 3rd petitioner who had the longest tenure as the Secretary, RDPR.
While implementing the programme, the Commissioner for Rural Drinking Water and Sanitation Department notices certain mismanagement of funds of the Programme, not by the officials of the Department but was a general statement which led to audit being conducted. The Auditors submitted their report on 1-10-2015 naming two persons as responsible viz., P. Bore Gowda and Ramakrishna for mismanagement of funds. The names of the petitioners did not figure. Based upon the audit report and the 13 report of the Commissioner (supra), a crime in Crime No.440 of 2015 comes to be registered for offences punishable under Sections 408, 415, 464, 420 and 34 of the IPC. The allegation was mismanagement of funds of the Programme to the tune of `44.17 crores. The petitioners were not arrayed as accused. Investigation commenced in the said crime.
14. During the pendency of investigation in Crime No.440 of 2015, the 1st respondent/Police would register another crime based upon the letter of the ADGP alleging misappropriation of funds by P. Bore Gowda and Ramakrishna. This becomes a crime, in Crime No.118 of 2018 alleging offences punishable under Sections 408, 420 and 34 of the IPC. Here again the petitioners were not arrayed as accused. This was the second crime, on the same incident. The Police conduct investigation in Crime No.118 of 2018 and file a 'B' report, before the concerned Court. Investigation in Crime No.440 of 2015 comes to an end and the Police file a charge sheet before the concerned Court for offences punishable under Section 409, 420, 120B and 34 of the IPC. The charges were against 6 accused, among them accused Nos.2 and 4 Dr. P. Bore Gowda and 14 Siddalingaiah were parties to the memorandum of understanding and all are alleged of misappropriation of funds and causing loss to the State to the tune of `269.04 crores. The learned Magistrate takes cognizance of the offences and registers C.C.No.31073 of 2021.
15. During the pendency of proceedings in the aforesaid criminal case and consideration of 'B' report, before the concerned Court, in Crime No.118 of 2018, the 3rd respondent registers a private complaint in P.C.R.No.75 of 2021 alleging certain offences, which were not hitherto alleged in his complaint before the ADGP.
The concerned Court, in terms of its order dated 13-01-2022, takes cognizance of the offences and posted the matter for recording sworn statement of the complainant and his witness, if any. The order reads as follows:
"Cognizance of the offence is taken against the accused No.1 to 6 for the offences punishable under Sections 13(1) read with 13(2) of The Prevention of Corruption Act, 1988 and Sections 465, 467, 468 and 471 of the Indian Penal Code.
Call on for recording the sworn statement of the complainant and his witness if any by 08-02-2022."
(Emphasis added) 15 and again acting under Section 202 of the Cr.P.C., the complaint is referred to the then ACB for conduct of investigation and submission of report within 4 months from the date of the order.
The said order reads as follows:
"Acting under Section 202(1) of the Cr.P.C. the complaint is referred to the ACB, Bengaluru Urban with a direction to conduct an inquiry/investigation by any officer not below the rank of DySP.
The concerned Police are directed to complete the inquiry and file a report within 4 months from the date of this order.
... ... ..."
What would unmistakably emerge is that the concerned Court has taken cognizance of the offence against the petitioners along with others for offences punishable under Section 13(1) and 13(2) of the Act and Sections 465, 467, 468, and 471 of the IPC and has directed inquiry to be conducted by the ACB. Since cognizance is taken against public servants, what would become germane to be considered is:
"Whether the concerned Court could have taken cognizance de hors the sanction to prosecute the petitioners for the offences?"16
16. The petitioners are, without doubt, public servants as defined under Section 21 of the IPC and Section 2(c) of the Act. To prosecute a public servant for the aforesaid offences, sanction would become imperative under both the provisions of law viz., under Section 19 of the Act and for IPC offences under Section 197 of the Cr.P.C. The said provisions are extracted hereunder:
Section 19 of the Act reads as follows:
"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 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 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 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.17
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under Section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.
Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--18
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
(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 19 and should have been raised at any earlier stage in the proceedings.
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.
Section 197 of the Cr.P.C. reads as follows:
197. Prosecution of Judges and public 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.20
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 166-A, Section 166-B, Section 354, Section 354- A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-AB, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB] 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.
(3-A) 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.
(3-B) 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, 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 21 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."
Both the provisions (supra) clearly mandate that no Court can take cognizance of the offence alleged under the Act or under the IPC against public servants without sanction. Admittedly, the Court has taken cognizance of the offence as indicated hereinabove and has directed inquiry to be conducted as obtaining under Section 202 of the Cr.P.C., which act the concerned Court could not have done without a valid sanction from the hands of the Competent Authority to continue the prosecution against the petitioners. The issue in this regard is no longer res integra, as the Apex Court in plethora of cases has elucidated that a prosecution without sanction against a public servant would cut at the root of the matter and, therefore, further proceedings without sanction should not be permitted to be continued qua the provisions of the Act.
2217. In the case at hand, the offences are an amalgam of the Act and the IPC. The submission of the learned counsel for the 3rd respondent that the offences committed by the petitioners which are alleged i.e., misappropriation, forgery or falsification of documents would not require sanction, as they are not done in the discharge of official duty, is noted only to be rejected owing to its fundamental flaw. The petitioners are also alleged of embezzlement or falsification of records in the discharge of their official duty. Therefore, sanction prior to taking cognizance was imperative for the Special Court, to proceed further. Reference being made to the judgment of the Apex Court in the case of A.SRINIVASULU v. STATE1 in the circumstances becomes apposite. The Apex court has held as follows:
"29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21 of the IPC, were 'public servants' within the definition of the said expression under Section 21 of the IPC. A-1 to A-4 were also public servants within the meaning of the expression under Section 2(c)(iii) of the PC Act. Therefore, there is a requirement of previous sanction both under Section 197(1) of the Code and under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable under the IPC and the PC Act.1
2023 SCC OnLine SC 900 23
30. Until the amendment to the PC Act under the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018), with effect from 26.07.2018, the requirement of a previous sanction under Section 19(1)(a) was confined only to a person "who is employed". On the contrary, Section 197(1) made the requirement of previous sanction necessary, both in respect of "any person who is" and in respect of "any person who was" employed. By the amendment under Act 16 of 2018, Section 19(1)(a) of the PC Act was suitably amended so that previous sanction became necessary even in respect of a person who "was employed at the time of commission of the offence".
31. The case on hand arose before the coming into force of the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018). Therefore, no previous sanction under Section 19(1) of the PC Act was necessary insofar as A-1 was concerned, as he had retired by the time a final report was filed. He actually retired on 31.08.1997, after 7 months of registration of the FIR (31.01.1997) and 5 years before the filing of the final report (16.07.2002) and 6 years before the Special Court took cognizance (04.07.2003). But previous sanction under Section 19(1) of the PC Act was required in respect of A-3 and A-4, as they were in service at the time of the Special Court taking cognizance. Therefore, the Agency sought sanction, but the Management of BHEL refused to grant sanction not once but twice, insofar as A-3 and A-4 are concerned.
32. It is by a quirk of fate or the unfortunate circumstances of having been born at a time (and consequently retiring at a particular time) that the benevolence derived by A- 3 and A-4 from their employer, was not available to A-1. Had he continued in service, he could not have been prosecuted for the offences punishable under the PC Act, in view of the stand taken by BHEL.
33. It appears that BHEL refused to accord sanction by a letter dated 24.11.2000, providing reasons, but the CVC insisted, vide a letter dated 08.02.2001. In response to the same, a fresh look was taken by the CMD of BHEL. Thereafter, by a decision dated 02.05.2001, he refused to accord sanction on the ground that it will not be in the commercial interest of the Company nor in the public interest of an efficient, quick and disciplined working in PSU.
2434. The argument revolving around the necessity for previous sanction under Section 197(1) of the Code, has to be considered keeping in view the above facts. It is true that the refusal to grant sanction for prosecution under the PC Act in respect of A-3 and A-4 may not have a direct bearing upon the prosecution of A-1. But it would certainly provide the context in which the culpability of A- 1 for the offences both under the IPC and under the PC Act has to be determined.
35. It is admitted by the respondent-State that no previous sanction under section 197(1) of the Code was sought for prosecuting A-1. The stand of the prosecution is that the previous sanction under Section 197(1) may be necessary only when the offence is allegedly committed "while acting or purporting to act in the discharge of his official duty". Almost all judicial precedents on Section 197(1) have turned on these words. Therefore, we may now take a quick but brief look at some of the decisions.
36. Dr. Hori Ram Singh v. The Crown3 is a decision of the Federal Court, cited with approval by this court in several decisions. It arose out of the decision of the Lahore High Court against the decision of the Sessions Court which acquitted the appellant of the charges under Sections 409 and 477A IPC for want of consent of the Governor. Sir S. Varadachariar, with whose opinion Gwyer C.J., concurred, examined the words, "any act done or purporting to be done in the execution of his duty"
appearing in Section 270(1) of the Government of India Act, 1935, which required the consent of the Governor. The Federal Court observed at the outset that this question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances. The Federal Court then referred by way of analogy to a number of rulings under Section 197 of the Code and held as follows:--
"The reported decisions on the application of sec. 197 of the Criminal Procedure Code are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of 25 the facts of each ease; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language, of similar statutory provisions (see observations in Booth v. Clive. It does not seem to me necessary to review in detail the decisions given under sec. 197 of the Criminal Procedure Code which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it : cf. In re Sheik Abdul Khadir Saheb; Kamisetty Raja Rao v. Ramaswamy, Amanat Ali v. King-emperor, King-Emperor v. Maung Bo Maung and Gurushidayya Shantivirayya Kulkarni v. King- Emperor. In another group, more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed [see Gangaraju v. Venki, quoting from Mitra's Commentary on the (criminal Procedure Code). The use of the expression "while acting" etc., in sec. 197 of the Criminal Procedure Code (particularly its introduction by way of amendment in 1923) has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person, it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the Local Government"26
37. It is seen from the portion of the decision extracted above that the Federal Court categorised in Dr. Hori Ram Singh (supra), the decisions given under Section 197 of the Code into three groups namely (i) cases where it was held that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it; (ii) cases where more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence; and (iii) cases where stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed. While preferring the test laid down in the first category of cases, the Federal Court rejected the test given in the third category of cases by providing the illustration of a medical officer committing rape on one of his patients or committing theft of a jewel from the patient's person.
38. In Matajog Dobey v. H.C. Bhari a Constitution Bench of this Court was concerned with the interpretation to be given to the words, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in Section 197 of the Code. After referring to the decision in Dr. Hori Ram Singh, the Constitution Bench summed up the result of the discussion, in paragraph 19 by holding : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
39. In State of Orissa through Kumar Raghvendra Singh v. Ganesh Chandra Jew5, a two Member Bench of this Court explained that the protection under Section 197 has certain limits and that it is available only when the alleged act is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The Court also explained that if in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.
2740. The above decision in State of Orissa (supra) was followed (incidentally by the very same author) in K. Kalimuthu v. State by DSP6 and Rakesh Kumar Mishra v. State of Bihar7.
41. In Devinder Singh v. State of Punjab through CBI8, this Court took note of almost all the decisions on the point and summarized the principles emerging therefrom, in paragraph 39 as follows:
"39. The principles emerging from the aforesaid decisions are summarised hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty.
However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with 28 official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
...."
42. In D. Devaraja v. Owais Sabeer Hussain, this Court explained that sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority. This Court also held that to decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty.
43. Keeping in mind the above principles, if we get back to the facts of the case, it may be seen that the primary charge against A-1 is that with a view to confer an unfair and undue advantage upon A-5, he directed PW-16 to go for limited tenders by dictating the names of four bogus companies, along with the name of the chosen one and eventually awarded the contract to the chosen one. It was admitted by the prosecution that at the relevant point of time, the Works Policy of BHEL marked as Exhibit P-11, provided for three types of tenders, namely (i) Open Tender; (ii) Limited/Restricted Tender; and (iii) Single Tender.
44. Paragraph 4.2.1 of the Works Policy filed as Exhibit P- 11 and relied upon by the prosecution laid down that as a rule, only works up to Rs. 1,00,000/- should be awarded by Restricted Tender. However, paragraph 4.2.1 also contained a rider which reads as follows:
"4.2.1 ... However even in cases involving more than Rs. 1,00,000/- if it is felt necessary to resort to Restricted Tender due to urgency or any other reasons it would be open to the General Managers or other officers authorised for this purpose to do so after recording reasons therefor."
45. Two things are clear from the portion of the Works Policy extracted above. One is that a deviation from the rule 29 was permissible. The second is that even General Managers were authorised to take a call, to deviate from the normal rule and resort to Restricted Tender.
46. Admittedly, A-1 was occupying the position of Executive Director, which was above the rank of a General Manager. According to him he had taken a call to go for Restricted Tender, after discussing with the Chairman and Managing Director. The Chairman and Managing Director, in his evidence as PW-28, denied having had any discussion in this regard.
47. For the purpose of finding out whether A-1 acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. Paragraph 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for Restricted Tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect.
48. Shri Padmesh Mishra, learned counsel for the respondent placed strong reliance upon the observation contained in paragraph 50 of the decision of this Court in Parkash Singh Badal v. State of Punjab. It reads as follows:--
"50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
49. On the basis of the above observation, it was contended by the learned counsel for the respondent that any act done by a public servant, which constitutes an offence of 30 cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty.
50. But the above contention in our opinion is far- fetched. The observations contained in paragraph 50 of the decision in Parkash Singh Badal (supra) are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences under sections 420, 468, 471 and 120B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 of the decision in Parkash Singh Badal cannot be taken as carving out an exception judicially, to a statutory prescription. In fact, Parkash Singh Badal cites with approval the other decisions (authored by the very same learned Judge) where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the proposition laid down in Rakesh Kumar Mishra (supra) was distinguished in paragraph 49 of the decision in Parkash Singh Badal, before the Court made the observations in paragraph 50 extracted above.
51. No public servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in paragraph 50 of the decision in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous sanction will thus be rendered redundant by such an interpretation.
52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A- 3, A-4 an A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that 31 the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code.
53. In view of the above, we uphold the contention advanced on behalf of A-1 that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the IPC."
(Emphasis supplied) The offences alleged in the case before the Apex Court were punishable under Sections 468, 420, 471 and 193 of the IPC. The Apex Court holds that sanction under Section 197 of the Cr.P.C.
was imperative for acts performed by public servant even beyond the discharge of official duty. If there is an inextricable link between the positions they held and the acts alleged, sanction is sine qua non for the concerned Court to take cognizance of the offence.
18. It is an admitted fact that there is no sanction in the case at hand placed before the concerned Court for it to take cognizance of the offence. Therefore, on this ground alone, the order taking 32 cognizance and directing enquiry to be conducted would tumble down.
19. In the light of the issue of sanction cutting at the root of the matter, the submissions with regard to proceedings hit by the doctrine of sameness or vicarious liability in criminal law being a bar need not be gone into, as prosecution against the petitioners cannot continue on the score of want of sanction. They are, however, kept open.
20. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Entire proceedings in P.C.R. No.75 of 2021 pending before the XXIII Additional City Civil and Sessions Judge & Special Judge (P.C.Act), Bengaluru, qua the petitioners stand quashed.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C. and the same shall not bind or 33 influence the proceedings against other accused pending before the concerned Court.
Sd/-
JUDGE bkp CT:SS