Madhya Pradesh High Court
Ramraj Prasad Karsoliya vs State Of Madhya Pradesh on 25 January, 2001
Equivalent citations: 2002CRILJ1594, 2001(4)MPHT323
ORDER S.C. Pandey, J.
1. This criminal revision is directed against the order dated 6th April, 2000 passed in Special Criminal Case No. 18/97 by the Special Judge, Bhopal authorised under the Prevention of Corruption Act, 1988 (for short "the Act") to try the cases arising out of the Act.
2. The undisputed facts of the case are that the petitioner was posted as the Managing Director of M.P. Rajya Beej Evam Farm Vikas Nigam (for short "the Nigam"). He is being tried under Sections 7 & 13(1)(d) read with Section 13(2) of the Act because it was alleged that he had taken bribe of Rs. 15,000/- from complainant Karmaveer Singh.
3. The charge-sheet discloses that sanction for prosecution of the applicant as per Section 19 of the Act was granted by the Board on 24-10-97. The sanction order shows that on 22-3-97 when the alleged offence was committed, the applicant was working as Managing Director of the Nigam. It also appears from the sanction that initially he was an employee of the aforesaid Nigam as General Manager (Engineering), and he was posted as a Managing Director in absence of the Managing Director to be appointed under Section 12 of M.P. Rajya Beej Evam Farm Vjkas Nigam Adhiniyam, 1980 (for short "the Adhiniyam"). It appears that there was a discussion in the meeting regarding power to the Board to grant sanction and the Board was advised that it had power to do so. Accordingly, the sanction was granted. It appears that the basis for the legal advise rendered to the Board was perhaps because the applicant was the regular employee of the Nigam and he was governed by the rules framed under the Adhiniyam.
4. After filing of the charge-sheet, the applicant challenged the order passed by the Board saying that he was appointed by the State Government under Section 12of the Adhiniyam and, therefore, the power to grant sanction is with the State Government and not with the Nigam on whose behalf the Board had granted sanction. The learned Trial Judge rejected the contention holding that the sanction was valid. In this revision, the same argument is being repeated on behalf of the applicant to the effect that it was the State Government who was authorised to grant sanction and, therefore, the sanction was invalid in view of Section 19 of the Act.
5. Learned counsel for the non-applicant/State opposed the application and relied on decisions of Supreme Court reported in AIR 1990 SC1976 (Dr. Lakshmansingh Himatsingh Vaghela v. Naresh Kutnar Chandrashankar Jha and Ors) and AIR 1998 SC 1945 (Mohd. Hadi Raja v. State of Bihar and Anr). Both the cases relate to Section 197, Cr.P.C. and do not relate to sanction under the Act and, therefore, these are distinguishable. However, the applicant is a public servant within the meaning of Section 2(c)(iii) of the Act and this fact was not disputed.
6. It may be made clear at the outset that Section 19(1) of the Act would govern the case of the applicant for determining the authority required to grant sanction to prosecute the applicant. It reads as under :--
"19. Previous sanction necessary for prosecution.-- (1) No Court shall take cognizance of an offence punishable under Sections 7,10, 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 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 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."
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7. It may readily be seen that the applicant was not employed in connection with the affairs of the Union or the State. He was an employee of the Nigam from the very inception, therefore, clauses (a) and (b) of Section 19(1) of the Act are not attracted. However, clause (c) of Section 19(1) says that in the case of any other person, the sanction shall be granted by the authority competent to remove him from the office. Therefore, it is necessary to find out in this case the authority who could remove him from the office when the applicant committed the offence and at the time when sanction was granted.
8. It is not in dispute that the applicant was appointed by the State Government under Section 12 of the Adhiniyam which reads as under :--
"If the Managing Director is by infirmity or otherwise, rendered incapable of carrying out his duties or is absent on leave or otherwise, in circumstances not involving the vacation of his appointment, the State Government may appoint another person to act in his place during his absence."
9. It is true that Section 11 of the Adhiniyam provides that the Managing Director shall be appointed by the State Government and ordinarily he shall be deemed to be a whole time officer of the Nigam. It is also provided in Sub-section (2) of Section 11 of the Adhiniyam that the State Government may at any time remove the Managing Director from office without assigning any reason therefor. In the light of provisions of Section 11 of the Adhiniyam, Section 12 has to be interpreted. The applicant was appointed to fill up the vacancy created by the absence of the Managing Director to act as one in his place during his absence. However, the Adhiniyam did not delegate the power of appointment of Managing Director under Section 12 to the Nigam. The Slate remains statutory appointing authority under Section 12 of the Adhiniyam. However brief the period of appointment of Managing Director appointed under Section 12 may be, because the tenure of the Managing Director under Section 12 of the Adhiniyam is governed by the period of absence on part of the Managing Director appointed under Section 11 of the Adhiniyam, it cannot be said that the status of the Managing Director is not conferred by the Adhiniyam upon such person. At best it can be said that he is officiating in the capacity of the Managing Director during absence of the person who used to perform his duties under Section 11 of the Adhiniyam. The applicant cannot be deemed to be a person holding current charge because in that case, the legislature would not be required to frame Section 12 of the Adhiniyam nor do the words of Section 12 indicate that the Managing Director appointed under the leave vacancy shall be deemed to hold the current charge. Therefore, for all practical purposes, the status of a Managing Director appointed by the State Government under Section 12 of the Adhiniyam is akin to that of the Managing Director appointed under Section 11 of the Adhiniyam. His status being at par and the appointing authority being the State Government, it is obvious that the State Government alone is competent to remove him from the office of the Managing Director under Section 12 of the Adhiniyam. The conclusion of this Court is supported by Section 16 of M.P. General Clauses Act, 1957 which is applicable to an Act or Adhiniyam framed by the State legislature. It says that unless a different intention appears, the authority for the time being having power to make the appointment shall also have power to suspend or dismiss any person appointed by it. Nothing has been pointed out to me to show that despite the power of appointment vested in the State Government under Section 12 of the Adhiniyam, the Managing Director, so appointed, could be removed from his office by the Nigam or the Board on behalf of the Nigam. It is another matter that he could be dismissed or removed from his office of General Manager (Engineering, while holding that office as such, by the Nigam or the Board on its behalf. It appears that there was some misgiving in the minds of those persons who rendered the advice to the Board that the power of removal still vested in it despite the fact that the applicant was working as Managing Director appointed by State under Section 12 of the Adhiniyam. The advice rendered was without any legal foundation.
10. In view of the aforesaid discussion, this Court is of the view that sanction granted for prosecution of the applicant under Section 19(1)(c) of the Act was not in accordance with law. This Court sets aside the proceedings pending before the Special Judge as those are held to be without jurisdiction because the Court is not competent to take cognizance of the offence without proper sanction. The revision is allowed.
11. However, it is made clear that the order passed herein shall not prevent the prosecution from filing a fresh charge-sheet after obtaining proper sanction for prosecution of the applicant from the State Government,
12. C.C. as per rules.
13. Criminal Revision allowed.