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I have heard the arguments advanced by learned counsel for the parties and have also perused the record of the case.

On two occasions, the case was remanded to the Special Judge, Chandigarh to give a finding whether the acceptance of kickbacks was a part of discharge of official duty or not and for that purpose specific directions were issued on both the occasions by this Court to Special Judge, Chandigarh to go into the nature of alleged offence committed by the public servants. The allegations against the petitioner are that he along with some other officials of Engineering Department, U.T., Chandigarh accepted kickbacks while discharging his official duty and the question was whether acceptance of kickbacks was part of official duty or not for which prior sanction under Section 197 Cr.P.C. was essential or not.

The facts of the case are that Investigating Wing of Income Tax Department, U.T., Chandigarh raided the residence of K.K. Jerath, the then Chief Engineer of Engineering Department, U.T., Chandigarh on 20/21.11.1997. They also raided the residences of the officials of the Engineering Department, Contractors and suppliers and during raids huge amount of cash, jewellery and other documents were recovered which were taken into possession. On the basis of documents, it was found that Dinesh Sharma, Suresh Sharma and Sunil Kalia were working as middlemen between firms and the officers/officials of the Engineering Department. It was also found in the record that illegal gratifications Crl. Misc. No. M-35429 of 2009 (5) (kickbacks) were paid to the officers/officials of Engineering Department, U.T., Chandigarh. There was also entry in the record that the kickbacks were given to certain officers/officials of the Engineering Department and that was given even at the cost of quality of the material. It was also found in the investigation conducted by the Income Tax Department that there was some understanding with KK Jerath and other officials with the Firm to get maximum supply orders in exchange for a commission and for that a sub-standard material was purchased from the Firm. It was a case of the fraud played by the officers/officials of the Engineering Department with the Government for their own personal reasons. Involvement of petitioner-J.C. Gilhotra was also found in the said scam. Even the petitioner gave requirement for supply of material which was not required and that was done with a motive to accept the amount of kickbacks from Sharma Brothers and he caused wrongful loss to the State Exchequer. This was done by him with an intention to cause wrongful gain to himself and his colleagues, who received hefty amount towards kickbacks.

The contention raised by petitioner was that it was a part of official act and was done in the discharge of his official duties, for which prior sanction is required, has no merit. The trial Court has held that receipt of kickbacks can never be said to be an act done in discharge of official duties of a person and in a situation giving of requirement for supply of material which was never required cannot be an act of innocence and honesty. It was done for personal reasons just to accept more kickbacks in the form of commission from the middlemen and for that purpose no prior sanction is required to be obtained before launching prosecution against the petitioner. It was found in the inquiry that supply orders were sent to the Firms for more material, which was in excess of the needs and requirement of the department and it was done with an intention to earn more kickbacks, which cannot be said to be an act relating to discharge of Crl. Misc. No. M-35429 of 2009 (6) official duties. It was done with a clear intention to earn more kickbacks for his benefit, which was a clear cut loss to the Government. Although it was done in the garb of doing an official act but it was for personal benefits only and receipt of kickbacks cannot be said to be an act in official discharge of official duties as it was done purely in the private capacity by public servant.