B.D. Sharma vs State of H.P. and Others

T.R. Handa, J,

The Petitioner seeks the quashing of the. order dated: 19th August, 1985, recorded by the Special Judge, Una, directing that the Petitioner be impleaded as an accused in a Criminal Case pending in his Court, being Corruption Case No. 1 of 1983, under Sections 409, 420, 469, 468, 120-B, 167, 218 and 109 IPC read with Section 5(2) of the Prevention of Corruption Act and in which Respondents No. 2 to 12 are the main accused.

The Petitioner was a member of the Indian Administrative Service (Himachal cadre). He retired from that service in 1982. During the period 14th Nomember, 1974 to May, 1977 he remained posted as Deputy Commissioner, Una.

In November 1973 before the Petitioner had joined at Una, certain Khair trees standing in the Shamlat land which then vested in the Gram Panchayat were auctioned by Gram Panchayat Momaniar falling within District Una. The highest bid in this auction was made by Rattan Chand, Respondent No. 12, at the rate of Rs. 12/- per running foot. This auction was later sanctioned by Gram Panchayat Momaniar vide its resolution No. 12 passed on 15th June, 1974.

After the Petitioner assumed his charge of the office of Deputy Commissioner, Una, a complaint appears to have been received by him to the effect that the aforesaid auction of Khair trees was at an exorbitantly low rate and had been sanctioned by the Gram Panchayat with malafide intention. On that complaint the Petitioner in exercise of his powers vested in him u/s 51(1) of the H. P. Panchayati Raj Act, 1968, suspended the operation of resolution No. 12 dated 15th June, 1974, passed by the Gram Panchayat Momaniar. Simultaneously the Petitioner called for the explantion of the Gram Panchayat. A copy of this order dated 12th December, 1974, passed by the Petitioner was sent to the Director, Panchayati Raj, Himachal Pradesh.

In response to the said order of the Petitioner, the Gram Paachayat furnished explanation justifying the sanctioning of the auction. The penlioner, it appears, was satisfied with this explanation of the Gram Panchayat and he, therefore, wrote to the Director Panchayati Raj that he had no objection if his earlier order dated 12th December, 1974, suspending the resolution of Gram Panchayat was rescinded. The Director Panchayati Raj thereupon rescinded the order dated 12th December, 1974, passed by the Petitioner suspending resolution No. 12 dated 15th June, 1974, of the Gram Panchayat.

After the Petitioner relinquished his charge of the office of Deputy Commissioner, Una, a case under sections 409, 420, 469, 468, 120-B, 167, 218 and 109 IPC read with Section 5(2) of the Prevention of Corruption Act was registered with Police Station, Una, vide F.I.R. No. 140 of 1977 on 3rd November, 1977. This case, of course, related to the auction of Khair trees referred to above and presumably the allegations were that Respondents No. 2 to 12 had in conspiracy with the present Petitioner allowed the sale of Khair trees in favour of the auction purchaser at an exorbitantly low price thereby causing huge financial loss to the Gram Panchayat.

On completion of the investigation of the above mentioned case, the Investigating Officer appears to have come to the conclusion that the present Petitioner was also a party to the conspiracy in pursuance of which offences aforesaid were committed. A reference was accordingly made to the Government for accord of sanctioned to prosecute the Petitioner for the various offences mention in the F.I.R. This reference was, however, turned down by the Government and the refusal of the Government to accord sanction was conveyed to the Inspector General of Police, Himachal Pradesh, vide Government of Himachal Pradesh, Department of Personnel letter No. 3-11/59-DP-Apptt. reproduced below:

No. 3-11/59-DP-Apptt.

Government of Himachal Pradesh Department of Personnel (A-l)

From

Miss S. GanjU Deputy Secretary (Personnel) to the Government of Himachal Pradesh.

To

The Inspector General of Police, Himachal Pradesh, Shimla-171001.

Dated Shimla-2, the 4th November, 1980

Subject: F.I.R. No. 140 dated 5-11-1977 u/s 420/468/467/218/ 120-B IPC and Section 5(1)(a) & 5(2) of the Preven tion of Corruption Act, 1947, registered at P.S. Una . against Shri B.D. Sharma, then posted as Deputy Commissioner, Una and Ors. sanction for prosecution.

Sir,

I am directed to refer to your letter No. Gupatcher Vibhag/78, dated the 21st March, 1979, on the subject cited above and to say that the Government has considered the matter in consultation with the Law Department and has held that no prima facie case has been made out against Shri B.D. Sharma for giving sanction to prosecute him. The case against Shri B. D. Sharma presently Deputy Commissioner Mandi, has been closed.

Yours faithfully, Sd/- S. Ganju, Deputy Secretary (Personnel) to Government of Himachal Pradesh.

It is obvious from the above quoted letter that the sanction to prosecute the Petitioner for the offences mentioned in F.I.R. No. 140 of 1977 was refused by the Government and the case against the Petitioner was ordered to be closed.

Ultimately it was in the year 1983 only and after the Petitioner had retired from service, that a formal charge-sheet in respect of F.I.R. No. 140 of 1977 was filed in the Court of Special Judge. This Petitioner, however, was not named as an accused in that charge-sheet. It was later on 1st April, 1985, that the Public Prosecutor moved an application before the Special Judge praying that the present Petitioner be also impleaded as an accused in the case as he too was involved in the commission of the offences mentioned in the F.I.R. It was explained that the Petitioner could not be prosecuted earlier for want of sanction of the Government and now that he had retired from service, the sanction was no more required for his prosecution. It was on this application of the Public Prosecutor that the learned Special Judge passed the impugned order.

I am unable to appreciate why the charge-sheet was presented after such an inordinate delay in the year 1983 when the investigation of the case had been completed as long back as in 1980 when the reference was made to the Government to seek sanction for the prosecution of the Petitioner. Again there is no plausible explanation why Anr. couple of years were allowed to lapse before move was made to implead the present Petitioner as co-accused in the case. These circumstances do rouse strong suspicion in one''s mind that all this has been done to serve some other end, may be of the Public Prosecutor who on his own made the application seeking prosecution of the Petitioner or some Ors. who are interested in disgracing and harassing the Petitioner. It is not considered necessary to go further deep into this aspect of the case and hence I would leave it here.

The Petitioner in my view is completely protected by the provisions of Section 197 of the Code of Criminal Procedure and in the absence of valid sanction within the contemplation of this provision, the Special Judge was certainly not competent to take cognizance of the offences alleged to have been comitted by the Petitioner and his impugned order is vitiated on this short ground.

Section 197 of the Code of Criminal Procedure reads thus:

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 this 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?-

(a) in the case of a person who is employed or, as the ease 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, or the State Government.

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It is obvious from a bare reading of the plain language of this section that a public servant accused of an offence can successfully claim protection against his prosecution except with the prior sanction of the appropriate Government when the following two conditions are satisfied:

The accused is a public servant of the kind mentioned in the section, that is, a Judge, a Magistrate or a public servant not removable from his office except by or with the sanction of the appropriate Government; and

The offence is committed by the accused while acting or purporting to act in the discharge of his official duty.

Once these two conditions are satisfied it is immaterial whether the offence for which the prosecution is sought falls under the I.P.C. or under any special act since the term "offence" as defined in Section 2(n) of the Code means any act or omission made punishable by any law for the time being in force. Similarly It is also immaterial whether the accused continues to hold his public office or stands removed therefrom since all that the law requires is that he should be a public servant of the category stated above at the time of the commission of the offence and the offence is committed in the discharge of his official duty.

Now in the instant case it cannot be disputed that at the time of the commission of the alleged offences by the Petitioner, he was a public servant not removable from his office save by or with the sanction of the Government. Similarly, there is no scope for dispute that the offences for the commission of which the Petitioner had been directed to be impleaded as an accused vide the impugned order, are alleged to have been committed by him while acting or purporting to act in the discharge of his official duties as Deputy Commissioner, Una. In fact it was precisely for this reason that the prosecution had earlier sought sanction of the Government to prosecute the Petitioner. Both the conditions necessary for invoking the provisions of Section 197 Code of Criminal Procedure thus co-exist in the instant case and the Special Judge, therefore, had no jurisdiction to take cognizance of the offences in question in so far as the Petitioner is concerned without the prior sanction of the Government. Inasmuch as admittedly no such sanction had been obtained, the impugned order is bad and unsustainable in law.

True, that the protection against prosecution as afforded to a public servant by Section 6 of the Prevention of Corruption Act is not available to a person after he ceases to be a public servant but this Section 197 Code of Criminal Procedure is independent of Section 6 of the Prevention of Corruption Act. Whereas Section 6 of the Prevention of Corruption Act is applicable to all types of public servants, Section 197 Code of Criminal Procedure is intended to protect a special category of public servants who are either Judges, or Magistrates or public servants not removable from office save by or with the sanction of the appropriate Government. Otherwise also both Section 197 Code of Criminal Procedure and Section 6 of the Prevention of Corruption Act operate independent of each other and neither of them over-rides the provisions of the other. Merely because the Petitioner after his retirement was no more entitled to the protection against his prosecution as afforded by Section 6 of the Prevention of Corruption Act is no ground to hold that he was not entitled to similar protection available to him u/s 197 Code of Criminal Procedure

Reliance on behalf of the Petitioner was also sought to be placed on Rule 9(3) of the Central Civil Services (Pension) Rules, 1972, in support of the contention that the Petitioner could not be prosecuted for the offences in question when a period of more than four years had elapsed from the date when such offences are alleged to have been committed. Rule 9 of the Central Civil Services (Pension) Rules, is in these terms:

Right of President to withhold or withdraw Pension.- The President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:

Provided that the Union Public Service Commission shall be consulted before any final orders are passed:

Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees sixty per mensem.

2(a) The departmental proceedings referred to in sub- Rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,

(i) shall not be instituted save with the sanction of the President,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose, or in respect of an even which took place, more than four years before such institution.

(4) In the case of Government servant, who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69, shall be sanctioned.

(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.

(6) - For the purpose of this rule,-

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted,-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.

The Rule extracted above is in my view totally irrelevant for the purposes of the question under consideration. This Rule is intended only to regulate and lay down the procedure for the exercise of the powers reserved with the President for withholding or withdrawal of a pension and for ordering recovery from a pension of the pecuniary loss caused to the Government. The right of the President to withhold or withdraw a pension or order for the recovery from a pension of the pecuniary loss suffered by the Government can in terms of this Rule be exercised against a retired public servant only on the ground of proved grave misconduct or negligence while in Government service which grave misconduct or negligence must be established in some departmental or judicial proceedings. It was considered proper that some time limit should be placed for institution of such departmental inquiries and judicial proceedings the result of which could visit a public servant with the panalty of withholding or withdrawing his pension or part thereof for recovery from his pension of the whole or part of any pecuniary loss caused to the Government. It was to provide for such time limit that sub-rules (2) and (3) of Rule 9 were enacted. Sub-rule (2) deals with departmental proceedings while sub-rule (3) deals with judicial proceedings. The bar against institution of judicial proceedings after four years as provided in sub-rule (3) is thus intended only for the purposes of pension in that a charge proved against a public servant as a result of judicial proceedings instituted four years after the event would not be a ground to withhold or withdraw his pension or any part thereof or to order recovery from his pension of any pecuniary loss caused to the Government. This Rule was certainly not intended to take away the jurisdiction of the Courts of taking cognizance of the offences as conferred upon them under the relevant provisions of the Code of Criminal Procedure or any other law. I thus find myself unable to subscribe to the view that Rule 9(3) of the Central Civil Services (Pension) Rules, 1972, would operate as a bar to the prosecution of the Petitioner simply because the prosecution was launched more than four years after the commission of the alleged offences.

In view of my earlier observations that the Petitioner is fully protected against his prosecution by Section 197 Code of Criminal Procedure, I quash the impugned order of the learned Special Judge and direct that the criminal proceedings initiated against the Petitioner consequent to that order be dropped forthwith.