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Judgment
Ilesh J. Vora, J
By this application, under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.” for short), the applicant – original accused Bhayabhai Gigabhai Sutreja, seeks to invoke inherent powers of this Court, praying for quashment of FIR being I-C.R.No.2 of 2020 registered with ACB Police Station, Gandhinagar for the offences punishable under Sections 13(1)(b) and 13(2) of the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as “the PC Act” for short).
The applicant herein was working as Class-I Regional Officer with Gujarat Pollution Control Board and was posted at Jamnagar. The applicant, being a Public Servant, has been charged for the offences punishable under Section 13(2) read with Section 13(1)(b) of the PC Act. Broadly, it is allegation against the applicant that he by abusing his official position as a public servant acquired and or in possession of pecuniary resources or property disproportionate to his known source of income, which he failed to satisfactorily account for.
It is a case of the prosecution that on 10.07.2020, P.I., Gandhinagar ACB received secrete information that the applicant, being a public servant, is travelling from Jamnagar to Gandhinagar having one black suitcase filled with huge amount of cash allegedly obtained by misusing his position as a public servant. A raid was conducted. The applicant when came out from the bus and was about to sit in his private car, he was restrained by police official and on preliminary search, Rs.4,95,813/- unaccounted cash was found from the black suitcase. He was taken to Police Station where necessary entry was being registered and unaccounted amount seized by the police. He was produced before the Court and remanded for substantial period. The police official seized one diary maintained by the applicant, wherein the amount received from the concerned factory owners noted in his handwriting. During the investigation, bank locker jointly owned with the wife was also searched and upon search of the bank locker, unaccounted huge amount of cash worth Rs.55,69,500/- along with gold ornaments worth Rs.72,22,579/- and silver ornaments found and total recovery of Rs.1,27,95,874/- effected during the investigation. During the investigation, the explanation furnished by the applicant herein for the recovery of huge amount and ornaments was not satisfactory as witnesses have either denied or refused with respect to seized cash amount and jewellery.
In the aforesaid facts, the applicant was apprehended in the alleged offences and reserving the rights of the further investigation, as contemplated under Section 173(8) of the Cr.P.C., the chargesheet came to be filed for the offences, as referred above.
The subject FIR and subsequent proceedings of filing of the chargesheet are sought to be quashed on the ground that it is in derogation of newly added Section 17(A) of the PC Act, which provides for prerequisite sanction of the Competent Authority to remove the applicant from his office, before inquiring or investigation into any offence alleged to have been committed by him in his capacity as a public servant under the PC Act.
This Court has heard learned Senior Counsel Mr.I.H. Syed assisted by learned advocate Mr.Suraj Shukla appearing for and on behalf of the applicant, and on advance copy, learned APP Mr.J.K. Shah for the respondent – State.
Mr.Syed, learned Senior Counsel raised the following contentions:
(1) The lodgement of the FIR and filing of the chargesheet is in clear violation of Section 17(A) of the PC Act, whereby inquiry or investigation cannot be undertaken without the prior permission of the Competent Authority where the alleged act is relatable to any “recommendations” made or “decision” taken by the public servant, in the discharge of his official functions or duties and on this count, the proceedings is required to be quashed.
(2) Relying on the guidelines for quashing of criminal complaint laid down in the case of State of Haryana Vs. Bhajanlal (1992 Supp.1 SCC 335), it is contended that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which the criminal proceedings is instituted), to the institution, then the further proceedings cannot be proceeded and it amounts to misuse of process of the Court and law.
(3) The present case does not fall within the purview of the PC Act in any manner, as there was no “demand” or “acceptance” made by the applicant herein when he was intercepted by the police official.
(4) The applicant herein is not at all having any disproportionate assets to his known source of income. The applicant and his wife having huge parcel of land for agricultural purpose at their native village and the amount recovered is pertaining to agricultural produceds. The applicant and his family members have furnished books of accounts and copies of I.T. Returns to show the source of cash amount and jewellery, and therefore, by no stretch of imagination, it cannot be said that the recovered properties acquired by misusing the position as public servant.
(5) The applicant was appointed as public servant in the year 1996 and during the entire career not a single complaint of such kind or otherwise being filed against him, and therefore, the continuation of criminal proceedings will amount to an abuse of process of the Court and without any justifiable reason, the applicant has to suffer immanence mental trauma, humiliation and monetary loss.
In view of the aforesaid contentions, learned Senior Counsel Mr.Syed submitted that considering the peculiar facts and circumstances of present case, case is made out for exercising inherent jurisdiction of this Court and has prayed to quash the impugned FIR and chargesheet filed against the applicant herein.
On advance copy, learned APP Mr.J.K. Shah for the respondent-State vehemently opposed the admission of the petition and contended that Section 17(A) of the PC Act is not applicable to the facts of present case, and therefore, the contentions raised herein are misconceived and cannot be accepted. He further submitted that the applicant, being a public servant during his office, was found in possession of unaccounted huge cash amount and gold jewellery disproportionate to his known source of income and was failed to satisfactory account for, and therefore, the contentions with regard to books of accounts and filing of the I.T. Returns, etc. are disputed question of facts and same can be decided only after full-fledged trial and at this stage, when the averments made in the complaint and chargesheet constitute the ingredients of necessary offence alleged under the PC Act, this Court, at this stage, cannot quash the proceedings.
Having regard to the facts and circumstances of present case, the issue arise for determination is whether the FIR and consequential proceedings are liable to be quashed in exercise of extraordinary and inherent jurisdiction ?
Let us deal with the contentions with regard to bar of Section 17(A) of the PC Act.
Section 17(A) of the PC Act inserted by act of 16 of 2018, with effect from 26.07.2018. The object of legislature is to protect responsible public servant against the institution of possible vexatious any enquiry, or inquiry or investigation into any offence alleged to have been committed under the PC Act where the alleged offences relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties.
Newly inserted Section 17(A) of the PC Act reads as under:
“17-A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties:- (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.‟
A plain reading of Section 17(A) of the PC Act makes it clear that the protection granted to a public servant is limited to any action taken by him, which is relatable to any recommendation made by him or decision taken by him in discharge of official functions or duties. Thus, if the public servant during his duties, takes any decision relatable to the official work or make any recommendation, then Section 17(A) of the PC Act would certainly rescue to the public servant.
In the facts of present case, the applicant, being a public servant, has been charged for the offences punishable under Section 13(2) read with Section 13(1)(b) of the PC Act. There is a specific allegation in the FIR that he has been found with unaccounted cash amount disproportionate to his known source of income. During the course of investigation, further huge unaccounted cash amount, as noted earlier, had been found along with the gold and silver jewellery and the explanation sought was not satisfactory. Thus, chargesheet came to be filed for the “criminal misconduct”. Explanation-1 to Section 13(1)(b) of the PC Act says that a person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf is in possession of or has, at any time during the period of office, been in possession of pecuniary resources or property disproportionate to his known source of his income, which the public servant cannot satisfactory account for.
In light of the legal provisions of the PC Act and considering the peculiar facts and circumstances of present case, the questioned FIR and subsequent investigation thereof was not on the premise of any “decision” nor “recommendation” of the applicant nor he was under scanner of any decision taken during discharge of his official duties, and therefore, in the considered opinion of this Court, the requirement of approval before enquiry, or investigation, as required under Section 17(A) of the PC Act would not apply. The observation made by the Bench of the Delhi High Court in the case of Manoj Prasad Vs. CBI (decision dated 11.01.2019 passed in WP (Cri.) No.3292 of 2018) is relevant to refer, which reads as under:
“36. The bar to enquiry or investigation under Section 17A of the PC Acct is apropos such alleged offence as may be relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties. In the present case, there is no recommendation or decision on record by a Public Servant in the discharge of his official functions. .The purpose of Section 17A can be read to be only to provide protection to officers/public servants who discharge their official functions and/or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger. Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.
Amassing wealth by misappropriation or embezzlement is never considered to be in discharge of official duties and it does not seek to protect any person who is involved in garnishing wealth by corrupt means.”
Thus, this Court finds that prima facie the offences alleged do not come within the protective cover of Section 17(A) of the PC Act requiring prior sanction for lodging the FIR as the alleged offence of the applicant would not fall under the category of “recommendation” or decision taken in the discharge of his official duty. The offence does not fall within the scope and range of official duties of the applicant.
The next contention raised is that the pecuniary resources and the property seized having been properly explained by way of furnishing documentary evidence, and therefore, no offence as alleged is made out against the applicant herein.
Before adverting the issue raised herein, let us examine the scope and ambit of power to be exercised by the High Court under Section 482 of the Cr.P.C. to quash the FIR. The Apex Court, in its various judgments, time and again, observed and held that the inherent powers under Section 482 of the Cr.P.C. do not confer arbitrary jurisdiction of the High Court to act according to whim or caprice and same has to be exercised sparingly with circumspection and in the rarest of rare case. The High Court is guided by the allegations made in the complaint or chargesheet and it has be seen, if this allegation constitutes any offence or not and whether resort to criminal proceedings in such circumstances amount to an abuse of process of the Court.
Reverting back to the facts of present case, there is a specific allegation levelled in the FIR that the applicant was found with pecuniary resources and properties disproportionate to his known source of income. The Investigation Agency, after considering the documentary evidence and explanation furnished by the applicant – accused, finds that the applicant intentionally enriches himself illicitly during the period of office. In such circumstances, at this stage, in exercise of powers under Section 482 of the Cr.P.C., this Court cannot enter into merits of the case and conduct a mini trial to examine the documentary evidence produced by the accused.
For the foregoing reasons, the contention, as raised above that Section 13(2) read with Section 13(1)(b) of the PC Act are not attracted, has no any merits and this Court is not in agreement with the contentions raised by the applicant herein.
Thus, it is not a fit case to exercise the powers under Section 482 of the Cr.P.C. to quash the FIR and chargesheet. Resultently, application stands dismissed and it is dismissed at the admission stage.