B.R. Bansar and Another vs Special Police Establishment, Lokayukta

G.D. Saxena, J.—By preferring the aforesaid petition u/s 482 of Cr.P.C., the petitioners, who are public servants, have approached this Court seeking directions against the impugned order dated 8th January, 2013 dismissing their application preferred u/s 197 of Cr.P.C. seeking protection under the Code. The brief facts for consideration and decision of the case are that the petitioners, who were employees of Madhya Pradesh Khadi Tatha Gramodhyog Organization and holding the posts of Inspectors, under Consortium Bank Credit Scheme, on application of one Dev Kishan Lodhi, the beneficiary, prepared a proposal in favour of the applicant for the establishment of brick kiln industry. The loan amount of Rs. 2,28,000/- was sanctioned, but no such industry was established. The amount of loan was not returned by the beneficiary to the organization. On complaint, Police Special Establishment Lokayukta Organization after inquiry lodged the F.I.R. for commission of offences u/s 406 read with Section 120B of I.P.C. and registered Crime No. 12/2008 against the petitioners. After investigation, the charge-sheet without obtaining sanction as required u/s 197 of Cr.P.C. has been submitted before the Court of Special Judge. The trial Judge took cognizance on the charge-sheet papers against the petitioners who were public servants under Sections 21 and 26 of Madhya Pradesh Khadi Tatha Gramodhyog Act. The petitioners raised an objection to the effect that without proper sanction for their prosecution from the concerned department, cognizance could not be taken against them by the court.

The grounds for assailing the impugned order, FIR and subsequent investigation are that the petitioners were at the relevant time employees being appointed under Madhya Pradesh Khadi Avam Gramodhyog Adhiniyam and as per provisions contemplated in Section 26 of the Act, they were declared as ''Public Servant'' within the meaning of Section 21 of the Indian Penal Code. According to the provisions contained in Section 27 of the Act, protection is provided against such action taken under the Act in civil, criminal or any other legal proceedings for the acts purported to have been done or intended to be done in good faith in pursuance of the provisions of this Act/rule/or regulation made thereunder. So, according to the learned counsel, the protection u/s 197 of Cr.P.C. shall always be available to the petitioners, even if they stand retired from services and therefore the sanction order for their prosecution is the requisite condition. In support of his contention learned counsel for the petitioners placed reliance on the decisions in the cases of Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , Raghunath Anant Govilkar Vs. State of Maharashtra and Others, and Chitranjan Das Vs. State of Orrisa 2011 Cri. L.J. 4306 (SC). It is, thus, prayed that the impugned order passed by the trial Judge is erroneous and against the provisions as mentioned above and the same is liable to be set aside vis-�-vis the prosecution against the petitioners is liable to be quashed because no valid sanction for prosecution of the petitioners was obtained from sanctioning authorities and without there being cognizance has been taken by the court.

The reply on behalf of respondent is that the petitioners alongwith beneficiary after collusion facilitated in granting loan under the Consortium Bank Credit Scheme for the promotion of Village Cottage Industries. The petitioners without verifying the formalities necessary for examining the loan forwarded the case for sanctioning to the higher authorities. Resultantly, loan was granted under a scheme for the purpose of establishment of the industry which could not be materialised and the sanctioned loan could not be paid to the organization. On inquiry in to the complaint, the involvement of the petitioners appeared in committing offence of cheating. Therefore, it is submitted that no bona fide intention or good faith appears on the part of the petitioners while purporting to act in the discharge of their duties so assigned to them. It is submitted that for offences of embezzlement and cheating, the provisions of Section 197 of Cr.P.C. as well as 26 and 27 of the Madhya Pradesh Khadi Avam Gramodhyog Adiniysam 1978 would not be attracted. Therefore, it is prayed that the petition filed by the petitioners may be dismissed. Reliance is placed on Rajesh Rajora (Dr.) Vs. State of M.P. and Another, , State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others, , State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, , Central Bureau of Investigation Vs. K.M. Sharan, and The State of Andhra Pradesh Vs. Aravapally Venkanna and Another,

Heard the learned counsel appearing on behalf of the petitioners and the learned Special Public Prosecutor appearing on behalf of the Police Special Establishment Lokayukt, Gwalior at length. Perused the copy of the FIR and the charge-sheet alongwith the documents filed before the Court of Special Judge (Prevention of Corruption) Gwalior (M.P.) alongwith the law applicable to the case at hand.

The question of law to be adjudicated upon in this petition is : Whether or not the sanction was required prior to prosecution or whether the accusation of offence u/s 406 read with Section 120B of I.P.C. can be attached with in the discharge of their official duties and consequently cognizance of the crime at the stage of trial by the learned trial Judge is liable to be quashed ?

In the case of R.P. Kapur Vs. The State of Punjab, , the Apex Court laid down the following principles:

(i) where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

(iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and

(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

Recently, in the case of Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, , the Hon. Apex court observed as follows:-

Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge-sheet filed u/s 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-sheet filed u/s 173 Cr.P.C., the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out.

So, in order to decide whether the continuation of the criminal proceeding would be an abuse of the process of the court, the court should not embark upon a detailed enquiry by thorough appreciation of evidence which can be done at the stage of trial. This being true legal position, we hold that each case is to be decided in the context of its peculiar facts and circumstances and the predominant concern of the court is to secure the ends of justice and to prevent an abuse of the process of the court.

As regards the contention whether the petitioners have committed the offence, in the case of Bakhshish Singh Dhaliwal Vs. The State of Punjab, the Hon. Apex Court observed:-

Those representations contained bogus claims and orders for payment were based on those very claims. The officers who verified the claims wrongly could certainly be held guilty of abetting the appellant by supporting his false representations. It cannot be said that the payments that were made to the appellant were not connected with or induced by the representations made by the appellant himself in his bills. In fact, primarily, it were those representations by the appellant which ultimately culminated in the Government of Burma parting with the money to satisfy those claims put forward by the appellant.

It appears from the charge-sheet filed before the Special Court that at the relevant time petitioners on the application presented by one of the beneficiaries, namely, Dev Kishan Lodhi, passed a proposal for sanction of a loan amount for establishment of brick kiln industry without verification of the documents required for obtaining the loan. On their passing claim to the higher authority, the loan amount of Rs. 2,28,000/- was sanctioned and paid to the beneficiary. No such industry was established. Despite issuing RRC, the amount of loan was not returned by the said beneficiary Dev Kishan Lodhi, to the organization. So, after inquiry into the complaint, Police Special Establishment Lokayukta Organization lodged the F.I.R. for commission of offences u/s 406 read with Section 120B of I.P.C. and registered offences at Crime No. 12/2008 against the petitioners. In the light of the decision in the case of Bakhshish Singh Dhaliwal (supra), prima facie in the opinion of this court offences against the petitioners are established.

The next submission of the learned counsel for the petitioners is that the petitioners being public servants, in the light of provisions of Section 197 of Cr.P.C. prior permission to prosecute them was mandatory but no such permission was obtained from the appropriate authority and therefore in the absence of sanction, the court cannot take cognizance in the matter.

At this stage, it would be useful to reproduce the relevant provisions of law which are as follow:-

Section 15 Prevention of Corruption Act 1988:- Punishment for attempt.- Whoever attempts to commit an offence referred to in clause (c) or (d) of sub-section (1) of Section 13 shall be punishable with imprisonment for a term which may extent to three years with fine.

Section 13.-(1) A Public servant is said to commit the offence of criminal misconduct,-

(c) if he dishonestly or fraudulently misappropriates or otherwise converts or his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,-(i) by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

The limitation of protection provided in section 197 of Cr. P.C. has been broadly considered in Parkash Singh Badal and Another Vs. State of Punjab and Others, in para 35 of the judgment. It reads as under:-

8. The protection given u/s 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. 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 sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. ... This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

It is further observed:

The offence of cheating u/s 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B 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.

Similar view has been taken in Om Kr. Dhankar Vs. State of Haryana and Another, , at page 256. In Army Headquarters Vs. CBI (2012) 6 SCC 228 247, the Hon. Apex court has reiterated its earlier view taken in Prakash Singh Badal (supra) and subsequently thereto. Paras 44 & 45 are relevant and quoted below:-

There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer.

However, performance of public duty under colour of duty cannot be a camouflage to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. It is quite possible that the official capacity may enable the public servant to fabricate the record or misappropriate public funds, etc. Such activities definitely cannot be integrally connected or inseparably interlinked with the crime committed in the course of the same transaction. Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction.

In the light of the above law, it can be held that the act of the petitioners does not fall within the scope and range of the official duties of the public servants and therefore sanction was not necessary in committing such offences. Even otherwise, the question of validity of sanction, absence of sanction, omission or irregularity can be decided at the time of final decision in the case and it is not a proper stage for determination of the same. In this respect it would be useful to refer the decision of the Apex Court in the case of Prakash Singh Badal''s case (supra) wherein it has been held that the question as to absence can be agitated at the threshold of the trial while regarding vitiation has to be raised during trial.

Thus, the special features and the related facts and circumstances as referred to above would manifestly show that the allegations in the complaint are neither patently absurd nor inherently improbable. The respondent has established a prima facie case against the petitioners. The impugned criminal proceeding does not appear to be frivolous, vexatious or mala fide initiated with the oblique motive of exerting pressure upon the petitioners. Hence, on careful reading of the FIR and all the documents filed by the investigating agency and further considering the legal aspects of the present case, as discussed above, we are of the considered view that the ingredients of offence punishable u/s 15 of the Prevention of Corruption Act are made out. At this stage, individual role of each accused can/should not be considered. Of course the petitioners/accused shall have a legal right to defend and prove their innocence by leading cogent and reliable evidence at the proper stage of trial before the trial court. Consequently finding no merits in the petition, same is hereby dismissed.