Darshan Lal Arora vs State of Himachal Pradesh

Dev Darshan Sud, J.—Both these revision petitions are being disposed of by a common order since they involve the same set of facts and question of law. The petitioners herein have been charged u/s 13(2) read with Section 13(1) of the Prevention of Corruption Act read with Section 120-B of IPC.

Learned Counsel appearing for the petitioners urges that since sanction for prosecution has been refused by the State, no charge could have been framed. Learned Deputy Advocate General contends that this point can be urged at the conclusion of the trial. This is against the very mandate of the statute and the submission cannot be accepted.

On the question of sanction, in State of Madhya Pradesh Vs. Sheetla Sahai and Others, the Supreme Court holds:-

This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution u/s 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.

(pp.640-641)

It is, thus, clear that for offences under the Prevention of Corruption Act sanction would not be required in case of those who have ceased to be/retired public servants, whereas u/s 197 of the Code of Criminal Procedure the bar for taking cognizance would exist. Submission on behalf of the learned Counsel for the petitioners is that when there is no sanction, the trial Court could not proceed in case sanction is mandatory u/s 197 for offences under the Indian Penal Code and in that event, the entire proceedings require to be quashed and set aside as the offences under the Prevention of Corruption Act and Indian Penal Code are inextricably linked and one cannot be tried without the other. From the law as laid down by the Supreme Court, there can now be no doubt that sanction u/s 197 would be required even if the public servant has retired. I do not find any such sanction on the record rather it is the admitted case of the State that in both cases, sanction was declined by the Sanctioning Authority. Photocopies of the letters have been placed on the record of the case. I, therefore, hold that charge u/s 13(2) read with Section 13(1) of the Prevention of Corruption Act read with Section 120-B IPC cannot continue.

Learned Counsel then contends that even according to the documents filed by the State, no departmental proceedings have been contemplated by the State. In this event, even material which is not placed on the record at the time of framing of charge can be relied upon. He places reliance on the judgment of the Supreme Court in Rochiram and Sons Vs. Union of India (UOI) and Others, There can be no dispute with this proposition of law, more especially, when it is a precedent of the Supreme Court and binding on all. However, I have quashed the charge in the form as it is leaving it open for re-argument before the learned trial Court as to whether a charge independently u/s 13 of the Prevention of Corruption Act can be framed irrespective of adding Section 120-B of IPC. If it is a fact that the State has even declined to initiate departmental proceedings/action against the respondents then all that I need say is that dragging the petitioners into litigation by suppression of documents is gross abuse of the process of law for which the remedy of-course would be action for exemplary damages. Petition is disposed of.