Dharmendra S/o Shankar Singh Pawar vs State of M.P.

This criminal revision under Section 397 r/w Sec.401 of Cr.P.C., has been filed by the applicant/accused against the order dated 28.04.2016, passed in Special Case No.13/2015, by the Special Judge (Prevention of Corruption Act), Satna, whereby the trial Court has framed the charges of offences

u/s 13(1)(d) and 13(2) of Prevention of Corruption Act against the applicant.

Prosecution story in brief is that on 23.01.2015, the complainant Dipak Kumar Lakhera filed a complaint before Special Police Establishment (Lokayukt), Rewa against the applicant who was working as Assistant Revenue Inspector, Nagar Parishad Kothi, Satna for making demand of Rs.10,000/- as illegal gratification for grant of sanction regarding construction of house. After verification of complaint, FIR was registered and a trap was organized. On 25.02.2015,during trap, the applicant was caught red handed with tainted money Rs.10,000/-, which was recovered and seized from his possession and after getting sanction, the charge sheet has been filed before the trial Court.

The trial Court has framed the charges against the applicant for the offences as described in para 1, by passing impugned order against which the present revision has been preferred by the applicant.

Learned counsel for the applicant has submitted that the sanction for prosecution under Sec.19 of Prevention of Corruption Act has been accorded by Chief Municipal Officer (CMO), who is not competent to accord sanction. Sanction could be given by President in Council, who is appointing authority of the applicant. The President in Council has considered the case of applicant and refused to give sanction (Annexure C). Therefore, after refusal of President in Council, subsequent order of CMO granting sanction without applying its mind to the reasoning given by President in Council is neither just nor proper. Thus, the trial Court has committed illegality in passing the impugned order.

Per contra it is submitted by the learned counsel for the Lokayukt, that the President in Council in its resolution dated 19.11.2015, has resolved that if Lokayukt police wants to prosecute the applicant and file the charge sheet in court then they have no objection. This shows that the sanction to prosecute has been given. Later on CMO accorded sanction after considering the facts, evidence and all relevant materials against the applicant. Therefore, the trial Court has rightly framed the charges against the applicant.

Considering the rival submission of learned counsel for the parties it appears that the applicant/accused is public servant, working as Assistant Revenue Inspector, Nagar Parishad Kothi, Satna. He is a Municipal Employee. The impugned order is mainly challenged on the ground that in the case of applicant, the competent authority to give sanction for prosecution u/s 19 of the Prevention of Corruption Act is President in Council, who is appointing authority. CMO has no authority to accord sanction. Therefore, prosecution is invalid for want of sanction. Thus we have to consider the validity of sanction. Section 19 (1) of the P.C. Act reads as follows:- "19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable u/s 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office."

The case of applicant comes u/s 19(1)(c). As per Sec.70 of MP Municipalities Act, 1961, a President in Council has been constituted in every Nagar Parishad consist of President and five members. The Revenue Officer, Revenue Inspectors have been appointed by Council u/s 94 (4) of the Act. The applicant was appointed u/s 94(4) of the Act. MP Municipal Employees Recruitment and Condition of Service Rules, 1968, Rule 49 provides penalties, which can be imposed on municipal employees and Rule 51 provides disciplinary authority. As per Rule 51, the Municipal Council has the powers to impose any of the penalty specified in Rule 49 on any municipal employee holding post specified in sub sec.4 of sec.94 of the Act, and in the case of other municipal employees the standing committee shall have powers to impose any of the said penalty on him.

Thus, from aforesaid provisions, it can be inferred that the President in Council is appointing as well as Disciplinary Authority of the applicant. Therefore, sanction for prosecution can only be given u/s 19 (1)(C) of P.C. Act by council, not by Chief Municipal Officer.

In the present case, the impugned order of sanction has been passed by the Chief Municipal Officer, who is not competent to accord sanction. Therefore, the sanction is not valid. Thus, the applicant cannot be prosecuted for want of valid sanction. The trial Court has committed illegality by holding that the sanction given by CMO is valid. Thus, the impugned order dated 28.04.2016 passed by trial Court, is not sustainable and hereby set aside.

Accordingly, the criminal revision is allowed. Applicant shall stand discharged from the alleged offences.

It is also made clear that we are not making any observation regarding validity and legality of the order and resolution No.48, dated 19.11.2015 passed by President in Council.