FANI BHUSAN DAS vs STATE OF ORISSA

Dr.D.P.Choudhury, J.

These applications have been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “the Codeâ€) to quash the

orders dated 02.12.2003 and 12.02.2004 of taking cognizance of offence under Sections 13(2) read with Section (1)(d) of the P.C. Act and under

Section 120-B of the Indian Penal Code (in short „the IPC‟) passed by the learned Special Judge, Bhubaneswar in T.R. No.26 of 2003 and

issuance of process against the present petitioners. Since these applications arise out of the above common orders of taking cognizance though

preferred by two accused persons, they are being disposed of by this common judgment.

The factual matrix leading to the case of the prosecution is that there was a proposal for construction of “Toshali Plaza†(a multi storied

building) in the year 1990. The State Vigilance, after getting information that certain irregularities have been committed while giving tender to the co-

accused M/s.M.K.Jena, a private contractor, enquired about the matter. At that time, co-accused Nalini Kanta Mohanty was the Minister of Housing

and Urban Development Department. Orissa State Housing Board (in short “OSHBâ€) was entrusted to make proposal for construction of the

said building after selecting the contractor and after due approval of the State Government in Housing and Urban Development Department, the

construction work to commence.

It is alleged inter alia that the tender was called by the OSHB where three contractors including the co-accused M.K.Jena participated. Since said

M.K.Jena has quoted more price in the first instance, his bid became L-3. After revision of the offers of the contractors, the bid of M.K.Jena also

became L-3. On 31.8.1990, all the contractors were asked to negotiate and after negotiation, the bid of M/s.M.K.Jena was L-2 and bid of M/s.Unit

Construction Co. (P) Limited remained as L-1.

However, the Chairman of OSHB ignoring the L-1 bid on flimsy grounds, recommended the bid of L-2 for award of the contract. At that time,

petitioner-Chitta Ranjan Pal, being Secretary of OSHB, has suggested to recommend the bid to M/s.M.K.Jena, L-2 bidder. But said recommendation

of the OSHB was annulled by the then Hon‟ble Chief Minister. Thereafter, again the tender was called for. This time, three contractors submitted

their bids and the bid of M/s.M.K.Jena at Rs.10,25,48,275/-, which was 33.28% excess of the estimated cost and during negotiation, M/s.M.K.Jena

reduced it‟s rate to Rs.10,23,77,565/-, i.e, 33.06% excess over the estimated cost and in the process, its bid was sent to the Government for approval

on 29.6.1991.

Be it stated that the Jointer Secretary to Government in Housing and Urban Development Department ( H & U.D.) placed the file on 5.7.1991 to

the petitioner-Fani Bhusan Das, who was then Secretary of the Department and he instead of endorsing the file to the Minister of State, directly sent

the file to the co-accused Nalinikanta Mohanty, Cabinet Minister of H & U.D. Department on the same day with his signature. On 6.7.1991, the

Minister approved the same. As the conspiracy was hatched shed out for giving favour to the co-accused M/s.M.K.Jena by the OSHB in the first

instance and also in the second instance, the FIR was lodged by the D.S.P. Vigilance, Cell(D), Cuttack on 4.8.95 to prosecute seven persons including

the present petitioners for the commission of offence under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988 and Sections 120-B/420 of

IPC.

The investigation was proceeded, documents were seized, witnesses were examined and after completion of the investigation, charge-sheet was

submitted against the present petitioners and other coaccused persons including the then Cabinet Minister in-charge, namely, Nalinikanta Mohanty

It is also the case of the petitioners that after submission of the charge-sheet, learned Special Judge, Vigilance, Bhubaneswra took cognizance of

the offence under Section 13(2) read with Section (1)(d) of the P.C.Act and issued process vide his order dated 2.12.2003 and subsequently, vide

order dated 12.2.2004, he took cognizance of the offence under Section 120-B of IPC by observing that he had not taken cognizance of the said

offence inadvertently although prima facie case under Section 120-B was made out against the present petitioners.

SUBMISSIONS

Mr. M.K. Mohanty, learned counsel for the petitioner-Fani Bhusan Das in CRLMC Nos.258 and 696 of 2004, submitted that charge sheet although

has been submitted by adding section 120-B I.P.C., but the learned trial court did not take cognizance of such offence, but later on took cognizance of

the offence by adding the same to the offences under which cognizance has been taken at the first instance and such procedure of taking cognizance

of offence under Section 120-B I.P.C. is absolutely illegal. He further submitted that the contents of the charge sheet are only meant for the first

tender which was cancelled by the Hon‟ble Chief Minister. Moreover, there is nothing found from the record that the present petitioner is involved in

tendering process and approval of the tender recommended by the O.S.H.B. He further submitted that as per instruction of then Minister-in-charge,

the Joint Secretary-cum-Director placed the part file where the present petitioner has no any role except placing the matter to the Hon‟ble Minister-

in-charge. Further he submitted that the present petitioner has already given opinion that the L-1 bid may be approved, because that is the

recommendation of the O.S.H.B. In any circumstances, the present petitioner cannot be held responsible either for the offence under Section 13(2)

read with 13(1(d) of P.C. Act or under Section 120-B I.P.C.

Mr. Mohanty, learned counsel for the petitioner-Fani Bhusan Das further submitted that the Scheme was approved or not, is not the question,

because the proposal of the O.S.H.B. has been mooted out being its project, but not of the State Government. The present petitioner has no role than

only to place the matter before the learned Minister-in-charge for acceptance of the tender and its learned Minister-in-charge was to take final

decision. Moreover, in this case sanction under Section 197 Cr.P.C. has not been obtained to prosecute petitioner, for which order of taking

cognizance is bad and illegal.

Mr. Mund, learned counsel for the petitioner-Chita Ranjan Pal submitted that the petitioner being the Secretary of the O.S.H.B., has participated in

the Tender process to select co-accsued-Mr. M.K. Jena, but said report of that Committee was not accepted and annulled by the then Hon‟ble Chief

Minister. Subsequently when the Tender Committee was formed, the petitioner was not there in the Committee and by that time the petitioner was

transferred. He further submitted that in the present case, the offence under Section 120-B I.P.C. has been added for the second time which is not

permissible under law. He also submitted that sanction under Section 197 Cr.P.C. is necessary for taking cognizance for the offence under Section

120-B I.P.C., for which the impugned order is illegal and improper.

Mr. Pani, learned Standing Counsel for the State Vigilance Department in respect of CRLMC Nos.258 and 696 of 2004 submitted that the State

Government has got absolute role while approving recommendation of the O.S.H.B. to finalise the tender. In the instant case the Hon‟ble Chief

Minister after cancelling the first tender, the second tender was called for. For the second tender State have got role either to allow or reject the

tender. Since the present petitioner was the Secretary of the concerned Department, submitted proposal to the Minister-in-charge to approve the

tender recommended by the O.S.H.B., the conspiracy angle of the present petitioner cannot be denied. Moreover, when the project before its

approval has been set under tendering process, the petitioner being Secretary of State Government should have brought out this fact to the notice of

learned Minister-in-charge. He further submitted that the Joint Secretary has clearly mentioned in the office note that for project the Tender

Committee was formed and it is for the State Minister to take a decision in the matter. But the present petitioner instead of sending the file to the

learned State Minister, has sent it to the learned Cabinet Minister who is a co-accused in this case. So, conspiracy of the present petitioner in the

matter cannot be ruled out.

Mr. Pani, learned Standing Counsel for the Stated Vigilance Department, in respect of CRLMC No.2626 of 2007, submitted that it is a fact that

the petitioner was not the Secretary of the O.S.H.B. during second tender call and by that time he was transferred. According to him, the present

petitioner since has become a party to the earlier Tender Committee which was cancelled by the Hon‟ble Chief Minister, he has got also prima facie

role in the case of prosecution.

DISCUSSIONS

It is admitted fact that the petitioner-Chitta Ranjan Pal was the Secretary of the OSHB. It is not in dispute that he was involved in first tender

process while it was discussed and allowed in favour of the coaccused M/s.M.K.Jena even if he is the second lowest bidder.

The concerned tender file was called for by this Court and on going through the same, it appears that the other bidder, namely, M/s.Unit

Construction Limited was not selected in the tender process as its performance and dealings were not known to the Department. It further appears

from the file that as per the P.W.D. Code, a bidder if at all not able to show his prior acquaintance or expertise about his performance or dealings in

any project, he would not be qualified for bid. However, the present petitioner-Chitta Ranjan Pal has recommended the name of M/s.M.K.Jena to get

the bid for the construction of “Toshali Plazaâ€. Accordingly, the matter was moved to the Government but at Government level, the then Hon‟ble

Chief Minister rejected the proposal.

After rejection of the proposal, the tender in question was again called for. It is admitted by the learned Standing Counsel for the State Vigilance

that the tender when called again, the petitioner-Chitta Ranjan Pal was not the Secretary of OSHB and he has been transferred by then. It is only

contended by Mr.Pani that when the petitioner is involved in the first tender process and recommended the name of L-2 ignoring the name of L-1 and

he has also been charge-sheeted, for that the order of taking cognizance is not bad in law.

Here, the entire case revolves around the tender process of third time. As it appears from the FIR that for the third time, the bid amount was

excessively higher than the estimated price of the bid fixed in the year 1990, which is just one year before the third term of bid. However, since the

first tender process has been cancelled and it was made in a less price than the final one and by the final tender, the petitioner-Chitta Ranjan Pal

transferred, prima facie case against him cannot be said to have been made out.

In respect of the petitioner-Fani Bhusan Das, challenge has been made to the order dated 02.12.2003 of taking cognizance of offence under

Sections 13(2) read with Section (1)(d) of the Act, 1988 in CRLMC No.258 of 2004 and the order dated 12.2.2004 of taking cognizance of offence

under Section 120-B of IPC in CRLMC No.696 of 2004 and issuance of summon thereby. The impugned order dated 2.12.2003 is as follows:

“Order dt.2.12.2003:-

Charge sheet in BBSR (Vig.) G.R. 124/99 along with other connected papers is received from A.C.J.M., BBSR and put up. Perused the record. As

there is prima facie U/s 13(2) r/w (1)(d) of the P.C.Act. Cognizance is taken. Issue summons to the accused persons fixing 19.1.2004 for appearance

of the accused.â€​

The aforesaid order does not disclose that cognizance of offence under Section 120-B of IPC was taken on that date although charge-sheet has

been filed for commission of offence under Sections 13(2) read with Section (1)(d) of the Act, 1988 read with Section 120-B of IPC. It appears that a

petition was filed by the prosecution on 12.2.2004 to add Section 120-B of IPC as the cognizance of the said offence has not been taken on 2.12.2003

and basing on that petition, learned Court below has passed the following order on 12.2.2004:

“Order dated 12.2.2004:-

The record is put up on the strength of advance petition filed by the learned Spl. P.P., Bhubaneswar. He also filed another petition mentioning that as

there is sufficient evidence against the accused persons, charge sheets U/s 13(2), P.C. Act and 120-B I.P.C. have been filed. But the Court has taken

cognizance of the offence U/s 13 (2) P.C. Act only on 2.12.03 and perhaps inadvertently did not take cognizance of the offence U/s 120-B, IPC. On

perusal of record, it appears that there is also material against the accused persons U/s 120-B IPC and inadvertently cognizance for this offence has

not been taken on 2.12.03. Hence, cognizance U/s 120-B IPC is also taken against all the accused persons. Put up on the date fixed.â€​

The aforesaid order shows that the learned Special Judge admitted that inadvertently cognizance of offence under Section 120-B has not been

taken but there are materials against the accused persons for such offences. So, he also took cognizance of offence under Section 120-B of IPC on

that day.

The challenge has been made to the order adding Section 120B of IPC later on the ground that the Court has already applied his judicial mind and

found a prima facie case under Section 13(2) read with Section (1)(d) of the Act, 1988 and subsequent order of taking cognizance of offence under

Section 120-B of IPC amounts to reviewing the order, which is not permissible under the Code. Learned Standing Counsel for the Vigilance submitted

that it is not rewriting of the order but it is an order adding Section 120-B of IPC when there is already material against the petitioners. Section 362 of

the Code shows that save and otherwise provided by the Court or by any law for the time being in force, no Court, when it has signed its judgment or

final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. So, there should be test to find out

whether it is a final order or a judgment.

Now the question arises whether the order of taking cognizance and issuance of a process is an interlocutory order or not. The term

“interlocutory order†is used in a restricted sense. It denotes an order of purely interim or temporary nature. It is not always converse of the term

“final orderâ€. An order which overrides important rights and liabilities cannot be termed as “interlocutory order†as reported in the case of

Amar Nath and others â€"V- State of Haryana and others; AIR 1977 SC 2185. Thus, on the other hand, an interlocutory order does not finally dispose

of the rights of the parties. It would be difficult to provide a straightjacket formula. The real test would be that if the judgment/order disposes of the

rights of the parties, it would be a final order. If it does not dispose of the rights of the parties, it would be an interlocutory order. Now, the order of

taking cognizance of the offence is not deciding the rights of the parties finally. So, it is an interlocutory order but not a final order. Hence, Section 362

of the Code would not apply to the impugned order dated 2.12.2003. Apart from this, the order of taking cognizance passed on 12.2.2004 is also

considered after application of judicial mind by the learned Special Judge with regard to Section 120-B of IPC. So, the cognizance of offence under

Section 13(2) read with Section (1)(d) of the Act, 1988 as has been taken on 2.12.2003 has to be read along with order dated 12.2.2004 where

cognizance of offence under Section 120-B of IPC was taken and as such, they cannot be read separately to make the later one is an substitute for a

former one. Hence, the contention of the learned counsel for the petitioners, in the facts and circumstances of the case, is brushed aside.

It is clear from the FIR and CD that the present petitioner-Fani Bhusan Das was the Commissioner-cum-Secretary of the H & U.D. Department.

The tender process was actually conducted by the OSHB, which is an institution created under the statute, i.e, Orissa Housing Board Act, 1968 (in

short „the Act, 1968‟). Under Section 17(1) of the Act, 1968, the OSHB can undertake housing schemes. Under such scheme, OSHB has

undertaken to construct the multi storied building, namely, “Toshali Plaza†at Satyna Nagar, Bhubaneswar. Section 17 of the Act, 1968 is as

follows:

“17.Powers and duties of Board to undertake housing Schemes:-

(1) Subject to the provisions of this Act and subject to the control of the State Government, the Board may from time to time, incur expenditure and

undertake works in any area for the framing and execution of such housing schemes as it may consider necessary.

(2) The State Government may, on such terms and conditions as they may think fit to impose, entrust to the Board the framing and execution of any

housing scheme whether provided for by this Act or not, and the Board shall thereupon undertake the framing and executing of such scheme as if it

had been provided for by this Act.

(3) The Board may, on such terms and conditions as may be agreed upon and with the previous approval of the State Government, take over for

execution any housing scheme on behalf of a local authority or Co-operative society or on behalf of an employer when the houses are to be built

mainly for the residence of the employees of the concerned local authority, co-operative society or the employer and any such scheme shall be

executed by the Board as if it had been provided for by this Act.â€​

The aforesaid provision is clear to show that only with the approval of the State Government, the OSHB would undertake to incur an expenditure

and work in an area. Section 18(g) of the Act, 1968 shows that the Housing Scheme includes the construction and reconstruction of buildings. So by

reading Section 17 and 18(g) of the Act, 1968, it is clear that only after approval of the project or housing scheme, the OSHB would undertake

construction/reconstruction of the building.

In the instant case, the FIR, CD and statement of witnesses recorded during investigation show that the OSHB had proposed to the housing

scheme, namely, “Toshali Plazaâ€. For that, the tender was called for at the first instance and in that tender, there were seventeen bidders and out

of that, three bidders at pre-qualified stage, were selected. It is further revealed from the material and the concerned case record that the co-accused

M.K.Jena was the third lowest bidder. Although he was third lowest bidder, his case was forwarded at first to undertake the work but the then

Hon‟ble Chief Minister did not approve the tender. Subsequently, another tender was called for and the same was also not successful. It is alleged by

the prosecution that the third tender was called for and the same was done in a manner so that sufficient time was not given to receive better

competitive offers. The co-accused M.K.Jena has got the only lone bid of course with higher price of Rs.10,25,48,275.00, which is more excess than

the previous bid amount. It is revealed from the material on record including the concerned seized file relied upon by the prosecution that the co-

accused Nalinikanta Mohanty being in-charge of the Housing and Urban Development Department as Minister, has asked the Joint Secretary to put

up the tender file for approval in favour of co-accused M.K.Jena as sent by the OSHB and accordingly the Joint Secretary R.N.Rath placed the file

through the petitioner-Fani Bhusan Das, who was the Secretary of the Department and admittedly, the petitioner-Fani Bhusan Das wrote that lowest

tender may be accepted along with the Scheme at Flag-„A‟ of the concerned file for kind consideration. It is pertinent to note that the Joint

Secretary-cum-Director Housing has clearly mentioned that the Scheme in question has not been approved by the Government as the said file was

with the Minister of State, H & U.D.

Department for approval of the same. So, he suggested to approve the scheme and then to approve the lowest tender of Sri M.K.Jena. Such proposal

was sent to the present petitioner-Fani Bhusan Das on 5.7.1991. Of course, the note of the Director shows that as desired by the Minister, the file is

placed before him but while the present petitioner, being the Secretary, has sent the file to the Minister, should have brought all the facts, as stated by

the Director, about non-approval of the Scheme “Toshali Plazaâ€, which is the condition precedent for approving the tender. But instead of doing

that, he straight suggested for acceptance of the lowest tender along with approval of the scheme on the same day, i.e, on 5.7.1991. On the next day,

co-accused-Nalinikanta Mohanty then Minister, H & U.D. approved the same.

It is revealed from the same file that on 9.4.1991, the Joint Secretary to Government-cum-Director of Housing has placed the proposal of the

Board before the petitioner to approve the Scheme as required under Sections 17(1), 54(1) and 15(1)(a) of the Act, 1968. The file has also been sent

by the present petitioner on 17.4.1991 to the Minister (S), Works, Housing and Urban Development Department. The Minister of State sent the file to

the co-accused Nalinikanta Mohanty on 9.9.1991. That proposal was approved by the co-accused Nalinikanta Mohanty on 21.09.1991.

The aforesaid scenario clearly shows the Scheme has been approved twice once on 6.7.1991 while approving the Scheme and the lowest tender

of M.K.Jena and secondly on 21.9.1991. It shows that Minister of State has kept the file and sent the same only after five months of keeping the

same with him to the then co-accused-Nalinikanta Mohanty, then Cabinet Minister. But it would be deemed that on 6.7.1991, the Scheme along with

lowest tender has been accepted. No doubt, Rules of Business of Government of Orissa shows that the Minister-in-charge or the Minister of State-in-

charge of a Department or a branch or branches thereof shall be primarily responsible for the disposal of business appertaining to department or

branch. When the Minister-in-charge has approved the Scheme and also the tender, it cannot be said that it has not been approved by the State

Government. Whether, the file should have gone to Cabinet or not is the discretion of the Minister concerned. Of course, when the file is pending for

approval of the Scheme with the Minister of State before the file is placed for approval of the Scheme along with the approval of the tender, it should

have been brought on record by the Secretary-in-charge. Every senior officer is supposed to bring the facts into notice of the Minister otherwise the

assistance, as required by the Minister, would be lacking. It is important to note that mere placing of file before the Minister as per the advice of the

Minister is not the ground to exonerate his liabilities because it is for the Secretary to place the entire facts even if with the repeated notes of the next

below officer. In spite of the noting, if at all the Minister direct for discussion and with discussion, he spells out some matter then it would have been

prudent for the concerned Secretary or Commissioner to do the needful. Every now and then, shifting of responsibility of the concerned Minister will

not shift his responsibility or liability but it would only show sharing the intention of the concerned Minister. Something has happened in this case.

Whether the present petitioner has got intention or not but since he has sent the file after giving his remark, the concerned Minister, who is co-accused

in this case, has approved the same. Mere endorsement to the note of the next below officer would mean the negligence but any opinion without

giving the reasons of a senior officer would not be enough to get away from the liability prima facie.

In terms of the above discussion, the prima facie case under the relevant Sections of the Act, 1988 cannot be said to be non-application of judicial

mind by the learned Special Judge, Vigilance. But, here one aspect has come up that sanction has not been obtained because the petitioner-Fani

Bhusan Das is a senior officer to have acted purportedly in discharge of his duty. On the other hand, the act complained of has got nexus with the

discharge of the duty as public servant. 28. Sections 13(1)(d) and 13(2) of the Act are as follows:

“13.(1)- A public servant is said to commit the offence of criminal misconduct:-

d) if he,â€

(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

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but

which may extend to ten years and shall also be liable to fine.â€​

In terms of the above discussion, when the petitioner-Fani Bhusan Das, being the Secretary of the Department, recommended for acceptance of

the lowest tender along with the Scheme to the Minister concerned, who is also co-accused in this case, without examining the pros and cons of the

tender cannot be said to have no role for sanctioning of the tender for the co-accused M.K.Jena proves prima facie case under the provisions of the

Act, 1988. The subsequent conduct of Fani Bhusan Das can be also taken into consideration because the file when mooted out the Finance

Department for giving the Government guarantee of Rs.957.43 lakhs, the Finance Department, after many queries from the Administrative

Department headed by the present petitioner, approved the guarantee but that guarantee has also been approved at the level of the Chief Minister.

Also it appears from the concerned file that after retirement of the present petition, the matter has also re-agitated by the Department and it went to

the Chief Minister. Now the doubt raised in the mind why the file was not moved to the Chief Minister to get the approval of the Scheme and the

tender as was a tender of more than Rs.10.00 corores. The Minister concerned has got role by not sending the file to the Chief Minister but the note

should have been put up by the present petitioner by enlightening the provisions so that it could have gone to the Chief Minister, if necessary to the

Cabinet for approval. Learned counsel for the petitioner submitted that the approval has been made by the Hon‟ble Chief Minister and the Cabinet but

the file does not disclose so. On the other hand, the conduct of the petitioner is also found by further progress in the tender where the estimate has

been revised to Rs.1928.46 lakhs on the proposal of the OSHB. Be that as it may, when it is at the stage of taking cognizance of the offence, merits

of the case needs no further discussion, but the material available on record including the concerned file cannot deny the prima facie case against the

present petitioners. Hence on merit, the impugned order of taking cognizance of the offence under the Act, 1988 is to be sustained.

Now, the question arises about the sanction for prosecution of the offences against the present petitioner before taking cognizance of the offences,

as raised by the learned counsel for the petitioner.

Learned counsel for the petitioner submitted that admittedly here is no sanction obtained for prosecuting the petitioner-Fani Bhusan Das. The

question of sanction against the petitioner-Chitta Ranjan Pal does not arise as on merit, as discussed above, no prima facie case is made out as the

first tender was annulled and pecuniary benefit has been given to co-accused-M.K.Jena. So far the petitioner-Fani Bhusan Das is concerned, learned

counsel for the petitioner submitted that the petitioner retired from service on 28.2.1995 on attaining the age of superannuation and the FIR was lodged

on 4.8.1995. But the cognizance of the offence was taken on 2.12.2003 for the offence under the Act, 1988 and for the offence under the IPC,

cognizance was taken on 12.2.2004. He submitted that the Hon‟ble Supreme Court in the case of State of Punjab â€"V- Labh Singh; (2014) 16 SCC

807, has made it clear that the protection under Section 197 of the Code would applicable to the retired Government servants in respect of the

offences punishable under the Indian Penal Code. In that case, the Hon‟ble Supreme Court did not approve the action of the State in such case to

wait till retirement of the Government servant and then file charge-sheet so as to stop the protection available to the accused under Section 19 of the

Act, 1988. He, therefore, submitted that the action of the State by not obtaining the sanction makes the entire impugned order of taking cognizance

vulnerable.

Learned counsel for the petitioner also relied on the decision of the Hon‟ble Supreme Court in the case of N.K.Ganguly â€"V- Central Bureau of

Investigation, New Delhi; (2016) 2 SCC 143 where Their Lordships have quashed the proceeding for the offence under Section 120B of IPC read

with Sections 13(1)(d) and (2) of the Act, 1988 due to lack previous sanction. He also relied on the decisions of this Court in the case of Birabar Sethi

@ Birendra Sethi â€"V- State of Orissa; 2012 (II) OLR 697 and Prakash Mishra â€"V- State of Odisha and others; 2015 (II) OLR 93.

Per contra, Mr.Pani, learned Standing Counsel for the State Vigilance, relying upon the decision of the Hon‟ble Supreme Court in the case of

State of Tamil Nadu â€"V- M.M. Rajendrawn; (1998) 9 SCC 268, State of Kerala â€"V- V. Padmanabhan Nair; 1999 (II) OLR (SC) 334,

P.K.Pradhan â€"V- State of Sikkim represented by the Central Bureau of Investigation; 2001 Cril LJ (SC) 3505, Raj Kishore Roy â€" V- Kamleswar

Pandey & another; (2002) 23 OCR (SC) 510 and State of Orissa â€"V- Debendra Nath Padhi; AIR 2005 SC 359, submitted that although question of

sanction arises but the same can be decided at any stage but the accused facing prosecution under the Act, 1988 cannot claim any immunity on the

ground of sanction after retirement even if the Court takes cognizance after his retirement.

After hearing both sides, it is necessary to find out the position of law in this regard. It is reported in the case of State of Bihar and others â€"V-

Rajmangal Ram; (2014) 11 SCC 388 where Their Lordships, at paragraphs-7 and 8, have observed in the following manner:

“7. The above view also found reiteration in Prakash Singh Badal vs. State of Punjab wherein it was, inter alia, held that mere omission, error or

irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal, it was further held that Section

19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R.

Venkatkrishnan vs. C.B.I. In fact, a three Judge Bench in State of M.P. vs. Virender Kumar Tripathi while considering an identical issue, namely, the

validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh

instead of the authority in the parent department, this Court held that in view of Section 19 (3) of the PC Act, interdicting a criminal proceeding mid-

course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had

been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage

of framing of charge but only after the trial has commenced and evidence is led (Para 10 of the Report).

There is a contrary view of this Court in State of Goa vs. Babu Thomas holding that an error in grant of sanction goes to the root of the

prosecution. But the decision in Babu Thomas has to be necessarily understood in the facts thereof, namely, that the authority itself had admitted the

invalidity of the initial sanction by issuing a second sanction with retrospective effect to validate the cognizance already taken on the basis of the initial

sanction order. Even otherwise, the position has been clarified by the larger Bench in State of M.P. vs. Virender Kumar Tripathi.â€​

It is reported in the case of K.Kalimuthu â€"V- State by DSP; (2005) 4 SCC 512; where Their Lordships, at paragraph-15, have observed in the

following manner:

“15.The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is

lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or

not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned the effect of Section 197, dealing

with question of prejudice has also to be noted.â€​

It is reported in the case of State of Punjab â€"V- Labh Singh (Supra), where Their Lordships, at paragraphs-10, 11 and 12, have observed as

under:

“10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order

of the Special Judge. Unlike section 19 of the P.C Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even

after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000

and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As

laid down by this Court in State of H.P â€"V- Nishant Saree, the recourse in such cases is either to challenge the order of the Sanctioning Authority

or to approach it again if there is any fresh material.

In the circumstances, in our view the order under appeal passed by the High Court is correct insofar as charges under IPC are concerned but

must be set aside as regards charge under P.C Act is concerned.

Before we part, we must record that we do not approve the stand taken by the appellant in the petition. The prosecution cannot keep waiting till a

public servant retires and then choose to file charge-sheet against him after his retirement, thereby setting at naught the protection available to him

under Section 19 of the P.C Act. The appeal thus stands allowed partly. No order as to costs.â€​

It is reported in the case of N.K.Ganguly (Supra), where Their Lordships, at paragraphs-35, 36 and 37, have observed in the following manner:

“35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate

Government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also

important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required

to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge

against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged

offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to

whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking

cognizance and passing an order issuing summons to the appellants for their presence. Answer to Point No.(iii)

36.We have adverted to the contentions advanced by the learned counsel appearing on behalf of both the parties. We find much merit in the

contention advanced by the learned senior counsel & other counsel appearing on behalf of the appellants and accept the same. We accordingly pass

the following order:

For the aforesaid reasons, we set aside the impugned judgment and order of the High Court dated 27.05.2013 passed in Prof. N.K.Ganguly â€"V-

CBI and order and order dated 7.10.2014 passed in Application No. 277KH of 2014 in Special Case No. 18 of 2012 and quash the proceedings taking

cognizance and issuing summons to the appellants in Special Case No. 18 of 2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad, U.P. in

absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of CrPC. The appeals

are allowed. All the applications are disposed of.

With due regard to the aforesaid decisions, it is clear that the sanction for prosecution is necessary under Section 197 of the Code or under Section

19 of the Act, 1988 depending on the facts and circumstances of the case. It is also clear from the aforesaid judicial pronouncements that the question

of sanction can be raised at any stage. But, it is made clear that under Section 197 of the Code that no cognizance of offence can be taken without

there being any sanction for prosecution in respect of the act alleged which has got nexus with the discharge of duty by such public servant who is

removable by the sanction of the State Government or the Central Government. Also it is clear that after retirement of a Government servant, no

criminal prosecution can lie without any sanction for commission of offence under the IPC whereas the offence under the provisions of the Act, 1988

would continue in absence of sanction. A person if in service can claim for sanction for prosecution under the Act, 1988 or under the IPC depending

on the nature of the offence alleged against him.

Now, adverting to the present case, it appears that the petitioner-Fani Bhusan Das has retired from service since 28.2.1995 but the FIR and the

charge-sheet were submitted after his retirement, cognizance of offence under IPC was taken without any sanction order accompanying the

prosecution although such prosecution should not have been made as observed by the Hon‟ble Supreme Court in the case of State of Punjab â€"V-

Labh Singh (Supra). But the prosecution against him will not be defective so far as the offences under the Act, 1988 are concerned without any

sanction of prosecution being obtained. Since the cognizance of offence has been taken after the retirement of the petitioner-Fani Bhusan Das without

any sanction of prosecution obtained for the offence under Section 120-B of IPC, the same would not stand but prosecution under Section 13(2) read

with Section 13 (1)(d) is valid being not defective.

Mr.Mohanty, learned counsel for the petitioner-Fani Bhusan Das further submitted that the FIR was lodged on 8.9.1995 but the petitioner

admittedly has got retired from service prior to that. According to him, the charge-sheet was submitted on 9.5.2003 and the cognizance was taken on

2.12.2003 at first instance and in second instance, on 12.2.2004. He submitted that since the police report submitted much after the retirement of the

petitioner, under the provisions of Orissa Civil Services (Pension) Rules, 1992, the prosecution cannot lie. In support of his submission, he relied on the

decision of this Court in the case of Laxman Prusty â€"V- State of Orissa; 2013 (I) OLR 671 where His Lordship observed that in view of Clause (c)

of Sub-rule (2) of Rule 7 of the said Rule, the criminal proceeding, being started five years after the retirement, such criminal proceeding is not

maintainable. At the same time, learned Standing Counsel for the State Vigilance submitted that in the case of Prahallad Kar â€"V- State of Orissa;

(2000) 19 OCR 231, His Lordship observed that bar created for institution of criminal proceeding cannot govern the field and be treated as period of

limitation for such prosecution in absence of any period of limitation prescribed either in Prevention of Corruption Act or in the Code.

When analyzing the aforesaid two decisions, Rule-7 of Orissa Civil Services (Pension) Rules, 1992 is placed in the following manner:

“7. Right of Government to Withhold or Withdraw Pension-

(1) The Government reserve to themselves the right of withholding a pension or gratuity, or both either in full or in part, or withdrawing a pension in

full or in part, whether permanently or for specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary

loss caused to the Government, if in any departmental or judicial proceedings, the pensioner found guilty of grave misconduct or negligence in duty

during the period of his service including service rendered on re-employment after retirement: Provided that the Odisha Public Service Commission

shall be consulted before any final orders are passed: Provided further that when a part of pension is withheld/withdrawn, the amount of such pension

shall not be reduced below the amount of minimum limit.

(2) (a) xx xx xx xx

(b) xx xx xx xx

(c) 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 event which took place, more than four years before such institution.

(d) 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 proceeding are continued under clauses (a) and (b), a provisional pension as provided in rule

66 shall be sanctioned.

(e) Where the Government decide not to withhold or withdraw pension but order 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. Explanation-For the

purpose of this rule,-

(a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant or

pensioner, or if the Government servant has been placed under suspension from the date of his suspension; 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 of presentation of the Plaint in the Court.â€Explanation (b) in the above provision explains the judicial

proceeding. Such proceeding shall be deemed to have been instituted in case of a criminal proceeding, on the date on which the complaint or report of

a police officer on which the learned Magistrate took cognizance.

In the case of State of Maharashtra â€"V- Keshav Ramchandra Pangare and another; AIR 1999 SC 3846 where Their Lordships, at paragraph-

10, have observed in the following manner:

“10.Relying upon the decision in Kailash Nath (AIR 1989 SC 558 : 1989 Cri LJ 813) (Supra), the learned Single Judge of the Bombay High Court

in Prabhakar Govind Sawant â€"V- State of Maharashtra, 1991 Mah LJ 1051, rejected the contention that the prosecution was barred under Rule 27

of the Pension Rules as it was launched after the period of four years. In that case, the learned Judge also referred to Article 254 of the Constitution

and held that the provisions of the Criminal Procedure Code shall have an overriding effect and shall prevail notwithstanding any provision in the

Pension Rules framed by the State Government. It is unfortunate that the attention of the learned Single Judge was not drawn to the said decisions

which are of binding nature at least as far as the High Court is concerned. That apart, learned Single Judge, instead of jumping into a conclusion solely

based on Rule 27 of the Pension Rules should have examined the relevant provisions of the Code before axing down the criminal prosecution in

respect of serious offences.â€​

With due regard to the aforesaid decision, it is clear that the provisions of the Code shall have an overriding effect and shall prevail notwithstanding

any provisions in the Pension Rules framed by the State Government. That case also refers to similar Rule of the Pension Rules of Haryana Service

Rules. Since the Hon‟ble Supreme is of the view contrary to the view taken by this Court in the case of Prahallad Kar â€"V- State of Orissa; (Supra),

the decision of the Hon‟ble Supreme Court is being followed. Now analyzing the case of the both petitioners, provision of the O.C.S (Pension) Rules,

1992 won‟t give any relief to the petitioner-Fani Bhusan Das.

In terms of the above discussions, the Court is of the view that the order dated 2.12.2003 of taking cognizance by the learned Special Judge,

Vigilance, Bhubaneswar in T.R.26 of 2003 and issuance of summon against the petitioner-Chitta Ranjan Pal in CRLMC No.2626 of 2007 is liable to

be quashed and the Court do so. Similarly, the order dated 12.2.2004 of taking cognizance for the offence under Section 120-B of IPC against the

other petitioner-Fani Bhusan Das in CRLMC No.696 of 2004, being without sanction, is liable to be quashed and the Court do so. But the order dated

2.12.2003 of taking cognizance of the offence under Sections 13(2) read with Section 13(1)(d) of the Act, 1988 and issuance of process thereby

against petitioner-Fani Bhusan Das would continue and the Court direct so.

It is made clear that the learned Court in seisin over the matter, while disposing of the case against petitioner-Fani Bhusan Das, would not be

influenced by any of the observations made hereinabove, but would decide the case on its own merit as per the material available before it. Leaned

Court below is further directed to dispose of the case within a period of two months from the date of receipt of the L CR from this Court. 45. In the

result, CRLMC Nos.696 of 2004 and 2626 of 2007 filed by Fani Bhusan Das and Chitta Ranjal Pal respectively are allowed and CRLMC No.258 of

2004 filed by Fani Bhusand Das is dismissed.

Registry of this Court is directed to send back the LCR along with a copy of this judgment to the Court below forthwith by Special Messenger.

Necessary files and copy of the case diary submitted by Mr.Pani, learned Standing Counsel for the State Vigilance be returned to him on proper