Madho Singh Kushwaha vs State of M.P. and Others

They are heard. This petition has been filed against the order dated 23/2/2012 (Annexure P/1) by which the State of Madhya Pradesh has accorded sanction for prosecution of the petitioner in connection with a case registered at Crime No. 2/2007 for the offences punishable u/s 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 by Police Station State Economic Offence Investigation Bureau, Bhopal in regard to commission of certain irregularities when the petitioner was posted as Sub Engineer in Public Works Department at Dabra, District Gwalior.

The petitioner was working as Sub Engineer in Public Works Department in the State of Madhya Pradesh. After coming into force of MP State Reorganisation Act, 2000 by which a separate State of Chhattisgarh was carved out, petitioner submitted an application that he be allocated to the State of Chhattisgarh. Application of the petitioner was accepted and he was allocated to the State of Chhattisgarh, and consequently, the petitioner was posted as Sub Engineer in Public Works Department Dhamtari Division, Dhamtari vide order dated 16/12/2006. Copy of the posting order of the petitioner has been filed alongwith the petition. The petitioner was prosecuted for an offence when he was posted as Sub Engineer, Public Works Department, Dabra, District Gwalior and the offence to this effect was registered against the petitioner by Police Station State Economic Offence Investigation Bureau, Bhopal at Crime No. 2/07 under sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (for brevity, "PC Act"). The allegation against the petitioner Madho Singh Kushwaha is that he alongwith Executive Engineer Narayan Singh Kansana enhanced costs of construction by a supplementary schedule and excess amount was paid to the contractor, hence, loss was caused to the State. The offence is relating to the period 2002-2003.

State of Chhattisgarh refused to accord sanction for prosecution of the petitioner. Copy of the order passed by the State of Chhattisgarh to this effect dated 15/3/2011 has been filed alongwith the writ petition. However, the State of Madhya Pradesh accorded sanction to prosecute the petitioner vide the impugned order dated 23/2/2012 (Annexure P/1). It is mentioned in the order that although the petitioner is posted at the time of passing of the order in the State of Chhattisgarh, however, in accordance with section 19(2) of the PC Act since at the time of commission of the offence the petitioner was posted in the State of Madhya Pradesh, hence, the State of Madhya Pradesh is competent to accord sanction for prosecution of the petitioner.

Learned Senior Advocate appearing on behalf of the petitioner has contended that the order according sanction for prosecution of the petitioner under the provisions of PC Act is contrary to law. In support of his contention, learned Senior Advocate relied upon Division Bench decision of this Court in R.P. Dewangan Vs. State of M.P.,

Contrary to this, learned Deputy Advocate General appearing on behalf of the respondent No. 1/State and Shri Sushil Chaturvedi, learned Special Public Prosecutor appearing on behalf of respondents No. 1 and 2/Economic Offences Bureau have submitted that in accordance with the provisions of section 19(2) of the PC Act, State of Madhya Pradesh is competent to accord sanction for prosecution of the petitioner. In support of their contentions, they relied on two judgments of Hon''ble the Supreme Court in Parkash Singh Badal and Another Vs. State of Punjab and Others, , and Balakrishnan Ravi Menon Vs. Union of India, (2007) 1 SCC 45.

The point raised in this petition has already been answered by the Division Bench of this Court in R.P. Dewangan (supra). In the aforesaid judgment, in regard to power to accord sanction for prosecution of an employee who was allocated to a particular State after coming into force the State Reorganisation Act the Division Bench has held as under:

It will also be appropriate at this stage to refer to the provisions of Section 197(1) of the Code:-

Section 197. Prosecution of Judges and Public Servants.-

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his officer save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or as the case may be was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

Services of R.R. Chari (supra), who was a public servant under Assam Government, were lent to Central Government and offences under Sections 161 and 165, IPC were allegedly committed whilst in service under Central Government. In this factual scenario, the Supreme Court laid down the following test for determining the Sanctioning Authority:-

What is relevant for the purpose of deciding as to who should give the sanction u/s 197, Cr.PC (as it stood in 1949), is to ask the question: where is the public servant employed at the relevant time? If he is employed in the affairs of the Federation, it must be the Governor-General in spite of the fact that such employment may be temporary and may be the result of the fact that the services of the public servant have been loaned by the State Government to the Government of India.

We cannot resist the temptation to quote the relevant observations made in Para 19 of the judgment rendered in R.R. Chari''s case (supra), as they contain necessary guideline to decide the issue involved in this revision:-

That takes us to the question as to whether the Government of India was competent to grant the sanction even if the appellant was at the relevant time a person employed in connection with the affairs of the Federation. Mr. Chari contends that in the case of the appellant whose services had been loaned by the Assam Government to the Government of India, it could not be said that he was a person permanently employed in connection with the affairs of the Federation and so, clause (a) of Section 197(1) would not apply to him at all. He was a person permanently employed in connection with the affairs of a State and that took the case under clause (b), which means that it is the Governor of Assam exercising his individual judgment who could have accorded valid sanction to the appellant''s prosecution. We are not impressed by this argument. It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a Criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants from frivolous prosecution, vide AIR 1943 18 (Federal Court) . That being the object of the section, it is clear that if persons happened to be employed in connection with the affairs of the Federation, it was the Governor-General who gave sanction and if persons happened to be employed in connection with affairs of the State, it was the Governor.

Therefore, having regard to the fact that at the relevant time the appellant was employed in connection with the affairs of the Federation, it was the Governor-General alone who was competent to accord sanction. Therefore, our conclusion is that the sanction granted by the Governor-General for the prosecution of the appellant is valid.

As an obvious consequence, the State, in connection with affairs of which the petitioner was employed at the relevant point of time, was competent to grant sanction u/s 197 of the Code. However, fact of the matter is that by virtue of sub-section (2) of Section 69 of the Madhya Pradesh Reorganisation Act, 2000, all services prior to the appointed day rendered by the petitioner in connection with the affairs of the State of Madhya Pradesh are deemed to have been rendered in connection with the affairs of State of Chhattisgarh. For a ready reference, the entire Section may be reproduced as under:-

Provisions relating to other services.-(1) Nothing in this section or Section 68 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Madhya Pradesh or to the State of Chhattisgarh u/s 68 shall not be varied to his disadvantage except with the previous approval of the Central Government.

(2) All services prior to the appointed day rendered by a person-

(a) if he is deemed to have been allocated to any State u/s 68, shall be deemed to have been rendered in connection with the affairs of that State;

(b) if he is deemed to have been allocated to the Union in connection with the administration of the Chhattisgarh shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service.

(3) The provisions of Section 68, shall not apply in relation to members of any All India Service.

In view of the deeming fiction created by sub-section (2) (supra), it was only the State of Chhattisgarh, which could accord the sanction u/s 197 of the Code for prosecution of the petitioner.

The Division Bench has clearly held that in view of the deeming fiction created by sub-section (2) (a) of Section 69 of the MP State Reorganisation Act the State competent to accord sanction for prosecution under the provisions of PC Act is the State in which the employee has been allocated, even the offence which is said to be committed by the employee under the PC Act was committed by him when he was posted in another State before his allocation.

In the present case, admittedly the petitioner is posted in the State of Chhattisgarh at the time sanction is accorded for his prosecution. Hence, in view of the Division Bench judgment in R.P. Dewangan (supra), only the State of Chhattisgarh is competent to accord sanction for prosecution of the petitioner in view of the provisions of section 69(2)(a) of MP State Reorganisation Act, 2000.

Learned Deputy Advocate General appearing on behalf of respondent No. 1 State has contended that the Division Bench in the aforesaid judgment has not considered the provisions of section 19(2) of the PC Act, hence, the matter is to be referred for consideration by a larger Bench.

Section 19(2) of the PC Act reads thus:

Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

If we read section 19(2) of the PC Act and also section 69(2)(a) of the MP State Reorganisation Act, 2000, it clearly states that after allocation of an employee to any particular State, the services rendered by the employee prior to allocation shall be deemed to have been rendered in connection with the affairs of the State to which he is allocated. It means, in the present case, the services rendered by the petitioner in the State of Madhya Pradesh, after his allocation to the State of Chhattisgarh, be deemed to be rendered in the State of Chhattisgarh and in that circumstance, the State of Chhattisgarh is competent to accord sanction in regard to prosecution of the petitioner for the offence committed by him under the PC Act prior to his allocation to the State of Chhattisgarh. We are in agreement with the judgment rendered by the Division Bench of this Court in R.P. Dewangan (supra). The judgments relied upon by learned counsel for the respondents are distinguishable in these particular facts of the case.

Learned Deputy Advocate General appearing on behalf of the respondent No. 1 State has further contended that the petitioner has already challenged the action of according sanction in the High Court of Chhattisgarh in regard to his prosecution for the offences under sections 13(1)(e) and 13(2) of the PC Act. Learned Senior Advocate appearing on behalf of the petitioner has denied the aforesaid contention. He further submits that in accordance with the order dated 15/3/2011, copy of which has been filed alongwith the petition, State of Chhattisgarh has refused to accord sanction for prosecution of the petitioner in the aforesaid crime.

We have only considered the point whether the State of Madhya Pradesh is competent to accord sanction in connection with a case registered at Crime No. 2/2007 for the offences punishable u/s 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 by Police Station State Economic Offence Investigation Bureau, Bhopal. However, State of Chhattisgarh is at liberty to act in accordance with law. If any litigation is pending before any other High Court, we would not comment about the same because we have no jurisdiction in that regard.

Consequently, this writ petition is disposed of with the following direction:

That the impugned order dated 23rd February, 2012 (Annexure P/1) according sanction for prosecution of the petitioner in a case registered at Crime No. 2/2007 for the offences punishable u/s 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 by Police Station State Economic Offence Investigation Bureau, Bhopal is hereby quashed.

It is hereby made clear that the State of Chhattisgarh is at liberty to act in accordance with law. Petition is disposed of with the aforesaid direction. No order as to costs