Md. Quasim Ansari vs State of Bihar and Another

Chandra Mohan Prasad, J.—The petition has been filed u/s 482 of the Code of Criminal Procedure for quashing the order dated 8th January 2003 of the learned Special Judge, Central Bureau of Investigation, South Bihar, Patna passed in Special Case No. 9 of 2000 whereby cognizance of the offence u/s 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act (hereinafter, in short, referred to as the ''Act 1988''), corresponding to Section 5(2) read with Section 5(1 )(e) of the Prevention of Corruption Act 1947 (hereinafter, in short, referred to as the ''Act 1947'') has been taken up. This admitted position in this case that cognizance has been taken without any sanction obtained from the authority competent to remove the petitioner from his office which is said to have been abused by the petitioner and which abuse is said to have constituted the offence for which cognizance has been taken up.

During the argument no other point was raised by the petitioner''s counsel and he confined his argument solely on the point that the impugned order taking cognizance of offence is bad in law due to there being no sanction for prosecution of the petitioner.

The relevant facts of the case are as follows:

The First Information Report of the case was registered at Patna Branch of SPE/CBI on 19th September 2000 on some information that the petitioner, while functioning as Inspector of Central Excise and Customs, Patna and subsequently as Superintendent in the same Department under Patna Collectorate during the period 1981 to 1999 amassed huge wealth allegedly disproportionate to the known source of his income to the tune of Rs. 6.2 lacs approximately. On submission of the charge sheet, the learned Special Judge took cognizance of the offence, vide the impugned order dated 8th January 2003 without any sanction from the authority competent to remove the petitioner from service, as required u/s 19(1)(c) of the Act 1988. After taking cognizance of the offence, issuance of summons against the petitioner-accused for putting him on trial was also ordered. It is the very order dated 8th January 2003 of the learned Special Judge taking cognizance of the offence, which is challenged under the instant petition on the ground that the order is ab initio void as no sanction for prosecution was obtained from the authority competent to remove the petitioner from his office as required u/s 19(1)(c) of the Act 1988. Some other relevant facts, as mentioned in the petitioner''s petition are that the petitioner was appointed as Inspector in the Department of Excise and Customs, Government of India at Patna on 7th December 1976 and subsequently, he was promoted to the rank of Superintendent, Central Excise and Customs, Patna, vide Establishment order No. 193/93 dated 10th August 1993 (Annexure/4). Petitioner was served with a departmental charge-sheet dated 3rd May 1999 (Annexure-5) alleging unauthorised absence from duties for 19 days. A departmental enquiry proceeded and the Enquiry Officer Submitted his report dated 10th November 1999 (Annexure-6) that all the charges, levelled against the petitioner were not proved.

Despite the finding of not guilty submitted by the Enquiry Officer, the petitioner was held guilty by the disciplinary authority and the disciplinary authority dismissed the petitioner with effect from 1st June 2001. The petitioner was dismissed from service by order dated 31st May 2001 (Annexure-7). The petitioner challenged the legality and correctness of the order of dismissal by filing O.A. No. 691 of 2002 before the Central Administrative Tribunal, Principal Bench, New Delhi. After hearing the petitioner and the Department, the CAT. vide its order dated 14th January 2000 (Annexure-8) set aside the impugned order of dismissal dated 31st May 2001. In Annexure-8, the CAT. also directed for reinstating the petitioner within one month from the date of receipt of its order and it was also directed that in the circumstances of the case, liberty was granted to the respondent-department to continue with disciplinary proceedings initiated against the applicant vide Memo dated 3rd May 1999.

In compliance to the order dated 14th November 2002 of the CAT., the Commissioner, Central Excise, Patna vide his order dated 23rd December 2002 (Annexure-9), reinstated the petitioner, but the petitioner was put under deemed suspension with effect from 1st June 2001 till the conclusion of the proceedings initiated against him. Then the petitioner filed an application dated 2nd January 2003 (Annexure-10) for payment of subsistence allowance. Vide order dated 23rd January 2003 (Annexure-11) of the Commissioner, Central Excise, Patna, the petitioner was allowed subsistence allowance for the entire period of deemed suspension with effect from 1st June 2001 to 31st January 2003 and he received the subsistence allowance on 31st January 2003.

Learned counsel for the petitioner argued that the petitioner has been in service of the Central Government, throughout the period of commission of alleged offence and during the period of investigation as also on the date 8th January 2003 on which cognizance was taken by the learned Special Judge, without any sanction of the authority competent to remove him from service. The learned counsel also submitted that the petitioner is still in service receiving subsistence allowance from his Department. It was also pointed out that in compliance to the order of the CAT. for reinstating the petitioner, the petitioner was reinstated on 23rd December 2002 and cognizance of offence was taken on 6th January 2003. Thus, the petitioner was a Government servant on the date when cognizance of the offence was taken against him.

As the question of the petitioner being a Government servant due to having been reinstated on 23rd December 2002, i.e. before 8th January 2003 which is the date of taking of cognizance, learned Standing Counsel for the C.B.I, was unable to deny that the petitioner was not a Government servant on the date of taking of cognizance, but he argued that since during the period when charge-sheet was submitted, the petitioner stood dismissed from service and he was a dismissed Government servant hence any sanction for prosecution was not necessary for submission of charge-sheet and hence, the consequent order of taking cognizance of the offence is not bad. No doubt, the charge sheet can be submitted without any sanction, but the step of taking cognizance cannot be taken without any sanction because the provisions u/s 19(1)(c) of the Act 1988 put a bar in taking cognizance of the offence without sanction.

So far the stand of the learned Standing Counsel that during the period of investigation and submission of charge sheet, the petitioner stood dismissed, it is found that the petitioner was dismissed vide order dated 31st May 2001 (Annexure-7) and the order was set aside by the order dated 14th November 2002 (Annexure-8) of the CAT. with a direction to reinstate the petitioner and vide order dated 23rd December 2002 (Annexure-9) of the Commissioner, Central Excise, Patna, the petitioner was also reinstated and vide order dated 23rd January 2003 (Annexure-11), the petitioner was also allowed subsistence allowance for the entire period of deemed suspension with effect from 1st June 2001 to 31st January 2003 and it is further found that since the dismissal order was set aside and the petitioner was also reinstated though put under deemed suspension, but he was allowed subsistence for the entire period of deemed suspension, hence, it is not proper and reasonable to hold that during the period between the dismissal of the petitioner and the consequent setting aside of the dismissal order by the CAT. and also the reinstatement of the petitioner and allowing him subsistence allowance for the entire period, the petitioner was not a Government servant, at best, a deemed Government servant. In such view of the matter, the petitioner is found to be holding a status of Government servant throughout the period of investigation and submission of charge-sheet and undisputed Government servant since 23rd December 2002, when he was reinstated into service. The cognizance of offence has been taken on 6th January 2003. Section 19(1)(c) of the Act 1988 provides that no court shall take cognizance of offence punishable u/s 7, 10, 13 and 15 of the Act 1988 alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove him from his office. Thus, sanction is a "must", for taking cognizance of the offence. In this case, there is no sanction for prosecution. In the case of Shiv Prakash Trivedi vs. State of M.P., reported in Ed.-2002 Cr. L.J. 1157 (M.P.), it has been held that the taking of cognizance of offence, the crucial date for determination, if sanction is necessary, is the date on which cognizance is taken. In this case, cognizance of the offence was taken on 8th January 2C03 and on that date, there was no sanction for prosecution. Petitioner was a Government servant on that date. Thus, in view of the discussions made above, I find that the impugned order dated 8th January 2003 cannot be sustained under taw due to its being violative of the provisions of Section 19(1)(c) of the Act 1988, which mandatorily requires a sanction of the competent authority before taking cognizance of the offence. Therefore, the impugned order dated 8th January 2003 is hereby set aside and the petition is allowed.