Pappu Singh Rajput vs State of Chhattisgarh

Sanjay K. Agrawal, J—Applicant/accused is facing trial for offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (henceforth ''PC Act, 1988''), in which the State Government through its Department of Law & Legislative Affairs had granted sanction for prosecution of the applicant by order dated 16.06.2014 under Section 19(1) of the PC Act, 1988 for the above-stated offences.

The applicant filed an application under Section 19(4) of the PC Act, 1988 stating inter alia that his appointing authority is Department of Revenue, Govt. of Chhattisgarh which is only the authority competent to remove the applicant from service and, as such, the Department of Law & Legislative Affairs has no right and authority to grant sanction for prosecution and, therefore, the application be allowed and applicant be acquitted of the charges levelled against him for want of valid sanction for prosecution.

The Respondent/Anti Corruption Bureau filed its reply stating inter alia that the State Government has taken a policy decision on 28.02.1998 that in cases registered by the Economic Offence Investigation Bureau (for short ''Bureau''), procedure for sanction would be the same as applicable to the Lokayukt Organization, which has been indicated in circular dated 21.04.1997, in which cases for sanction are sent by Bureau to the Department of Law & Legislative Affairs and, in turn, Department of Law & Legislative Affairs would obtain the opinion from the Administrative Department of the concerned officer/employee and, thereafter, the Department of Law & Legislative Affairs, after due consideration, would take final decision granting sanction for prosecution or refusing sanction and, as such, the order granting sanction dated 16.06.2014 by Department of Law & Legislative Affairs, is in accordance with law.

The Special Judge, PC Act by its impugned order rejected the application holding that the Department of Law & Legislative Affairs, Govt. of Chhattisgarh is competent to grant sanction for prosecution against the applicant.

Feeling aggrieved & dissatisfied with order rejecting application under Section 19(4) of the PC Act, 1988, the applicant preferred Criminal Revision No. 689/2014 before this Court but during the pendency of that revision upon framing of charge for offence under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act, 1988, the revision was dismissed as withdrawn with liberty to question the order framing charge.

Questioning the order dated 10.09.2014 rejecting his application under Section 19(4) of the PC Act, 1988 as well as order framing charge dated 30.10.2014, this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure has been filed by the applicant herein.

Shri T.K. Tiwari, learned counsel appearing for the petitioner would vehemently submit that the Department of Revenue, Govt. of Chhattisgarh is only the competent Authority to appoint and remove the applicant from his post of Assistant Grade-III, which he was holding at the time of trap and, as such, the Department of Law & Legislative Affairs, Govt. of Chhattisgarh is incompetent to grant sanction for prosecution against the applicant under Section 19(1) of the PC Act, 1988 and, as such, order granting sanction is without jurisdiction and without authority of law and, therefore, the order framing charge for aforesaid offence in absence of valid sanction for prosecution against the applicant deserves to be set aside. He relied upon the judgment of Supreme Court in case of R.S. Nayak Vs. A.R. Antulay, AIR 1984 SC 684 : (1984) CriLJ 819 : (1984) CriLJ 613 : (1984) 1 Crimes 926 : (1984) 1 Crimes 568 : (1984) 1 SCALE 239 : (1984) 1 SCALE 198 : (1984) 2 SCC 183 : (1984) 2 SCR 495 : (1984) 1 SLJ 347 .

On the other hand, Shri Om P. Sahu, learned Govt. Advocate appearing on behalf of the State of Chhattisgarh/Anti Corruption Bureau would submit that the erstwhile State of Madhya Pradesh has taken a policy decision on 28.02.1998 that the procedure applicable for grant of sanction to Lokayukt Organization would also be applicable for the offences registered by Anti Corruption Bureau, which is indicated in the circular dated 28.2.1998, in which, the cases are sent firstly to the Department of Law & Legislative Affairs and, in turn, the Department of Law sends the entire case for opinion of the Administrative Department of the concerned officer/employee and upon receipt of opinion of the Administrative Department, it is the Department of Law & Legislative Affairs, who takes the final decision with regard to grant of sanction for prosecution and, as such, the order granting sanction by the Department of Law & Legislative Affairs, Govt. of Chhattisgarh is in accordance with law and the charges framed against the applicant is also well merited, which does not call for any interference by this Court under its revisional jurisdiction and revision petition deserves to be dismissed.

I have heard learned counsel appearing for the parties and considered their rival submissions made herein and also gone through the record with utmost circumspection.

The following two questions fall for consideration in this revision, which read thus:-

(i) Whether the order granting sanction for prosecution against the petitioner for offences under Sections 7 & 13(1)(d) read with Section 13(2) of the PC Act, 1988 is in accordance with law?

(ii) Whether Special Judge, PC Act was justified in framing charge against the applicant for offence punishable under Sections 7 & 13(1)(d) read with Section 13(2) of the PC Act, 1988?

Answer to Question No. 1

It is not in dispute that the Department of Law & Legislative Affairs, Govt. of Chhattisgarh by its order dated 16.06.2014 granted sanction for prosecution against the petitioner under Section 19(1) of the PC Act, 1988. The order dated 16.06.2014 clearly records that at the relevant time the applicant was working as Assistant Grade-III in the Office of Tahsildar, Sahaspur Lohara, District Kabeerdham and after trap was conducted & after completion of investigation, the Anti Corruption Bureau, Raipur sent proposal along with necessary documents to the Department of Law & Legislative Affair and, in turn, Department of Law & Legislative Affairs has sent the entire file of applicant to the applicant''s Administrative Department i.e. Revenue Department seeking its opinion in that regard and the Revenue Department by memo dated 6.3.2014 has given its consent for prosecution of the petitioner and, thereafter, Law & Legislative Affairs Department has applied its mind to the facts of the case and in exercise of power conferred in accordance with Rule 13 of Rules of Business of the Executive Govt. of Chhattisgarh read with supplementary instructions has granted sanction as provided in Section 19(1) of the PC Act, 1988 for prosecution of the petitioner for offence punishable under Sections 3, 13(1)(d) read with Section 13(2) of the PC Act and said order has been expressed in the name of the Governor of the State of Chhattisgarh.

It is the stand of the State Government that the erstwhile State of Madhya Pradesh has taken a policy decision by memo dated 28.02.1998 that in the matter relating to PC Act against the Government Officer/employee, permission for prosecution has to be given by the Department of Law & Legislative Affairs and the procedure applicable for sanction for prosecution would be the same as applicable to the Government Officer/employee to be prosecuted by the Lokayukt Organization. Relevant paragraph of the circular dated 28.02.1998 states as under:-

A careful perusal of the aforesaid circular would show that the State Government has taken a policy decision that the file relating to the Government Officers/employees to be prosecuted under the provisions of PC Act, 1988, their file will be sent by the Anti Corruption Bureau to the Department of Law & Legislative Affairs and in turn, the Department of Law & Legislative Affairs will send the same to the opinion of the Administrative Department of the concerned officer and, thereafter, the Law Department would consider and apply its mind on behalf of the State Government, and final decision will be taken by Department of Law with regard to grant of sanction against particular employee/Government officer.

In the case in hand, the procedure laid down in the Circular dated 28.02.1998 has been followed and the applicant''s Administrative Department i.e. Department of Revenue has given its consent for sanction for prosecution of the applicant by its order memo dated 6.3.2014 duly recorded in sanction order dated 16.06.2014 and, thereafter, the Department of Law & Legislative Affair, Govt. of Chhattisgarh has considered and found prima facie case for grant of sanction against the applicant and granted sanction for prosecution by order dated 16.06.2014 and the said order has been expressed in the name of the Governor of the State of Chhattisgarh.

In exercise of power conferred by Clauses (2) & (3) of Article 166 of the Constitution of India, the Governor of Chhattisgarh has framed rules known as the Chhattisgarh Rules of Business of Executive Government of Chhattisgarh. Part V states about the supplementary instructions under Rule 13 of the Business Rules. Rule 13(2) provides that subject to the Rules of Business and the practice of the Department and any general or special order of the Chief Minister or the Minister-in-charge a Secretary may dispose of cases of routine nature and those in which either no question of policy is involved or the question of policy has been settled. For the purpose of instructions "Secretary" includes Additional Secretary.

By order dated 21.12.2014, Rule 2(A) has been amended and it has been held that any particular item of business allocated to the Department may be disposed of by Additional Secretary, Law & Legislative Affairs and disposal by such Secretary shall be deemed to be disposal by the Department.

Going by the aforesaid Rules, particularly Rule 13(2)(a) of the Rules of Business of Executive Government of Chhattisgarh, it is quite vivid that the Additional Secretary, Department of Law & Legislative Affairs is competent to grant sanction on behalf of the State of Chhattisgarh and, as such, the sanction granted by the Additional Secretary, Law & Legislative Affairs on behalf of State of Chhattisgarh is in accordance with law and I do not find any illegality in the order granting sanction by the Additional Secretary, Department of Law & Legislative Affairs expressed in the name of the Governor of the State of Chhattisgarh.

Even otherwise, the question raised in this revision is no longer res integra and stands authoritatively concluded by following decisions of the Supreme Court.

18.1 In the matter of State of M.P. Vs. Virendra Kumar Tripathi, (2009) 14 JT 62 : (2009) 6 SCALE 593 : (2009) 15 SCC 533 : (2009) 7 SCR 89 the question raised before the Supreme Court was the effect of non consultation by the Department of Law & Legislative Affair with that of parent department before granting sanction. While answering the said question, their Lordships have clearly held that the State Government had granted approval for sanction and the said sanction was granted in the name of the Governor of State by the Additional Secretary, Department of Law & Legislative Affairs and, therefore, the order granting sanction is in accordance with law. Paragraph eight of the report states as under:-

"8. ....... A bare perusal of the paragraph shows that before giving approval for prosecution, advice of the department concerned was necessary. The question arises whether the absence of advice renders the sanction inoperative. Undisputedly the sanction has been given by the Department of Law and Legislative Affairs. The State Government had granted approval of the prosecution. As noted above, the sanction was granted in the name of the Governor of the State by the Additional Secretary, Department of Law and Legislative Affairs. The advice at the most is an interdepartmental matter."

18.2 Thereafter, in the matter of State of Bihar and Others Vs. Rajmangal Ram, AIR 2014 SC 1674 : (2014) AIRSCW 2101 : (2014) CriLJ 2300 : (2014) 4 SCALE 338 , the question for consideration before the Supreme Court was whether sanction for prosecution granted by the Department of Law & Legislative Affairs of the State is valid in law as it was not granted by the parent department. Their Lordships of the Supreme Court relying upon the decisions rendered in case of Virendra Kumar Tripathi (supra) have held that in view of Section 19(3) of the PC Act, 1988, interdicting a criminal proceeding mid-course on the ground of invalidity of sanction, order will not be appropriate unless the failure of justice had been occasioned by any such error, omission or irregularity in the sanction and such failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led. Paragraph seven of the report states as under:-

"7. The above view also found reiteration in Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964 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 Parkash Singh Badal (supra) 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. Venkatakrishnan Vs. Central Bureau of Investigation, AIR 2010 SC 1812 : (2009) 10 JT 597 : (2009) 11 SCALE 102 : (2009) 11 SCC 737 : (2009) 96 SCL 143 : (2009) 13 SCR 762 . In fact, a three-Judge Bench in State of M.P. V. Virendra Kumar Tripathi (supra) 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 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 the evidence is led."

In view of the law laid in this behalf, submissions of the learned counsel appearing for the applicant that the Department of Law & Legislative Affairs is not competent to grant sanction sans merit as the Additional Secretary, Department of Law & Legislative Affairs is competent to grant sanction on behalf of the State Government and the sanction was granted in the name of the Governor of the State of Chhattisgarh by the Additional Secretary, Department of Law & Legislative Affairs and by virtue of Section 19(3) of the PC Act, failure of justice has to be established by the applicant during the course of trial and it is not the appropriate stage i.e. stage of framing of charge where criminal proceeding can be interdicted on such a plea raised by the applicant questioning the order granting sanction and, as such, judgment relied upon by the applicant is not applicable to the facts of the present case.

Thus, the learned Special Judge, PC Act is absolutely justified in rejecting application filed by the applicant under Section 19(4) of the PC Act, 1988.

Answer to Question No. 2

Case of the petitioner is that the order granting sanction is without jurisdiction and without authority of law and, therefore, charges under Sections 7 & 13(1)(d) read with Section 13(2) of the PC Act, 1988 could not have been framed by the learned Special Judge, PC Act and no opportunity of hearing was granted before framing charge against the applicant. A bare perusal of the impugned order dated 30.10.2014 would clearly show that counsel for both the parties were heard and, thereafter, Special Judge, P.C. Act passed order framing charge against the applicant finding prima facie material against the applicant.

The law with regard to interference in the order framing charge is well settled. At the stage of framing of charge, the Court has to consider the material with a view to find out if there is ground for presuming that an accused had committed offence and not for the purpose of arriving at a conclusion that it is not likely to lead a conviction. See: Amit Kapoor Vs. Ramesh Chander and Another, (2012) 4 JCC 2885 : (2012) 9 JT 329 : (2012) 9 JT 312 : (2012) 9 SCALE 58 : (2012) 9 SCC 460 and Dinesh Tiwari Vs. State of Uttar Pradesh, (2014) AIRSCW 4665 : (2014) 8 JT 365 : (2014) 8 SCALE 427 .

Thus, taking into consideration the facts & circumstances of the case and the material available with regard to demand & acceptance and trap proceeding, and recovery of tainted money of Rs. 12,000/- from the applicant, it cannot be concluded that there is no prima facie charge against the applicant.

As a fall out and the consequence of the aforesaid discussion, the criminal revision is held to be devoid of merit and is, therefore, dismissed.