Sat Pal Malik vs State of Punjab

Rajesh Bindal, J.—This order will dispose of bunch of petitions bearing Criminal Revision No. 1056 of 2002, Criminal Revision No. 1311 of 2002, Criminal Revision No. 1462 of 2002 and Criminal Misc. No. 21773-M of 2002 as in this bunch of petitions common order passed by the learned Court below framing charges against the petitioners is impugned.

The facts have been extracted from Criminal Misc. No. 21773-M of 2002.

The present proceedings arise out of FIR No. 59 dated June 14, 1990 registered under Sections 5(2), 47 of the Prevention of Corruption Act, 1988 (for short "the Act") and Sections 420, 467, 468, 471 and 120-B IPC at Police Station Kotwali, Ludhiana.

Briefly the facts as narrated are that on July 14, 1986, the Municipal Corporation, Ludhiana (for short ''the Corporation'') invited tenders for High Pressure Mercury Vapour Lamps. The work of supply of these lamps were awarded to Daljit Singh and Rajinder Kumar. Daljit Singh authorised Anil Kumar for supply of the material. Rajinder Kumar supplied the entire material of the contract awarded to him and was duly paid for. Anil Kumar authorised representative of Daljit Singh another contractor though supplied material but his payment was not released. In the circumstances, he filed civil suit against the Corporation on May 10, 1988, which was decreed in his favour by learned Sub Judge, Ist Class, Ludhiana vide judgment and decree dated July 19, 1989 whereby the Corporation was directed either to return the goods by September 30, 1989 to Anil Kumar or make payment thereof. As the Corporation had not yet utilized the material supplied by Anil Kumar, the same was returned to him on September 28, 1989 and the dispute was settled. On June 14, 1990 the FIR in question was registered on the secret information received by the Vigilance Bureau, Ludhiana Unit.

The primary allegations in the FIR are that contract was awarded by incompetent authority. The lamps supplied were manufactured by GENLEC limited, which is not registered with the Corporation. The product should have been of some reputed company. The challan in the case was presented more than 11 years after the registration of FIR on December 4, 2001. At the time of presentation of challan S.P. Malik, the then XEN already stood retired in 1999. Mohinder Singh, who was Accounts Officer stood retired in 1991. Gurbachan Singh, who was Accounts Officer stood retired in 1991. Gurbachan Singh Lall who took over as XEN from S.P.Malik on July 18, 1986 also stood retired and Nirbair Singh, who was Resident Auditor also stood retired. After the presentation of challan vide impugned order dated April 9, 2002, the charges were framed against the petitioners.

The primary contention raised by learned Counsel for the petitioners is that twice the competent authority had refused to grant sanction for prosecution of the petitioners i.e. vide communication dated March 13, 1995 and May 22, 1996 (Annexure P-1 and P-2) respectively. However, after their retirement the challan was presented, which is nothing else but malafide exercise of power as during the service career of the persons, who were in employment at the relevant time, the sanction for prosecution was not accorded as sufficient material was not found against them to be prosecuted. As after the retirement no sanction was required for prosecution under the Act, the challan was presented. The second submission is inordinate delay in presentation of the challan, which according to the petitioners is fatal. To substantiate the same it is submitted that the incident relate to the year 1986, the FIR was registered in the year 1990 after even the entire dispute was over and the material was returned back to the supplier as per direction in the judgment of the Civil Court and the challan was presented more than 11 years after the FIR and 15 years after the occurrence of the alleged incident. Reliance has placed upon R. Balakrishna Pillai v. State of Bihar 2001(4) R.C.R. (Cri) 589, P. Ramachandra Rao Vs. State of Karnataka, and Dr. Jaswinder Kaur v. State of Punjab and Anr. 2001(2) R.C.R. (Cri) 58. Another argument raised is that even if Government employee had retired still for prosecuting him under the provisions of Indian Penal Code in terms of Section 197 thereof sanction is required and accordingly no prosecution was competent under IPC further the submission is that once sanction for prosecution is refused, authority can not review the same at a later stage.

On the other hand learned Counsel for the State submitted that the challan was presented in pursuance of letter of Vigilance Department dated September 11, 2001 wherein it was opined that challan should be presented and issue regarding sanction of prosecution shall be considered by the Court. It is further submitted that challan against ex-employees could very well be presented without any sanction.

In reply to the petitioner filed by the Corporation, it is not disputed that sanction for prosecution was refused at the relevant time as referred to by the petitioners. It is further submitted that in the present case the entire proceedings for calling tenders and supply of material was conducted by the competent authority after the Corporation passed the resolution for the same and in entire deal, the Corporation did not suffer any loss whatsoever. The corporation is not the complainant in the FIR.

I have heard learned Counsel for the parties and perused the paper book.

Hon''ble the Supreme Court in R. Balakrishna Pillai''s case (supra) opined that sanction for prosecution of a public servant even after his retirement or he has ceased to hold office is sine qua non to proceed against under IPC. Relevant para 4 thereof is extracted below:

We may mention that the Law Commission in its 41st report in paragraph 15.123 while dealing with Section 197, as it then stood observed "It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant." It was in pursuance of this observation that the expression ''was'' come to be employed after the expressed ''is'' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.

Hon''ble the Supreme Court in Mahendra Lal Das''s case (supra) while referring to an earlier judgment of Hon''ble the Supreme Court in Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., opined that investigating agency cannot be given latitude of protracting the conclusion of the investigation without any limit of time. Right to life enshrined under Article 21 of the Constitution of India provides that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered to be in public as well as social interest. The right to speedy trial encompases all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. However, while considering the claim of an accused on account of delay, the Court is to consider the gravity of offence, number of accused and witnesses and also other proof of prejudice. In Dr. Jaswinder Kaur''s case (supra), this Court opined that order passed by the Government refusing to grant sanction for prosecution under the Act or Section 197 of the Code of Criminal Procedure (for short ''the Code'') cannot be reviewed.

In the set of four petitions under consideration, three petitions have been filed by ex-employees of the corporation whereas one is by contractor. As far as offences under IPC are concerned in terms of the plain language of Section 197 of the Code which provide for prior sanction of the competent authority before launching prosecution against even an ex-employee and that sanction being not available in the present case, prosecution even against ex-employees could not be proceeded with. The judgment of Hon''ble the Supreme Court in R. Balakrishna Pillar''s can be relied upon for the purpose. .

As far as offence under the Prevention of Corruption Act. 1988 is concerned, the same also can be not permitted to be proceeded with at this stage for more than one reason. Firstly the stand of the Corporation that in fact due process was followed while awarding the contract by the competent authority; secondly there is no monetary loss to the Corporation in any manner whatsoever; thirdly the sanction of the competent authority with regard to employees, who were in service at the relevant time having been refused twice, their prosecution for the offences after they had retired would certainly amount to abuse of process of law. Even the stand of the Vigilance Department in communication relating to issue regarding sanction of the prosecution to the Court cannot be appreciated. Once there is a legal requirement which is pre-requisite, prosecuting agency is bound to comply with the same and should not refer the matter to the Court for dealing with even that issue. And lastly the delay. The alleged occurrence took placed in the year 1986, the FIR was registered in the year 1991 where the complainant is not the Corporation rather it is on a complaint by some adversary of the persons to whom the contract had been awarded. The challan was presented in the year 2001 and the charges were framed in the year 2002. The employees had retired long before even the presentation of challan. The time factor coupled with the fact that there is no monetary loss to the corporation and further that admittedly due process was followed while awarding the contract the prosecution launched against the petitioner deserves to be set aside.

For the reasons stated above, I find this to be a fit case for quashing the FIR. Accordingly, the FIR No. 59 dated June 14, 1990 u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and under Sections 420, 467, 468, 471, 120-B IPC registered at Police Station, Kotwali, Ludhiana and all subsequent proceedings thereto are quashed.

The petitions are disposed of accordingly.