Shiv Kumar Pal and Another vs State of M.P.

Narain Singh "Azad", J.

The petitioners seek quashment of cognizance, entire proceedings and charge sheet No. 2/2001, tied on 20-3-2001, against the petitioners by C.B.I. Branch, Bhopal, which are pending against them in the Court of Special Judge, C.B.I. and IIIrd A.S.J. Bhopal, titled as State of M.P. V. Shri Shiv Kumar Pal and another.

It is not disputed that earlier these petitioners faced trial in CBI Case No. 42/99, for offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, so also Sections 409 and 120B of the IPC on these facts that, on or about 3-7-1995, petitioners Shiv Kumar Pal and Rajendra Kumar Godgole were posted as Head Cashier and Peon-cum-Cashier, respectively, in Royal Market Branch of State Bank of Saurashtra, at Bhopal and thus, were public servants. These petitioners were arrested in a trap laid by CBI on 7-3-1995 and the residence of petitioner Shiv Kumar Pal was searched.

According to the prosecution, from one Laik Ahmad, petitioner No. 2 demanded an amount of Rs. 2000/- for encashing his Term Loan Deposit Receipt No. 920072 dated 20-2-1995 (hereinafter referred to as the "Receipt") before the date of maturity on 7-4-1995. This Laik Ahmad submitted a written complaint against petitioner No. 2, Rajendra Kumar Godgole, u/s 13(2) of the Act, which was registered as FIR on 7-3-1995 and then, a trap was organised in which Sunil Kumar Sharma, CSP, Ravindra Nath Sen, Kamlesh Kumar Choudhary, both Inspectors of Central Excise, S.B. Kara, the Inspector of CBI and others participated, by reaching the spot. On being asked by petitioner No. 2, Rajendra Kumar Godgole, Laik Ahmad informed him of having brought the receipt. Then, Rajendra Kumar Godgole got the receipt of Laik Ahmad discharge and handed over all the papers to petitioner Shiv Kumar Pal for handing over amount of receipt to Laik Ahmad. Thereafter, petitioner Shiv Kumar Pal gave amount of Rs. 23000/- to Laik Ahmad and informed him that the amount of Rs. 2000/- is deducted as agreed with Godgole. This conversation took place in the hearing of aforesaid witness Kamlesh Kumar Choudhary. On signal been given, the other members of the trap party, reached the Bank, who found Rajendra Godgole sitting in the seat of receiving cashier and Shiv Kumar Pal in the seat of payment cashier. An amount of Rs. 6000/- was found less with Rajendra Kumar Godgole, which was entered to have been given to petitioner Shiv Kumar Pal. Similarly, an amount of Rs. 23,199.45 was found less, in the bag of Shiv Kumar Pal. Then few other receipts were found in his bag inclusive of Laik Ahmad''s receipt along with an amount of Rs. 3200/-. An amount of Rs. 23,000/- was seized from Laik Ahmad and the same was deposited in the State Bank of India. One DTR dated 1-3-1995 belonging to Mohd. Ibrahim was found encashed and Rs. 17,800/-were noted to have been paid on 16-4-1995. On search of residence of Shiv Kumar Pal, many DTR and other documents were seized. In investigation, it was found that this petitioner Shiv Kumar Pal used to make payment of receipts to persons, by withdrawing the amount from his account. After completion of investigation, sanction for the prosecution of these petitioners, was obtained before filing the police report. As per certified copy of judgment dated 19-3-2001, pronounced by Special Judge, Bhopal, and IIIrd ASJ, Bhopal, in CBI Case No. 42/99, on the strength of AIR 1968 SC 1992, the case of Shailendranath, it was held that in the absence of a valid and sufficient sanction to prosecute, the Court has no jurisdiction to take cognizance of offence and hence the accused cannot be acquitted, who deserve to be released. Thus, the accused/petitioners were released in aforesaid CBI case by the learned Special Judge and IIIrd ASJ, Bhopal. Then, after obtaining another sanction to prosecute, these petitioners CBI Branch, Bhopal, submitted another charge-sheet on 20-3-2001, which is sought to be quashed by the petitioners.

It is argued on behalf of these petitioners that since the learned Special Judge, CBI, and IIIrd ASJ pronounced the judgment in CBI Case No. 42/99, on 19-3-2001, after complete trial, the petitioners shall be treated to have been acquitted and hence they cannot be prosecuted again. It is further contended that the sanction, on the basis of which the prosecution is launched, is verbatim the same, as was filed in earlier prosecution, the CBI Case No. 42/99, except that a different officer has signed it, and so also, neither this second sanction is valid nor the petitioners may be prosecuted on the basis of same sanction again.

But, it is found dictated by their Lordships of Supreme Court in State of T.N. Vs. M.M. Rajendran, , that if in prosecution, under Prevention of Corruption Act, 1988, the order of sanction is found to be invalid, finding on merits about prosecution case, are impermissible and hence proper course would be to drop the proceedings. It is further found explained by their Lordships that under such situation, it would be open to the State to proceed afresh after obtaining necessary sanction.

Thus, in the light of the aforesaid legal position, the order passed by the Special Judge, CBI and IIIrd ASJ, Bhopal, on 19-3-2001, in CBI Case No. 42/99, is not found to be of acquittal but of discharge and hence, this second prosecution, of these petitioners on the same facts, after obtaining the sanction of prosecution afresh, is permissible. So far as the point of legality of second sanction is concerned, that has to be considered by the learned Special Judge, CBI and IIIrd ASJ Bhopal, at the appropriate stage in the second prosecution and not in this petition.

Consequently, this petition does not merit, which is accordingly, disallowed and rejected at the stage of motion hearing.