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Surendranath SwaIn Vs. Nanda Kishore Pradhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Case No. 328 of 1984
Judge
Reported in1985(II)OLR535
ActsIndian Penal Code (IPC), 1860 - Sections 161; Prevention of Corruption Act, 1947 - Sections 6
AppellantSurendranath Swain
RespondentNanda Kishore Pradhan
Appellant AdvocateMadhabananda Das, Adv.
Respondent AdvocateS.C. Ghose, Adv.
DispositionCase allowed
Cases ReferredH.H.B. Gill v. The King
Excerpt:
.....examined in course of the said enquiry and the learned magistrate on being satisfied that prima facie a case has been established under section 161, indian penal code, took cognizance of the same and issued summons to the accused persons fixing 27.2 1984 for their appearance. without some safeguard of this kind a public servant may find it impossible to carry on his official duties efficiently. in the premises, the conclusion is inescapable that for prosecuting a public servant, like the petitioner, the requirement of sanction as contained in section 6 of the act 13 necessary provided the pre-conditions for application of section 6 are satisfied......the previous sanction as contained in section 6 of the act, since admittedly the petitioner was a public servant on the date the alleged offence was committed and continued to be a public servant when cognizance was taken. in this view of the matter the order of the learned magistrate taking cognizance is void. mr. ghose, the learned counsel for the opposite party, on the other hand, contends that since the prosecution is not one under the provisions of the act, any provision thereof is not applicable and consequently, section 6 of the act has no application.3. to appreciate the correctness of the rival contentions, it is necessary to examine the ambit and scope of the provisions of section 6 of the act, section 6(1) is extracted hereinbelow in extens :'6. previous sanction necessary.....
Judgment:

G.B. Pattnaik, J.

1. Petitioner, an Assistant Sub-Inspector of Police, is an accused in a complaint case bearing I. CC. Case No. 9 of 1963, pending in the Court of the Sub-Divisional Judicial Magistrate, Athmallik. The opposite party lodged a complaint against the petitioner and another constable making allegations that they committed offences under Sections 161, 342, 384, 504 and 506, Indian Penal Code. The complainant was examined under Section 100, Code of Criminal Procedure, and thereafter the learned Magistrate directed to hold an enquiry under Section 202 of the Code. Several witnesses were examined in course of the said enquiry and the learned Magistrate on being satisfied that prima facie a case has been established under Section 161, Indian Penal Code, took cognizance of the same and issued summons to the accused persons fixing 27.2 1984 for their appearance. This order of the learned Magistrate dated 18. 1. 1984 is being impugned in the present miscellaneous case and the inherent jurisdiction of this Court has been invoked.

2. Mr. Das. the learned counsel for the petitioner, contends that in view of the provisions of Section 6 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the 'Act'), no Court can take cognizance of an offence under Section 161, Indian Penal Code, without the previous sanction as contained in Section 6 of the Act, since admittedly the petitioner was a public servant on the date the alleged offence was committed and continued to be a public servant when cognizance was taken. In this view of the matter the order of the learned Magistrate taking cognizance is void. Mr. Ghose, the learned counsel for the opposite party, on the other hand, contends that since the prosecution is not one under the provisions of the Act, any provision thereof is not applicable and consequently, Section 6 of the Act has no application.

3. To appreciate the correctness of the rival contentions, it is necessary to examine the ambit and scope of the provisions of Section 6 of the Act, Section 6(1) is extracted hereinbelow in extens :

'6. Previous sanction necessary for prosecution.

(1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian enal Code (45 of 1860), or under Sub-Section (2) or Sub-section (3-A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government;

(c) in the case of any other person, of the authority competent to remove him from the office.'

By enacting Section 6, the Legislature accepted the principle that where a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned in it as it affects the morale of the public services and also the administrative interests of the State. For these reasons, the discretion to prosecute was taken away from the prosecuting agency and was vested in the departmental authorities for they would assess and weigh the accusation in a far more dispassionate and responsible manner. The State obviously was only concerned with those offences which were committed by public servants while functioning in that capacity and for which they were sought to be pcosecuted while holding such an office.

Section 6 of the Act came up for consideration before the Supreme Court in the case of, S.A. Venkataramaa v. The State, A. I. R. 1958 S. C. 107, wherein, it was held by their Lordships :

'... Section 190 of the Code of Criminal Procedure confers a general power on a criminal Court to take cognizance of offences, but the exercise of such power in certain cases, is prohibited by the provisions of Secs. 195 to 199 of the Code unless the conditions mentioned therein are complied with. Under the Criminal Law (Amendment) Act, 1952 (No. XLVI of 1952), Special Judges are appointed to try offences under Secs. 161,162, 163,164, 165 or Section 165A of the Indian Penal Code or Section 5(2) of the Act. They are authorised to take cognizance of these offences without the accused . person being committed to them for trial. The exercise of this general power to take congnizance by them is prohibited with respect to offences committed under Section 161, 164 or Section 165 of Indian Penal Code or under Section 5(2) of the Act. by a public servant without the previous sanction of a competent authority. In our opinion, if a general power to take cognizance of an offence is vested in a Court, any prohibition to the exercise of that power by any provision of law, must be confined to the terms of the prohibition. In enacting a law prohibiting the taking of cognizance of an offe,nce by a Court, unless certain conditions were complied with, the legislature did not purport to condone the offence. It was primarily concerned to see that prosecution for offences in cases covered by the prohibition shall not commence without complying with the conditions contained therein, such as a previous sanction of a competent authority in the case of a public servant, and in other cases with the consent of the authority or the party interested in the prosecution or aggrieved by the offence. There can be little doubt that in the case of a public servant the Central Government or the State Government or the authority competent to remove him from service is vitally interested in the matter of his prosecution. Such authority is directly concerned in the matter as it has to decide whether to accord or not to accord its sanction for thji prosecution of one of its servants. The authority concerned may refuse to accord such sanction on the ground that the prosecution is frivolous or vexatious or on the ground that in the public interest it would be inexpedient to do so. Without some safeguard of this kind a public servant may find it impossible to carry on his official duties efficiently.

This Court in the case of The State v. Biswanath Naik, A. I. R. 1952 Orissa 220, held that even though for a prosecution in respect of an offence under Section 161 of the Indian Penal Code by a public servant, sanction is not necessary under Section 197 of the Code of Criminal Procedure, in view of the decision of the Privy Council in the case of H.H.B. Gill v. The King, A. I. R. 1948 Privy Council, 128, sanction under Section 6 of the Act will be required for his prcsecution. In the premises, the conclusion is inescapable that for prosecuting a public servant, like the petitioner, the requirement of sanction as contained in Section 6 of the Act 13 necessary provided the pre-conditions for application of Section 6 are satisfied. A reading of Section 6 of the Act indicates that the pre-condition for the application of Section 6 is that ;the offence alleged must have been committed by a public servant. Undoubtedly, the petitioner was a public servant on the date the offence was alleged to have been committed and continued to be a public servant on the date cognizance was taken. The sanctioning authority in his case would be one as contemplated in Section 6(1)(c) of the Art. Admittedly, no sanction has been obtained. Consequently, the order taking cognizance is without jurisdiction in view of the embargo contained in Section 6 of the Act.

4. In the result, therefore, would quash the cognizance so far as the petitioner is concerned and this Criminal Miscellaneous Case is accordingly allowed.


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