IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1361 of 2013 Vattamthanath Jayaram @ V.Jairam Son of Late Varghese, Conservator of Forest, resident of Circuit House Area, Road no. 1, Near DFO Office, Jamshedpur, PO and PS - Bistupur, District- East Singhbhum …. Petitioner --Versus-- The State of Jharkhand through Vigilance …. Opposite Party CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA For the petitioner : Mr. Anil Kumar, Sr. Advocate, M/s. Abhishek Kumar and Sidhant, Advocates For the Vigilance : Mr. Shailesh, Advocate ----------- C.A.V. on 26.08.2016 PRONOUNCED ON- 19/09/2016 Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for quashing of the order taking cognizance dated 13.12.2012 passed by Special Judge, Vigilance, Ranchi as well as the entire criminal proceeding in connection with Special Case no. 15A of 2009 arising out of Vigilance P.S. Case no. 11 of 2009.
2. Bereft of unnecessary details, the facts, which is relevant for the proper adjudication of the issue involved in this criminal miscellaneous petition, in short, is that at the instance of one Vinit Kachhap, a complaint case no. 02 of 2009 was lodged in the court of learned Special Judge, Vigilance, Ranchi against one Nistar Minz and Nalini Soren with the allegation that in the year 2003, on a tender invited by Agriculture Department, Government of Jharkhand, various reputed institutions of the country had applied for supply of seeds but on the order of the then Director, Agriculture, order of supply of seeds was given to an unknown institute namely West Bengal Pharmaceutical and Photo Chemical Development Corporation Limited with an intention to misappropriate public fund. There are several other allegations how the then Director, Agriculture from the year 2003 to 2006 misappropriated the government fund. Reference of some of those allegations are given hereinbelow:
2. (i) The price of wheat, Chana and Masur which were quoted as Rs.600, 1,600/- and Rs. 2,000/- per quintal in the earlier letter dated 02.09.2003 of the Director when the tender was floated for supply of materials but the Director, Agriculture while issuing the supply order quoted a different price as Rs.1,000/- per quintal for wheat, Rs.8,000/- per quintal for Chana and Masur. (ii) During the financial year 2004-05, 2005-06 and 2006-07, decision was taken to purchase seeds from reputed institution but the work order was given to an unknown institution, which was not in existence. Those seeds were never supplied but the public fund was mismanaged and misappropriated. (iii) One Scheme namely Akashmik Fasal Yojna was introduced for the benefit of farmers by investing Rs.2,20,44,200 /- vide letter no. 2084 dated 30.09.2005 but the benefit of that scheme was never given to the farmers of the Jharkhand. (iv) In the year 2006, Saunkar (hybrid) Paddy Seeds Kraya Yojna was introduced and order of supply was given to M/s.NAFED and NARAMAC without considering their legal existence. Those companies were never involved in developing Saunkar seeds (hybrid seeds) but supply order was given to them with intention to cheat and misappropriate the public money. (v) The Director, Agriculture with an intention to misappropriate the public fund directed Zila Bhumi Sanrachhan Padadhikari (District Land Conservation Officer) to introduce a scheme for purchase of Paddy Seeds and work order dated 26.06.2006 was issued for supply of Paddy Seeds at the price of Rs.19,000/- per quintal but the supply order was issued without mentioning the quality of seeds, which shows the malicious intention and misuse of public fund. Likewise several other allegations of purchase of item are also made in the FIR with intention to misappropriate the public money. 3 The said complaint was referred to the Vigilance Police Station, whereafter, Vigilance P.S. Case no. 11 of 2009 was registered under Sections 406, 409, 420, 423, 424, 465 and 120-B of I.P.C. as also under Sections 11, 12, 13 and 15 of the Prevention of Corruption Act (in short “the PC Act”).
3. After investigation, the Investigating Officer finding sufficiency of materials submitted the charge-sheet against the petitioner and other accused persons after obtaining the order of sanction from proper authority. Thereafter, the learned Special Judge, Vigilance, Ranchi vide order dated 13.12.2012 took cognizance of offence under Sections 406, 409, 420, 423, 424, 465, 467, 468, 471 and 477A of the Indian Penal Code and also Under Sections 11, 12, 13 and 15 of P.C. Act.
4. In the charge-sheet submitted against this petitioner and other accused persons, the Investigating Officer found that in fact during the work period of the petitioner, the department had allotted an amount of Rs.20,89,16,26.00 for the purposes of payment to the farmers @ Rs.2,500/- per hectare in irrigated area and Rs. 1000/- per hectare in non-irrigated area through opening of the Bank Account in the name of farmers where more than 50% loss to the crops have been caused due to drought. But, the accused persons including this petitioner by abusing and misusing their offices as a Public Servant in place of paying the amount to the aggrieved person purchased paddy seeds and other seeds to the extent of Rs.13 crores out of the said money for wrongful gain from agencies like NAFED and NERAMEC, who were not producers of seeds. In the charge-sheet, it has also been alleged that in violation of the Government order, Seeds were also purchased under Biz Binmay Yojna to the extent of 25,938 quintals at the rate of more than Rs.200/- per quintal from NERAMAC, Agartalla and NAFED, Ludhiyana relying upon the certificate issued in their favour by the institutions like Agriculture University, Pantnagar and Syngenta India Ltd. but without verifying their genuinity, the purchase orders were given to them. During course of investigation, those certificates were found to be forged. Similarly, West Bengal Pharmaceuticals and 4 Photochemical Development Corporation, Kolkata was also given the order for supply of seeds ignoring the recommendation of the Secretary of Department wherein the said company was kept in the blacklist.
5. Mr. Anil Kumar learned senior counsel appearing for the petitioner assailing the order taking cognizance of offence as bad in law seriously contended that sanction for prosecution granted by the Secretary-Cum-Law Remembrance, Jharkhand was without jurisdiction as in the instant case, the petitioner, a direct recruit of Indian Forest Service, was posted as Director, Department of Agriculture between the check period 26.09.2003 to 09.03.2007 and was protected under Section 19(1) (a) of the P.C. Act. Since the appointing authority was Central Government, the competent authority in such cases would be Central Government and that any order taking cognizance of offence on the basis of an invalid order of sanction would be bad in law, illegal and without jurisdiction and is fit to be set aside. It was also contended that the question of sanction of a Public Servant, who has acted in good faith while performing his duties, is of paramount importance but as the legality or validity of the sanction order has not been considered by the court below, continuance of proceeding is an abuse of process of law. In support of his contention, learned senior counsel relied on several judgments of the Hon‟ble Supreme Court reported in (2015) 14 SCC186 Nanjappa Vs. State of Karnataka, (2013) 10 SCC705Anil Kumar & Others Vs. M.K.Aiyappa & another and a Constitution Bench Judgment (1991) 3 SCC655 K.Veeraswami Vs. Union of India and others. Lastly, the learned senior counsel relying upon different provisions of All India Services (Discipline and Conduct) Rules submitted that the Central Government is the only competent authority to grant sanction.
6. On the other hand, Mr. Shailesh, learned counsel appearing for the Vigilance Anti-Corruption Bureau (in short ‟the ACB‟) submitted that in a case where the validity of the sanction order is sought to be challenged on the ground of jurisdiction, such challenge can only be made in the course of trial and since the 5 petitioner being a public servant was transferred from the said post of Director, Agriculture, after the alleged check period, no sanction is required as he loses protection under Section 19(1) of the Prevention of Corruption Act after his posting on another post. It was also submitted that since the post of Director, Agriculture was a non- cadre post, the Secretary, Law was competent to accord sanction in terms of Section 19 of the P.C. Act and the order granting sanction upon which cognizance of offence has been taken against the petitioner suffers from no illegality whatsoever and the order warrants no interference by this Court. It was also submitted that Section 19(3)(B) of P.C. Act clearly stipulates that during trial, petitioner will get an opportunity to attack the validity of the sanction on the ground that the error including the jurisdictional error, omission or irregularity has resulted in a failure of justice but as the petitioner has not shown any instance of failure of justice or that any prejudice has been caused, the order impugned warrants no interference. In support of his contention, learned counsel relied upon several judgments of the Hon‟ble Supreme Court especially delivered in the case Parkash Singh Badal and another Vs. State of Punjab and others; (2007) 1 SCC1 (2012) 1 SCC532 Dinesh Kumar Vs. Chairman, Airport Authority of India and another, (2012) 3 SCC64 Subramanian Swamy Vs. Manmohan Singh and another, (2014) 11 SCC388 State of Bihar and others Vs. Rajmangal Ram and R.S. Naik Vs. A.R. Antulay; (1984) 2 SCC183 7. Learned counsels appearing for both the sides took this Court to each and every material on record including the FIR, the finding of the Investigating Officer recorded in the charge-sheet, the sanction order as well as the relevant rules of All Indian Services (Discipline and Conduct) Rules but it is not necessary to deal with all those materials in detail. In view of the submissions of the learned counsels, the solitary question, which has come up for consideration, is as follows:
6. “Whether a public servant, who has been transferred from the post where the allegation was levelled against him, to some other post, loses the protection under Section 19(1) of the P.C. Act even though he continues to be a public servant?”
8. Apparently in the instant case, cognizance of offence has been taken against the petitioner under provisions of Indian Penal Code as well as Prevention of Corruption Act, it would be necessary to give a brief reference of the term „sanction‟ as incorporated in Section 197 of the Code. The grant of sanction is a mandatory requirement for launching prosecution if the alleged act is done in discharge of his official duty but, the Section does not extend its protective cover to wrong act or every act or omission done by a public servant rather it restricts the scope to only those acts or omissions, which are done by a public servant in discharge of official duty. If any act done in discharge of official duty with intention to wrongful gain to him and wrongful loss to public fund or State, no protection can be accorded under Section 173 of the Code. This issue was under consideration in several cases like State of H.P. Vs. M.P. Gupta; (2004) 2 SCC349and State of Kerala Vs. V. Padmanabhan Nair; (1999) 5 SCC690and the Hon‟ble Supreme Court settled the principles that no sanction in terms of Section 197 of the Code of Criminal Procedure is required to be taken for launching the prosecution where any act, attracting offences under Section 406, 409, 420 of the Indian Penal Code or even the act which constitutes offence under Sections 467, 468 and 471 of the Indian Penal Code are alleged to have been committed. But, as the cognizance in the instant case has been taken under Sections 406, 409, 420 and also under Sections 467, 468 and 471 of the Indian Penal Code, any act attracting those offences can never be considered to be an act done in discharge of official duty. Hence, in the light of the ratio decided in the above cases, no sanction under Section 197 of the Code is required before launching the prosecution against the petitioner since the act done by 7 the public servant in this case was not in consonance with the discharge of his official duty.
9. Now coming to the main question, which has been formulated in this criminal miscellaneous petition i.e. whether a public servant, who has been transferred from the post when the offence was allegedly committed by him, to some other post, loses the protection under Section 19(1) of the P.C. Act even though he continues to be a public servant? Learned senior counsel Mr. Anil Kumar relying upon the case of Kalicharan Mahapatra Vs. State of Orissa; (1998) 6 SCC411submitted that a public servant, who committed an offence within the ambit of Prevention of Corruption Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act, if he continues to be a public servant when the court takes cognizance of offence but if he ceases to be a public servant by that time, the court can take cognizance of offence without any such sanction.
10. For better appreciation of the question of sanction, a reference of Section 19 of the P.C. Act is necessary, which reads as follows:
“19. Previous sanction necessary for prosecution.- (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 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 that 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 sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 8 (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.- For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.”
11. From bare perusal of the aforesaid provision, it would appear that clause (a) and (b) of sub-section (1) specifically provide that in a case where a person, who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, the sanction for prosecution needs to be obtained either from the Central Government or the State Government. The emphasis has been given in both the above clauses on the words “who is employed” in connection with the affairs of either Central Government or State Government. The very natural corollary would be that if the person concerned is not employed then the question of having sanction does not arise. The question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. If on the relevant date when the charge-sheet was submitted and cognizance of offence was taken, the said person was not holding the same office on account of his transfer, thus the conjoint effect of sub-section (1) and (2) of Section 19 would be that there would be no question of obtaining any 9 previous sanction of the appropriate Government. In the case A.R. Antulay (supra), the same question was under consideration as to whether any sanction of the Governor was required when the person concerned in his tenure as Minister had committed certain offences but subsequently at the time of launching prosecution he was a member of the Legislative Assembly. The Hon‟ble Supreme Court in paragraphs 24 and 25 of the judgment held as follows:
24. Now if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used (sic misused) nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to us. We fail to see how the competent authority entitled to remove the public servant from an offence which is neither alleged to have been used (sic misused) or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned counsel that a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and, therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. One can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 of the Indian Penal Code and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public 10 offices would be necessary before the court can take cognizance of the offence committed by such public servant, while abusing one office which he may have ceased to hold. Such an interpretation is contrary to all canons of construction and leads to an absurd end product which is necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue’s character. “ 25. We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decision in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of Section 6.”
12. In the cases of Parkash Singh Badal (supra) and Balakrishnan Ravi Menon Vs. Union of India; (2007) 1 SCC45 similar question was under consideration before the Hon‟ble Supreme Court as to whether sanction for prosecution is at all necessary in terms of Section 19 of the Prevention of Corruption Act when the petitioner holding post of Chairman and Managing Director, Goa Shiypard Hotel committed certain offences under the Prevention of Corruption Act but retired and subsequently when the charge-sheet was submitted, he was holding the post of Chairman and Managing Director of Transformers and Electricals Limited on being appointed by the State of Kerala? The Court after taking notice of the provision of the Prevention of Corruption Act and also considering the ratio laid down in A.R. Antulay (supra) categorically concluded that as the petitioner was not holding office of the Chairman and Managing Director of Goa Shipyard Limited at the relevant time when the charge-sheet was submitted, question of obtaining any previous sanction of the Central Government does not arise. 11 13. In a very recent judgment delivered on 6th September, 2016 in Criminal Appeal no. 721 of 2016; L. Narayana Swamy Vs. State of Karnataka & Ors. (unreported judgment), the Hon‟ble Supreme Court set at rest the very question and held in paragraph 18 as follows:
“18. In the case of the present appellants, there was no question of the appellants’ getting any protection by a sanction. The High Court was absolutely right in relying on the decision in Parkash Singh Badal to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19, P.C. Act. Where the public servant had abused the office which he held in the check period but had ceased to hold “that office” or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.”
14. Obviously in the instant case also, the petitioner was holding the post of Director, Agriculture during the check period from 26.09.2003 to 09.03.2007 and, thereafter, he was transferred to some other post. So, in view of the ratio decided in the above judgment, the petitioner being the public servant had abused entirely the different office than the one which he was holding on the date on which cognizance was taken. As such, no sanction was required under Section 19 of the P.C. Act. Hence, the sole issue is answered against the petitioner.
15. In view of the discussions made above, I do not find any force in the submissions of the learned counsel for the petitioner so as to interfere in the order taking cognizance 13.12.2012 passed by the learned Special Judge, Vigilance Ranchi in Special Case no. 15A of 2009 arising out of Vigilance P.S. Case no. 11 of 2009.
16. In the result, this criminal miscellaneous petition is dismissed. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 19th September, 2016 Ritesh/N.A.F.R.