PROF. N.K.GANGULY Vs. CBI NEW DELHI
PREVENTION OF CORRUPTION ACT, 1988
Section 13 - Criminal misconduct by a public servant
Section 19 - Previous sanction necessary for prosecution
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 482 - Saving of inherent powers of High Court
Section 173 - Report of police officer on completion of investigation
Section 120 - Concealing design to commit offence punishable with imprisonment
Supreme Court of India (Division Bench (DB)- Two Judge)
SPECIAL APPEAL DEFECTIVE, 798 of 2015, Judgment Date: Nov 18, 2015
“....Whether sanction is to be accorded or not, is a matter for the Government to consider. The absolute power to accord or withhold sanction on the Government is irrelevant and foreign to the duty cast on that Court which is the ascertainment of the true nature of the act.” “It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants form frivolous prosecution.....” “Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants....The Legislative advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how taht power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit interference of knowledge about the fuctions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority done would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office..... From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.For the aforesaid reasons, we set aside the impugned judgment and order of the High Court dated 27.05.2013 passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of 2012 and order dated 7.10.2014 passed in Application No. 277KH of 2014 in Special Case No. 18 of 2012 and quash the proceedings taking cognizance and issuing summons to the appellants in Special Case No. 18 of 2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad, U.P. in absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of CrPC. The appeals are allowed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.798 OF 2015
PROF. N.K. GANGULY ……APPELLANT
Vs.
CBI NEW DELHI ……RESPONDENT
WITH
CRIMINAL APPEAL No. 799/2015
CRIMINAL APPEAL No. 800/2015
CRIMINAL APPEAL NO. 801/2015
CRIMINAL APPEAL No. 930/2015
AND
CRIMINAL APPEAL No.1537/2015
(Arising Out of SLP (Crl) No.9838 of 2015)
(@ SLP (Crl)………………… CRL. M.P. NO.9612 of 2015)
J U D G M E N T
V.GOPALA GOWDA, J.
Delay condoned. Leave granted in Special Leave Petition
(Crl)………………Crl.M.P. No.9612 of 2015.
These appeals arise out of the common judgment and order dated 27.05.2013
passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of
2012 and judgment and order by the High Court of Judicature at Allahabad
dated and order 07.10.2014 passed in Application No. 277KH of 2014 in
Special Case No. 18 of 2012 by the learned Special Judge, whereby the High
Court dismissed the applications filed by the appellants herein under
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as “the CrPC”) to quash the criminal proceedings of Special Case No. 18
of 2012 as well as the summoning order dated 08.11.2012 passed by the
learned Special Judge, Anti Corruption, CBI, Ghaziabad. All the appeals are
being disposed of by this common judgment.
As the facts in all the appeals are common, for the sake of convenience, we
refer to the facts of Criminal Appeal No. 798 of 2015, in this judgment
which are briefly stated hereunder:
The Indian Council of Medical Research (hereinafter referred to as “ICMR”),
a registered society under the Societies Registration Act, 1860 is a
premier research institute dealing with the formulation, coordination and
promotion of bio-medical research. Its functional object is to initiate,
aid develop and coordinate medical and scientific research in India and to
promote and assist institutions for the study of diseases, their
prevention, causation and remedy. It is fully funded by the Government of
India through Department of Health Research, Ministry of Health and Family
Welfare. The Institute of Cytology & Preventive Oncology (hereinafter
referred to as “ICPO”) is one of the institutes of ICMR, the main aim of
which is to promote research in the field of cancer.
On 30.11.2010, a criminal case was registered under Section 120-B of the
Indian Penal Code (hereinafter referred to as the “IPC”) read with Section
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as the “P.C. Act, 1988”) on the basis of written complaint
filed by M.R. Atrey, Sub-Inspector of Police, CBI, EOU, VII, New Delhi
against the appellants herein namely N.K. Ganguly, the then Director
General, Mohinder Singh, the then Sr.Dy. Director General-Admin, P.D. Seth,
the then Financial Advisor, A.K. Srivastava, Executive Engineer, all from
ICMR, New Delhi and B.C. Das, the then Director ICPO, NOIDA and other
unknown persons in the matter relating to the alleged unauthorized and
illegal transfer of plot no.119, Sector 35, NOIDA, measuring 9712.62 sq.
meters from ICPO, NOIDA to ICPO-ICMR Cooperative Group Housing Society Ltd.
NOIDA (hereinafter referred to as the “ICPO-ICMR Housing Society”).
In the preliminary inquiry in the matter, it was found that the aforesaid
officials and the other unknown persons had entered into a criminal
conspiracy by abusing their official position as public servants and had
unauthorisedly and illegally transferred the aforesaid plot from ICPO to
ICPO-ICMR Housing Society at a consideration of Rs.4,33,90,337/- which was
much lower than the then prevailing sector rate of Rs.18,000/- per sq.mtrs.
of NOIDA, thereby, giving themselves and other members of the ICPO-ICMR
Housing Society an undue pecuniary advantage. It was also revealed in the
enquiry that the membership of the ICPO-ICMR Housing Society was granted to
such persons who were otherwise not eligible for getting membership as per
the bye-laws of the society and terms and conditions stipulated and
approved by ICMR for membership in the said society. It was further
revealed that the officers of New Okhla Industrial Development Authority
(hereinafter referred to as “NOIDA”) allowed the transfer of the said plot
unauthorisedly and illegally from ICPO to ICPO-ICMR Housing Society,
despite the fact that they were not competent to pass such order of
transfer.
During the course of investigation by CBI, apart from the aforesaid named
accused persons in the FIR, the fact of the involvement of other officials
namely, L.D. Pushp, the then Administrative Officer, ICPO, Jatinder Singh,
the then Senior Accounts Officer, ICMR, Dr. S.K. Bhattacharya, the then
Additional Director General, ICMR, Dr. Bela Shah, Head of NCD Division,
ICMR, Smt. Bhawani Thiagarajan, the then Joint Secretary, Ministry of
Health and Family Welfare, Government of India, S.C. Pabreja, the then
Manager (Residential Plots), NOIDA and R.S. Yadav, OSD (Residential Plots),
NOIDA, was revealed.
After completion of the investigation, a charge-sheet was filed against the
appellants for the alleged offences committed by them on account of
unauthorised and illegal transfer of the plot in question in favour of the
ICPO-ICMR Housing Society.
The competent authority of NOIDA declined to grant sanction under Section
19 of the P.C. Act, 1988 for prosecuting A.K. Srivastava and Dr. Bela Shah.
The charge-sheet was filed before the learned Special Judge, Anti
Corruption, CBI (hereinafter referred to as the “Special Judge”) against
all the appellants, except R.S. Yadav, OSD, NOIDA, under Section 173(2) of
CrPC for the offences punishable under Section 120-B of IPC read with
Section 13(1)(d) and 13(2) of the P.C. Act, 1988. The requisite sanction
for prosecution against R.S. Yadav was declined by the Competent Authority.
After considering the charge-sheet and other materials available on record,
the learned Special Judge came to the conclusion that a prima facie case
appeared to have been made out by the CBI against the appellants.
Accordingly, the learned Special Judge vide his order dated 08.11.2012 has
taken cognizance and summons were issued against the appellants to face the
trial for the said offences.
Aggrieved of the order of taking cognizance and issuance of summons, the
appellants filed applications before the High Court of Allahabad under
Section 482 of CrPC, urging various grounds and prayed that the entire
proceedings on the file of the learned Special Judge in the case No. 18 of
2012 be quashed. Finding no merit in the applications filed by the
appellants, the High Court refused to interfere with the order of the
learned Special Judge dated 08.11.2012 and dismissed the same. The learned
Judge of the High Court held as under:
“.....at this stage it cannot be said that no offence under Section 120B
IPC read with Section 13(2) and 13(1)(d) of the Prevention of Corruption
Act is made out against the petitioners. There are sufficient materials
available on record which may prima facie establish the involvement of the
petitioners accused in commission of the aforesaid offences by getting the
plot in question transferred for the purposes of constructing flats to ICPO-
ICMR Cooperative Group Housing Society (a private housing society) in which
they were also the members and ultimately after construction of the flats
they also obtained individual flats after getting pecuniary benefit for
themselves and others and caused loss to the ICPO/ICMR (a fully govt.
funded body). Due to the said transfer of plots allotted to ICPO for staff
quarters, the officials of the ICPO have been permanently deprived of
getting official quarters in future.
......In this case, the role of each petitioners in processing, approving
and ultimately getting the plot in question transferred to ICPO-ICMR
Cooperative Group Housing Society (a private housing society) has been
categorically assigned by the prosecution and after conducting thorough and
detailed investigation in the matter, the charge sheet has been submitted
against them, on which the learned Special Judge, Anti Corruption, CBI,
Ghaziabad has taken cognizance. In my considered opinion, there appears to
be no infirmity, illegality, irregularity or jurisdictional error in
submitting the charge sheet by the CBI and taking cognizance thereon by the
learned Special Judge, Anti Corruption, CBI, Ghaziabad.”
Hence the present appeals.
We have heard Mr. P.P Khurana, Mr. Gopal Subramanium and Mr. R Basant, the
learned senior counsel appearing on behalf of the appellants, and Mr. P.S
Patwalia, the learned Additional Solicitor General and Ms. Kiran Suri,
learned senior counsel appearing on behalf of the respondent. On the basis
of the factual evidence on record produced before us, the circumstances of
the case and also in the light of the rival legal contentions urged by the
learned senior counsel for both the parties, we have broadly framed the
following points that would arise for our consideration:-
1) Whether an offence under Section 120B IPC is made out against the
appellants, and if so, whether previous sanction of the Central Government
is required to prosecute them for the same?
2) Whether the order dated 08.11.2012 passed by the learned Special Judge
taking cognizance of the offence against the appellants is legal and valid?
3) What order?
Answer to Point Nos. 1 and 2:
As the point numbers 1 and 2 are inter-related, we answer them together by
assigning the following reasons:
The issue of prior sanction required to be obtained against the appellants
in order to prosecute them for the offence said to have been committed by
them under Section 120B, IPC has to be examined in light of the allegations
contained in the charge-sheet that was filed before the learned Special
Judge by the respondent herein.
The learned senior counsel appearing on behalf of the appellants contended
that the entire transaction of transferring the plot in question in favour
of the ICPO-ICMR Housing Society was handled in a transparent manner, and
it was done keeping in view the dire need of housing of the employees of
ICPO-ICMR. The learned senior counsel submitted that the transfer of the
said plot from ICPO to the ICPO-ICMR Housing Society was done after
obtaining legal opinions and necessary sanction from the competent
authority of NOIDA. The learned senior counsel further contended that the
CBI withheld the report of the Comptroller and Auditor General of India
(CAG) while submitting the charge-sheet before the learned Special Judge,
which is not tenable in law.
It is further contended by Mr. P.P. Khurana, and Mr. Gopal Subramanium, the
learned senior counsel appearing on behalf of some of the appellants that
no prior sanction was obtained from the Central Government, which was
mandatorily required under Section 197, CrPC as the appellants were
employed as public servants at the time of commission of the alleged
offences. It is contended by them that the transfer of the plot in question
occurred when the appellants were holding public office and the alleged
offences were committed by them, if at all, in discharge of their official
duty. Thus, the learned Special Judge erred in taking cognizance of the
offences alleged against the appellants without prior sanction of the
Central Government having been obtained by the respondent. The learned
senior counsel further contended that the learned Special Judge should not
have taken cognizance in the absence of prior sanction obtained from the
Central Government, especially in light of the fact that taking cognizance
of the alleged offences and setting the wheel of the criminal justice
system in motion is a matter which could affect the fundamental rights
guaranteed to the appellants under Articles 14, 19 and 21 of the
Constitution of India.
The other learned counsel appearing on behalf of other appellants have
adopted the arguments made by Mr. P.P Khurana and Mr. Gopal Subramanium and
they have filed their written submissions in support of their contentions,
which are also considered by this Court.
On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor
General and Ms. Kiran Suri, learned senior counsel appearing on behalf of
the respondent contended that the legal submissions advanced by the learned
senior counsel appearing on behalf of the appellants are wholly untenable
in law for the reason that the very act of the appellants constitute an
offence under IPC, as they entered into a conspiracy to illegally transfer
the plot in question in favour of the said society referred to Supra
without obtaining the permission of the competent authority of NOIDA, with
an ulterior motive to make unlawful gain for themselves. The appellants
became members of the ICPO-ICMR Housing Society, even though they were not
eligible to be enrolled as members of the society, and thereafter proceeded
to transfer the plot at a value which was much lesser than the prevailing
market rate at the time, thus making an unlawful gain for themselves, which
is an offence under Section 13(1)(d) of the P.C. Act, 1988, punishable
under Section 13(2) of the Act. It is further contended that the CBI filed
the charge-sheet against the appellants after due investigation, and
therefore, the High Court has rightly dismissed the applications filed by
them under Section 482 of CrPC by passing a valid judgment and order which
does not call for interference by this Court in exercise of its appellate
jurisdiction. The illegal acts done by the appellants in transferring the
said plot at a lower price cannot be said to have been carried out in
exercise of their official duty. Therefore, no previous sanction from the
Competent Authority was required under Section 197 of CrPC to prosecute the
appellants for the alleged offence. The learned Additional Solicitor
General and the learned senior counsel appearing on behalf of the
respondent submit that this is the reason that the present cases are not
ones which warrant for this Court to exercise its appellate jurisdiction
and quash the proceedings as prayed by the Appellants.
The FIR and the charge-sheet both contain references to the allegations
made against the appellants and other unknown persons, that they entered
into a criminal conspiracy by abusing their official positions as public
servants during the year 2006-2007 and illegally transferred the plot in
question from ICPO to ICPO-ICMR Housing Society at a much lower price than
the then prevailing sector rate. On this basis, it is alleged that the
appellants dishonestly obtained an undue pecuniary advantage for themselves
and others to the extent of Rs.13,14,36,823/- by illegally transferring the
plot in favour of the above said society with an ulterior motive. The
process of transfer of the plot was initiated by B.C. Das, the then
Director, ICPO, vide letter dated 29.03.2006 on the basis of a
representation prepared by L.D. Pushp, the then Administrative Officer,
ICPO, containing signatures of 51 employees of ICPO sent to Mohinder
Singh, Sr. Dy. Director General (Admn), ICMR. The said representation was
for the purpose of establishment of the ICPO-ICMR Housing Society with an
object to promote control, coordinate and take charge of the plot in
question. The final approval for transfer of the plot and formation of the
proposed ICPO-ICMR society was given by the appellant N.K. Ganguly, the
then Director General of ICMR on 06.06.2006 and the same was approved and
communicated by A.K. Srivastava, Executive Engineer vide letter dated
09.06.2006 to B.C. Das. On 12.06.2006, N.K. Ganguly recorded a note in the
file stating that “the proposal was approved provided it was under the
provisions of laws and land use for which it was acquired”. The aforesaid
allegations contained in the chargesheet suggest that a conspiracy was
hatched by the appellants to commit an offence under Section 13(1)(d) of
the P.C. Act, 1988. A perusal of the chargesheet reveals that there is
sufficient material on record to indicate the existence of the alleged
conspiracy. In view of the same, Section 197 of CrPC is squarely applicable
to the facts of the present case.
At this stage, it is important to examine the concept of criminal
conspiracy as defined in IPC. Section 120-A of the IPC reads as under:
“When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy: Provided that no agreement except an
agreement to commit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.”
In the instant case, it is alleged in the charge-sheet that the appellants
entered into an agreement to commit an illegal act, which is an offence
punishable under Section 120B of IPC. Therefore, the provision of Section
197 of CrPC is squarely applicable to the facts of the case. Prior sanction
of the Central Government was required to be taken by the respondent before
the learned Special Judge took cognizance of the offence once the final
report was filed under Section 173(2) of CrPC. In this regard, Mr. Gopal
Subramanium, learned senior counsel appearing on behalf of the appellant
has very aptly placed reliance on the decision of a three judge bench of
this Court in the case of R.R. Chari v. State of Uttar Pradesh[1], wherein,
while examining the scope of Section 197 of CrPC, this Court made an
observation indicating that the term “cognizance” indicates the stage of
initiation of proceedings against a public servant. The Court placed
reliance upon the judgment of the Calcutta High Court delivered in the case
of Superintendent and Remembrance of Legal Affairs, West Bengal v. Abhani
Kumar Bannerjee[2], wherein it was held that before taking cognizance of
any offence, a Magistrate must not only be said to have applied his mind to
the contents of the petition-
“but he must have done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of this Chapter,--proceeding
under Section 200, and thereafter sending it for enquiry and report under
Section 202. When the Magistrate applies his mind not for the purpose of
proceeding under the subsequent sections of this Chapter, but for taking
action of some other kind, e.g., ordering investigation under Section
156(3), or issuing a search warrant for the purpose of the investigation,
he cannot be said to have taken cognizance of the offence.”
Both the learned senior counsel placed reliance on another judgment of a
three judge bench of this Court in Shreekantiah Ramayya Munipalli v. State
of Bombay[3]. In that case, the allegation against the appellant therein
and two other government servants was that they had conspired to defraud
the Government in respect of certain properties and arranged to sell the
goods to the approver. The case against them was registered under Section
120-B read with Section 409 of IPC. While considering the contention
advanced that the said acts could not be said to have been committed in
discharge of official duty, Bose, J. placed reliance upon the observations
made by the Federal Court in the case of Dr. Hori Ram Singh v. Emperor[4],
wherein Vardachariar, J observed that in respect of a charge under Section
409 of IPC, the official capacity is relevant only for entrustment, and not
necessarily in respect of misappropriation or conversion which may be the
act complained of. It was held by this Court that the correct position of
law was laid down in the case of Hori Ram Singh, which is as under:-
“I would observe at the outset that the question is substantially one of
fact, to be determined with reference to the act complained of and the
attendant circumstances; it seems neither useful nor desirable to
paraphrase the language of the section in attempting to lay down hard and
fast tests.”
Bose, J., further held in Shreekantiah case referred to supra that there
are cases and cases and each must be decided on its own facts. It was held
as under:
“Now it is obvious that if Section 197 of the Code of Criminal Procedure is
construed too narrowly it can never be applied, for of course, it is no
part of an official’s duty to commit an offence and never can be. But it is
not the duty we have to examine so much as the act, because an official act
can be performed in the discharge of official duty as well as in
dereliction of it.”
(emphasis laid by this Court)
While considering the facts of the case, Bose J. observed that the offence
in question, could not have been committed any other way, and held as
under:
“...If it was innocent, it was an official act; if dishonest, it was the
dishonest doing of an official act, but in either event the act was
official because the second accused could not dispose of the goods save by
the doing of an official act, namely officially permitting their disposal;
and that he did. He actually permitted their release and purported to do it
in an official capacity, and apart from the fact that he did not pretend to
act privately; there was no other way in which he could have done it.
Therefore, whatever the intention or motive behind the act may have been,
the physical part of it remained unaltered, so if it was official in the
one case it was equally official in the order, and the only difference
would lie in the intention with which it was done: in the one event, it
would be done in the discharge of an official duty and in the other, in the
purported discharge of it.”
(emphasis laid by this Court)
Mr. Gopal Subramanium, the learned senior counsel on behalf of some of the
appellants has further rightly placed reliance upon the judgement of a
three judge bench of this Court in the case of Amrik Singh v. State of
Pepsu[5] to buttress the contention that the issue of requirement of prior
sanction under Section 197 of Cr.PC can be raised at any stage of the
proceedings, and not just at stage of framing of charges. The decision in
the case of Hori Ram Singh (supra) was also quoted with approval,
especially the categorisation of situations in three scenarios, as under:
“a) Decision which held that sanction was necessary when the act complained
of attached to the official character of the person doing it;
b) Judgments which held that sanction was necessary in all cases in which
the official character of the person gave him an opportunity for the
commission of the crime; and
Those which held it was necessary when the offence was committed while the
accused was actually engaged in the performance of official duties.“
It was further held in the Amrik Singh case that:
“The result of the authorities may thus be summed up: it is not every
offence committed by a public servant that requires sanction for
prosecution u/s 197 of the Cr.PC; nor even every act done by him while he
is actually engaged in the performance of his official duties; but if the
act complained of is directly concerned with his official duties so that,
if questioned, it could be claimed to have been done by virtue of the
office, then sanction would be necessary; and that would be so,
irrespective of whether it was, in fact, a proper discharge of his duties,
because that would really be a matter of defence on the merits, which would
have to be invested at the trial and could not arise at the stage of grant
of sanction, which must precede the institution of the prosecution.”
(emphasis laid by this Court)
The position of law, as laid down in the case of Hori Ram Singh was also
approved by the Privy Council in the case of H.H.B. Gill v. The King[6],
wherein it was observed as under:
“A public servant can only be said to act or purport to act in the
discharge of his official duty, if his act is such as to lie within the
scope of his official duty.”
Reliance was further rightly placed by the learned senior counsel on the
decision of a constitution bench of this Court in the case of Matajog Dobey
v. H.C. Bhari[7], which pertained to an income tax investigation. It was
alleged by the appellant therein that while conducting a search, the
officials of the income tax department had forcibly broke open the entrance
door of the house and interfered with the boxes and drawers of the tables.
It was also alleged by the appellant therein that the officials tied him
and beat him up. Upon an enquiry of the said complaint, the magistrate came
to the conclusion that a prima facie case had been made out and issued
process. During the course of trial, the issue pertaining to want of
sanction was urged. This Court held as under:
“Article 14 does not render Section 197, Criminal Procedure Code ultra
vires as the discrimination is based upon a rational classification. Public
servants have to be protected from harassment in the discharge of
official duties while ordinary citizens not so engaged do not require this
safeguard.”
(emphasis laid by this Court)
On the other hand, ordinary citizens not so engaged do not require this
safeguard. It was further observed that:-
“....Whether sanction is to be accorded or not, is a matter for the
Government to consider. The absolute power to accord or withhold sanction
on the Government is irrelevant and foreign to the duty cast on that Court
which is the ascertainment of the true nature of the act.”
The Court finally summed up the result of the discussion as follows:-
“There must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did
it in the course of the performance of his duty.....”
(emphasis laid by this Court)
In the case of Satwant Singh v. State of Punjab[8], a constitution bench of
this Court while examining the scope of Section 197 of CrPC, observed as
follows:
“It appears to us to be clear that some offences cannot by their very
nature be regarded as having been committed by public servants while acting
or purporting to act in the discharge of their official duty. For instance,
acceptance of a bribe, an offence punishable under s.161 of IPC, is one of
them and the offence of cheating or abetment thereof is another... where a
public servant commits the offence of cheating or abets another so to
cheat, the offence committed by him is not one while he is acting or
purporting to act in the discharge of his official duty, as such offences
have no necessary connection between them and the performance of the duties
of a public servant, the official status furnishing only the occasion or
opportunity for the commission of the offences......
...the Act of cheating or abetment thereof has no reasonable connection
with the discharge of official duty. The act must bear such relation to the
duty that the public servant could lay a reasonable but not a pretended or
fanciful claim, that he did it in the course of the performance of his
duty.”
In the case of R.R. Chari referred to supra, while examining the scope of
Section 197 of CrPC, this Court held as follows:
“It is clear that the first part of Section 197(1) provides a special
protection, inter alia, to public servants who are not removable from their
offices save by or with the sanction of the State Government or the Central
Government where they are charged with having committed offences while
acting or purporting to act in the discharge of their official duties; and
the form which this protection has taken is that before a criminal Court
can take cognizance of any offence alleged to have been committed by such
public servants, a sanction should have been accorded to the said
prosecution by the appropriate authorities. In other words, the appropriate
authorities must be satisfied that there is a prima facie case for starting
the prosecution and this prima facie satisfaction has been interposed as a
safeguard before the actual prosecution commences. The object of Section
197(1) clearly is to save public servants form frivolous prosecution.....”
(emphasis laid by this Court)
The learned senior counsel further placed reliance on a three judge bench
decision of this Court in the case of Baijnath Gupta v. State of Madhya
Pradesh[9], wherein the question that arose before this Court was whether
the conviction of the appellant under Sections 409 and 477A of the IPC was
illegal for want of sanction. This Court observed as follows:
“It is not that every offence committed by a public servant that requires
sanction for prosecution under Section 197(1) of the Criminal Procedure
Code; nor even every act done by him while he is actually engaged in the
performance of his official duties; but if the act complained of is
directly concerned with his official duties so that, if questioned it could
be claimed to have been done by virtue of the office, then sanction would
be necessary. It is the quality of the act that is important and if it
falls within the scope and range of his official duties the protection
contemplated by Section 197 of the Criminal Procedure Code will be
attracted. An offence may be entirely unconnected with the official duty as
such or it may be committed within the scope of the official duty. Where it
is unconnected with the official duty there can be no protection. It is
only when it is either within the scope of the official duty or in excess
of it that the protection is claimable.”
(emphasis laid by this Court)
In the case of B. Saha v. M.S Kochar[10], the constitution bench of this
Court observed that the question of sanction under Section 197 of CrPC
could be raised and considered at any stage of the proceedings. On the
issue of when the protection of Section 197 of CrPC is attracted, this
Court held as under:
“In sum, the sine qua non for the applicability of this Section is that the
offence charged, be it one of commission or omission, must be one which has
been committed by the public servant either in his official capacity or
under colour of the office held by him.”
The learned senior counsel further placed reliance on the decision of a
constitution bench of this Court in the case of R.S Nayak v. A.R
Antulay[11], wherein certain observations were made with regard to Section
6 of P.C Act, 1988, as under:
“Therefore, it unquestionably follows that the sanction to prosecute can be
given by an authority competent to remove the public servant from the
office which he has misused or abused because that authority alone would be
able to know whether there has been a misuse or abuse of the office by the
public servant and not some rank outsider. By a catena of decisions, it has
been held that the authority entitled to grant sanction must apply its mind
to the facts of the case, evidence collected and other incidental facts
before according sanction. A grant of sanction is not an idle formality but
a solemn and sacrosanct act which removes the umbrella of protection of
Government servants against frivolous prosecutions and the aforesaid
requirements must therefore, be strictly complied with before any
prosecution could be launched against public servants....The Legislative
advisedly conferred power on the authority competent to remove the public
servant from the office to grant sanction for the obvious reason that that
authority alone would be able, when facts and evidence are placed before
him to judge whether a serious offence is committed or the prosecution is
either frivolous or speculative. That authority alone would be competent to
judge whether on the facts alleged, there has been an abuse or misuse of
office held by the public servant. That authority would be in a position to
know what was the power conferred on the office which the public servant
holds, how taht power could be abused for corrupt motive and whether prima
facie it has been so done. That competent authority alone would know the
nature and functions discharged by the public servant holding the office
and whether the same has been abused or misused. It is the vertical
hierarchy between the authority competent to remove the public servant from
that office and the nature of the office held by the public servant against
whom sanction is sought which would indicate a hierarchy and which would
therefore, permit interference of knowledge about the fuctions and duties
of the office and its misuse or abuse by the public servant. That is why
the legislature clearly provided that that authority done would be
competent to grant sanction which is entitled to remove the public servant
against whom sanction is sought from the office......
(emphasis laid by this Court)
Mr. P.P. Khurana, the learned senior counsel appearing on behalf of some of
the appellants has further placed reliance upon the judgments of this Court
in the cases of R. Balakrishna Pillai v. State of Kerala[12], Abdul Wahab
Ansari v. State of Bihar[13], Shankaran Moitra v. Sadhna Das[14] and State
of M.P v. Sheetla Sahai[15], in support of his submission that the acts
constituting the offence were alleged to have been committed by the
appellant in discharge of his official duty and that being the fact, it was
not open to the Special Judge court to take cognizance of the offences
without obtaining the previous sanction of the Central Government by the
respondent.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.798 OF 2015
PROF. N.K. GANGULY ……APPELLANT
Vs.
CBI NEW DELHI ……RESPONDENT
WITH
CRIMINAL APPEAL No. 799/2015
CRIMINAL APPEAL No. 800/2015
CRIMINAL APPEAL NO. 801/2015
CRIMINAL APPEAL No. 930/2015
AND
CRIMINAL APPEAL No.1537/2015
(Arising Out of SLP (Crl) No.9838 of 2015)
(@ SLP (Crl)………………… CRL. M.P. NO.9612 of 2015)
J U D G M E N T
V.GOPALA GOWDA, J.
Delay condoned. Leave granted in Special Leave Petition
(Crl)………………Crl.M.P. No.9612 of 2015.
These appeals arise out of the common judgment and order dated 27.05.2013
passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of
2012 and judgment and order by the High Court of Judicature at Allahabad
dated and order 07.10.2014 passed in Application No. 277KH of 2014 in
Special Case No. 18 of 2012 by the learned Special Judge, whereby the High
Court dismissed the applications filed by the appellants herein under
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as “the CrPC”) to quash the criminal proceedings of Special Case No. 18
of 2012 as well as the summoning order dated 08.11.2012 passed by the
learned Special Judge, Anti Corruption, CBI, Ghaziabad. All the appeals are
being disposed of by this common judgment.
As the facts in all the appeals are common, for the sake of convenience, we
refer to the facts of Criminal Appeal No. 798 of 2015, in this judgment
which are briefly stated hereunder:
The Indian Council of Medical Research (hereinafter referred to as “ICMR”),
a registered society under the Societies Registration Act, 1860 is a
premier research institute dealing with the formulation, coordination and
promotion of bio-medical research. Its functional object is to initiate,
aid develop and coordinate medical and scientific research in India and to
promote and assist institutions for the study of diseases, their
prevention, causation and remedy. It is fully funded by the Government of
India through Department of Health Research, Ministry of Health and Family
Welfare. The Institute of Cytology & Preventive Oncology (hereinafter
referred to as “ICPO”) is one of the institutes of ICMR, the main aim of
which is to promote research in the field of cancer.
On 30.11.2010, a criminal case was registered under Section 120-B of the
Indian Penal Code (hereinafter referred to as the “IPC”) read with Section
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as the “P.C. Act, 1988”) on the basis of written complaint
filed by M.R. Atrey, Sub-Inspector of Police, CBI, EOU, VII, New Delhi
against the appellants herein namely N.K. Ganguly, the then Director
General, Mohinder Singh, the then Sr.Dy. Director General-Admin, P.D. Seth,
the then Financial Advisor, A.K. Srivastava, Executive Engineer, all from
ICMR, New Delhi and B.C. Das, the then Director ICPO, NOIDA and other
unknown persons in the matter relating to the alleged unauthorized and
illegal transfer of plot no.119, Sector 35, NOIDA, measuring 9712.62 sq.
meters from ICPO, NOIDA to ICPO-ICMR Cooperative Group Housing Society Ltd.
NOIDA (hereinafter referred to as the “ICPO-ICMR Housing Society”).
In the preliminary inquiry in the matter, it was found that the aforesaid
officials and the other unknown persons had entered into a criminal
conspiracy by abusing their official position as public servants and had
unauthorisedly and illegally transferred the aforesaid plot from ICPO to
ICPO-ICMR Housing Society at a consideration of Rs.4,33,90,337/- which was
much lower than the then prevailing sector rate of Rs.18,000/- per sq.mtrs.
of NOIDA, thereby, giving themselves and other members of the ICPO-ICMR
Housing Society an undue pecuniary advantage. It was also revealed in the
enquiry that the membership of the ICPO-ICMR Housing Society was granted to
such persons who were otherwise not eligible for getting membership as per
the bye-laws of the society and terms and conditions stipulated and
approved by ICMR for membership in the said society. It was further
revealed that the officers of New Okhla Industrial Development Authority
(hereinafter referred to as “NOIDA”) allowed the transfer of the said plot
unauthorisedly and illegally from ICPO to ICPO-ICMR Housing Society,
despite the fact that they were not competent to pass such order of
transfer.
During the course of investigation by CBI, apart from the aforesaid named
accused persons in the FIR, the fact of the involvement of other officials
namely, L.D. Pushp, the then Administrative Officer, ICPO, Jatinder Singh,
the then Senior Accounts Officer, ICMR, Dr. S.K. Bhattacharya, the then
Additional Director General, ICMR, Dr. Bela Shah, Head of NCD Division,
ICMR, Smt. Bhawani Thiagarajan, the then Joint Secretary, Ministry of
Health and Family Welfare, Government of India, S.C. Pabreja, the then
Manager (Residential Plots), NOIDA and R.S. Yadav, OSD (Residential Plots),
NOIDA, was revealed.
After completion of the investigation, a charge-sheet was filed against the
appellants for the alleged offences committed by them on account of
unauthorised and illegal transfer of the plot in question in favour of the
ICPO-ICMR Housing Society.
The competent authority of NOIDA declined to grant sanction under Section
19 of the P.C. Act, 1988 for prosecuting A.K. Srivastava and Dr. Bela Shah.
The charge-sheet was filed before the learned Special Judge, Anti
Corruption, CBI (hereinafter referred to as the “Special Judge”) against
all the appellants, except R.S. Yadav, OSD, NOIDA, under Section 173(2) of
CrPC for the offences punishable under Section 120-B of IPC read with
Section 13(1)(d) and 13(2) of the P.C. Act, 1988. The requisite sanction
for prosecution against R.S. Yadav was declined by the Competent Authority.
After considering the charge-sheet and other materials available on record,
the learned Special Judge came to the conclusion that a prima facie case
appeared to have been made out by the CBI against the appellants.
Accordingly, the learned Special Judge vide his order dated 08.11.2012 has
taken cognizance and summons were issued against the appellants to face the
trial for the said offences.
Aggrieved of the order of taking cognizance and issuance of summons, the
appellants filed applications before the High Court of Allahabad under
Section 482 of CrPC, urging various grounds and prayed that the entire
proceedings on the file of the learned Special Judge in the case No. 18 of
2012 be quashed. Finding no merit in the applications filed by the
appellants, the High Court refused to interfere with the order of the
learned Special Judge dated 08.11.2012 and dismissed the same. The learned
Judge of the High Court held as under:
“.....at this stage it cannot be said that no offence under Section 120B
IPC read with Section 13(2) and 13(1)(d) of the Prevention of Corruption
Act is made out against the petitioners. There are sufficient materials
available on record which may prima facie establish the involvement of the
petitioners accused in commission of the aforesaid offences by getting the
plot in question transferred for the purposes of constructing flats to ICPO-
ICMR Cooperative Group Housing Society (a private housing society) in which
they were also the members and ultimately after construction of the flats
they also obtained individual flats after getting pecuniary benefit for
themselves and others and caused loss to the ICPO/ICMR (a fully govt.
funded body). Due to the said transfer of plots allotted to ICPO for staff
quarters, the officials of the ICPO have been permanently deprived of
getting official quarters in future.
......In this case, the role of each petitioners in processing, approving
and ultimately getting the plot in question transferred to ICPO-ICMR
Cooperative Group Housing Society (a private housing society) has been
categorically assigned by the prosecution and after conducting thorough and
detailed investigation in the matter, the charge sheet has been submitted
against them, on which the learned Special Judge, Anti Corruption, CBI,
Ghaziabad has taken cognizance. In my considered opinion, there appears to
be no infirmity, illegality, irregularity or jurisdictional error in
submitting the charge sheet by the CBI and taking cognizance thereon by the
learned Special Judge, Anti Corruption, CBI, Ghaziabad.”
Hence the present appeals.
We have heard Mr. P.P Khurana, Mr. Gopal Subramanium and Mr. R Basant, the
learned senior counsel appearing on behalf of the appellants, and Mr. P.S
Patwalia, the learned Additional Solicitor General and Ms. Kiran Suri,
learned senior counsel appearing on behalf of the respondent. On the basis
of the factual evidence on record produced before us, the circumstances of
the case and also in the light of the rival legal contentions urged by the
learned senior counsel for both the parties, we have broadly framed the
following points that would arise for our consideration:-
1) Whether an offence under Section 120B IPC is made out against the
appellants, and if so, whether previous sanction of the Central Government
is required to prosecute them for the same?
2) Whether the order dated 08.11.2012 passed by the learned Special Judge
taking cognizance of the offence against the appellants is legal and valid?
3) What order?
Answer to Point Nos. 1 and 2:
As the point numbers 1 and 2 are inter-related, we answer them together by
assigning the following reasons:
The issue of prior sanction required to be obtained against the appellants
in order to prosecute them for the offence said to have been committed by
them under Section 120B, IPC has to be examined in light of the allegations
contained in the charge-sheet that was filed before the learned Special
Judge by the respondent herein.
The learned senior counsel appearing on behalf of the appellants contended
that the entire transaction of transferring the plot in question in favour
of the ICPO-ICMR Housing Society was handled in a transparent manner, and
it was done keeping in view the dire need of housing of the employees of
ICPO-ICMR. The learned senior counsel submitted that the transfer of the
said plot from ICPO to the ICPO-ICMR Housing Society was done after
obtaining legal opinions and necessary sanction from the competent
authority of NOIDA. The learned senior counsel further contended that the
CBI withheld the report of the Comptroller and Auditor General of India
(CAG) while submitting the charge-sheet before the learned Special Judge,
which is not tenable in law.
It is further contended by Mr. P.P. Khurana, and Mr. Gopal Subramanium, the
learned senior counsel appearing on behalf of some of the appellants that
no prior sanction was obtained from the Central Government, which was
mandatorily required under Section 197, CrPC as the appellants were
employed as public servants at the time of commission of the alleged
offences. It is contended by them that the transfer of the plot in question
occurred when the appellants were holding public office and the alleged
offences were committed by them, if at all, in discharge of their official
duty. Thus, the learned Special Judge erred in taking cognizance of the
offences alleged against the appellants without prior sanction of the
Central Government having been obtained by the respondent. The learned
senior counsel further contended that the learned Special Judge should not
have taken cognizance in the absence of prior sanction obtained from the
Central Government, especially in light of the fact that taking cognizance
of the alleged offences and setting the wheel of the criminal justice
system in motion is a matter which could affect the fundamental rights
guaranteed to the appellants under Articles 14, 19 and 21 of the
Constitution of India.
The other learned counsel appearing on behalf of other appellants have
adopted the arguments made by Mr. P.P Khurana and Mr. Gopal Subramanium and
they have filed their written submissions in support of their contentions,
which are also considered by this Court.
On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor
General and Ms. Kiran Suri, learned senior counsel appearing on behalf of
the respondent contended that the legal submissions advanced by the learned
senior counsel appearing on behalf of the appellants are wholly untenable
in law for the reason that the very act of the appellants constitute an
offence under IPC, as they entered into a conspiracy to illegally transfer
the plot in question in favour of the said society referred to Supra
without obtaining the permission of the competent authority of NOIDA, with
an ulterior motive to make unlawful gain for themselves. The appellants
became members of the ICPO-ICMR Housing Society, even though they were not
eligible to be enrolled as members of the society, and thereafter proceeded
to transfer the plot at a value which was much lesser than the prevailing
market rate at the time, thus making an unlawful gain for themselves, which
is an offence under Section 13(1)(d) of the P.C. Act, 1988, punishable
under Section 13(2) of the Act. It is further contended that the CBI filed
the charge-sheet against the appellants after due investigation, and
therefore, the High Court has rightly dismissed the applications filed by
them under Section 482 of CrPC by passing a valid judgment and order which
does not call for interference by this Court in exercise of its appellate
jurisdiction. The illegal acts done by the appellants in transferring the
said plot at a lower price cannot be said to have been carried out in
exercise of their official duty. Therefore, no previous sanction from the
Competent Authority was required under Section 197 of CrPC to prosecute the
appellants for the alleged offence. The learned Additional Solicitor
General and the learned senior counsel appearing on behalf of the
respondent submit that this is the reason that the present cases are not
ones which warrant for this Court to exercise its appellate jurisdiction
and quash the proceedings as prayed by the Appellants.
The FIR and the charge-sheet both contain references to the allegations
made against the appellants and other unknown persons, that they entered
into a criminal conspiracy by abusing their official positions as public
servants during the year 2006-2007 and illegally transferred the plot in
question from ICPO to ICPO-ICMR Housing Society at a much lower price than
the then prevailing sector rate. On this basis, it is alleged that the
appellants dishonestly obtained an undue pecuniary advantage for themselves
and others to the extent of Rs.13,14,36,823/- by illegally transferring the
plot in favour of the above said society with an ulterior motive. The
process of transfer of the plot was initiated by B.C. Das, the then
Director, ICPO, vide letter dated 29.03.2006 on the basis of a
representation prepared by L.D. Pushp, the then Administrative Officer,
ICPO, containing signatures of 51 employees of ICPO sent to Mohinder
Singh, Sr. Dy. Director General (Admn), ICMR. The said representation was
for the purpose of establishment of the ICPO-ICMR Housing Society with an
object to promote control, coordinate and take charge of the plot in
question. The final approval for transfer of the plot and formation of the
proposed ICPO-ICMR society was given by the appellant N.K. Ganguly, the
then Director General of ICMR on 06.06.2006 and the same was approved and
communicated by A.K. Srivastava, Executive Engineer vide letter dated
09.06.2006 to B.C. Das. On 12.06.2006, N.K. Ganguly recorded a note in the
file stating that “the proposal was approved provided it was under the
provisions of laws and land use for which it was acquired”. The aforesaid
allegations contained in the chargesheet suggest that a conspiracy was
hatched by the appellants to commit an offence under Section 13(1)(d) of
the P.C. Act, 1988. A perusal of the chargesheet reveals that there is
sufficient material on record to indicate the existence of the alleged
conspiracy. In view of the same, Section 197 of CrPC is squarely applicable
to the facts of the present case.
At this stage, it is important to examine the concept of criminal
conspiracy as defined in IPC. Section 120-A of the IPC reads as under:
“When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy: Provided that no agreement except an
agreement to commit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.”
In the instant case, it is alleged in the charge-sheet that the appellants
entered into an agreement to commit an illegal act, which is an offence
punishable under Section 120B of IPC. Therefore, the provision of Section
197 of CrPC is squarely applicable to the facts of the case. Prior sanction
of the Central Government was required to be taken by the respondent before
the learned Special Judge took cognizance of the offence once the final
report was filed under Section 173(2) of CrPC. In this regard, Mr. Gopal
Subramanium, learned senior counsel appearing on behalf of the appellant
has very aptly placed reliance on the decision of a three judge bench of
this Court in the case of R.R. Chari v. State of Uttar Pradesh[1], wherein,
while examining the scope of Section 197 of CrPC, this Court made an
observation indicating that the term “cognizance” indicates the stage of
initiation of proceedings against a public servant. The Court placed
reliance upon the judgment of the Calcutta High Court delivered in the case
of Superintendent and Remembrance of Legal Affairs, West Bengal v. Abhani
Kumar Bannerjee[2], wherein it was held that before taking cognizance of
any offence, a Magistrate must not only be said to have applied his mind to
the contents of the petition-
“but he must have done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of this Chapter,--proceeding
under Section 200, and thereafter sending it for enquiry and report under
Section 202. When the Magistrate applies his mind not for the purpose of
proceeding under the subsequent sections of this Chapter, but for taking
action of some other kind, e.g., ordering investigation under Section
156(3), or issuing a search warrant for the purpose of the investigation,
he cannot be said to have taken cognizance of the offence.”
Both the learned senior counsel placed reliance on another judgment of a
three judge bench of this Court in Shreekantiah Ramayya Munipalli v. State
of Bombay[3]. In that case, the allegation against the appellant therein
and two other government servants was that they had conspired to defraud
the Government in respect of certain properties and arranged to sell the
goods to the approver. The case against them was registered under Section
120-B read with Section 409 of IPC. While considering the contention
advanced that the said acts could not be said to have been committed in
discharge of official duty, Bose, J. placed reliance upon the observations
made by the Federal Court in the case of Dr. Hori Ram Singh v. Emperor[4],
wherein Vardachariar, J observed that in respect of a charge under Section
409 of IPC, the official capacity is relevant only for entrustment, and not
necessarily in respect of misappropriation or conversion which may be the
act complained of. It was held by this Court that the correct position of
law was laid down in the case of Hori Ram Singh, which is as under:-
“I would observe at the outset that the question is substantially one of
fact, to be determined with reference to the act complained of and the
attendant circumstances; it seems neither useful nor desirable to
paraphrase the language of the section in attempting to lay down hard and
fast tests.”
Bose, J., further held in Shreekantiah case referred to supra that there
are cases and cases and each must be decided on its own facts. It was held
as under:
“Now it is obvious that if Section 197 of the Code of Criminal Procedure is
construed too narrowly it can never be applied, for of course, it is no
part of an official’s duty to commit an offence and never can be. But it is
not the duty we have to examine so much as the act, because an official act
can be performed in the discharge of official duty as well as in
dereliction of it.”
(emphasis laid by this Court)
While considering the facts of the case, Bose J. observed that the offence
in question, could not have been committed any other way, and held as
under:
“...If it was innocent, it was an official act; if dishonest, it was the
dishonest doing of an official act, but in either event the act was
official because the second accused could not dispose of the goods save by
the doing of an official act, namely officially permitting their disposal;
and that he did. He actually permitted their release and purported to do it
in an official capacity, and apart from the fact that he did not pretend to
act privately; there was no other way in which he could have done it.
Therefore, whatever the intention or motive behind the act may have been,
the physical part of it remained unaltered, so if it was official in the
one case it was equally official in the order, and the only difference
would lie in the intention with which it was done: in the one event, it
would be done in the discharge of an official duty and in the other, in the
purported discharge of it.”
(emphasis laid by this Court)
Mr. Gopal Subramanium, the learned senior counsel on behalf of some of the
appellants has further rightly placed reliance upon the judgement of a
three judge bench of this Court in the case of Amrik Singh v. State of
Pepsu[5] to buttress the contention that the issue of requirement of prior
sanction under Section 197 of Cr.PC can be raised at any stage of the
proceedings, and not just at stage of framing of charges. The decision in
the case of Hori Ram Singh (supra) was also quoted with approval,
especially the categorisation of situations in three scenarios, as under:
“a) Decision which held that sanction was necessary when the act complained
of attached to the official character of the person doing it;
b) Judgments which held that sanction was necessary in all cases in which
the official character of the person gave him an opportunity for the
commission of the crime; and
Those which held it was necessary when the offence was committed while the
accused was actually engaged in the performance of official duties.“
It was further held in the Amrik Singh case that:
“The result of the authorities may thus be summed up: it is not every
offence committed by a public servant that requires sanction for
prosecution u/s 197 of the Cr.PC; nor even every act done by him while he
is actually engaged in the performance of his official duties; but if the
act complained of is directly concerned with his official duties so that,
if questioned, it could be claimed to have been done by virtue of the
office, then sanction would be necessary; and that would be so,
irrespective of whether it was, in fact, a proper discharge of his duties,
because that would really be a matter of defence on the merits, which would
have to be invested at the trial and could not arise at the stage of grant
of sanction, which must precede the institution of the prosecution.”
(emphasis laid by this Court)
The position of law, as laid down in the case of Hori Ram Singh was also
approved by the Privy Council in the case of H.H.B. Gill v. The King[6],
wherein it was observed as under:
“A public servant can only be said to act or purport to act in the
discharge of his official duty, if his act is such as to lie within the
scope of his official duty.”
Reliance was further rightly placed by the learned senior counsel on the
decision of a constitution bench of this Court in the case of Matajog Dobey
v. H.C. Bhari[7], which pertained to an income tax investigation. It was
alleged by the appellant therein that while conducting a search, the
officials of the income tax department had forcibly broke open the entrance
door of the house and interfered with the boxes and drawers of the tables.
It was also alleged by the appellant therein that the officials tied him
and beat him up. Upon an enquiry of the said complaint, the magistrate came
to the conclusion that a prima facie case had been made out and issued
process. During the course of trial, the issue pertaining to want of
sanction was urged. This Court held as under:
“Article 14 does not render Section 197, Criminal Procedure Code ultra
vires as the discrimination is based upon a rational classification. Public
servants have to be protected from harassment in the discharge of
official duties while ordinary citizens not so engaged do not require this
safeguard.”
(emphasis laid by this Court)
On the other hand, ordinary citizens not so engaged do not require this
safeguard. It was further observed that:-
“....Whether sanction is to be accorded or not, is a matter for the
Government to consider. The absolute power to accord or withhold sanction
on the Government is irrelevant and foreign to the duty cast on that Court
which is the ascertainment of the true nature of the act.”
The Court finally summed up the result of the discussion as follows:-
“There must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did
it in the course of the performance of his duty.....”
(emphasis laid by this Court)
In the case of Satwant Singh v. State of Punjab[8], a constitution bench of
this Court while examining the scope of Section 197 of CrPC, observed as
follows:
“It appears to us to be clear that some offences cannot by their very
nature be regarded as having been committed by public servants while acting
or purporting to act in the discharge of their official duty. For instance,
acceptance of a bribe, an offence punishable under s.161 of IPC, is one of
them and the offence of cheating or abetment thereof is another... where a
public servant commits the offence of cheating or abets another so to
cheat, the offence committed by him is not one while he is acting or
purporting to act in the discharge of his official duty, as such offences
have no necessary connection between them and the performance of the duties
of a public servant, the official status furnishing only the occasion or
opportunity for the commission of the offences......
...the Act of cheating or abetment thereof has no reasonable connection
with the discharge of official duty. The act must bear such relation to the
duty that the public servant could lay a reasonable but not a pretended or
fanciful claim, that he did it in the course of the performance of his
duty.”
In the case of R.R. Chari referred to supra, while examining the scope of
Section 197 of CrPC, this Court held as follows:
“It is clear that the first part of Section 197(1) provides a special
protection, inter alia, to public servants who are not removable from their
offices save by or with the sanction of the State Government or the Central
Government where they are charged with having committed offences while
acting or purporting to act in the discharge of their official duties; and
the form which this protection has taken is that before a criminal Court
can take cognizance of any offence alleged to have been committed by such
public servants, a sanction should have been accorded to the said
prosecution by the appropriate authorities. In other words, the appropriate
authorities must be satisfied that there is a prima facie case for starting
the prosecution and this prima facie satisfaction has been interposed as a
safeguard before the actual prosecution commences. The object of Section
197(1) clearly is to save public servants form frivolous prosecution.....”
(emphasis laid by this Court)
The learned senior counsel further placed reliance on a three judge bench
decision of this Court in the case of Baijnath Gupta v. State of Madhya
Pradesh[9], wherein the question that arose before this Court was whether
the conviction of the appellant under Sections 409 and 477A of the IPC was
illegal for want of sanction. This Court observed as follows:
“It is not that every offence committed by a public servant that requires
sanction for prosecution under Section 197(1) of the Criminal Procedure
Code; nor even every act done by him while he is actually engaged in the
performance of his official duties; but if the act complained of is
directly concerned with his official duties so that, if questioned it could
be claimed to have been done by virtue of the office, then sanction would
be necessary. It is the quality of the act that is important and if it
falls within the scope and range of his official duties the protection
contemplated by Section 197 of the Criminal Procedure Code will be
attracted. An offence may be entirely unconnected with the official duty as
such or it may be committed within the scope of the official duty. Where it
is unconnected with the official duty there can be no protection. It is
only when it is either within the scope of the official duty or in excess
of it that the protection is claimable.”
(emphasis laid by this Court)
In the case of B. Saha v. M.S Kochar[10], the constitution bench of this
Court observed that the question of sanction under Section 197 of CrPC
could be raised and considered at any stage of the proceedings. On the
issue of when the protection of Section 197 of CrPC is attracted, this
Court held as under:
“In sum, the sine qua non for the applicability of this Section is that the
offence charged, be it one of commission or omission, must be one which has
been committed by the public servant either in his official capacity or
under colour of the office held by him.”
The learned senior counsel further placed reliance on the decision of a
constitution bench of this Court in the case of R.S Nayak v. A.R
Antulay[11], wherein certain observations were made with regard to Section
6 of P.C Act, 1988, as under:
“Therefore, it unquestionably follows that the sanction to prosecute can be
given by an authority competent to remove the public servant from the
office which he has misused or abused because that authority alone would be
able to know whether there has been a misuse or abuse of the office by the
public servant and not some rank outsider. By a catena of decisions, it has
been held that the authority entitled to grant sanction must apply its mind
to the facts of the case, evidence collected and other incidental facts
before according sanction. A grant of sanction is not an idle formality but
a solemn and sacrosanct act which removes the umbrella of protection of
Government servants against frivolous prosecutions and the aforesaid
requirements must therefore, be strictly complied with before any
prosecution could be launched against public servants....The Legislative
advisedly conferred power on the authority competent to remove the public
servant from the office to grant sanction for the obvious reason that that
authority alone would be able, when facts and evidence are placed before
him to judge whether a serious offence is committed or the prosecution is
either frivolous or speculative. That authority alone would be competent to
judge whether on the facts alleged, there has been an abuse or misuse of
office held by the public servant. That authority would be in a position to
know what was the power conferred on the office which the public servant
holds, how taht power could be abused for corrupt motive and whether prima
facie it has been so done. That competent authority alone would know the
nature and functions discharged by the public servant holding the office
and whether the same has been abused or misused. It is the vertical
hierarchy between the authority competent to remove the public servant from
that office and the nature of the office held by the public servant against
whom sanction is sought which would indicate a hierarchy and which would
therefore, permit interference of knowledge about the fuctions and duties
of the office and its misuse or abuse by the public servant. That is why
the legislature clearly provided that that authority done would be
competent to grant sanction which is entitled to remove the public servant
against whom sanction is sought from the office......
(emphasis laid by this Court)
Mr. P.P. Khurana, the learned senior counsel appearing on behalf of some of
the appellants has further placed reliance upon the judgments of this Court
in the cases of R. Balakrishna Pillai v. State of Kerala[12], Abdul Wahab
Ansari v. State of Bihar[13], Shankaran Moitra v. Sadhna Das[14] and State
of M.P v. Sheetla Sahai[15], in support of his submission that the acts
constituting the offence were alleged to have been committed by the
appellant in discharge of his official duty and that being the fact, it was
not open to the Special Judge court to take cognizance of the offences
without obtaining the previous sanction of the Central Government by the
respondent.
The learned Additional Solicitor General, on the other hand, appearing on
behalf of CBI placed strong reliance on the decision of this Court in the
case of Prakash Singh Badal v. Union of India[16] to buttress his
contention that no sanction was required to be taken in the instant case as
the Appellants have entered into a criminal conspiracy, therefore, it
cannot be said to be a part of their official duty as the public servants.
The act of the appellants of transferring the plot in question in favour of
the aforesaid society, allotted in favour of ICMR for the purpose of
construction of the flats and allotting the same in favour of the employees
of ICPO-ICMR society without obtaining the order from either CEO or
Chairman of the NOIDA with a motive to make wrongful gain for themselves
after entering into a conspiracy cannot be said to be an act that has been
carried out in discharge of their official duty. The learned Additional
Solicitor General placed reliance on the following paragraphs of the
Prakash Singh Badal case (supra):-
“49. Great emphasis has been led on certain decisions of this Court to show
that even in relation to offences punishable under Section 467 and 468
sanction is necessary. The foundation of the position has reference to some
offences in Rakesh Kumar Mishra's case. That decision has no relevance
because ultimately this Court has held that the absence of search warrant
was intricately with the making of search and the allegations about alleged
offences had their matrix on the absence of search warrant and other
circumstances had a determinative role in the issue. A decision is an
authority for what it actually decides. Reference to a particular sentence
in the context of the factual scenario cannot be read out of context.
50. The offence of cheating under Section 420 or for that matter offences
relatable to Sections 467, 468, 471 and 120B can by no stretch of
imagination by their very nature be regarded as having been committed by
any public servant while acting or purporting to act in discharge of
official duty. In such cases, official status only provides an opportunity
for commission of the offence.”
Mr. P.P Khurana and Mr. Gopal Subramaniam, the learned senior counsel
appearing on behalf of some of the appellant, on the other hand, contends
that the decision in the Prakash Singh Badal case needs to be appreciated
in light of the facts of that case. Thus, while stating that the offences
under Sections 420,467,468,471 and 120B of IPC can by no stretch of
imagination and by their very nature be regarded as having been committed
by any public servant while acting or purporting to act in discharge of his
official duty, this Court did not mean that merely because an official was
charged with an offence under these sections, no sanction was required to
be taken. The learned counsel placed reliance on the following paragraph of
the judgment to emphasise the same:
“51. In Baijnath v. State of M.P. (1966 (1) SCR 210) the position was
succinctly stated as follows:
"..it is the quality of the Act that is important and if it falls within
the scope and range of his official duty the protection contemplated by
Section 197 of the Code of Criminal Procedure will be attracted.”"
The learned senior counsel also placed reliance on the three judge bench
decision of this Court rendered in the case of Shreekantiah Ramayya
Munipalli, referred to supra, wherein it was held as under:
“18. ....If Section 197 of the Code of Criminal Procedure is construed too
narrowly it can never be applied, for of ofcourse it is no part of an
official’s duty to commit an offence and never can be. But it is not the
duty we have to examine so much as the act because an official act can be
performed in the discharge of official duty as well as in dereliction of
it....
19. Now an offence seldom consists of a single act. It is usually composed
of several elements and as a rule a whole series of acts must be proved
before it can be established.... Now it is evident that the entrustment
and/ or domino here were in an official capacity and it is equally evident
that there could in this case be no disposal, lawful or otherwise, save by
an act done or purporting to be done in an official capacity....”
From a perusal of the case law referred to supra, it becomes clear that for
the purpose of obtaining previous sanction from the appropriate government
under Section 197 of CrPC, it is imperative that the alleged offence is
committed in discharge of official duty by the accused. It is also
important for the Court to examine the allegations contained in the final
report against the Appellants, to decide whether previous sanction is
required to be obtained by the respondent from the appropriate government
before taking cognizance of the alleged offence by the learned Special
Judge against the accused. In the instant case, since the allegations made
against the Appellants in the final report filed by the respondent that the
alleged offences were committed by them in discharge of their official
duty, therefore, it was essential for the learned Special Judge to
correctly decide as to whether the previous sanction from the Central
Government under Section 197 of CrPC was required to be taken by the
respondent, before taking cognizance and passing an order issuing summons
to the appellants for their presence.
Answer to Point No.3
We have adverted to the contentions advanced by the learned counsel
appearing on behalf of both the parties. We find much merit in the
contention advanced by the learned senior counsel & other counsel appearing
on behalf of the appellants and accept the same. We accordingly pass the
following order:
For the aforesaid reasons, we set aside the impugned judgment and order of
the High Court dated 27.05.2013 passed in Application Nos. 480 of 2013,
41206, 40718, 41006 and 41187 of 2012 and order dated 7.10.2014 passed in
Application No. 277KH of 2014 in Special Case No. 18 of 2012 and quash the
proceedings taking cognizance and issuing summons to the appellants in
Special Case No. 18 of 2012 by the Special Judge, Anti Corruption (CBI),
Ghaziabad, U.P. in absence of previous sanction obtained from the Central
Government to prosecute the appellants as required under Section 197 of
CrPC. The appeals are allowed. All the applications are disposed of.
………………………………………………………J.
[V. GOPALA GOWDA]
………………………………………………………J.
[AMITAVA ROY]
New Delhi,
November 19, 2015
ITEM NO.1A-For Judgment COURT NO.10 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 798/2015
PROF. N.K.GANGULY Appellant(s)
VERSUS
CBI NEW DELHI Respondent(s)
WITH
Crl.A. No. 799/2015
Crl.A. No. 800/2015
Crl.A. No. 801/2015
Crl.A. No. 930/2015
Crl.A. No. 1537/2015 @ SLP (CRL.) NO.9838/2015 @ SLP (CRL.)...CRLMP
No.9612/2015
Date : 19/11/2015 These appeals were called on today for pronouncement of
JUDGMENT.
For Appellant(s) Mr. P.P. Khurana, Sr. Adv.
Mr. Arun K. Sinha,Adv.
Mr. Rajesh Singh Chauhan, Adv.
Mr. Sachin Sood, Adv.
Mr. Jetendra Singh, Adv.
Ms. Kalpana Sabharwal, Adv.
Ms. Priyanka Singh, Adv.
Ms. Manju Jetley,Adv.
Mr. Kumar Kaushik, Adv.
Mr. Bhupesh Sharma, Adv.
Mr. Shiv Ram Pandey, Adv.
Mr. S.D. Singh, Adv.
Mr. Vijay Kumar, Adv.
Mr. J. Singh, Adv.
Ms. Bharti Tyagi,Adv.
Mr. T. Srinivasa Murthy, Adv.
Ms. Shruti Iyer, Adv.
Mr. T. Rahman, Adv.
Mr. Kushagra Pandey, Adv.
Mr. Senthil Jagadeesan,Adv.
For Respondent(s)
Mr. B. V. Balaram Das,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench
comprising His Lordship and Hon'ble Mr. Justice Amitava Roy.
Delay condoned. Leave granted in Special Leave Petition
(Crl.).........Crl.M.P. No.9612 of 2015.
The appeals are allowed in terms of the signed Reportable Judgment.
All the applications are disposed of.
|(VINOD KUMAR) | |(MALA KUMARI SHARMA) |
|COURT MASTER | |COURT MASTER |
(Signed Reportable Judgment is placed on the file)
-----------------------
[1] [2]AIR 1951 SC 207
[3] [4] AIR 1950 Cal 437
[5] [6] AIR 1955 SC 287
[7] [8] AIR 1939 FC 43
[9] [10] AIR 1955 SC 309
[11] [12] AIR 1948 PC 128
[13] [14] AIR 1956 SC 44
[15] [16] AIR 1960 SC 266
[17] [18] AIR 1966 SC 220
[19] [20] (1979) 4 SCC 177
[21] [22] (1984) 2 SCC 183
[23] [24] (1996) 1 SCC 478
[25] [26] (2000) 8 SCC 500
[27] [28] (2006) 4 SCC 584
[29] [30] (2009)8 SCC 617
[31] [32] (2007) 1 SCC 1