Tags Corruption

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2168 of 2010, Judgment Date: Dec 17, 2014

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2168 OF 2010


STATE OF PUNJAB                                              .... Appellant

                                   Versus

LABH SINGH                                                  .... Respondent


                               J U D G M E N T

Uday Umesh Lalit, J.

1.    This appeal by special leave challenges the judgment and  order  dated
17.01.2006 passed by the High  Court  of  Punjab  and  Haryana  in  Criminal
Revision No.1743 of 2005 whereby it set  aside  the  order  of  the  Special
Judge, Patiala dated 07.06.2005 framing charges against one  Sikandar  Singh
and the present respondent.

2.    FIR No.57 was lodged with Police Station,  Vigilance  Bureau,  Patiala
Range, Patiala on 13.08.1997.  It was alleged  that  semi-Government  letter
dated 04.03.1994 had stated that pursuant to certain raids conducted at  the
site for checking the earth work done on Bhakra  main  line,  it  was  found
that as regards four projects cross  sections/estimates  were  not  prepared
before doing any work and that it appeared that the estimates were  actually
prepared by the concerned  Government  servants  after  completion  of  work
thereby violating provisions of PWD code and causing loss  to  the  tune  of
Rs.3,69,603 to the exchequer.  Pursuant to said  FIR  crime  was  registered
and investigation was undertaken by the Vigilance Bureau.

3.    When  request  was  made  for  grant  of  sanction  to  prosecute  the
Government servants in  question,  it  was  refused  by  the  department  on
13.09.2000.  Yet another attempt  was  made  in  the  year  2003  requesting
sanction to prosecute but such request was again rejected by the  department
on 24.09.2003.  Despite such  refusal  for  issuance  of  sanction,  challan
under section 173 of Criminal Procedure Code was filed on 09.11.2004 in  the
court of Additional Sessions Judge/Special Judge, Patiala.  The  allegations
in the challan dated 09.11.2004 were to the following effect:
"During the checking of the aforesaid works, it  was  found  that  regarding
the work done on the above mentioned 4 works, cross sections/estimates  etc.
have not been prepared, which is mandatory  before  doing  any  work.   From
this, it appears that after completing the work, this was  done  to  prepare
cross sections estimates according  to  their  own  wish  by  the  suspected
officers.  Checking memo was prepared at the spot, upon which signatures  of
concerned J.E and Sub Divisional Engineer were obtained, who  admitted  that
before doing the aforesaid works, they did not prepare any cross section  or
estimates.  From this, it is clearly established that the suspected  officer
did not get prepared the cross sections and  estimates  for  embezzling  the
government  treasury  at  a  large  scale.   In  the  aforesaid  works,  for
starting/finishing  the  repair  works  without  preparing  estimates,   the
following officers are responsible."

      The challan so presented had arrayed two public servants  namely  Shri
Sikandar Singh, SDO and Shri Labh Singh,  Junior  Engineer  in  addition  to
five private individuals.  Shri Sikandar  Singh  and  Shri  Labh  Singh  had
retired on 13.12.1999 and 30.04.2000 respectively,  i.e.,  even  before  the
request for issuance of sanction was rejected on the  first  occasion.   The
aspect regarding their retirement and refusal to grant  sanction  was  dealt
with in the challan in following terms:
"In view of  the  refusal  of  granting  sanction  for  prosecution  by  the
department, it is impossible to present challan against  the  employees  who
are in  service,  but  the  employees  who  have  retired,  challan  can  be
presented against them in the court."

4.    The Special Judge framed  charges  on  07.06.2005  against  all  seven
accused for the offences under sections 218/409/465/467/120B IPC  and  under
section 13(1)(C) read with section 13(1)(2) of the Prevention of  Corruption
Act, 1988 ('POC' Act, for short).  Out of six charges framed, one  pertained
to the offence under section 13(1)(C) read with section 13(1)(2) of the  POC
Act while other five related to offences under the Indian Penal Code.

5.    The public servants namely Sikandar Singh and  Labh  Singh  challenged
the aforesaid order dated 07.06.2005 by filing Criminal Revision No.1743  of
2005 in the High Court of Punjab and Haryana.  The High Court took the  view
that the department had refused sanction to prosecute  public  servants  and
yet a challan was presented on the premise that  no  sanction  was  required
after retirement of those public servants.  The High Court observed;
"These petitioners and others  have  been  charged  for  offence  under  the
Prevention of Corruption Act and also for offences under  the  Indian  Penal
Code.  Section 197 Cr.P.C. bars cognizance by the Court of an offence  by  a
public servant even after retirement. Even otherwise, it  is  discriminatory
for the petitioners when other co-accused who are still in  service,  cannot
be prosecuted for  want  of  sanction  and  present  petitioners  are  being
prosecuted only because they have retired."

The  High  Court  allowed  the  petition  and  set  aside  the  order  dated
07.06.2005 passed by the Special Judge, Patiala.

6.    This appeal by State of Punjab takes exception to  the  order  of  the
High Court.  During  the  pendency  of  this  appeal  the  first  respondent
Sikandar Singh expired and his name was deleted from the  array  of  parties
vide order dated 20.09.2010 passed by this Court, leaving Labh Singh as  the
only respondent before the Court.   The  stand  taken  in  the  petition  of
appeal on behalf of the appellant is as under:
"It is  humbly  submitted  that  order  passed  by  Hon'ble  High  Court  is
erroneous in law as u/s 197 Cr.P.C. respondents  can  be  convicted  and  no
previous sanction is required as the respondents are no  longer  in  service
and have been retired in  the  years  1999/2000.   Secondly,  there  was  no
discrimination as the other persons were in service  and  since  respondents
have been retired no previous sanction is required.  It was  also  submitted
that other persons will also be prosecuted as and when they are retired."

Appearing for the State Mr. Sanchar Anand, learned advocate  submitted  that
sanction to prosecute was not required at all.  Ms. Jaspreet Gogia,  learned
advocate appearing for the respondent supported the view taken by  the  High
Court.

7.    In the present case the public servants in  question  had  retired  on
13.12.1999 and 30.04.2000.  The sanction  to  prosecute  them  was  rejected
subsequent to their  retirement  i.e.  first  on  13.09.2000  and  later  on
24.09.2003.  The public servants having retired from service  there  was  no
occasion to consider grant of sanction under section  19  of  the  POC  Act.
The law on the point is quite clear that sanction to  prosecute  the  public
servant for the offences under the POC Act is not  required  if  the  public
servant had already retired on the date of  cognizance  by  the  court.   In
S.A.  Venkataraman  v.  State[1]  while  construing  section  6(1)  of   the
Prevention of Corruption Act, 1947 which provision is in pari  materia  with
section 19(1) of  the  POC  Act,  this  court  held  that  no  sanction  was
necessary in the case of a person who had ceased to be  the  public  servant
at the time the court was asked to take cognizance.  The view  taken  in  S.
A. Venkataraman (supra) was adopted by this court in C.R. Bansi v. State  of
Maharashtra[2] and in Kalicharan Mahapatra v. State of Orissa[3] and by  the
Constitution Bench of this court in K.  Veeraswamy  v.  Union  of  India[4].
The High Court was not  therefore  justified  in  setting  aside  the  order
passed by the Special  Judge  insofar  as  charge  under  the  POC  Act  was
concerned.

8.    However as regards charges for the offences punishable under  the  IPC
concerned the High Court was absolutely right in setting aside the order  of
the Special Judge.  Unlike section 19 of the POC Act, the  protection  under
section 197 of Cr.P.C. is available to the  concerned  public  servant  even
after  retirement.   Therefore,  if  the  matter  was  considered   by   the
sanctioning authority and the sanction to prosecute was  rejected  first  on
13.09.2000 and secondly on  24.09.2003,  the  court  could  not  have  taken
cognizance insofar as the offences punishable under the  Indian  Penal  Code
are concerned.  As laid down by this Court in State of Himachal  Pradesh  v.
Nishant Sareen[5], the recourse in such cases is  either  to  challenge  the
order of the Sanctioning Authority or to approach it again if there  is  any
fresh material.

9.    In the circumstances, in our view the order  under  appeal  passed  by
the High Court is correct insofar as charges under  IPC  are  concerned  but
must be set aside as regards charge under POC Act is concerned.

10.   Before we part, we must record that we do not approve the stand  taken
by the appellant in the petition.  The prosecution cannot keep waiting  till
a public servant retires and then choose to file  charge-sheet  against  him
after his retirement, thereby setting at naught the protection available  to
him under Section 19 of the  POC  Act.    The  appeal  thus  stands  allowed
partly.  No order as to costs.

                                        .............................J.
                                                     (Dipak Misra)

                                        .............................J.
                                                (Uday Umesh Lalit)
New Delhi,
December 17,   2014

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[1]     1958 SCR 1040
[2]    (1970) 3 SCC 537
[3]    (1998) 6 SCC 411
[4]    (1977) 3 SCC 440
[5]    (2010) 14 SCC 527

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