TMI Blog2016 (8) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus we set aside the impugned judgment and order of the High Court and quash the proceedings taking cognizance and issuing summons to the appellants 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 - CRIMINAL APPEAL NO.798 OF 2015 with 799/2015, 800/2015, 801/2015, 930/2015, and 1537/2015 - - - Dated:- 19-11-2015 - V. Gopala Gowda and Amitava Roy, JJ. JUDGMENT Delay condoned. Leave granted in Special Leave Petition (Crl) Crl.M.P. No.9612 of 2015. 2.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 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered 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 ₹ 4,33,90,337/- which was much lower than the then prevailing sector rate of ₹ 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. 7.During the course of investigation by CBI, apart from the aforesaid named accused persons in the FIR, the fact of the involvement of othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while submitting the chargesheet before the learned Special Judge, which is not tenable in law. 14. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quash the proceedings as prayed by the Appellants. 17. 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings 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(AIR 1950 Cal 437), 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. 20. 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(AIR 1955 SC 287) In that case, the allegation against the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately; 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) 21. 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 ( AIR 1955 SC 309) 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 chara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (AIR 1960 SC 266), a const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court in the case of Baijnath Gupta v. State of Madhya Pradesh AIR 1966 SC 220, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office which the public servant holds, how that 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) 23. 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 ( 1996) 1 SCC 478, Abdul Wahab Ansari v. State of Bihar(200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... magination 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 appellants, on the other hand, contend 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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