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Prof. N.K. Ganguly Versus CBI New Delhi

2016 (8) TMI 501 - SUPREME COURT

Offence under Section 120B IPC - need for previous sanction from the Central Government under Section 197 of CrPC for issuing summons - Held 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 sa .....

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m 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. - 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 ap .....

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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 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 Spec .....

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dination 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 I .....

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irector 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 Hous .....

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es 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 .....

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l 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. 8. 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 que .....

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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 t .....

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d 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 .....

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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 inf .....

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ent. 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 .....

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f the allegations contained in the charge-sheet that was filed before the learned Special Judge by the respondent herein. 13. 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 .....

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f 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 .....

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ich could affect the fundamental rights guaranteed to the appellants under Articles 14, 19 and 21 of the Constitution of India. 15. 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. 16. On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor General and Ms. Kiran Suri, le .....

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ive 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 fi .....

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tion 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. 17. The FIR and the charge-sheet both contain references to the allegation .....

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egally 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 So .....

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d 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. 18. At this .....

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agreement in pursuance thereof. 19. 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 u .....

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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 Sect .....

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e bench of this Court in Shreekantiah Ramayya Munipalli v. State of Bombay(AIR 1955 SC 287) 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 c .....

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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: No .....

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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 prete .....

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1. 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 q .....

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y 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 be .....

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e Privy Council in the case of H.H.B. Gill v. The King(AIR 1948 PC 128), 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. 22. 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 (AIR 1956 SC 44), which pertained to an income tax investiga .....

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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 observ .....

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used 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 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 ac .....

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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 Sect .....

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ance 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..... ( .....

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er 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 .....

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urt 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 l .....

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s 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 .....

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dge 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 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 .....

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ove 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(2000) 8 SCC 500, Shankaran Moitra v. Sadhna Das(2006) 4 SCC 584 and State of M.P v. Sheetla Sahai (2009)8 SCC 617, in support .....

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Singh Badal v. Union of India (2007) 1 SCC 1 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 employ .....

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nces 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 .....

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f 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 .....

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uty 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. .....

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o disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity.... 25. 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 Appella .....

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