TMI Blog2009 (8) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... a time frame. Stones required to be used for the construction of the dam, as of necessity, were required to be of sufficient strength. The opinion of the Indian Institute of Technology, referred to by Mr. Tulsi, is not on record. Correspondences as also the opinion of the Central Water Commission, Government of India, however, point out that stones of requisite strength were not available at Therma Pahar Quarry. The quantum of stone required was eight lakh cubic meters and only one lakh cubic metres was available thereat. The balance seven lakh cubic meters of stone was, thus, required to be obtained from the quarries situated at villages villages Katghora, Hunkra and Maheshpur. Stone is a minor mineral within the meaning of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Minor Mineral Concession Rules framed by the State. Lease and/ or licence for extraction thereof is to be granted by the Collector. Although the Mines Department of the State intended to grant `Quarry lease' in favour of others having regard to the requirements of the State, the said quarries were reserved, subject to certain conditions. The respondent Nos. 8 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that the respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without any public interest. It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counter-affidavit which had not been denied or disputed to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the government, viz., M.N. Nadkarni who worked as Chief Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both for those who were or are public servants. For the purpose of attracting the provisions of Section 197 of the CrPC, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the CrPC. It was so held by this Court in Sankaran Moitra v. Sadhna Das and Another [ 2006 (3) TMI 748 - SUPREME COURT] . In State of Karantaka v. Ameerjan [ 2007 (9) TMI 628 - SUPREME COURT] , it was held that an order of sanction is required to be passed on due application of mind. Thus, in this case, sanction for prosecution in terms of Section 197 of the CrPC was required to be obtained. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. - SINHA, S.B. AND JOSEPH, CYRIAC, JJ. JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. Appellant is before us being aggrieved by and dissatisfied with a judgment and order dated 12.01.2006 passed by a learned Single Judge of the Madhya Pradesh High Court allowing the criminal revision applications filed by the respondents herein arising out of the orders dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently accorded by the engineer-in-charge, in which case, however, the contractor shall not be entitled for any extra rate or lead. 7. However, on the premise that whereas eight lakh cubic meters of stones of the requisite specification were required for masonry work, only one lakh cubic meter stone was available from the Therma Pahar Quarry, permission was sought for by the contractors to excavate stones, rubbles and other materials from a quarry known as Katghora Quarry which was situated at a distance of 22 kms. from the dam. 8. The question was considered by the concerned engineers. The District Mining Officer and the Additional Collector Korba, having regard to the fact that the mining leases in respect of the said quarries were to be granted, asked them not to do so as the stones in the hillocks of villages Katghora, Hunkra and Maheshpur were found to be suitable for the masonry work of the dam, as would appear from a letter dated 14.07.1983 issued by the Executive Engineer to the Additional Collector, Korba. 9. The Superintending Engineer, respondent No. 7 herein also by his letter dated 28.07.1983 addressed to Shri R.C. Gupta, the then Executive Engineer stated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 347/1 17.396 Hec. 2. Maheshpur 31-A Stone 1/1-K 30.425 Hec. 11. The Additional Collector (Mining Section), Korba in response thereto by a letter dated 22.11.1983 addressed to the Executive Engineer reserved the aforementioned quarries for extraction of stones departmentally, subject to the conditions mentioned therein. 12. Yet again, the Executive Engineer by a letter dated 05.12.1984 addressed to the Superintending Engineer brought to his notice that alternative sites for quarrying operations for extraction of stones were necessary, inter alia, stating: 2. The quarrying operations for extraction of stones was started in the real sense during 82-83 working season, i.e., prior to the area was ready for starting the masonry. The contractors after the start of quarry operations, repeatedly wrote, regarding the non availability of sufficient stones of requisite quality. They had also brought out that the yield of even this small quantity of stone was very much less. In consultations w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the construction of the dam. Though the stone from this quarry has been approved as Granite, the Compressive strength of the stone from this quarry varies from 289 kg/cm to 373 kg/cm, which is very low. It is necessary that the reasons for such low strength for the Granite are investigated before deciding to use the same for the construction of the dam. 15. By a letter dated 7.06.1983, the Executive Engineer of the Quality Control Division brought the following to the notice of the Superintending Engineer of the Quality Control Department: Thus, it is noticed the mica existing in the rocks under question varies from 7% to 11%. No mention of the permissible percentage of mica is given in IS codes or other books. Only Hand book on civil engineering by PN Khanna, reveals that 2% of mica is permissible. In view of the above it is submitted that the pigmetite band stones are not fit for use in masonry dam from quality control unit Machadoli's point of view. This is, however, continuously used in masonry on dam blocks 16, 17, 18, 19, 25, 26, 27, 28, 29, 35, 37 in which work continuously in progress. If the higher authority deems it fit, that use of pigmetite is to be contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been lost in this process which would have affected the works and it would not be possible to supply water to N.T.P.C. and M.P.E.B. 17. In a letter dated 14.02.1985 addressed to the Chief Engineer, the World Bank stated: We note you have referred the matter to the Secretary, Irrigation Department, Bhopal for decision. We suggest that the matter be resolved within contractual limits. 18. Pursuant thereto and in furtherance thereof, even the Progress Review Committee observed in its note dated 14.05.1985 as follows: 27. Chief Engineer (HBP) explained his proposal submitted through his memo No. 1916/HB/84 dated 29/3/85. He gave the background of the change of quarry, in view of unexpectedly low yield of useful stone from the Therma Pahad quarry, approved in the technically sanctioned, sanctioned estimate and also on which basis tenders had been invited and contractors' rates accepted. He informed the Committee that the total extra commitment for the various contracts worked out to ₹ 1.23 crores - approximately 3% of the total contract value. 28. Financial Adviser observed that he had no offered any comments on the merit of the case, as then appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an overall settlement of all the disputes could be attempted and a sort of package deal is evolved in respect of each contract so that the contracts are finalized once for all leaving no scope for arbitration on the other hand if the contractors intend to take resort to arbitration for other issues, this issue could also go in for arbitration. A package approach would allow negotiation in a spirit or give and take for an over- all settlement of all disputes. 21. The then Secretary (Irrigation) Shri M.S. Billore constituted a committee comprising of the Engineer-in-Chief P.V. Srinivasaiyah, the Chief Engineer, the Financial Adviser, Secretary (Control Board) and the Deputy Secretary, some of whom are Accused Nos. 3, 4,5 and 11. 22. The said Committee submitted a report in respect whereof the Secretary made a note that the same be critically examined. The Officer on Special Duty noticed the recommendations of the Committee, which are as under: (i) As the quarry has been changed by the Department due to Technical reasons the contractors cannot be held responsible. (ii) When the Department itself did not know about the quarry's unsuitability it will be unfair to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every time the Secretary has been seeking the opinion from one after another officer. In this process he spent a period of one year between 3.5.90 to 1.5.91. In accepting the opinion or recommending any action, it was expected from the Secretary to take into consideration the fact that the opinions had been given as per their wisdom. Therefore, question does not arise to take any action against the subordinate officers. No basis appears for the Secretary to take a totally different view than the unanimous opinions. Therefore, it is necessary to investigate the basis on which the Secretary Shri Billore had rendered his opinion. The new Secretary to study the case and give opinion. 26. Pursuant thereto or in furtherance thereof, the respondent No. 2 Shri D.V.S.R. Sarma submitted a report upon constitution of a Committee, stating: (i) Due to technical reasons, the department has changed the quarry. Therefore, its liability should not be upon the contractors. (ii) When the Department had not any knowledge about the quarry, and to expect this that even under the changed quarry the contractor should fetch/ transport the stones at the same rate, is also not proper. (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 19 of the Act. (ii) Criminal misconduct relating to corrupt practice under Section 13(1)(d)(ii-iii) of the Act has nothing to do with normal activity and work under government duty of any public servant at any time. 31. In the year 1997, the respondent Nos. 1 and 2 had filed a revision application before the High Court. 32. The Special Judge framed charges against the respondents on or about 29.07.1999; a sample copy whereof reads as under: You were working as Minister In-charge, Ministry of Water Resources, Government of Madhya Pradesh from June 1990 to September 1992. On the recommendatory note of Shri D.V.S.R. Sharma ignoring the letter dated 14.02.85 of the Finance Branch of World Bank and earlier decision dated 18.02.85 according to which the case of extra lead was to be decided within the ambit of the contract in respect of payment of extra lead to the concerned Tender Contractors for transportation of stones used in construction work of masonry non-flow dam upstream in Hasdeo Bango Project. You in conspiracy with the employees and Tender Contractors accorded administrative sanction and payment of one crore two lac forty six thousand two hundred rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be the terms of the contract, the note sheets, the letters dated 4.08.1983, 11.08.1983, 16.08.1983, 17.08.1983, 10.07.1984, 14.11.1984 and 2.03.1988, in terms whereof the contractors were categorically informed that they would not be entitled to any extra amount towards additional lead or otherwise. (iv) The World Bank having opined that stones from alternative sources may be obtained within the budgeted amount, the extra amount could not have been sanctioned by the respondents. (v) By reason of the acts of the respondents, the State has suffered a loss to the extent of ₹ 1.02 crores and in that view of the matter, the High Court should not have passed the impugned order. (vi) As none of the accused is a public servant, the question of obtaining sanction in terms of Section 19 of the Act did not arise. (vii) Criminal misconduct relating to corrupt practices under Section 13(1)(d)(ii-iii) of the Act cannot be mingled with the normal activity and duties of the public servant at any time, and, thus, no order of sanction was required to be obtained even under Section 197 of the Code of Criminal Procedure, 1973. (viii) The Indian Institute of Technology having te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion of the Government of India and on the basis of two reports of the Committee, viz., reports by respondent No. 2 D.V.S.R. Sarma Committee and respondent No. 3 P.V. Srinivasaiyah Committee, no interference with the impugned judgment is warranted. (vi) The documents relied upon by the prosecution, even if given face value and taken to be correct in their entirety, do not disclose commission of any offence under the Prevention of Corruption Act as no allegation had been made as regards misuse or abuse of office. (vii) The State having acted within its jurisdiction in taking a decision in regard to making of extra payment by way of novation of the original contract, no exception thereto can be taken as the situation was unforeseen. Even the arbitral tribunal having passed an award in favour of the contractor which is in consonance with a decision of this Court in K.N. Sathyapalan (Dead) by LRs. v. State of Kerala Anr. [(2006) 12 SCALE 654], the respondents cannot be said to have committed any offence. (viii) In any view of the matter, no evidence has been brought on record to show that any conspiracy was entered into by the respondents inter se. (ix) Assuming that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter to which we have adverted to heretobefore, as has been argued by the respondents, is possible. It is, however, not necessary for us to delve deep into the matter inasmuch as we are concerned only with the question as to whether the materials brought on record form sufficient basis for framing of charges under Section 13(1)(d)(ii-iii) of the Act read with Section 13(2) thereof read with Section 120B of the Indian Penal Code or not. 40. At the outset, however, we must place on record that construction of the dam over river Hasdeo Bango became necessary for the purpose of supply of water to the National Thermal Power Corporation. It was a World Bank project. The project was required to be completed within a time frame. Stones required to be used for the construction of the dam, as of necessity, were required to be of sufficient strength. The opinion of the Indian Institute of Technology, referred to by Mr. Tulsi, is not on record. Correspondences as also the opinion of the Central Water Commission, Government of India, however, point out that stones of requisite strength were not available at Therma Pahar Quarry. The quantum of stone required was eight lakh cubic mete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om some other mines for being used in the construction of dam. 46. We would proceed on the basis that two divergent opinions on the construction of the contract in the light of the stand taken by the World Bank as also the earlier decision taken by the State was possible. That, however, would not mean that a fresh decision could not have been taken keeping in view the exigencies of the situation. A decision to that effect was not taken only by one officer or one authority. Each one of the authorities was ad idem in their view in the decision making process. Even the Financial Adviser who was an independent person and who had nothing to do with the implementation of the project made recommendations in favour of the contractors stating that if not in law but in equity they were entitled to the additional amount. 47. From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further is done the agreement would give rise to a criminal conspiracy. Its ingredients are (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. 52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. In Kehar Singh and Ors. v. State (Delhi Administration), [1988 (3) SCC 609 at 731], this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol 1): The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires so as to enable him to obtain opinion of another officer would prima facie establish that he intended to cause pecuniary gain to the respondent Nos. 8, 9 and 10. We have noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the materials available. In Inspector Prem Chand v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of work by the contractors would be a public interest is a matter over which a decision was required to be taken, particularly when the authorities proceeded on the basis that they had made advertisements and called for the tender on a wrong premise, viz., the stones available in the quarry in question for supply of requisite quality of stone was not in requisite quantity. 56. It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counter-affidavit which had not been denied or disputed to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the government, viz., M.N. Nadkarni who worked as Chief Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial. {See State of Maharashtra and Others v. Som Nath Thapa and Others [(1996) 4 SCC 659]}. 60. This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. 10. Use of the expression official duty implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty . But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Barn Singh v. Crown Sulaiman, J. observes: The section cannot be confined to only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P., 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 . 18. 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. [See also R. Balakrishna Pillai v. State of Kerala and Another [(1996) 1 SCC 478] In Rakesh Kumar Mishra v. State of Bihar and Others [(2006) 1 SCC 557], this Court held: 12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the stress is on failure of justice and that too in the opinion of the court . In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary. 65. In State of Karantaka v. Ameerjan [(2007) 11 SCC 273], it was held that an order of sanction is required to be passed on due application of mind. 66. Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained. 67. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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