TMI Blog1999 (9) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner in this case was a member of Indian Administrative Service. At the relevant time of offence he was employed as Managing Director of M.P. Leather Development Corporation. The period was the year 1988-89. The allegation is that during that period he committed criminal misconduct punishable under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. Section 13(1)(d) of this Act declared the following conducts of the public servant as criminal misconducts : 13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence or criminal misconduct.- (a) to (c)... (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was started before the Special Court on 2-7- 1992 by presenting a charge sheet under Section 173, Cr.P.C. by the Economic Officers Wing of the Police. This accused was compulsorily retired by the Central Government by order dated 4-1-1989 with effect from 10-1-1989. He approached the Central Administrative Tribunal and challenged that order in case No. 130/89. The Tribunal vide order dated 25-1-1990 set aside the order of his compulsory retirement, but, the Union of India presented an appeal before the Supreme Court of India. The Tribunal's order was stayed by the Supreme Court till the final decision of the appeal on 4-3-1991. It was thereafter that the challan against him was filed on 2-7-1991 for offence under Section 120B, I.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondly that at worst the allegation is that he allegedly committed breach of some instructions regarding procedure of purchase of material. He was authorised to take steps for purchase on behalf of the Corporation as part of his duty. He performed those duties. If there was any alleged irregularity in the same, his act would be called as having been done in performance of his duties or under the colour of his duties bonafidely and not totally dehors his duties and so even if and not totally dehors his duties and so he be considered as having been compulsorily retired at the time of filing of the charge-sheet against him, sanction under Section 197(1)(a) of the Cr.P.C. would be pre-condition against him, for starting any prosecution for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition. The counsel for the petitioner has, however, asserted that at least under Section 197(1), Cr.P.C. sanction is needed from the Central Government in this case as he was working in the affairs of the State Government and was not removable except with the sanction of the Central Government being a member of Indian Administrative Service which is All India service under the Central Government. Section 197, Cr.P.C. in its relevant portion is as under : 197. Prosecution of judges and public servant.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in that case where two Judges judgment held that a public servant who committed an offence mentioned in the Act, while he was a public servant can be prosecuted without sanction contemplated in Section 19 of the Act, if he ceases to be a public servant when the Court take cognizance of the offence. Again with regard to necessity of sanction under Section 197(1) of the Cr.P.C. in such case, the Court relied upon its own observation in the case of Harihar Prasad v. State of Bihar 1972 (3) SCC 89 : 1972 Cri LJ 707 wherein it was observed that as far as offence of criminal conspiracy punishable under Section 120B read with Section 409 of the Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act are concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the position of an officer of such semi-Govt. Corporation vis-a-vis protection under Section 197, Cr.P.C. in the case of Mohd. Hadi Raja v. State of Bihar cited at 1998 (3) JT (SC) 507 : 1998 Cri LJ 2826 and observed as under at page 2833; of Cri LJ : On the plan language of Section 197 of the Code of Criminal Proceudre, the protection by way of sanction is not available to the officers of the public undertaking because being a juridical person and a distinct legal entity such instrumentality stands on a different footing than the Government departments. The legislature, in its wisdom, did not think it necessary to expressly include the officers of such instrumentality or the Government company for affording protection by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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