Heard Mr.Nandit Srivastava, learned counsel for the petitioner and learned Additional Government Advocate as well as Mr.Bireshwar Nath, learned counsel for the Central Bureau of Investigation.
The petitioner has challenged the order dated 26th of February, 2010, passed by the Ministry of Railway, Government of India, whereby the prosecution has been sanctioned under Section 120-B, 420, 201 IPC and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 including the order dated 12th of April, 2010, passed by the Special Judge, Anti Corruption, West, Lucknow in case No.27 of 2009, whereby the petitioner has been summoned for trail under Section 120-B, 420, 201 IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
The learned counsel for the petitioner submits that the aforesaid sanction order has been issued in exercise of power provided under Section 19(1) of the Prevention of Corruption Act, 1988, therefore, the said sanction shall be treated to be accorded only under the Prevention of Corruption Act, 1988 and not under the Indian Penal 2 Code, under the circumstances the summoning order issued by the Special Judge, Anti Corruption, West, Lucknow for trial of the petitioner under Section 120-B, 420, 201 IPC is without jurisdiction.
It is not in dispute that there is no sanction of prosecution under the Indian Penal Code, but Mr.Bireshwar Nath as well as learned Government Advocate argued that the sanction accorded under the Prevention of Corruption Act is sufficient to try the petitioner under the Indian Penal Code also as the offence committed by the petitioner are contemporary to the offences committed under the Prevention of Corruption Act. They further pointed out that the offence has been committed by the petitioner by doing the act which is not attributable to the official duty, therefore, no sanction is required, as has been laid down in the decision of Hon'ble Supreme Court rendered in the case of P.K.Pradhan versus State of Sikkim represented by the Central Bureau of Investigation, reported in 2001 SCC (Cri) of 1234 and in the case of M.Gopalakrishnan v. State by Addl.S.P.CBI, B.S.& F.C, Bangalore, reported in AIR 2009 SC 2015, whereas the charge sheet submitted against the petitioner shows that the offence committed by the petitioner has been found to have been committed during the course of duty. The relevant portion of the charge sheet is reproduced hereunder:-
"Thus, S/Shri Vichitra Veer Chakravorty, the then Sr.DFM, Ashok Kumar, the then DFM, Mohd.Naseem, the tehn DFM, N.M.Sharma, the then ADFM, Surendra 3 Kumar Singh, Sr.Section Officer (Cash), O/o Sr.DFM, NCR, Allahabad and Shri M.M.Yadav while posted and functioning as Asstt.Div.Cashier, NCR, Allahabad who put up the proposals, recommended and sanctioned the same in connivance with the provate contractors namely Smt. Smita Mathur, Prop. Of M/s. Technic System, Allahabad, S/Shri Ravindra Mathur, Prop.M/s.Architech System and, Mohd.Jameel, Prop.of M/s. Mohd.Jameel, Allahabad, Roop Kumar Bhattacharya, Prop. Of M/s R.R.Enterprises, Kanpur and Shri Viplav Bhattacharya, Prop. Of M/s. B & R Enterprises, Kanpur, who in connivance with each other submitted the quotations for such works which were approved by the accused public servants. As a consequence of criminal conspiracy between the public servants and private contractors, the false and fake bills for such works were submitted by the contractors which were sanctioned/passed for payments by the accused public servants and payments were received by the aforesaid contractors. Therefore, the aforementioned accused persons have committed the offence punishable u/s 120B, 420, 201 IPC and 13(2) r/w 13(1) (d) of PC Act, 1988."
Keeping in view the aforesaid fact of the charge sheet, I am of the view that the acts of the petitioner which have been treated as offence committed by him have been done during the course of discharge of official duty, therefore, the offence committed by him definitely requires sanction by the Government concerned for taking cognizance by the learned Judge, but in the present case after going 4 through the record I find the same as missing.
Mr.R.K.Dwivedi, learned Additional Government Advocate submits that the Hon'ble Supreme Court in the case of Satya Narayan Sharma versms State of Rajasthan, reported in 2001 8 SCC 607 has held that the trial under the Prevention of Corruption Act cannot be stayed, whereas upon perusal of the summoning order, I find that the petitioner has been summoned for trial not only under the Prevention of Corruption Act, but also under the Indian Penal Code, in which the trial cannot be permitted without sanction of prosecution by the appropriate government. Therefore, prima facie, I am of the view that the summoning order passed by the learned Special Judge, Anti Corruption, West, Lucknow on 12th of April, 2010 is without jurisdiction, therefore, I hereby stay the proceedings of Criminal Case No.27 of 2009 pending before the Special Judge, Anti Corruption, West, Lucknow.
Four weeks time as prayed by learned counsel for the opposite parties is allowed to file the counter affidavit.
List thereafter in the week commencing 19th of July, 2010. Dated:18.6.2010 Banswar