1. Heard Shri Nandit Kumar Srivastava, learned counsel for the applicant and Shri S.B. Pandey, learned A.S.G.
2. This application under Section 482 Cr.P.C. has been filed for quashing entire prosecution of the applicant in the Special Case No.08 of 2018 arising out of Crime No.RC0062016A0018, Police Station C.B.I./A.C.B., Lucknow.
3. Learned counsel for the applicant submitted that the FIR with the Crime No.RC0062016A0018 was registered at C.B.I./A.C.B. Lucknow, under Section 120B r/w Section 420, 468, 471 I.P.C. and Section 13/2 r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 against Dr. A.K. Shukla, the then C.M.O., Raebareli (applicant), Dr. P.K. Mishra, the then Superintendent and Incharge, District Hospital, Raebarli, Dr. S.K. Chak, the then Deputy C.M.O. Rabeareli, Dr. P.K Singh, then the SMO Stores, Raebareli and Mr. Ramesh Arora, Proprietor M/S. Kwality Pharmaceuticals Pvt. Ltd. Amritsar and Mr. Ajay Kumar, Proprietor M/S Ocean Organic Pvt. Ltd. Amritsar and other unknown persons. In the FIR, it is alleged that the accused persons in conspiracy with other unknown persons have caused wrongful loss to the tune of Rs.17,42,530/- to the Government Exchequer by alleged misappropriation of funds in the purchase of Copper-T, Follow Up Medicine Kits & Nasbandi Follow Up Medicine Kits, during the period of 2007-8, under the National Rural Health Mission. Learned counsel for the applicant further submitted that investigation was conducted and the charge-sheet was filed by the Investigating Officer and the learned Special Judge, C.B.I. Ghaizabad had taken cognizance and directed the applicant to appear for purposes of answering the charges.
4. Learned counsel for the applicant has further submitted that the alleged offence was in relation to the discharge of official duty of applicant, as no sanction for prosecution of applicant was taken by the Investigating Officer from the Appointing Authority before filing the charge-sheet. Learned counsel for the applicant further submitted that applicant took the charge of C.M.O. Raebareli, in the afternoon on 26.06.2007, on the next day i.e 27.06.2007, the Office Superintendent put up a running file for his approval for opening of Technical and Financial Bid regarding the purchase of 'Copper-T Follow Up Medicine Kit & Nasbandi Follow Up Medicine Kit', as the tender was already floated by his predecessor, the then C.M.O. Reabareli, Dr. K.K. Kesari for the period of 2007-08 under the Head of Reproductive Child Health of National Rule Health Mission and Bids were already received as such, the applicant granted approval for opening of the Bids. On the next day, the applicant was transferred as C.M.O. Lucknow on 28.06.2007 and Dr. R.B. Singh took-over the charge as C.M.O. Raebareli in the noon on 28.06.2007 itself. Therefore, in the short duration of merely one and half day, the applicant was holding the charge of C.M.O, Rabareli. In such circumstance, the alleged allegations and involvements of applicant in the impugned prosecution is improbable and completely unfounded.
5. Learned counsel for the applicant has further submitted that it is admitted case of the prosecution that the applicant was not involve in calling, floating or publication of the tender nor had any role in allotting the tender to any party. Thus, the allegation that the applicant was part of the alleged conspiracy and committing the alleged offences is completely baseless.
6. Learned counsel for the applicant has further submitted that by virtue of amendment in the Prevention of Corruption Act, vide Act No.16 of 2018, the provisions regarding procuring sanction for prosecution of a public servant stood amended and the aforesaid amendment was notified on 26.07.2018 which clearly provides that the Investigating Agency ought to obtain the sanction for prosecution in respect of every public servant who held the office concerned during the time of offence and currently has ceased to do so and in the absence of such a sanction for prosecution, the court cannot take cognizance. He has further submitted that ignoring the aforesaid provisions, the learned Special Judge, CBI, Ghaiziabad took the cognizance, vide order dated 30.08.2018 with the observation that since the applicant has already been retired, the prosecution sanction is not required.
7. Learned counsel for the applicant relied on the decision of Hon'ble Supreme Court in the case of R.S. Nayak Vs. A.R. Antulay reported in AIR 1984 SCC 684, the relevant portion of judgment reads as under:-
"19. Section 6 bars the court from taking cognizance of the offences therein enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction. Section 8 of 1952 Act prescribes procedure and powers of Special Judge empowered to try offences set out in Section 6 of 1947 Act. Construction of Section 8 has been a subject to vigorous debate in the cognate appeal. In this appeal we will proceed on the assumption that a Special Judge can take cognizance of offences he is competent to try on a private complaint. Section 6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clauses (a), (b) and (c) of sub-section (1). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant. (See C.R. Bansi v. State of Maharashtra [(1970) 3 SCC 537 : 1971 SCC (Cri) 143 : AIR 1971 SC 786 : (1971) 3 SCR 236] .) Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and Section 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under Section 6 has been held to be a trial without jurisdiction by the court. (See R.R. Chari v. State of U.P. [AIR 1962 SC 1573 : (1963) 1 SCR 121 : (1962) 2 Cri LJ 510] and S.N. Bose v. State of Bihar [AIR 1968 SC 1292 : (1968) 3 SCR 563 : 1968 Cri LJ 1484] .) In Mohd. Iqbal Ahmad v. State of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926 : AIR 1979 SC 677 : (1979) 2 SCR 1007] it was held that a trial without a sanction renders the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the court is called upon to take cognizance of the offence. If therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public servant, Section 6 is not attracted. This aspect is no more res integra. In S.A. Venkataraman v. State [AIR 1958 SC 107, 112 : (1958) SCR 1040 : 1958 Cri LJ 254] this Court held as under:
"In our opinion, in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority."
And this view has been consistently followed in C.R. Bansi case [(1970) 3 SCC 537 : 1971 SCC (Cri) 143 : AIR 1971 SC 786 : (1971) 3 SCR 236] and K.S. Dharmadatan v. Central Government [(1979) 4 SCC 204 : 1979 SCC (Cri) 958 : (1979) 3 SCR 832 : 1979 Cri LJ 1127] . It therefore appears well-settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused."
8. Learned counsel for the applicant also relied on the decision of Hon'ble Supreme Court in the case of Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr, reported in (2005) 12 SCC 709, the relevant portion of the judgment is reads as under:-
"3. Learned counsel for the appellant had submitted that no sanction had been granted under Section 19 of the Prevention of Corruption Act, 1988, for prosecution of the appellant under Section 13(2) of the said Act and in the absence of sanction, the appellant could not be summoned to face the trial. Learned counsel for the respondent Parvinder Singh has submitted that the language used in the opening part of sub-section (1) of Section 19 is that "no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13...." and in the present case cognizance of the offence had already been taken by the Special Judge as against ASI Jasbir Singh and in these circumstances, no fresh sanction was required as against the appellant Dilawar Singh. Learned counsel has further submitted that a court takes cognizance of an offence and not that of an offender and once cognizance has been validly taken as against ASI Jasbir Singh, for whose prosecution sanction had been granted, there is no impediment in proceeding against the appellant Dilawar Singh as well. In support of the submission that cognizance is taken of an offence and not that of an offender, reliance is placed on certain observations made in Raghubans Dubey v. State of Bihar [(1967) 2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri LJ 1081] wherein it was held that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. Learned counsel has also submitted that the respondent complainant had moved an application for summoning the appellant under Section 319 CrPC, which gives wide power to the court to summon an accused and to proceed against him if it appears from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused.
4. In our opinion, the contention raised by the learned counsel for the appellant is well founded. Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under:
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
This section creates a complete bar on the power of the court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by the learned counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.
5. In State v. Raj Kumar Jain [(1998) 6 SCC 551 : 1998 SCC (Cri) 1485] the Court was examining the scope of Section 6(1) of the Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1) of the Prevention of Corruption Act, 1947, it was held as under in para 5 of the Report: (SCC pp. 552-53) "5. From a plain reading of the above section it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions."
6. In Jaswant Singh v. State of Punjab [1958 SCR 762 : AIR 1958 SC 124 : 1958 Cri LJ 265] sanction had been granted for prosecution of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention of Corruption Act, 1947, as no sanction had been granted with regard to the said offence, but the accused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision.
7. In State of Goa v. Babu Thomas [(2005) 8 SCC 130] decided by this Bench on 29-9-2005, it was held that in the absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of cognizance was without jurisdiction and wholly invalid. This being the settled position of law, the impugned order of the High Court directing summoning of the appellant and proceeding against him along with Jasbir Singh, ASI is clearly erroneous in law.
8. The contention raised by learned counsel for the respondent that a court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 CrPC. The observations made by this Court in Raghubans Dubey v. State of Bihar [(1967) 2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri LJ 1081] were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P. [(1966) 2 SCR 172 : AIR 1966 SC 828] , State of Bihar v. Dr. Yogendra Singh [(1982) 1 SCC 664 : 1982 SCC (L&S) 142 : AIR 1982 SC 882] and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27 : AIR 1984 SC 1543] .) Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.PC. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 CrPC if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person."
9. Learned counsel for the applicant has also relied on the decision of Hon'ble Supreme Court in the case of N.K. Ganguli Vs. Central Bureau of Investigation, New Delhi reported in (2016) 2 SCC 143, the relevant portion of the judgment reads as under:-
"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 Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from 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."
10. Learned counsel for the applicant has further submitted that if the alleged offence is during the course of official discharge of duty, then the sanction of prosecution is necessary, as by way of amendment made in Section 19 which is notified on 26.07.2018 and the cognizance was taken by the court below after 26.07.2018. As it was obligatory on the court below to see whether the proper sanction was obtained or not and the finding given by the court below that no sanction is required, as the applicant has been retired is against the intention of the legislature.
11. Learned A.S.G. has submitted that there is no illegality in the order passed by the court below and he also relied on the pleading made in this counter affidavit and submitted that the charge-sheet was filed on 15.03.2018 against the accused persons without obtaining sanction for prosecution against Dr. Anil Kumar Shukla, (applicant) because he was not serving as public servant as on date of submission of charge-sheet. He further submitted that Prevention of Corruption (Amendment ) Act, 2018 came into force on 26.07.2018 which would be applicable since 26.07.2018. Hence, in the present case when the charge-sheet was filed prior to the notification of the amendment. Therefore, it is not applicable in the case of applicant.
12. After considering the arguments of learned counsel for the applicant as well as learned A.S.G., the point of determination is that whether the Prevention of Corruption (Amendment) Act, 2018 which came into force on 26.07.2018 is applicable in the case of applicant or not. It is undisputed fact that the FIR was registered on 30.06.2016 in relation to the offence committed during the period of 2007-08 and it is also undisputed that the applicant was retired on 31.10.2012 from the Government Services and the charge-sheet in the case was filed on 15.03.2018 but the cognizance was taken by the court below on 13.10.2018. It is appropriate to consider the provision of Section 19 of Prevention of Corruption Act, 1988 before amendment and also the amended provisions.. The relevant part of the Section 19 amended as unamended are reads as under Act:-
(Before Amendment) (As Amended)
19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office:
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under Section 203 of the Code of Criminal Procedure, 1973 and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribed such guidelines as it considers necessary.
Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
13. As it is evident from the aforesaid provisions that before amendment there was no such mandatory provisions for taking previous sanction for prosecuting the Government Officials after his retirement for the offence which was alleged to be taken place during his official discharge of duty but in the amended provision of section 19 (1) (B) of P.C. Act, it clearly provides that in case of a person who is employed or as the case may be, was at the time of commission of alleged offence employed in connection with the affairs of State and is not removable from his office save by or with the sanction of the State Government, of that Government, the sanction is necessary and without previous sanction no court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 of the Act. As it is also relevant that after coming into existence of the amended provision of Section 19, the harassment of officials by filing of unnecessary complaint and asking for prosecution sanction is stopped by the Legislature. It is also relevant to mention here that the amended provisions came into existence on 26.07.2018 but the court below had taken cognizance on 30.08.2018. At the time of taking cognizance, the court below fails to consider the amended provisions which was applicable from the date of notification and the submissions of the learned A.S.G., that the charge-sheet was filed on 15.03.2018. Therefore, the amended provisions are not applicable in the case of applicant, is baseless.
14. It is also evident from the impugned order that the court below has wrongly applied the decision of Hon'ble Supreme Court given in the case of Omkar Dhanker Vs. State of Haryana reported in (2012) 11 SCC, page 252 that in the case of criminal breach of trust and conspiracy, sanction under Section 197 is not required and similarly the decisions of Hon'ble Supreme Court in the case of Prakesh Singh Badal Vs. State of Punjab reported in 2007, 1 SCC 1 is also not applicable in the present case. The court below had failed to consider the amended provision of Section 19 of Prevention of Corruption Act, 1988.
15. Thus, the applicant was working on the post of Chief Medical Officer, Raebareli, on the date of alleged commission of offence, he retired on 31.10.2012, the FIR was registered on 30.06.2016, the charge-sheet dated 15.03.2018 was filed by the Investigating Officer without obtaining sanction order from the employer, the court below had taken cognizance on 13.10.2018 without considering the amended provision of Section 19 (1) (a) of Prevention of Corruption Act, 1988 which came into force on 26.07.2018, it provides protection to the retired public servant also from unnecessary harassment by putting obligation on the prosecuting agency to prosecute him after proper sanction from its employer.
16. However, it is open to the prosecution to take appropriate action, in accordance with law.
17. In view of above, the application (u/s 482 Cr.P.C.) is allowed and the order dated 30.08.2018 along with entire proceeding of Special Case No.08 of 2018 arising out of Crime No.RC0062016A0018, Police Station C.B.I./A.C.B., Lucknow, is hereby quashed.
Order Date :- 20.12.2019