Gautam Kumar Choudhary, J
1. The instant criminal misc. petition has been filed for quashing the entire criminal proceeding, including the order taking cognizance dated 12.10.2020 passed in RC 07(A)/2016-R (Case No. CNR-JHRN01-003267-2016) whereby and whereunder, prima facie case has been found to be made out under Sections 120B, 420, 468, 471 of IPC and Sections 13(1)(d) read with 13(2) of Prevention of Corruption Act (hereinafter called as PC Act).
ARGUMENT OF PETITIONER
2. Main plank of argument advanced on behalf of the petitioner is two folds. Firstly, cognizance has been taken without sanction as required under Section 19 of the PC Act. Secondly, without approval of the State Government, investigation could not have been initiated under Section 17A of PC Act.
Reliance is placed on
(i) Nanjappa v. State of Karnataka, (2015) 14 SCC 186 :
22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.
23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity.
23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction.
(ii) Kapur Chand Pokhraj Vs State of Bombay AIR 1958 SC 993.
3. It is submitted that investigation in the instant case had been initiated on 02.06.2016. Section 17-A was inserted in the PC Act vide amendment which came into force with effect from 26.07.2018. Under the amended provision, inquiry or investigation against a Public Servant into any offence committed under the P.C. Act cannot be initiated, where the alleged offence was relatable to any recommendation made or decision taken by such public servant for acts committed in the discharge of his official duty, without the approval by the concerned State or Central Govt. In the present case the investigation was continued and charge sheet has been submitted without obtaining approval of the competent authority.
4. The Allahabad High Court in the case of Dr Anil Kumar Shukla Vs CBI quashed the order taking cognizance 30.08.2018 in a case registered on 30.06.2016 and charge sheet was submitted on 15.03.2018 for want of sanction for prosecution of a public servant who had retired from service 31.10.2012.
ARGUMENT OF CBI
5. Learned ASGI for the CBI has opposed the quashing petition and submitted that Section 17A will have no retrospective operation. Reliance is placed on WP (Cr.) No. 643 of 2019 (Delhi High Court) Vinod Kumar Asthana Vs. CBI.
6. It is submitted that the petitioner was the Chairman of JSEB when the said offence was committed in the year 2011-12 and he retired from service from the said post in 2015. At the relevant time of cognizance, 2018 Amendment had not come into force. Earlier Section 19 did not require previous sanction for prosecution in case of public servant who had retired from service. The umbrella of protection from prosecution extended to the public servant who were in service and not to those who had retired from it. After 2018 the requirement of sanction has been extended even to a retired public servant. Reliance is placed on
(i) State of Telangana v. Managipet, (2019) 19 SCC 87 wherein it has been held that preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] is not required to be mandatorily conducted in all corruption cases.
(ii) CBI v. B.A. Srinivasan, (2020) 2 SCC 153 wherein it has been held that the sanction of prosecution is not required after the accused has retired from service.
(iii) Vinod Kumar Asthana Vs CBI W.P.(CRL) 643/2019 & CRL M.A. Nos. 4589/2019 – In this case cognizance was taken on 30.07.2018 whereas sanction was accorded on 29.6.2020. The Delhi High court held that criminal proceeding could not be quashed in view of the ratio decided by the Apex Court in 2021 SCC Online SC 974 Shantaben Bhurabhai Bhuriya Vs Anand Anthabhai Chaudhari & Ors and (2021) 2 SCC 525
(iv) Vijay Rajmohan v. CBI, (2023) 1 SCC 329
7. In order to appreciate the legal issues raised, it will be desirable to set out list of dates in the present case culminating in the order taking cognizance.
2.6.2017 — FIR No. RC 07(A)/2016-R registered against unknown officials Jharkhand State Electricity Board (JSEB), Ranchi, Bharat Heavy Electricals Ltd, Bhopal and M/s North Power Erector Ltd (NPEL), New Delhi for financial irregularities in Sikidri Hydel Project in Ranchi.
30.9.2020 — Chargesheet No.08/2020 submitted against Shivendra Nath Verma the then Chairman, JSEB (Petitioner) and 8 others u/s 13(2) r/w 13(1)(d) of the PC Act, 1988 and Section 120-Br/w 420,468,471 of IPC. Sanction order against the petitioner was awaited.
12.10.2020 — Order taking cognizance
27.07.2022 — Sanction for prosecution obtained
8. The plea of the petitioner that investigation proceeded and continued without approval of the Govt as required u/s 17 A is not sustainable, for the reason that the FIR had been lodged and investigation already initiated in this case in 2016, much before coming into force of the 2018 amendment Act. Therefore, the question of prior approval of the Govt for investigation did not really arise.
9. The main plea of the petitioner is that petitioner held the post of Chairman JSEB from 1.06.2011 to 12.01.2015 and by the time the case was registered, he had relinquished his post. He was entitled to protection under amended provision of Section 19 of the P.C Act which came into force on 26.07.2018 before the date of cognizance. Thus, the order taking cognizance was specifically barred under Section 19 of the P.C Act.
10. There can be no doubt whatsoever that requirement of sanction for taking cognizance u/s 19 against the Petitioner was mandatory in view of the 2018 amendment in the PC Act.
11. Main questions for consideration is whether the 2018 amendment Act shall have application to the present case, as the petitioner had already retired from service in 2015 as under the old Act, there was no requirement of sanction for taking cognizance against a public servant who had retired from service?
Secondly, whether subsequent grant of sanction can confer legality to the order of cognizance which was passed without sanction?
12. From the plain reading of Section 19 (1) it will be apparent that the relevant date requiring sanction is the date when the cognizance is taken. It is on the date of cognizance the ingredient of Section 19 is to be applied viz (i) the accused is or was a public servant, (ii) offence under Section 7,11,13 or 15 of the P.C Act is alleged to be committed.
13. Petitioner retired in 2015 and the order of cognizance is of the 2020 when the 2018 amendment had already come into force. Thus, the petitioner was entitled to the protective umbrella of sanction under Section 19 (Amended) and it was required before the cognizance was taken. Had the cognizance been taken after the retirement of the petitioner in 2015 and before the 2018 amendment came into force, sanction would not have been required.
14. Now coming to the question whether the order of cognizance without sanction was curable in view of the subsequent sanction, this Court is of the view that absence of sanction was a procedural irregularity which was cured by grant of subsequent sanction. The law has been succinctly laid down with abundant clarity in Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 that the effect of sub-section (3) is that the stress is on “failure of justice” and that too “in the opinion of the court”. 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 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 [(1998) 4 SCC 626 : 1998 SCC (Cri) 1108].
I agree with the view taken by the Delhi High Court in Vinod Kumar Asthana case (supra) in this regard. Further, it has been held in State through CBI Vs B.L. Verma and Another, (1997) 10 SCC 772 and Shantaben Bhurabhai Bhuriya Vs Anand Athaba Chaudhari and others. 2021 SCC Online SC 974 that order of cognizance cannot be quashed merely on the ground of absence of sanction.
For the reasons discussed above, I do not find any reason to interfere with the impugned order.
Criminal miscellaneous petition stands dismissed.
