@JUDGMENTTAG-ORDER
Jyoti Saran, J.@mdashHeard Mr. Lakshmi Narayan Das, learned counsel appearing on behalf of the petitioner and Mr. Arvind Kumar, learned Special A.P.P. for the Investigation Bureau of the Department of Vigilance. This application u/s 482 of the Code of Criminal Procedure has been filed for quashing the order dated 28.9.2010 whereby the learned Special Judge Vigilance-I, Patna has been pleased to take cognizance of the offence punishable under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ''P.C. Act'') against the petitioner in connection with Vigilance Special Case No. 29 of 2007 arising from Vigilance Case No. 55 of 2007.
2. The facts of the case in brief is that the petitioner at the relevant time held the post of Tax Daroga under Masaurhi Nagar Parishad, District-Patna. A complaint was made by one Baldeo Prasad on 2.5.2007 addressed to the Officer-in-charge, Vigilance Investigation Bureau mentioning therein that for the purpose of issuance of a death certificate in relation to his brother-in-law, he had filed an appropriate application and the petitioner was entrusted with the job of making enquiry into the matter. It is alleged that the petitioner did not carry out the directions and the matter remained pending. It is alleged that when the informant confronted the petitioner, the petitioner demanded bribe of a sum of Rs. 4,000/-. Upon preliminary enquiry being made into the allegation, the same was found to be correct and pre-trap memorandum was prepared. A team of the Vigilance Department alongwith the complainant proceeded at the determined place where the petitioner had directed the informant to hand over the bribe money. At the assigned place and time the petitioner demanded the amount and no sooner the informant handed over a sum of Rs. 2,800/-, the details whereof are mentioned in the pre-trap memorandum and which was laced with chemicals, the officials of the Vigilance Investigation Bureau immediately apprehended him and the left hand, in which the petitioner was holding the bribe money, was put in a solution which turned pink demonstrating the acceptance of the bribe money which had been duly marked by the Vigilance Department. A post-trap memorandum was prepared and an FIR was instituted giving rise to Vigilance P.S. Case No. 55 of 2007 registered under Dections 7, 13(2) read with Section 13(1)(d) of the P.C. Act. Following the sanction being accorded by the Chairman, Nagar Parishad, Masaurhi, District-Patna dated 14.6.2007, cognizance of offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the P.C. Act was taken by the Special Judge, Vigilance-I, Patna in Vigilance Special Case No. 29 of 2007 arising from Vigilance P.S. Case No. 55 of 2007 on 26.6.2007. The order taking cognizance was challenged by the petitioner through Criminal Miscellaneous No. 14703 of 2008 and a Bench of this Court by order dated 3.5.2010 holding that the order of sanction was passed by an authority not competent or authorized to do so u/s 38 of the Bihar Municipal Act, 2007, was pleased to hold the order taking cognizance bad in law on grounds of having been passed on the basis of an invalid sanction order. The application filed by the petitioner was allowed and the order taking cognizance dated 26.6.2007 was set aside with a liberty to the prosecution to obtain proper and valid sanction. The matter thereafter was reconsidered at the level of the Nagar Parishad, Masaurhi, District-Patna and the Executive Officer, Nagar Parishad, Masaurhi upon consideration of the facts and in the light of the order passed by this Court in the earlier round of litigation, was pleased to accord sanction for prosecution of the petitioner vide Memo No. 276 dated 3.8.2010 placed at Annexure-3 of the application. Following the sanction order, the learned Special Judge, Vigilance, Bihar, Patna vide order dated 28.9.2010 passed in Special Case No. 29 of 2007 arising from Vigilance P.S. Case No. 55 of 2007, was pleased to take cognizance of the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the P.C. Act.
3. Mr. Das, learned counsel appearing for the petitioner has raised the following issues, namely:--
(a) The order of sanction is without application of mind; and
(b) The sanction order has been accorded by an authority not vested with such jurisdiction.
4. Learned counsel for the petitioner advancing his arguments on the first issue regarding non-application of mind has referred to the sanction order itself placed at Annexure-3, to submit that a plain reading thereof itself shows that it is a mere recital of events. It is submitted that the Executive Officer even while referring to the earlier order of this Court, has not chosen to apply his mind as to whether there were sufficient materials for grant of sanction and/or for proceeding against the petitioner. It is submitted that the order simply mentions that it is being issued in compliance of the order passed by this Court in the earlier round of litigation after rectifying the defect. Mr. Das, learned counsel for the petitioner submits that the order granting sanction is an empty formality and does not fulfill the requirement/ obligation cast upon the authority granting sanction. It is submitted that the sanction order nowhere discusses the materials which formed the basis to accord sanction. It is thus stated that in absence of a single statement demonstrating the consideration of the materials by the Executive Officer for arriving at the decision, the order of sanction having been passed on complete non-application of mind, cannot be sustained. Learned counsel for the petitioner in support of his submission that an order of sanction should reflect application of mind by the sanctioning authority has relied upon the following judgments of the Supreme Court and this Court:--
(i)
(ii)
(iii) 2010(4) PLJR 878 (Nand Kishore Verma vs. The State of Bihar);
(iv)
(v) 2010(1) BCCR 293 (Vijendra Prasad vs. The State of Bihar).
5. Learned counsel for the petitioner in support of his second submission that an order of sanction had been passed by an authority not vested with such powers, has relied upon the provisions of Section 38 of the Bihar Municipal Act, 2007 (hereinafter referred to as ''the Act of 2007''). With reference to the order passed by this Court in the earlier round of litigation placed at Annexure-2, it was submitted that in terms of the provisions of Section 38 of the Act of 2007 as it then existed, it was the Chief Municipal Officer who would be the authority competent to accord sanction. It is stated that in the present case the order of sanction has been passed by Shri Ashok Kumar in the capacity of an Executive Officer, Nagar Parishad, Masaurhi in the light of the order passed by the District Magistrate, Patna dated 16.4.2010 placed at Annexure-4. It is contended that Shri Ashok Kumar in fact held the post of Assistant Engineer in the Rural Work Department, Works Division No. 2, Masaurhi, Camp-Patna and by order dated 16.4.2010 was given the additional charge of the post of Executive Officer, Nagar Parishad, Masaurhi. It was contended that the order as contained in Annexure-4 merely directed Sri Ashok Kumar, Assistant Engineer to discharge the additional duties attached to the post of Executive Officer in addition to his own work. It was thus contended that the said order requiring Shri Ashok Kumar to discharge the duties of the Executive Officer in addition to his own duties would not tantamount to conferment of powers of disciplinary authority and in absence of which powers, he could not have accorded sanction. In continuation learned counsel relying upon an amendment introduced in the Bihar Municipal Act, 2007 vide Act No. 7 of 2011 (hereinafter referred to as the ''Amendment Act'') amending Section 38 submits that initially the appointing authority of Group-''C'' and ''D'' employees, of Municipality was vested in such officer of the Municipality as Chief Municipal Officer with the approval of the Empowered Standing Committee would designate in this behalf. It was submitted that by the amendment introduced in the Act of 2007, clauses (b) and (c) of Section 38 were deleted. The State Government was made the appointing authority for Group ''B'' and ''A'' posts in the Municipality and the powers of appointment of Group ''C'' and ''D'' posts were vested in the Empowered Standing Committee under the Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010 (hereinafter referred to as ''the Rules of 2010'') framed in exercise of powers vested u/s 22 read with Section 63 and Section 419 of the Bihar Municipal Act, 2007, on 5.3.2010. It was thus stated that the executive powers of the Municipality having vested in the Empowered Standing Committee including the matters relating to appointment, disciplinary action etc., the Executive Officer was precluded to order sanction since after invocation of the aforesaid Rules with effect from 5.3.2010. It was thus contended that the sanction order having been passed by the Executive Officer on 3.8.2010, i.e. after the invocation of the aforesaid Rules on 5.3.2010, was wholly without jurisdiction and thus unsustainable.
6. Learned counsel in support of his submission that a sanction order having been passed by an authority not vested with such powers is illegal and thus not sustainable has relied upon the following judgments:--
(i)
(ii)
(iii)
7. Learned counsel in the backdrop of the submission recorded hereinabove, submitted that the order of sanction having been passed by an authority not empowered in law to do so and reflecting non-application of mind, on either counts is not sustainable and is fit to be quashed.
8. Learned counsel for the petitioner with reference to the legislative intent underlying Section 19 of the P.C. Act submitted that the legislative intent is very clear and that a valid sanction is a sine qua non for launching a valid prosecution. It was contended that the intent of the provision is to protect the official and staff of the Government and the authorities from becoming a victim by unscrupulous litigants with vested interest. Learned counsel has relied upon the following orders of this Court in support of his submissions:--
(1) Cr. Misc. No. 44151 of 2008 (Shankar Prasad vs. The State of Bihar) disposed of on 3.3.2011.
(2) Cr. Misc. No. 18584 of 2010 Ed.--Reported in
9. Mr. Arvind Kumar, learned counsel representing the Vigilance Department contested the position to submit that even if the order of sanction does not discuss the materials relied upon by the sanctioning authority, if the same could be gathered from the materials leading to the order of sanction, it would be sufficient indication of application of mind. It was contended that the relevant file relating to the matter in issue does indicate that the entire materials were placed before the sanctioning authority for consideration and the order has been passed upon examination of the said materials. Responding to the contention of Mr. Das that since after the invocation of the Rules of 2010, the power of sanction vested in the Empowered Standing Committee of the Municipality and not the Executive Officer, learned counsel submitted that the Rules having been framed in the 2010, is not retroactive and would not govern the past cases. Learned counsel for the Vigilance responding to the judicial pronouncement relied upon by learned counsel appearing for the petitioner cited two Bench decisions of this Court since reported in 2011 (3) PLJR 566 (Dinesh Prasad vs. State of Bihar) and
10. Learned counsel for the Vigilance relying upon the provisions of Section 19(3) of the P.C. Act and the Explanation provided under the said provisions submitted that in view of the aforesaid provision, unless the petitioner would be able to substantiate that the error or omission or irregularity in the order of sanction has resulted in failure of justice, it requires no interference. It was submitted that in the entire arguments advanced, the petitioner has failed to substantiate that any failure of justice has occasioned by the sanction order.
11. I have heard learned counsel appearing on behalf of the parties and have perused the materials on record. The judgments on the issue relied upon by learned counsel appearing for the petitioner are well settled enunciations governing the issue of sanction. It cannot be contested that an order of sanction should be passed upon consideration of materials and by an authority empowered to do so. Apart from the aforesaid relevant considerations, the law has also been interpreted under the various judicial pronouncements in the light of the provisions of Section 19(3) of the P.C. Act and it has been held that a sanction order need not be interfered with on grounds of any error or omission therein unless it has occasioned in failure of justice to the person concerned.
12. The case in hand is of entrapment, with the petitioner having been apprehended with marked currency. Cases of entrapment prima facie put the person apprehended, in the dock unless he is able to give a possible explanation to the amount which was seized from his possession. The presumption would thus lie against the person apprehended with the money. Certainly the presumption is rebuttable but it needs a definite explanation to the money received. Cases of entrapment form a different class altogether and the issue of sanction or any irregularity therein has to be considered against such classification.
13. The Constitution Bench of the Supreme Court while considering the issue of sanction u/s 197 of the Code, in case of entrapment, while relying upon a decision of the Privy Council, in a matter reported in
11. Then there remains the appeal of R.W. Mathams. It has been already stated that by an order dated 13.11.1947 the Privy Council gave him special leave to appeal, limited to the question whether the proceedings were bad for want of sanction u/s 197 of the Criminal Procedure Code. By a further order dated 5.8.1948, the Privy Council enlarged the scope of the appeal by permitting the appellant to raise the contention that there had been a contravention of Section 257 of the Criminal Procedure Code. These are the two points that arise for determination in his appeal. The question whether sanction u/s 197 was necessary for instituting proceedings against the appellants on charges of conspiracy and of bribery, is now concluded by the decisions of the Judicial Committee in--
14. The same view has also been expressed by a subsequent Constitution Bench in the judgment reported in
16. Under S. 197 no Court shall take cognizance of an offence committed by a public servant who is removable from his office by the Governor-General-in-Council or a Provincial Government, save upon a sanction by one or the other as the case may be, when such offence is committed by him while acting or purporting to act in the discharge of his official duty. Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under S. 420 of the Indian Penal Code by falsely stating as a fact in his reports that the appellant''s claims were true and that statement had been made knowing all the while that the claims in question were false and fraudulent and that he had accordingly committed an offence under S. 420/109, Indian Penal Code. It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under S. 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences (vide
15. The said issue was again considered in the case reported in
14. In the case of K. Satwant Singh vs. State of Punjab a Constitution Bench of this Court observed that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of bribe, an offence punishable u/s 161 of the Indian Penal Code is one of them and offence of cheating and abetment thereof is another. Likewise, another Constitution Bench in the case of Om Parkash Gupta vs. State of U.P. observed that a public servant committing criminal breach of trust does not normally, act in his public capacity, as such no sanction is required for such an act.
15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection u/s 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection u/s 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction u/s 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.
16. The cases of persons apprehended while taking bribe thus form a distinct category. Considering the views expressed by the Apex Court on the issue, I am of the firm opinion that in view of the express language of Sections 19(3) and 19(4) of the P.C. Act, the person apprehended with the bribe money in cases of entrapment, is precluded from making any complaint regarding any defect or error or omission in the order granting sanction unless it has occasioned in failure of justice.
17. I shall now deal with the issue raised by learned counsel, as regarding the order reflecting non-application of mind by the sanctioning authority and his lack of jurisdiction to pass the order.
18. Pursuant to the direction of this Court, the relevant file was produced by learned counsel appearing for the Vigilance. No doubt the order of sanction as contained in Annexure-3 dated 3.8.2010 does not discuss the materials which formed the basis of according sanction but upon consideration of the relevant file it transpires that the Deputy Inspector General in the Cabinet (Vigilance) Department vide letter dated 23.5.2007 had submitted the proposal of the Investigating. Officer for consideration by the Chairman, Nagar Parishad enclosing the pre-trap memorandum as well as post-trap memorandum which are the basis of the institution of the criminal case. The relevant records further manifest that upon consideration of the materials referred to above, a departmental proceeding was also initiated against the petitioner and which ultimately culminated in an order of dismissal duly approved by the Board of Nagar Parishad in its meeting held on 29.3.2008 and pursuant whereto the services of the petitioner was terminated vide letter No. 163 dated 7.5.2008. The circumstances aforementioned are sufficient indication that the order of sanction has not been passed in absence of materials rather the materials forming basis of the criminal case are part of the records though not discussed in so many words in the order of sanction.
19. The Supreme Court in the case of Ameer Jan (supra) in paragraph 10 has held that even if the sanction order does not indicate application of mind as to the materials placed, the same may be produced before the court to demonstrate that it formed part of the consideration. That being the position, the issue posed by learned counsel that the order reflects non-application of mind has to be rejected.
20. Coming to the second issue raised regarding absence of jurisdictions it would be relevant to have a look at the provisions of Section 19(2) of the P.C. Act which runs as follows:--
19. Previous sanction necessary for prosecution.--
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(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
21. The provision is very clear and where any doubt arises as to the authority to grant sanction, it has to be considered with reference to the date on which the offence was allegedly committed. Admittedly the alleged occurrence took place on 3.5.2007 and which is prior to the invocation of Rules of 2010 relied upon by learned counsel for the petitioner to question the jurisdiction of the authority granting sanction. Thus, the Rules of 2010 would have no application to the case of the petitioner in view of the provisions underlying Section 19(2) of the P.C. Act.
22. Having held as such; it now requires to be seen whether despite the position aforementioned, yet the author of the order granting sanction, was empowered to do so, under the Act of 2007.
23. The provisions of Section 38 of the Act of 2007 as it then existed empowered any officer designated to discharge such duties by Chief Municipal Officer with prior approval of the Empowered Standing Committee, meaning thereby any officer specially designated in this behalf by the Chief Municipal Officer with prior approval of the Empowered Standing Committee or the Chief Municipal Officer himself. The definition of Chief Municipal Officer as can be found in Section 2(21) of the Act also includes the Executive Officer. That being the position the Executive Officer of the Nagar Parishad is fully empowered to accord sanction for prosecution of a Group ''C'' and ''D'' employee of the Municipality. It is not in dispute that the petitioner was a Group ''C'' employee in the Municipality.
24. In so far as the authority of the Executive Officer as being questioned by the learned counsel in the light of the order conferring additional powers vide memo dated 16.4.2010 (Annexure-4) is concerned, it is a settled position that an official conferred with powers of discharge of additional duties attached to a post with no restrictions put in the order delegating such powers, would confer upon the person concerned, with all such powers as are attached to the post concerned. The order of the District Magistrate as contained in Annexure-4 is self-eloquent and empowers Shri Ashok Kumar to discharge additional duties attached to the post of Executive Officer of the Nagar Parishad in addition to his own duty as an Assistant Engineer. It is thus clear beyond any doubt that Shri Ashok Kumar was fully vested with the powers attached to the post of Executive Officer, Nagar Parishad, Masaurhi and as the Executive Officer was vested with the powers of an appointing authority for Group ''C'' and ''D'' posts in a Municipality at the relevant time when the alleged occurrence took place, the order cannot be questioned on grounds of lack of jurisdiction. For the reasons aforesaid I find no merit in this application and it is accordingly dismissed.
