Criminal Miscellaneous No.9617 of 2000 (P)
In the matter of an application under section 482 of the Code of Criminal Procedure.
Jagannath Mishra................................................Petitioner VERSUS
State of Bihar through S.P, CBI....................Opposite Party For the Petitioner : M/s. Rana Pratap Singh, Sr. Advocate and B.S.Tiwary, Advocate
For the CBI : Mr. Rajesh Kumar, Advocate P R E S E N T
THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
THE HON'BLE MR. JUSTICE R. R. PRASAD
By Court: This application is directed against the order dated 28.2.2000 passed by Special Judge, CBI, Patna in Special Case No.22 of 1996 whereby and whereunder prayer for discharge of the petitioner has been rejected.
The facts leading to filing this application are that when it was detected that huge amount of money had been withdrawn from the Chaibasa Treasury on the basis of forged, fabricated and fake bills relating to supply of the medicines/materials to the Animal Husbandry Department, a case was instituted against the officials of the Animal Husbandry Department as well as Treasury and also against the suppliers. Subsequently investigation of the case was taken over by the CBI, who registered it as R.C.20(A) of 1996.
In course of investigation, certain facts were collected which according to CBI, reveal that the petitioner was in league with some persons, who were involved in fraudulent withdrawal of huge amount of money from the Treasury and those facts, according to the CBI, are that the petitioner in league with Lalu Prasad, the then Chief Minister had given political patronage to the Scam stars which gets established from the fact that when Minister of Animal 2
Husbandry Department, on one hand, ordered for CBI enquiry the Chief Secretary ordered for investigation by the Vigilance Department and when the petitioner came to know all about it, he, being the leader of the opposition, wrote a letter to the then Chief Minister not to go for enquiry as the Director on holding enquiry has found nothing wrong with the withdrawal of the amount and as such, the matter remained pending which could be moved only on the political intervention and that the petitioner by writing a letter had made recommendation for extension of the service of S.B.Sinha, who was kingpin of this scam and that the petitioner being the Chief Minister had entertained a letter whereby Lalu Prasad, the then leader of the opposition had made recommendation for promotion of Dr. Ram Raj Ram and that the petitioner was paid handsome amount by S.B.Sinha and others for protecting the persons, who were involved in this Scam. The CBI having found the hand of this petitioner in the alleged offence sought for sanction for prosecution which was granted by the then Governor on 17.6.1997 and thereupon charge sheet was submitted under section 120(B) read with sections 409, 420, 467, 471 and 477A of the Indian Penal Code and also section 13(1)(c)(d) read with section 13(2) of the Prevention of Corruption Act.
Thereafter when the cognizance of the offence was taken by the Special Judge, petition for discharge was filed on behalf of the petitioner wherein several grounds were taken including the ground that Governor is not the competent authority to grant sanction for prosecution of the petitioner, who at the relevant point of time was the member of the Rajya Sabha and that the Governor without any aid and advice of the Council of Ministers cannot take decision with respect to grant of sanction for prosecution. However, the learned 3
trial court rejected the prayer for discharge after holding that there appears to be sufficient grounds for presuming that the petitioner has committed offence.
Being aggrieved with that, the petitioner filed this application before the Patna High Court which was admitted to be heard by the larger Bench.
After bifurcation of the State, the case was transferred to this Court. When the matter earlier came up for hearing before the Division Bench, counsel appearing for the CBI pointed it out that another application involving the same issue has already been dismissed in the light of the order passed by the Patna High Court giving liberty to the petitioner to approach the Hon'ble Supreme Court. In that background, this Court thought it fit to dismiss the application so that if the petitioner approaches to the Hon'ble Supreme Court, the same be heard along with other application in which similar point was involved. Accordingly, it was dismissed on 22.3.2007.
Being aggrieved with that order, the petitioner moved before the Hon'ble Supreme Court, vide Cr.App No.1767 of 2008 (arising out of SLP (Cr.) No.3442 of 2008). After hearing counsel for the parties, the Hon'ble Supreme Court set aside the impugned order and referred the matter to this Court for deciding the issue raised in this application and that is how this matter has again come up for hearing.
Mr. Rana Pratap Singh, learned Senior counsel appearing for the petitioner submits that the then Governor, State of Bihar was not the appropriate authority to grant sanction for the prosecution of the petitioner in terms of the provision as contained in Section 19 of the Prevention of Corruption Act as well as in terms of Section 197 of the Code of Criminal Procedure and the petitioner at 4
the relevant point of time when the cognizance of the offence was taken he was member of the Rajya Sabha.
Learned counsel further submits that even for the sake of argument if it is assumed that the Governor does have power to grant sanction in terms of the aforesaid provisions, he has to act in accordance with the aid and advice of the Council of Ministers in taking decision with respect to grant of sanction of the prosecution which proposition of law has been laid down by the Hon'ble Supreme Court in the case of Samsher Singh vs. State of Punjab and another [(1974) 2 SCC 831] where it has been held that the President and the Governor, custodians of all executive and other powers under various articles shall, by virtue of the provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations relating to choice of Prime Minister/ Chief Minister, dismissal of the Government which has lost its majority in the House etc.
The same view has been reiterated subsequently in a case of M. P. Special Police Establishment vs. State of Madhya Pradesh and others [(2004) 8 SCC 788] .
Thus, in that view of the matter, it was submitted that sanction granted by the Governor without aid and advice of Council of Ministers becomes quite invalid or can be said to be nonest in the eye of law and hence, entire prosecution gets vitiated on this ground alone.
Next it was argued that entire facts mentioned in the order of sanction are based on the materials supplied by the CBI which are factually incorrect and hence, CBI can be said to have obtained the order of sanction by playing fraud and making misrepresentation of the fact.
In this respect it was stated that it has been mentioned in the order of sanction that the petitioner was the Chief Minister in the year 1988 but, in fact, he was never the Chief Minister at that point of time and that this petitioner was nothing to do with the matter relating to promotion of Dr.Ram Raj Ram and similarly, other allegations are equally false and contrary to the evidence or material and as such, sanction order can be said to have been obtained by misrepresenting the facts and hence, it is nullity which vitiates the entire prosecution relating to this petitioner. As against this, learned counsel appearing for the CBI submits that the legality and propriety of the order granting sanction is being raised at the belated stated when the prosecution has already examined as many as 335 witnesses out of 459 witnesses and as such, on this ground alone, this application is fit to be dismissed as this application is directed against the order under which prayer for discharge of the petitioner has been refused.
Learned counsel further submits that all the acts showing the petitioner being in league with the other accused persons who put the State exchequer to a great loss by drawing money from the Treasury on the basis of forged and fabricated supply bills relates to the period when the petitioner was the leader of the opposition having status of a Cabinet Minister but by the time cognizance of the offence was taken, he was a member of the Rajya Sabha and as such, no sanction in terms of section 19 of the Prevention of Corruption Act is required to be taken from the appropriate Government as the petitioner on the date of submission of the charge sheet had not been holding the office of the leader of the opposition.
In this respect decisions rendered in case of R.S.Nayak vs. A.R.Antulay [(1984) 2 SCC 183] and also in case of Habibulla Khan vs. State of Orissa and another [ 1995 Cr.L.J2071 (SC)] were referred to ratio of which was subsequently followed in the case of Prakash Singh Badal and another vs. State of Punjab and others [(2007) 1 SCC 1] and also in a case of Balakrishnan Ravi Menon vs. Union of India [(2007) 1 SCC 45].
Learned counsel further submits that so far sanction under section 197 of the Code of Criminal Procedure is concerned, it is mandatorily required to have for launching prosecution if the alleged act is done in discharge of the public duty but any act attracting offence under sections 406, 409, 420 read with section 120(B) of the Indian Penal Code or even the act which constitutes offence under sections 467, 468 and 471 of the Indian Penal Code can never be considered to be an act done in discharge of the public duty and, therefore, no sanction in terms of section 197 of the Code of Criminal Procedure is required to be taken for launching the prosecution.
In support of his submission, learned counsel has referred to decisions rendered in a case of State of H.P. vs. M.P.Gupta [(2004) 2 SCC 349], State of Kerala vs.V. Padmanabhan Nair [(1999) 5 SCC 690], Sreekantiah Ramayya Munipalli vs. State of Bombay (AIR 1955 SC 287) and Amrik Singh vs. State of Pepsu (AIR 1955 SC 30) .
Thus, it was submitted that in the facts and circumstances when sanction for prosecution can never be a condition precedent for launching prosecution, contention raised on behalf of the petitioner regarding legality or propriety of the order granting 7
sanction pale into insignificance and hence, this application is fit to be dismissed.
Thus, contentions raised on behalf of the parties on the point of sanction appears to be diametrically opposite to each other. On one hand, legality and propriety of the order of the then Governor, State of Bihar granting sanction for prosecution has been questioned whereas it has been emphatically put on behalf of the CBI that in the facts and circumstances, no sanction either in terms of section 19 of the Prevention of Corruption Act or in terms of section 197 of the Code of Criminal Procedure is required to have for launching prosecution against the petitioner as, according to him, the petitioner while was holding office of the leader of the opposition equivalent to the rank of a Cabinet Minister did commit certain overt acts attracting offences both under the Prevention of Corruption Act and also under the Indian Penal Code but at the time when cognizance of the offence was taken, the petitioner had demitted the office of the leader of the opposition and, as such, no sanction is required to have under section 19 of the Prevention of Corruption Act for launching the prosecution against him. The aforesaid contentions made by the parties lead us to take notice of the provision as contained in section 19 which 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
(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
From perusal of the aforesaid provision, it would appear that clauses (a) and (b) of sub-section (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, save and except with the sanction of respective Government sanction for prosecution needs to be obtained either from the Central Government or the State Government. In both the clauses (a) and (b) emphasis has been given on the words "who is employed" in connection with the affairs of the Union or the State Government. Natural corollary would be that if he is not employed then the question of having sanction does not arise. Furthermore, under sub-section (2), the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. In the event of a person not holding the said office on account of various reasons, then the question of removing him would never arise. Thus conjoint effect of sub-section (1) and sub-section (2) of section 19 would be that if a person committed any wrong punishable under sections 7, 10, 11, 13 and 15 of the Prevention of Corruption Act while holding the office but by the time when the charge sheet is submitted or cognizance is taken, if he demits the said office, then there would be no question of obtaining any previous sanction of the appropriate Government.
The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in the case of R.S.Naik vs. A.R.Antulay [(1984) 2 SCC 183] where the question fell for consideration as to whether any sanction of the Governor was necessary when the appellant in his tenure as Minister had committed certain offences but subsequently at the time of launching prosecution he was a member of the Legislative Assembly. This question was dealt with in paragraph 24 of the said decision which reads as follows: " 24. Now if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used (sic misused) nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to us. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used (sic misused) or abused would be able to decide whether the
prosecution is frivolous or tendentious. An illustration was posed to the learned counsel that a minister who is indisputably a public servant greased his palms by abusing his office as minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and, therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defect the process of 10
law. One can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 of the Indian Penal Code and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant, while abusing one office which he may have ceased to hold. Such an interpretation is contrary to all canons of construction and leads to an absurd end product which is necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue's character."
The Hon'ble Supreme Court after considering the earlier decision emphatically held that the decision which lays down that in case where the public servant has ceased to hold the office, sanction is required to be obtained, is not the correct interpretation of section 6 (as it was). The relevant discussion appears to be at paragraph 25 which reads as under:
" We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decision in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of Section 6". The same view has been reiterated subsequently in a case of Prakash Singh Badal and another vs. State of Punjab and others (supra). Again in a case of Balakrishnan Ravi Menon vs. Union of India (supra), the question fell for consideration as 11
to whether sanction for prosecution is at all necessary in terms of Section 19 of the Prevention of Corruption Act when the petitioner of that case holding post of Chairman and Managing Director, Goa Shipyard Hotel committed certain offences under the Prevention of Corruption Act but retired and subsequently, appointed as Chairman and Managing Director of Transformers and Electricals Limited by the State of Kerala at the time of submission of the charge sheet. The Court after taking notice of the provision as contained in Section 19 of the Prevention of Corruption Act and also on the ratio laid down in A.R.Antulay's case did hold categorically that as the petitioner was not holding office of the Chairman and Managing Director of Goa Shipyard Limited at the relevant time when the charge sheet was submitted, question of obtaining any previous sanction of the Central Government does not arise.
Thus, there has been absolutely no hesitation in holding that sanction for prosecution in terms of Section 19 of the Prevention of Corruption Act is not required to have for launching prosecution against the petitioner as the petitioner was not holding post of leader of the opposition when the prosecution was launched against him.
Now coming to other aspect of the matter and keeping in view the nature of offences alleged to have been committed of misappropriation, cheating, forgery etc., the same cannot be said to be part of the duty of a public servant while discharging his official duties and hence, in our view, there would be no bar in launching prosecution for want of sanction in terms of Section 197 of the Code of Criminal Procedure.
The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in a case of Harihar Prasad vs. State of Bihar [(1972) 3 SCC 89] wherein it has been held as follows: " As far as the office of criminal conspiracy punishable under section 120(B) read with section 409 of the Indian Penal Code is concerned and also section 5(2) of the Prevention of Corruption Act is concerned, there cannot be said to be of the nature mentioned in section 197 of the Code of Criminal Procedure. To put it shortly it is not part of the duty of a public servant while discharging his official duties, to enter into criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is therefore no bar." Same view has been expressed subsequently by the Hon'ble Supreme Court in a case of State of H.P. vs M.P.Gupta (supra). In view of the legal position as discussed above, the question raised on behalf of the petitioner on the point of legality and propriety of the order granting sanction for prosecution by the Governor becomes academic and hence, does not warrant to be answered.
However, on perusal of the impugned order, we do find that the trial court after taking notice of the materials brought against the petitioner did find prima facie case under section 120(B) read with sections 409, 420, 467, 471 and 477A of the Indian Penal Code and also section 13(1)(c) (d) read with section 13(2) of the Prevention of Corruption Act. We do not find any illegality in the order impugned and hence, this application stands dismissed. ( Amareshwar Sahay, J.)
( R.R.Prasad, J.)
Jharkhand High Court, Ranchi
The 27th July, 2009