G. Balasubramanian v. C.B.I.

15. It is submitted that the learned Trial Court has rightly examined the role played by the petitioner in sanctioning the loan, wherein, material facts and documents were overlooked, thereby, playing an active role in commission of the offence.

16. It is further submitted that the learned Trial Court has framed charges against the petitioner in accordance with the law as there is prima facie evidence available on record which is sufficient to indicate the commission of offence.

17. In view of the foregoing, it is prayed that the instant revision petition, being devoid of any merit, may be dismissed.

18. Heard learned counsel for the parties and perused the record.

19. Before adverting to the merits of the case, it is apposite for this Court to delve into the scope of the revisional jurisdiction under Section 397/401 of the Code (now under Section 397 read with Section 401 of the BNSS).

20. As per the settled position of law, the revisional jurisdiction conferred upon this Court is limited in nature and therefore, the same cannot be exercised in a mechanical manner. However, the said revisional jurisdiction can be exercised when there is a gross illegality or irregularity in the findings given by the court below.

21. The aforesaid principles were encapsulated by the Hon’ble Supreme Court in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, wherein, it was observed as follows:

22. Therefore, keeping the aforesaid in mind, the limited question for adjudication before this Court is whether the learned Trial Court was right in passing the impugned order, wherein, the charges were framed against the petitioner considering the amendment in the PC Act.

23. At this juncture, this Court deems it necessary to reproduce and analyze the findings of the learned Trial Court. The relevant excerpts of the impugned order are as under:

In this case, it has been held that when sanction sought was rejected by competent authority while public servant was in service, he cannot be prosecuted later after his retirement, despite the fact that no sanction for prosecution is required under relevant law after retirement. In para Nos. 12 and 13 of this judgment it is held as under that:-

12. Sanction is a devise provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the guilty.

13. Here in the present case while the appellant was in service sanction sought for his prosecution was declined by the State Government. Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, Vigilance Department requested the State Government to reconsider its decision, which was not only refused but the State Government while doing so clearly observed that no prima-facie case of disproportionate assets against the appellant is made out. Notwithstanding that Vigilance Department chose to file charge-sheet after the retirement of the appellant and on that Special Judge had taken cognizance and issued process.”

17. “Anil Kumar Shukla Vs. CBI, Lucknow”, AIR Online 2019 All 2131. In this case, it has been held that FIR was registered after retirement and charge-sheet was filed by IO without obtaining sanction order from employer. Amended provision Section 19 provides protection to retired public servant from unnecessary harassment by putting obligation on prosecuting agency to prosecute him after proper sanction from its employer, therefore, cognizance taken by Trial court is considered to be bad against the amended provision of Section 19 of PC Act

18. “Mahendra Kumar Dubey Vs. Economic Offence Wing” thr. its Superintendent of Police, 2021 SCC OnLine MP 1988. In this case after relying upon A. K. Shukla (Supra), similar observations have been made that sanction for prosecution is required against public servant even after his retirement.

19. Submissions made on behalf of A-8 as mentioned above are perused thoroughly. On the point of no sanction for prosecution against accused persons, a number of judgments have been relied upon. However, there is one judgment of Hon'ble Supreme Court of India which is mentioned as under:

1. “The State of Telangana Vs. Sri Managipet @ Mangipet Sarveshwar Reddy”, Criminal Appeal No. 1662 of 2019.

20. It is therefore, reflected from the mandate laid down in The State of Telangana (supra) that in certain cases like present one where FIR has been registered prior to amendment, which is 21.06.2017, and charge-sheet has been filed subsequent to the amendment i.e. on 30.03.2019, the bar laid down under Section 19 of PC Act does not apply. Therefore, in the light of above mentioned judgment, the submissions made by accused persons are not tenable in the eyes of law.

24. Now, coming to the role of A-3, A-6, A-7 and A-8. As reflected from the charge-sheet, it is mentioned that one of the government official of bank i.e. Parimal Kumar Singh has mentioned various discrepancies which is reflected from his testimony so recorded under Section 161 Cr.P.C his testimony is supported with documentary evidence i.e., e-mail dated 29.11.2012. It is also reflected from the record that CIBIL report of Davinder Kumar Jain was not satisfactory. This fact has been over looked and disregarded by A-6, A-7 and A-8 A-3, A-6, A-7 and A-8 are the bank officials who are stated to have been actively involved in grant of loan of Rs.[3] crores to A-1. It is also reflected from the investigation which is supported from the documentary evidence that A-3 S. C. Rout has transferred an amount of Rs.20 Lakhs from the account CVPOD/01/12001[7] of M/s Jayna Traders without his cheque to M/s Skyfisher Aviation Pvt. Ltd.

26. In light of the above discussion, it is therefore reflected that the allegation made in the charge-sheet against the accused persons which are supported with testimonies of witnesses and documentary evidence are prima facie sufficient to proceed ahead and begin the trail and sufficient to frame that charge against the accused persons under relevant provisions of law. Therefore, submissions made on behalf of the accused persons are not tenable in the eyes of law. Thus, charge for the offences punishable under Section 120-B IPC r/w 420, 471 of IPC and 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 against accused Davinder Kumar Jain (A-1), Ravindra Kumar Sathpathy (A-2), Sukanta Chandra Rout (A-3), Dhananjay Kumar (A-4), M/s. Matrix Credit Risk Control Pvt. Ltd. (through its Authorised Representative Vikram Chadha) (A-5), Pawan Arya (A-6), A.R. K. Parsad (A-7) and G. Balasubramaniun (A-8) be framed.

27. Separate charge of the offences punishable under Section 13(2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 against accused A.R. K. Parsad (A-7). Separate charge for the offence punishable U/Sec.420 IPC and offence punishable U/Sec.471 IPC against accused Davinder Kumar Jain (A-1). Separate charge for the offence punishable U/Sec.420 IPC against accused Dhananjay Kumar (A-4) be framed. Separate charge for the offence punishable U/Sec.13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 against G. Balasubramanium (A-8) and separate charge for the offence punishable U/Sec 420 IPC against M/s Matrix Credit Risk Control Pvt. Ltd. (A-5) (through its Authorised Representative Vikram Chadha). Separate charge for the offence punishable U/Sec.13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 offence punishable U/Sec.420 IPC against accused Pawan Arya (A-6). Lastly, separate charge for the offence punishable U/Sec.13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 committed offence punishable U/Sec.420 IPC against accused Sukanta Chandra Rout (A-3) be framed.”

24. Upon perusal of the above extracts, it is observed that the learned Trial Court firstly, dealt with the issue as to whether the amendment to Section 19 of the PC Act is applicable to the petitioner, overriding the position of Section 19 of the PC Act prior to the said amendment. While dealing with the same, the learned Trial Court observed that as per the settled position of law, the benefit under Section 19 of the Amendment Act cannot be made applicable to the petitioner as the FIR was registered on 21st June, 2017, which was prior to the enactment of the amendment i.e., 26th July, 2018.

25. Secondly, the learned Trial Court assessed the role played by the petitioner and after examining the same, the learned Trial Court was of the view that charges under Section 120-B read with Section 420/471 of the IPC and Section 13(2) read with Section 13(1)(d) of the PC Act alongwith a separate charge under Section 13(2) read with Section 13(1)(d) of the PC Act were framed.

26. Adverting to the instant case, it is the case of the petitioner that the amendment to the Section 19 of the PC Act is applicable to the petitioner, who is a retired public officer, as no sanction of the competent authority was obtained which is mandatory in nature. Therefore, as per the said provision, in absence of a sanction of the Government, the petitioner cannot be subjected to prosecution and thus, the charges framed against the petitioner vide the impugned order is in contravention to the law.

27. For the sake of convenience, it is relevant to reproduce the extracts of amendment made to Section 19 of the PC Act vide PC (Amendment) Act, 2018 and the same is as follows –

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, presecribe 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.”

28. Upon bare perusal of the amendment made to Section 19 of the PC Act, it is observed that the retired public officers were earlier not included within the ambit of the provision and therefore, prior to the amendment, the sanctions with respect to the said retired officers were not necessary for proceeding with the prosecution.

29. However, in order to safeguard the interests of the retired public officers and with an objective to not subject them to any vexatious litigation, the amendment to Section 19 of the PC Act was made which necessitated the sanctions to proceed with the prosecution against the retired public officer. Further, in absence of the same, the concerned Court cannot take cognizance of the offence against the said retired officer.

30. At this stage, the question that arises before this Court for adjudication is whether the petitioner the amendment of Section 19 of the PC Act is applicable to the petitioner and whether he can avail benefit of the same as no sanctions of the competent authority, as required by the said provision (amended), were obtained by the respondent.

31. Upon perusal of the record, it is observed that the instant FIR was registered by the respondent on 21st June, 2017, i.e., prior to the amendment of Section 19 of the PC Act. However, it is pertinent to note that the said amendment came into effect on 26th July, 2018. Thereafter, the chargesheet was filed by the respondent on 29th March, 2019 and the learned Trial Court took cognizance of the said offences on 8th December, 2021. In pursuance of the said order, the learned Trial Court vide impugned order framed necessary charges against the petitioner.

32. Furthermore, it is observed that the filing of the chargesheet and the cognizance of the offence was taken after the amendment of the PC Act, therefore, at this juncture, it is pertinent to mention the case of State of Telangana v. Managipet @ Mangipet Sarveshwar Reddy, (2019) 19 SCC 87, wherein, the Hon’ble Supreme Court observed that the amended provisions of the PC Act cannot be made applicable to an FIR registered before the said amendment came into effect. The relevant portion of the same is as follows – “37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment of the Madras High Court in M. Soundararajan v. State through the Deputy Superintendant of Police, Vigilance and Anti Corruption, Ramanathapuram to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the charge sheet. We do not find any merit in the said argument. In the aforesaid case, the learned trial court applied amended provisions in the Act which came into force on 26th July, 2018 and acquitted both the Accused from charge Under Section 13(1)(d) read with 13(2) of the Act. The High Court found that the order of the trial court to apply the amended provisions of the Act was not justified and remanded the matter back observing that the offences were committed prior to the amendments being carried out. In the present case, the FIR was registered on 9th November, 2011 much before the Act was amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26th July, 2018.”

33. In light of the aforementioned case-law, it is apposite to mention that no sanction from the competent authority was obtained to prosecute the petitioner. As recorded in the previous orders of the learned Trial Court i.e., orders dated 2nd May, 2019 and 4th July, 2019, the respondent has repeatedly submitted for the want of sanctions against the petitioner. However, vide order dated 8th December, 2021, the learned Trial Court has observed that the sanctions against the petitioner is not required for prosecuting him as per the position of Section 19 of the PC Act before the said amendment, as the offence is committed before the promulgation of the said amendment.

34. Since it is already established hereinabove that the law prior to the amendment to Section 19 of the PC Act is made applicable to the petitioner herein, sanctions from the competent authority are not necessary to prosecute the petitioner.

35. In light of the above and upon perusal of the Status Report filed by the State, it is observed that the petitioner, being an Assistant General Manager and member of the Zonal Level Credit Committee, is primarily responsible for sanctioning of the said loan in favor of the proprietorship firm, thereby, accepting the loan proposal without proper verification of the loan documents. Taking into account the seriousness of the allegations leveled against the petitioner and the alleged role played by him in commission of the offence, the learned Trial Court has rightly framed charges against the petitioner vide impugned order, thereby taking cognizance of the offence.

36. In view of the foregoing discussion, it is observed by this Court that the allegations leveled against the petitioner in the FIR and the chargesheet have been committed prior to the promulgation of the amendment in the PC Act.

37. Accordingly, this Court is of the view that the benefit of amendment to Section 19 of the PC Act cannot be given and made applicable to the petitioner.

38. Further, this Court is of the view that the learned Trial Court has rightly examined the seriousness of the allegations as well as the settled position of law pertaining to the applicability of the provisions of the PC Act, thereby, holding that that the amendment to Section 19 of the Act or benefits therein cannot be claimed by the petitioner. Accordingly, the learned Trial Court has rightly framed charges against the petitioner under Section 120-B read with Section 420/471 of the IPC and Section 13(2) read with Section 13(1)(d) of the PC Act alongwith a separate charge under Section 13(2) read with Section 13(1)(d) of the PC Act.

39. Given the limited jurisdiction of this Court while exercising revisional powers, this Court finds no reason to interfere with the impugned order at this stage of framing of charge.

40. Therefore, this Court is of the considered view that there is no illegality in the impugned order dated 3rd December, 2022 passed by learned Special Judge (PC Act) (CBI)-07, Rouse Avenue Courts, New Delhi in CC No. 285/2019 and the same is, hereby, upheld.

41. Accordingly, the instant revision petition is dismissed being devoid of any merit, along with pending applications, if any.

42. The order be uploaded on the website forthwith.