Station House Officer, CBI/ACB/Bangalore v. B.A. Srinivasan

5. The Respondent No.1, being aggrieved, preferred Criminal Revision Petition No. 834 of 2015 in the High Court, which was allowed by the judgment and order presently under appeal. The High Court, thus set aside the order dated 13.04.2015 as regards the Respondent No.1 and discharged him of the offences with which he was sought to be charged.

6. While dealing with the submission that the allegations against the Respondent No.1 could, at best, be administrative lapses, the High Court observed:- “10… …These aspects of administrative lapses, it is to be stated, cannot be considered at the time of framing charge. Unless the witnesses are subjected to cross-examination, no finding can be given whether the omission in following the procedure amounts to administrative lapse or was deliberate. Therefore, this point of argument cannot be a ground for discharging accused No.1. Therefore, given a conclusion, it can be opined that the materials on record are sufficient to frame a charge against accused no.1, the findings of the Special Court in this regard do not indicate nonapplication of mind or, any infirmity or illegality in coming to an opinion that accused no.1 cannot be discharged on this ground. This finding needs to be sustained. On the issue of sanction, the High Court, however, stated:-

Thereafter, while dealing with submissions based on the decisions of this Court in Kalicharan Mahapatra vs. State of Orissa[2], R.

Balakrishna Pillai vs. State of Kerala[3], State of Punjab vs. Labh Singh[4] and N.K. Ganguly vs. CBI, New Delhi[5], the matter was considered as under:- “The learned standing counsel for CBI submitted insofar as offences under Indian Penal Code are concerned, they cannot be said to have been committed in discharge of official duty; sanction therefore is not necessary even under Section 197 CrPC. If the allegations levelled against the first accused are seen, and particularly with reference to conspiracy, it is to be stated at the stage of framing charge, it is difficult to discern whether offences can be connected to official capacity or not. Thorough trial requires to be held. If facts in N.K. Ganguly (supra) are seen, there also the accused were sought to be prosecuted for the offences under Prevention of Corruption Act in addition to some of the offences under Indian Penal Code. Thus seen, the first accused should get the benefit of discharge for absence of sanction under Section 197 of CrPC. …” Thus, it was concluded that the material on record was sufficient to frame a charge against Respondent No.1. The benefit of discharge was however granted on the issue of absence of sanction under Section 197 of the Code.

7. In this appeal challenging the view taken by the High Court, we heard Mrs. Sonia Mathur, learned Senior Advocate, in support of the appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent No.1.

8. Mrs. Sonia Mathur, learned Senior Advocate, submitted that the protection under Section 19 of the Act is available to a public servant only till he is in the employment and no sanction is necessary after the public servant has demitted office or has retired from service. As regards sanction under Section 197 of the Code, it was submitted that for an action to come within the purview of Section 197 of the Code, it must be integrally connected with the official duties or functions of a public servant and that if the office was merely used as a cloak to indulge in activities which result in unlawful gain to the beneficiaries, the protection under said Section 197 would not be available. It was also submitted that the decision of this Court in N.K. Ganguly vs. Central Bureau of Investigation, New Delhi[5] was in the context of the peculiar facts involved therein. On the other hand, Mrs. V. Mohana, learned Senior Advocate, submitted that the Respondent No. 1 retired in the year 2012; that the allegations levelled against him would, at best, amount to administrative lapses on his part and there was certainly no criminal intent so as to attract the charges under the relevant sections; and that this Court may not in its jurisdiction under Article 136(1) of the Constitution interfere in the matter.

9. In S.A. Venkataraman vs. The State[6] while dealing with the requirement of sanction under the pari materia provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service. It was stated:- “… …if an offence under s. 161 of the Indian Penal Code was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary. The words in s. 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. … …” The law so declared by this Court has consistently been followed. For example, in Labh Singh[4] it was observed:-

10. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act. The High Court was also not justified in observing ‘that the protection available to a public servant while in service, should also be available after his retirement’. That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act.

11. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed ‘while acting or purporting to act in discharge of their official duty’, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam and another[9] as under:-

8. In Parkash Singh Badal v. State of Punjab11, at para 20 this Court held that: (SCC pp. 22-23)

and thereafter, at para 38, it was further held that: (Parkash Singh Badal case11, SCC p. 32)

9. In a recent decision in Rajib Ranjan v. R. Vijaykumar12 at para 18, this Court has taken the view that: (SCC p. 521)

12. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression ‘while acting or purporting to act in discharge of their official duty’, would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation13, this Court stated:-

13. The offences involved in the case of N.K. Ganguly[5] were under Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e. relating to conspiracy to commit offences punishable under the provisions of the Act. Secondly, the conclusion was drawn in the context of the facts available therein which is evident from the following: -

14. We now turn to the cases relied upon by Mrs. V. Mohana, learned Senior Advocate. In Rishipal Singh vs. State of Uttar Pradesh and another14 this Court observed:-

This decision thus dealt with the parameters which ought to be considered while entertaining an application under Section 482 of the Code and is not a decision directly on the point. The decision in Anil Kumar Bose vs. State of Bihar15 pertained to a case which had arisen after a full fledged trial, where, as regards offence punishable under Section 420/34 IPC, it was observed that the essential ingredient being mens rea, mere failure on part of the concerned employees to perform their duties or to observe the rules/procedure may be administrative lapses but could not be said to be enough to attract the penal provisions under Section 420 IPC. The matter was considered after the facts had crystalized in the form of evidence before the court and as such, this decision is of no relevance for the present purposes.

15. Having considered the matter in entirety, in our view, the High Court clearly erred in allowing Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction. We, thus, allow this Appeal, set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1.

16. It is made clear that we have adverted to the facts and the allegations only for the purpose of considering the basic issue pertaining to issue of sanction and we shall not be taken to have expressed any view on merits which shall be considered independently. It has been stated by the learned counsel that the matter is listed before the Special Court on 11.12.2019. The Respondent No.1 shall appear before the Special Court on that day and the matter shall, thereafter, be proceeded in accordance with law.

17. This Appeal is allowed in aforestated terms. ………………………J. [Uday Umesh Lalit] [Indu Malhotra] [Krishna Murari] New Delhi; December 05, 2019.