Chittaranjan Das vs State Of Orissa

opinion there was no prima facie case against the

3

appellant and the assets held by him were not

disproportionate to the known sources of his

income. Accordingly, the State Government

reiterated that there is "no justification for

reconsideration of the earlier orders refusing the

sanction of prosecution" of the appellant.

Notwithstanding the aforesaid refusal of the

Government, the Vigilance Department on 10th

September, 1998 filed charge-sheet against the

appellant under Section 5(2) read with Section

5(1)(e) of the Prevention of Corruption Act, 1947

alleging acquisition of disproportionate assets of

Rs.1.44.234.78 between 1st January, 1980 and 31st

December, 1985. The charge-sheet was laid before

the Special Judge (Vig.), Bhubneshwar who by its

order dated 2nd August, 1999 took cognizance of the

aforesaid offence and issued non-bailable warrant

against the appellant.

2. Appellant, aggrieved by the above order taking

Cognizance of offence and issuance of the non-

4 bailable warrant of arrest, filed petition under

Section 482 of the Code of Criminal Procedure

seeking quashing of the aforesaid order inter alia

on the ground that his prosecution without sanction

of the State Government is bad in law but the High

Court by its Order dated 22nd September, 2003

disposed of the application with liberty to the

appellant to raise this contention before Special

Judge (Vig.) at the time of the framing of the

charge.

3. Appellant, thereafter filed an application for

discharge before the trial court which dismissed

the same by order dated 9th June, 2004 inter alia on

the ground that the appellant having retired from

service, prior sanction is not necessary.

Appellant challenged the aforesaid order before the

High Court which by the impugned order rejected the

challenge and while doing so observed as follows:

"6. On a conspectus of the facts and circumstances involved in the case and the position of law in the matter of sanction

5

vis-`-vis the impugned order, this Court does not find any illegality in that order so as to invoke the inherent power with a view to quash the impugned order. Be that is it may, it is made clear that the disputed question as to whether in the present case a sanction order is necessary and whether that was refused by the State Government and what is the consequence thereof, may be gone into at the time of trial if raised by the accused-petitioner notwithstanding rejection of his application by the impugned order inasmuch as the foregoing discussion by this Court in any manner does not interfere with that right of the accused to be pursued, if so legally advised at the time of trial."

4. Mr. Vinoo Bhagat appearing on behalf of the

appellant submits that the State Government having

refused to grant sanction for prosecution and

thereafter declined to reconsider this decision and

further having declined to grant sanction for the

prosecution of the appellant his prosecution is

illegal and an abuse of the process of the Court.

5. Mr. S.C. Tripathy, however, appearing on behalf

of the respondents submits that the charge-sheet

was filed after the retirement of the appellant and

6

in fact on that basis cognizance of the offence was

taken and process issued thereafter and hence, the

appellant cannot challenge his prosecution on the

ground of want of sanction. According to him, as

the appellant ceased to be a public servant on the

date when the Court took cognizance of the offence

and issued process, sanction for his prosecution is

not necessary at all.

6. We do not have the slightest hesitation in

accepting the broad submission of Mr. Tripathi that

once the public servant ceases to be so on the date

when the Court takes cognizance of the offence,

there is no requirement of sanction under the

Prevention of Corruption Act. However, the

position is different in a case where Section 197

of the Code of Criminal Procedure has application.

In fact, the submission advanced finds support from

the judgment of this Court in the case of N.

Bhargavan Pillai (dead) by LRs. & Anr. vs. State

7

of Kerala AIR 2004 SC 2317 where it has been held

as follows :

"8. The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application."

7. However, in the present case, we are faced with

the situation in which Vigilance Department asked

the State Government to grant sanction while the

appellant herein was in service which it refused.

Not only that Vigilance Department sought for

reconsideration of the decision by the State

Government which prayer was also rejected. In fact

the State Government reiterated that there is no

prima facie case against the appellant and the

assets held by him were not disproportionate to the

known sources of his income. Mr. Tripathy points

out that refusal to grant sanction under Section 19

of the Prevention of corruption Act, 1947 while the

8

appellant was in service is of no consequence as

undisputedly charge-sheet against the appellant

was filed and further the Court had taken

cognizance of the offence and issued process after

his retirement. He points out in the case of N.

Bhargavan Pillai (Supra) sanction sought for was

refused but this Court did not find any illegality

in that.

8. We do not find any substance in the submission

of Mr. Tripathy and the decision relied on is

clearly distinguishable. 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. Here in the present case while the

9

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. We are of the opinion that in a case in

which sanction sought is refused by the competent

authority, while the public servant is in service,

he cannot be prosecuted later after retirement,

notwithstanding the fact that no sanction for

prosecution under the Prevention of Corruption Act

is necessary after the retirement of Public

10

Servant. Any other view will render the protection

illusory. Situation may be different when sanction

is refused by the competent authority after the

retirement of the public servant as in that case

sanction is not at all necessary and any exercise

in this regard would be action in futility.

9. Now we revert to the decision of this Court in

the case of N. Bhargavan Pillai (Supra) relied on

by the respondents. True, it is that in paragraph

5 of the said judgment, it has been observed that

"it is a case where the sanction which was sought

for was refused" but from this paragraph, it is not

clear whether it was sought before or after the

retirement of the public servant. However, while

reading the judgment as a whole, it is apparent

that in this case Charge-sheet against the public

servant was filed after retirement. Further,

sanction for his prosecution was sought and refused

thereafter. This would be evident from the

following narration of facts in the said judgment:

11 "3............The managing Director of the Corporation wrote to the Director of Vigilance (Investigation) along with a copy of Ext.P-I report. The Director of Vigilance (Investigation) sanctioned registration of a case. On the basis of the direction the then Deputy Superintendent of Police, Vigilance, Kollam (PW-10) registered a case as per Ext. P-39. He entrusted the investigation to Inspector of the Kollam Vigilance Unit- I (PW-11), who conducted the investigation and sent a report to his higher authorities. In the meantime, the accused retired from service on 28-2-1992. Since he had retired from service sanction for prosecution became unnecessary. The case was transferred to the newly established Pathanamthitta Vigilance Unit. PW-12, the Deputy Superintendent of Police, Vigilance, Pathanamthitta Unit who was put in charge of this case also verified the records and filed the charge sheet."

(underlining ours)

Thus in the case relied on, the sanction for

prosecution was not necessary and therefore its

refusal had no bearing on the Trial of the public

servant. However, in the present case sanction was

sought and refused while the appellant was in

service. Hence, this judgment does not lend any

12

support to the contention of the respondents and is

clearly distinguishable.

10. Otherwise also, the facts of the case are so

telling that we are of the opinion that the

prosecution of the appellant shall be an abuse of

the process of the Court. According to the First

Information Report, appellant possessed

disproportionate assets worth Rs.5.58 lakhs.

However, according to the charge-sheet, the

disproportionate assets were to the extent of

Rs.1.44 lakhs only. State Government while

declining to grant sanction for prosecution

observed that assets possessed by the appellant are

not disproportionate to his known source of income.

11. We are further of the opinion that no disputed

question being involved, the High Court instead of

making observation as to "whether in present case

sanction order is necessary and whether that was

refused by the State Government and what would be

the consequence thereof" to be decided by the trial

13

court, ought to have decided the issues itself.

The facts being not in dispute the High Court erred

in not deciding these issues.

12. In the result, we allow this appeal, set aside

the order of the High Court and quash the

appellant's prosecution in TR No. 113 of 1999,

pending in the Court of Special Judge (Vig.)

Bhubaneshwar.

..........................................................J. (G.S. SINGHVI)

...... ................................................J. (CHANDRAMAULI KR. PRASAD) NEW DELHI, JULY 4, 2011.

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