Crl. Revision No. 656 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Crl. Revision No. 656 of 2010 (O&M) Date of decision: May 21, 2010 Amarjit Singh ...Petitioner Versus State of Punjab ...Respondent (2) Crl. Revision No. 677 of 2010 (O&M) Date of decision: May 21, 2010 Dr. Gurmeet Singh and others ...Petitioners Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. VK Jindal, Advocate, for the petitioners. Mr. AS Brar, Sr. DAG, Punjab. GURDEV SINGH, J. The above noted revision petitions have been preferred against the order dated 22.12.2009 passed by the Special Judge, Ludhiana, vide which the petitioners were charged for the offences under Sections 409, 465, 468, 471 and 120-B IPC and Section 13 (1) (c) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') The facts, in brief, are that FIR No. 5 dated 22.2.2003 was registered in Police Station Vigilance Bureau, Ludhiana, under Sections 409, 420, 467, 471, 465 and 120-B IPC and Section 13 (1) (c) (d) read with Section 7/13 of the Act. Crl. Revision No. 656 of 2010 2 It was narrated therein that from the reliable sources it was learnt that the officers/employees of the Central Jail, Ludhiana, during the financial year 2000-2002 purchased items of Rs. 30,03,492/- as special diet for the prisoners. In addition to that lakhs of rupees were spent on the purchase of medicines, misc. articles and local purchases. No committee was constituted by the Superintendent of Jail, nor any sealed tenders were invited before making those purchases. In fact, officers and employees of the Jail in connivance with the shopkeepers, in whom they were interested, and by misutilising their position, made purchases at high rates, without any bills and form D in order to avoid the payment of sales tax, thereby causing loss to the State and causing gain to themselves. The Medical Officer of the Jail did not record any entry for special diet to the undertrials in their OPD tickets and OPD registers and did not make any entry in the history tickets of the prisoners, who were being treated as indoor patients. That also resulted in financial loss to the government. It was also narrated therein that the present petitioners, alongwith Gursharan Singh, Superintendent and Darshan Singh, Pharmacist, remained posited in the jail during that period and therefore, they all in connivance with the shopkeepers committed the above said offences. After the completion of the investigation, the challan was put in before the Special Judge, who, after hearing the Additional PP for the State and the learned defence counsel, charged the petitioners for the offences under Section 120-B, 409, 465, 468 and 471 IPC and Section 13 (1) (c) and (d) of the Act, vide impugned order. Notice of the revision petitions was given to the State and the same have been contested on its behalf by Shri A.S. Brar, Sr. DAG, Punjab. I have heard learned counsel for both the sides. Crl. Revision No. 656 of 2010 3 It has been submitted by learned counsel for the petitioners that Criminal Misc. No. 18799 of 2005 was filed before this court by the petitioners for quashing the FIR, in which the order was passed that the trial court, at the time of framing of the charge, shall consider two points raised before this Court i.e. whether sanction, as required under Section 197 of the Code, had been obtained for prosecution of the accused ? and whether instructions, as contained in Annexure P/17, were followed during the course of investigation ? It is very much clear from the impugned order that the question of non prosecution of the petitioners in the absence of such sanction was taken before the trial court but without recording any such finding in respect of the petitioners, the charge was framed. Non recording of the finding on that question itself is a ground for setting aside the impugned order. On the other hand, it has been submitted by the learned State counsel that Amarjit Singh-petitioner had already retired and, as such, there was no question of obtaining sanction for his prosecution from the State Government. The very fact that such point was raised before the Special Judge and the framing of the charge even after raising that point impliedly shows that the objection of the petitioners was overruled. There is no ground for quashing the impugned order. It was not disputed at the time of arguments that the Criminal Misc. No. 18799 of 2005 was filed by the petitioners for quashing of the present FIR, in which the following order was passed on 8.8.2008:- “In a petition under Section 482 of Criminal Procedure Code for quashing of FIR No. 5 dated 22.2.2003 Police Station, Vigilance Bureau, Ludhiana, under Sections 409, 420, 465, Crl. Revision No. 656 of 2010 4 467, 471, 120-B IPC read with Section 13 (1) (c) (d) of Prevention of Corruption Act, 1988, vide order dated 14.5.2008, it is ordered that trial court will defer the case for framing of charges. Learned counsel for the petitioner has put forth two points by way of preliminary arguments. Firstly, he submits that in this case the charge cannot be framed unless sanction, as required under Section 197 Cr.P.C. is there on the file. Secondly, he submits that instruction as contained in Annexure P-17 are required to be followed during the course of investigation. Learned State submits that in fact, accused-petitioner, Amarjit Singh had retired on 31.8.2001 and this case has been registered on 22.2.2003 i.e. much after his retirement. In this view of the matter no sanction is required in this case. She further submits that herein, the case has been registered under Sections 409, 420, 465, 467, 471, 120-B IPC read with Section 13 (1) (c ) (d), Section 7 and Section 13 (2) of the Prevention of Corruption Act, 1988. Further argument of the learned State counsel is that the instructions as contained in Annexure P-17 have no over-riding effect upon the provisions of law. She further submits that investigation in this case has already been completed and challan has been presented in the Court and now the case is fixed for framing of charge. Charge could not be framed in this case as proceedings regarding framing of charge have been stayed by this Court vide order dated 14.5.2008. Crl. Revision No. 656 of 2010 5 Further, learned counsel for the petitioner submits that he is yet to argue on the merits of the case. Faced with this situation, the case is adjourned to 5.11.2908 for arguments on merit. After hearing learned counsel for the parties and going through the record, I am of the considered view that trial court should proceed further in the matter in accordance with the law and both these points as raised above by the learned counsel for the petitioner shall be considered by the trial court at the time of framing of charge and petitioner's counsel is at liberty to raise the aforesaid two points in detail before the trial court. Thus, the order dated 14.5.2008 is vacated.” In view of that order, it was mandatory for the Special Judge to consider the following points, if the same were raised before him, before framing the charge. (i) Whether the State government had granted sanction under Section 197 of the Code for the prosecution of the petitioner; and (ii) Whether the instructions, as contained in Annexure P/17, were required to be followed during the course of investigation ? A perusal of the impugned order shows that the first point was raised before the Special Judge. It has been incorporated in that order that no sanction for prosecution was required in respect of Gursharan Singh accused as he had already retired from service. If that was so, why he did not record any finding in respect of the other accused, including the Crl. Revision No. 656 of 2010 6 petitioners. Even the finding recorded by the Special Judge in respect of Gursharan Singh cannot be sustained. It was held by the Hon'ble Supreme Court in P.K. Choudhury versus Commander 48 BRTF (GREF) 2008 (2) RCR (Criminal) 482, that Section 197 of the Code unlike the provision of the Prevention of Corruption Act, postulates obtaining an order of sanction even in a case where the public servant has ceased to hold the office. A duty was cast upon the Special Judge to first decide the question of grant of the sanction for the prosecution of the petitioners before proceeding with the framing of the charge, and if such sanction was required, they could not have been prosecuted in the absence of such a sanction and that itself was a ground for their discharge. In the result, these revision petitions are hereby accepted. The order dated 22.12.2009 passed by the Special Judge, Ludhiana, is quashed. He is to frame charge after deciding the following two points:- (i) Whether the State government had granted sanction under Section 197 of the Code for the prosecution of the petitioners; and (ii) Whether the instructions, as contained in Annexure P/17, were required to be followed during the course of investigation ? May , 2010 (GURDEV SINGH ) prem JUDGE