IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 16 of 2009. Judgment reserved on 13th May, 2010. Date of Decision: 27th May, 2010. _______________________________________________________ Yudhvir Singh ….Petitioner. Versus State of Himachal Pradesh ….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes For the petitioner : Mr. P.P. Chauhan, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. In Corruption Case No.8-CC/7 of 2004, State of Himachal Pradesh versus Sat Pal Kishan and others, pending trial before the learned Special Judge, Sirmour at Nahan, the petitioner a retired Assistant Conservator Officer (ACF), has sought the quashing of proceedings against him for the offences punishable under Sections 379, 120B of the Indian Penal Code, Section 13 (2) of the Prevention of Corruption Act, Section 14 of the HP Whether reporters of the Local papers are allowed to see the judgment? - 2 - Prevention of Specific Corrupt Practices Act, 1983 and Sections 33, 41 and 42 of the Indian Forest Act. 2. As per the prosecution case, there has been illicit felling of trees in Gahal and Bhallar forest areas of Tehsil Renukaji, District Sirmour. Police investigated the case and finding the complicity of the revenue, forest and the Contractor prepared the Challan against them including the present petitioner and applied for the prosecution sanction which was not granted qua the petitioner by the State Government, as such, the Challan under the aforesaid Sections was put up in the learned trial Court on 1st August, 2003 by the Police Enforcement Department against his co-accused Sat Pal Kishan, a Block Officer, Vidya Bhushan, Forest Range Officer, Rameshwar Singh, Naib Tehsildar, Narotam Lal, Revenue Patwari and Sushil Kumar, Private Contractor/ agent for hatching a conspiracy to fell the trees from the Reserved forest abutting private land. 3. In fact Mam Raj Kanungo had fixed R.F. Hammer on those trees and kept in tact 656 standardized trees over which copier marking with standard system was conducted. Co-accused Shri S.R. Singhal (ACF), had checked the marking, thereafter Shri Prem Singh, the then Divisional Forest Officer (DFO), Renukaji issued felling permit No.2/86-87. Felling was to be done through the - 3 - Forest Corporation but it did not cut or remove any tree, in turn applied for extension, which was allowed till 31st March, 1988. Even then the Forest Corporation did not undertake the work of felling and conversion of marked trees. In the meanwhile, Conservator of Forests, Nahan vide letter dated 1st September, 1988 directed the DFO, Renukaji that the ACF be sent for review of the marking with the directions to keep 25 trees per hectare in Mauza Gahal as standard mark. On this, DFO issued letter dated 3rd December, 1988 to the petitioner herein, ACF (T) to mark the trees as per the instructions of Conservator of Forests, Nahan and to obtain certificate of the Tehsildar with respect to demarcation. In compliance thereof, the petitioner visited the spot on 21st December, 1988, thereafter with effect from 30th November, 1989 to 7th December, 1989 for the purpose of marking. He marked 1685 trees which also included 656 trees which were marked earlier, average of which came out to be 30 trees per hectare as against 25, as directed. 4. Precisely, the role to the present petitioner, in the above offences was assigned to the extent that he was ACF (T) at Renukaji with effect from 26th April, 1987 to 31st March, 1995. In the year 1987, he did not conduct a joint demarcation with the revenue officials with respect to the private land involving 2294 bighas of land in Mauza - 4 - Gahal, when he was asked by the Conservator of Forests, Nahan through Divisional Forests Officer (DFO) to recheck the previous marking of trees. 5. It is alleged that the petitioner did not associate the revenue officials while marking the trees and obtained false certificate on the said marking list and submitted the said list to the DFO, Renukaji on 8th December, 1989. 6. Thereafter on 24th/25th April, 1990, Arvind Kumar, DFO, Renukaji accompanied by the petitioner and other staff visited the spot for remarking of trees and marked 395 standard trees and in total 2080 trees were marked. This list was also prepared by the petitioner under his signatures which was signed by the other officials. Thus volume of the trees increased. This was done to benefit the Contractor. Both these lists, i.e. earlier list containing 1685 trees and the later containing 2080 trees were sent for comparison with the standard writing and signatures to the hand-writing expert and as per the report these were found to have been signed by the petitioner. 7. Against the aforesaid background, the allegation is that although the petitioner had wrongly shown that he got the demarcation of the area in presence of the revenue officials, but in fact he did not associate any revenue official and prepared the false marking list to benefit the Contractor, thereby causing loss to the - 5 - Government, as such committed the offences aforesaid and he also deliberately avoided to comply with the instructions. Petitioner was arrested on 7th January, 1996 and later released on bail. 8. Since no prosecution sanction was accorded against the petitioner, he was kept in column No.2 of the Challan, whereas the report under Section 173 of the Code of Criminal Procedure prima facie disclosed that the petitioner was a privy to the conspiracy. 9. When the Challan was presented in the Court, the petitioner stood retired from service. Thereafter an application was moved under Section 190(1) of the Code of Criminal Procedure by the learned Prosecutor, against him and his co-accused D.R. Singhal to take cognizance against them. Vide order dated 10th August, 2005, the request was allowed and the learned Special Judge held that the petitioner ceased to be a public servant on the date when the Court took cognizance of the said offences under the Acts as aforesaid and the prosecution sanction was not necessary. 10. On 27th December, 2007 learned trial Court, after hearing learned Counsel for the petitioner and going through the record, charge-sheeted the petitioner for the offences aforesaid. Thereafter the case was listed for the prosecution evidence in the month of April, 2008. Out of - 6 - 60 witnesses almost half of the witnesses are stated to have been examined. 11. Now the instant petition under Section 482 of the Code of Criminal Procedure has been moved only on the ground that the learned Special Judge could not have taken the cognizance in the year 2005 on the application of the learned Public Prosecutor as it is only the Magistrate under Section 190 (1) of the Code of Criminal Procedure, who could have done so, as such the application filed by the Public Prosecutor before the learned trial Court was not competent. Hence, sought quashing of the proceedings. 12. Shri P.P. Chauhan, learned Counsel for the petitioner to strengthen the above point cited a judgment of Rajasthan High Court in Balaram v. State of Rajasthan and another, 2003(2) R.C.R. (Criminal) 16, rendered under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 in short ‘1989 Act’, but in my opinion, this exercise by him is belabouring under the misconception of law because under ‘1989 Act’, Special Court is essentially a Court of Sessions and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code of Criminal Procedure; whereas under the Prevention of Corruption Act, the Special Judge is a - 7 - Magistrate for the purpose of Prevention of Corruption Act. A complaint or a charge-sheet can straightway be laid before him under the said Act and no committal is involved. Therefore, the above judgment has no application to the case in hand. 13. Shri Chauhan also argued, though not finds mentioned in the grounds of petition that the State Government did not accord prosecution sanction, and the allegations against the petitioner are for the period when he was a public servant, therefore, the learned Special Judge could not have taken cognizance. 14. The above point is also referred by the judgment of the Supreme Court in Kalicharan Mahapatra vs. State of Orissa, (1998) 6 SCC 411, two Judge Bench of the Apex Court held in para 14 as under: “A public servant, who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the Court takes cognizance of the offence. But if he ceases to be a public servant by that time, the Court can take cognizance of the offence without any such sanction.” 15. Also the Apex Court while relying upon the judgment rendered in Kalicharan Mahapatra’s case supra and inter alia on the other judgments in State of Karala v. - 8 - V. Padmanabhan Nair, (1999) 5 SCC 690 has reiterated the above legal position. In the instant case, the petitioner had retired before the date of taking cognizance by the learned Special Judge. Therefore, in view of above legal position despite the fact that the petitioner was kept in column No.2 for want of sanction the learned Special Judge was competent to take the cognizance, more specifically, when prima facie there were grounds to summon and charge-sheet him as an accused for the aforesaid offences. 16. Otherwise also, sanction under Section 197 of the Code of Criminal Procedure is not a condition precedent because it is not every offence committed by a public servant even which requires sanction for prosecution under Section 195 of the Code of Criminal Procedure nor every act done by him while he is actually engaged in the performance of his official duties. 17. As far as the offence of criminal conspiracy and Section 13(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties to enter into a criminal conspiracy or to indulge in criminal - 9 - misconduct. Thus want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar. 18. The learned counsel for the petitioner also took various other points, which do not find as a ground taken in the petition, therefore, I do not feel necessary to advert to them. 19. Therefore, for the reasons aforesaid the petition is without merit, hence dismissed. May 27th, 2010. (Surinder Singh), J. (rc)