IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA. Criminal Revision No. 135 of 2011, Criminal Revision No. 136 of 2011 & Cr.MMO No. 121 of 2011. Judgment reserved on: 26.08.2011. Date of decision: 30.08.2011. _______________________________________________________ 1. Cr.Revision No. 135 of 2011. Sharmila Devi Sharma. ….. Petitioner. Versus State of H.P. …. Respondent. 2. Cr.Revision No. 136 of 2011. Pratap Singh Kutlehria. ….. Petitioner. Versus State of H.P. …. Respondent. 3. Cr. MMO No. 121 of 2011. Dr. Laiq Ram Verma. ….. Petitioner. Versus State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. V.D.Khidtta, Advocate. ( In Cr.R. No. 135 of 2011. ) Mr. Tarlok Chauhan, Advocate. ( In Cr.R.No. 136 of 2011.) Mr.D.N.Ronta and Mr. Rakesh Dhaulta,Advocates. ( In Cr.MMO No. 121 of 2011.) For the Respondent(s) : Ms.Ruma Kaushik, Addl.A.G. with Mr. J.S.Rana, Asstt. A.G. Kuldip Singh, Judge. This judgment shall dispose of Criminal Revision Nos. 135 of 2011 and 136 of 2011 and Cr. MMO No. 121 of 2011. In Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Criminal Revision No. 135 of 2011and Cr.MMO No. 121 of 2011, a prayer has been made for setting aside the order dated 21.06.2011 passed by learned Special Judge, Solan, in Sessions Trial No. 4-S/7 of 2009 and discharging the petitioners. In Criminal Revision No. 136 of 2011 Sessions Trial No. 41-S/7 of 2009 has been wrongly given instead of Sessions Trial No. 4-S/7 of 2009, even though prayer has been made for quashing order dated 21.06.2011. 2. The facts of the case are that petitioners are facing prosecution arising out of FIR No. 1 of 2006 dated 05.01.2006, registered at Police Station Anti Corruption Zone, Shimla. The FIR was registered on the basis of letter dated 05.01.2006 received from ADGP/Vigilance, H.P., along with letter dated 03.01.2006 from Secretary-cum-Director (Vigilance) to the Government of H.P., order dated 07.11.2005 passed by High Court in CWP No. 7 of 2005 together with photocopies of report of Avay Shukla and interim and final reports of Harsh Gupta Committee. In CWP No. 7 of 2005, the High Court had directed the Vigilance Department to register case as the reports of the aforesaid Committees revealed commission of cognizable offence and further directed to probe scam thoroughly so as to identify the persons, who have been instrumental and at whose instance the appointments were made. 3. The FIR No. 1 of 2006 has been registered under Section 13(2) of the Prevention of Corruption Act, 1988, (for short 1988 Act), Section 120-B IPC and Section 7 of Employment Exchange ( Compulsory Notification of vacancies) Act, 1959, ( for short 1959 Act). The further case of the prosecution is that Sharmila …3… Sharma on 30.10.1996 submitted an application for appointment as daily wage Library Assistant in the Dr. Y.S.Parmar Horticulture and Forestry University, Nauni, District Solan, (for short University). A letter dated 20.12.1996 of OSD-cum-P.S. to the then Chief Minister and addressed to Vice-Chancellor of University was received on 26.12.1996 which was marked by the then Vice Chancellor Laiq Ram Verma to the Registrar. It has come in investigation that in addition to Sharmila Sharma, Amar Nath daily wager, Shiv Kumar, Kuman Negi had also applied for the post of Library Assistant in the University. Out of them, Kuman Negi was having the highest qualification. Sharmila Sharma could not have been appointed in view of Rules and absence of permission from Comptroller. The then Registrar Sharab Chhopal Negi vide letter dated 30.01.1997 informed the Chief Minister Office that due to administrative reasons, the post could not be filled and Sharmila Sharma could apply directly or through the concerned Employment Exchange also. 4. Sharmila Sharma again applied on 05.04.1997 to the Vice Chancellor for the post of Assistant Librarian on daily wages. This application was marked to the Registrar for necessary action. Sharmila Sharma vide application dated 25.07.1997 requested the then Chief Minister for her appointment as Library Assistant, which was received in the University on 11.09.1997 as per diary and reached the office of Registrar Pratap Singh Kutlehria. It has been alleged that Pratap Singh Kutlehria regarding the case of Sharmila Sharma had observed that concurrence may please be given on priority as this matter has been approved by the Chief Minister and …4… has already been inordinately delayed. This observation was meant for Comptroller. On 28.09.1997, Comptroller gave permission for appointment of one Library Assistant on daily wages. On 27.10.1997 the then Registrar Pratap Singh Kutlehria requested the Vice Chancellor for appointment of Sharmila Sharma as Library Assistant on daily wages for six months. The Vice Chancellor granted the permission on 27.10.1997. On 06.01.1998, Registrar informed the Librarian about permission of Vice Chancellor for appointment of Sharmila Sharma for six months. On 07.01.1998 Sharmila Sharma gave her joining report to the Librarian. 5. On 25.08.1998 the Dealing Hand at the instance of Librarian had written extension of one month for the post of Sharmila Sharma. It was made clear that Sharmila Sharma would be completing 240 days on 03.09.1998. The then Registrar after clarifying some points sent the file for approval to the Vice Chancellor. The matter was kept pending and in the meantime Sharmila Sharma completed 240 days, but Vice Chancellor approved the extension of service of Sharmila Sharma on 28.09.1998. Sharmila Sharma was given undue benefit from time to time. It has been stated that while giving undue benefit to Sharmila Sharma, Statutes 5.7(3) of the University has been violated, so also Government Notification dated 11.07.1997 prohibiting fresh recruitment on daily basis. 6. The prosecution on completion of investigation filed 173 Code of Criminal Procedure (for short ‘Code’) report under Section 13(1)(d) read with Section 13(2) of 1988 Act, Section 120-B IPC and Section 7 of 1959 Act against petitioners Pratap Singh Kutlehria and …5… Laiq Ram Verma and under Section 120-B IPC read with Section 13(1)(d) and Section 13(2) of 1988 Act against Sharmila Sharma. The Special Judge vide order dated 21.06.2011 ordered framing of charge for offence punishable under Sections 13(1)(d) and Section 13(2) of Prevention of Corruption Act, 1988, and under Section 7 of the Employment Exchange (Compulsory Notifications of vacancies), Act, 1959, read with Section 120-B IPC against all the petitioners. The petitioners were accordingly charged, hence above petitions. 7. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the petitioners that Special Judge has erred in framing charge against the petitioners. On the basis of material on record, no case is made out against the petitioners. Mr. D.N.Ronta, Advocate, has submitted that Vice Chancellor is competent to make appointment for short term under Section 25(11) of the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986, (for short 1986 Act). There is no sanction to prosecute petitioner in Cr.MMO No. 121 of 2011 under Section 21(3) of 1986 Act and Section 197 of the Code. 8. Mr. Tarlok Chauhan, Advocate, has submitted that Pratap Singh Kutlehria was not Registrar when extension in service was given to Sharmila Sharma. There is no sanction to prosecute petitioner in Criminal Revision No. 136 of 2011 under Section 21(3) of 1986 Act, Section 197 of the Code and Section 8 of 1959 Act. 9. It has been submitted that the petitioners have not caused any loss to University or obtained any pecuniary advantage for themselves or to anybody in the process and, therefore, they have …6… committed no offence under Section 13 of the 1988 Act nor any conspiracy on the part of the petitioners for alleged commission of offence has been established. The petitioners have prayed for setting aside order dated 21.06.2011 framing charge against them by Special Judge and for discharging them. 10. On behalf of the State, it has been submitted that no fault can be found with the order dated 21.06.2011 framing the charge against the petitioners. It has been submitted that appreciation of facts on merits, at this stage, is not permissible. The Special Judge has rightly framed the charge against the petitioners on the basis of material on record. The prosecution has examined all witnesses except about four and very shortly the trial itself is likely to be over. The petitioners are delaying the trial. A prayer has been made for dismissing the petitions. 11. The record of the trial Court perused, Ex. DY discloses the names of Vice Chancellors, Registrars and Comptrollers appointed in the University with effect from 01.10.1994 onwards. As per Ex. DY, Professor L.R.Verma rendered services from 31.10.1994 to 28.02.1999 as Vice Chancellor. P.S. Kutlehria served as Registrar of the University from 02.07.1997 to 01.05.1998. It has been contended in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011 that petitioners in these petitions were not in service when the challan was filed on 10.09.2009 in the Court of Special Judge. The prosecution of these petitioners is without sanction under Section 197 of the Code, Section 21(3) of 1986 Act and Section 8 of the 1959 Act. In Criminal Revision No. 135 of 2011, it has been submitted that there …7… is no sanction to prosecute petitioner also under Section 21(3) of 1986 Act and Section 8 of 1959 Act, therefore, petitioner in Criminal Revision No. 135 of 2011 also cannot be prosecuted. 12. On behalf of the State, it has been submitted that no prosecution sanction is required under Section 197 of the Code for prosecuting petitioners in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011 as law does not contemplate sanction under Section 197 of the Code for prosecution for commission of offence of the nature committed by petitioners in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011. Section 197 of the Code is not applicable to petitioner in Criminal Revision No. 135 of 2011 in view of her nature of appointment. It has been submitted that under Section 21(3) of 1986 Act also, no sanction is required for prosecuting the petitioners in Criminal Revision Nos. 135, 136 of 2011 and Cr.MMO No. 121 of 2011 for offence committed by them under 1988 Act or under 1959 Act or under IPC. The scope of Section 21(3) confines to cases covered by 1986 Act. On behalf of the State, contention has not been raised that sanction for prosecuting petitioners in Criminal Revision Nos. 135, 136 of 2011 and Cr.MMO No. 121 of 2011 has otherwise been obtained from the competent authority. 13. In order to appreciate the contentions on the point of sanction under various provisions in the present case, it is necessary to refer to relevant provisions and also some case law on the point. The Section 197 of the Code provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have …8… been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction;- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the State, of the State Government. 14. The Section 22 of 1986 Act provides that Vice Chancellor and Registrar are the Officers of the University. The sub-section (3) of Section 21 is as follows:- “No suit, prosecution or other proceeding shall lie against any officer or other employee of the University for any act done or purported to have been done under this Act or the Statutes or the Regulations without the previous sanction of the Board.” Clause (e) of Section 2 defines “Board” which means the Board of Management of the University as constituted under Section 12. The Section 12 provides that Chancellor shall constitute a Board of Management for the University and the Board shall consist as provided in the Section. 15. The Section 7 of 1959 Act provides penalty. The Section 8 of 1959 Act is as follows:- “8. Cognizance of offences. – No prosecution for an offence under this Act shall be instituted except by, or with the sanction of , such officer of Government as may be prescribed in this behalf or any person authorized by that officer in writing.” …9… 16. A Division Bench of this Court in Bidhi Singh v. M.S.Mandyal and another 1993 CRI. L.J. 499 has held that the use of the words “non-sense” and “bloody fool” by the Magistrate cannot be said to be one attributable to him “while acting or purporting to act in the discharge of his official duty”, and, therefore, sanction under Section 197(1) of the Code was not necessary. 17. The Supreme Court in State of H.P. Versus M.P. Gupta (2004) 2 SCC 349 has held that the contention of the respondent for offence under Sections 406, 409 read with Section 120-B IPC, sanction under Section 197 of the Code is a condition precedent for launching prosecution is equally fallacious. In Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287 and in Amrik Singh v. State of Pepsu AIR 1955 SC 309, the legal position has been stated that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position, it was held in Harihar Prasad v. State of Bihar (1972) 3 SCC 89 as follows:- “As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act are 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 misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.” …10… 18. The Supreme Court in State of Kerala v. V. Padmanabhan Nair (1999) 5 SCC 690 has observed that Sections 467, 468 and 471 relate to forgery of valuable security, Will etc; forgery for the purpose of cheating and using as genuine a forged document respectively. The Supreme Court held that it is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar. 19. In State of Uttar Pradesh Versus Paras Nath Singh (2009) 6 SCC 372, it has been held that sanction for prosecution is not required under Section 197 Cr.P.C. for prosecution under Sections 409, 468 IPC as these offences are not committed in the discharge of official duty. 20. In State of M.P. v. Sheetla Sahai & Ors. 2009 CR. L.J. 4436 (SC), the respondents were proceeded against for commission of offences under Section 13(1)(d)(2)(ii-iii) read with Section 13(2) of the Prevention of Corruption Act, 1988, and Section 120-B of the Indian Penal Code, 1860. On 13.05.1997, the Special Judge, took cognizance of the case by taking the view that none of the accused is a public servant, no sanction was required to be obtained in terms of Section 19 of the Act. The criminal misconduct relating to corrupt practice under Section 13 (1)(d) (ii) (iii) of the Act has nothing to do with normal activity and work under Government duty of any public servant at any time. The Special Judge framed charge on 29.07.1999.The respondent filed revision in the High Court which was …11… allowed and the matter reached Supreme Court. The Supreme Court in para -60 of the report has held as follows:- “This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.” The Supreme Court in para-66 of the report continued as follows:- “Thus in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.” 21. The reliance has been placed on behalf of the State on State of M.P. Versus S.B.Johari and Others (2000) 2 SCC 57 where it has been held that it is settled law that at the stage of framing of charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The Court may peruse the records for limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. 22. In State of Haryana and Others Versus Bhajan Lal and Others 1992 Supp (1) SCC 335, the Supreme Court in para-102 of the report culled out the categories of cases by way of illustrations where extraordinary power under Article 226 or inherent powers …12… under Section 482 of the Code could be exercised, category (6) is as follows:- “Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.” 23. Mr. D.N. Ronta, Advocate, has relied R. Ramachandran Nair Versus Deputy Superintendent, Vigilance Police and Another (2011) 2 SCC (Cri) 251. In that case facts were that appellant while functioning as Vice Chancellor of the Sree Sankaracharya University of Sanskrit was found guilty for filling of earth in the land acquired for the University and he being the first accused had committed an offence punishable under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 409, 468, 477-A, 120-B IPC. In the FIR, four other persons were also named. In paragraph-7 of the report, it has been noticed that charge-sheet was filed in the Court of the Enquiry Commissioner and Special Judge,Thrissur without obtaining the previous sanction of the Syndicate of the University under Section 50(2) of the Sree Sankaracharya University of Sanskrit Act, 1994. The appellant filed an application under Section 239 of the Code which was dismissed on 29.08.2009 by the Special Judge on the ground that the appellant is not entitled to get protection of Section 50 of the Act as being the Vice Chancellor, the appellant was a public servant. The High Court also dismissed the revision on 12.07.2010, which was challenged before the Supreme Court. The Section 50 (2) of Sree Sankaracharya …13… University of Sanskrit Act, 1994, noticed in paragraph-17 of the report is as follows:- “50.Protection of acts done in good faith. – (1) * * * (2) No suit, prosecution or other proceeding shall lie against any officer or other employee of the University for any act done or purported to have been done under this Act, or the Statutes or the Ordinances or the Regulations without the previous sanction of the Syndicate. (3) * * *” 24. The Supreme Court in paragraphs 18 and 20 of the report has held as follows:- “18. To put it clear, as per Section 50(2) of the Act, no prosecution will lie against the appellant without the previous sanction of the Syndicate. It is important to note that the allegations against him related to actions which he had taken while he was discharging his duties as an officer of the University, namely, the Vice-Chancellor of the University.” “20.Apart from the above conclusion, in the light of the language used in sub-section (2) which is mandatory and in the absence of previous sanction of the Syndicate of the University, the prosecution cannot be launched or proceeded. It is not the case of the prosecuting agency that they obtained sanction from the Syndicate of the University which is the competent authority to sanction. In the light of the language used in sub-section (2) and in the absence of previous sanction by the Syndicate of the University, we hold that the prosecution cannot be allowed to proceed, even otherwise, he being a Vice- Chancellor, acted diligently by following the procedure, no action could be initiated after a period of 8 years from the initiation of the complaint.” 25. In the present case, petitioners in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011 were the Registrar and Vice Chancellor respectively of the University, petitioner in Criminal Revision No. 135 of 2011 was Library Assistant when the offence was allegedly committed. The allegations are directed against petitioners …14… for illegal appointment of Sharmila Sharma as Library Assistant as daily wager in violation of Rules, Statutes and for giving pecuniary advantage to Sharmila Sharma in conspiracy with each other. The petitioners in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011 were the Officers and petitioner in Criminal Revision No. 135 of 2011 was an employee of the University when they committed alleged offence in conspiracy with each other. On behalf of the State, sanction for prosecuting petitioners under Section 21(3) of 1986 Act and Section 8 of 1959 Act has not been pointed out nor such sanction has been relied. Similarly for prosecuting petitioners in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011, no sanction under Section 197 of the Code has been pointed out or relied. On the contrary, submission has been made that no such sanction is required. 26. In M.P.Gupta and State of Uttar Pradesh versus Paras Nath Singh ( supra) the Supreme Court has held that it is no part of the official duty to commit acts of the nature committed by the accused. In other words, it is no part of the official duty of the public servant to commit offence. Therefore, sanction under Section 197 of the Code in Criminal Revision No. 136 of 2011 and Cr.MMO No. 121 of 2011 is not required before their prosecution for the offences they have been charged. The Section 197 of the Code is not applicable to petitioner in Criminal Revision No. 135 of 2011 as it is not her case that she is removable from service by State or Central Government. 27. However, it is not the end of the other questions raised by the petitioners. The petitioners in Criminal Revision No. 136 of …15… 2011 and Cr.MMO No. 121 of 2011 were officers and petitioner in Criminal Revision No. 135 of 2011 was an employee of the University when they allegedly committed offence. The sub-section (3) of Section 21 of 1986 Act is pari-materia to sub-section (2) of Section