IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-6389 of 2009 (O/M) Date of Decision : October 09, 2009. J.C. Gilhotra .............Petitioner(s). Versus. Union Territory, Chandigarh ..... Respondent(s). CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. R.C. Setia, Senior Advocate, with Mr. Anish Setia, Advocate, Advocate, for the petitioner(s). Mr. Rajeev Sharma, Advocate, for Union Territory, Chandigarh-respondent. AUGUSTINE GEORGE MASIH, J. (ORAL). The present petition has been preferred by the petitioner, challenging the order dated 08.12.2008, passed by the learned Special Judge, Chandigarh, (Annexure-P-5), qua the petitioner, wherein the contention as raised by the petitioner before the Trial Court that prior sanction under Section 197 Cr.P.C. was mandatory before proceeding against the petitioner, had been rejected. Counsel for the petitioner contends that no sanction, qua the petitioner, was taken by the prosecuting agency under Section 197 Cr.P.C. to prosecute the petitioner. On that basis, the petitioner had moved an application for his discharge before the learned Trial Court. The said application was dismissed by the learned Special Judge, Chandigarh, vide order dated 15.10.2004 (Annexure-P-3). The said order was challenged by the petitioner in this Court in Crl. Misc. No. 55889-M of 2004, which was decided by this Court, vide order dated 22.05.2007 (Annexure-P-4),, wherein Criminal Misc. No. M-6389 of 2009. the challenge qua the sanction, which was required under Section 19 of the Prevention of Corruption Act, was conceded by counsel for the petitioner that the same was not required to be obtained in case of the petitioner, but the sanction under Section 197 Cr.P.C. was required to be obtained by the prosecution for prosecuting the petitioner. In this regard, this Court in the abovementioned order, observed as follows :- “ It appears that no prior sanction under Section 197 Cr.P.C. was obtained to prosecute the petitioner as, according to the prosecution, no such sanction is required in this case. On the other hand, the petitioner's contention is that since the alleged offence was committed by him in the discharge of his official duties, the protection of Section 197 Cr.P.C. is very much available to him. On this premise, the petitioner moved the application for his discharge, which has since been dismissed by the learned Special Judge vide the impugned order. Needless to say that at the time when the impugned order was passed, there was some grey area in relation to the scope and applicability of Section 197 Cr.P.C. However, with two recent judgments by the Apex Court in the cases of Sankaran Moitra Versus Sadhna Dass and another (2006) 2 S.C.C. (Crl.) 358 and Paul Varghese Versus State of Kerala and another 2007 (2) R.C.R. (Crl.) 436, it appears well settled that if the nature of the offence allegedly committed by a public servant is directly relatable and/or is attributed to the discharge of his official duties, prior sanction in terms of Section 197 Cr.P.C. is -2- Criminal Misc. No. M-6389 of 2009. required to be obtained before prosecuting him. At the same time, if the alleged offence has no concern with the performance of his official duties, no such prior sanction is required. In other words, the nature of allegations levelled against a public servant and the material collected by the investigating agency in relation thereto, which forms part of the report under Section 173 Cr.P.C. would be necessarily required to be looked into by the learned trial court before forming of its prima-facie opinion as to whether or not sanction under Section 197 Cr.P.C. is required. A perusal of the impugned order does not suggest that the learned Special Judge undertook the aforementioned exercise while passing the impugned order. Consequently, this revision petition is allowed to the extent that the impugned order dated 15.10.2004 is set aside and the learned Special Judge is directed to reconsider the petitioner's contention so far as it pertains to obtaining of sanction under Section 197 Cr.P.C. is concerned.” In the light of above order, the learned Trial Court had proceeded to pass order dated 08.12.2008 (Annexure-P-5), wherein the contention raised by counsel for the petitioner had been rejected. Counsel for the petitioner contends that specific directions were issued by this Court with regard to the case of the petitioner, while setting aside the order dated 15.10.2004 (Annexure-P-3), passed by the learned Special Judge, Chandigarh. He further contends that in the light of the judgments passed by Hon'ble the Supreme Court in the case of Sankaran -3- Criminal Misc. No. M-6389 of 2009. Moitra Versus Sadhna Das and another, 2006 (2) S.C.C.(Criminal), 358, and Paul Varghese Versus State of Kerala and another, 2007 (2) R.C. R (Criminal) 436, which require the Trial Court to go into the nature of offence allegedly committed by the petitioner and to first come to a conclusion as to whether the offence allegedly committed by the petitioner was directly relatable and/or is attributed to the discharge of his official duties or not. In case, the same were directly relatable and/or is attributable to the discharge of his official duties, sanction under Section 197 Cr.P.C. was required to be obtained before prosecuting the petitioner. This exercise has not been gone into by the Trial Court. He submits that as per directions issued by this Court, the Trial Court was required to go into the report as submitted by the Investigating Agency under Section 173 Cr.P.C. and on going through the same, it was required to make out a prima-facie opinion with regard to the nature of acts performed by the petitioner to form a prima- facie opinion as to whether or not, sanction under Section 197 Cr.P.C. was required. With the able assistance of senior counsel for the petitioner, I have gone through the impugned order. Mr. Setia has referred to paras-14, 15, 18, 19, and 31 of the order, which relate to the petitioner and on taking me through those paragraphs, has submitted that the directions, as issued by this Court, vide order dated 22.05.2007 (Annexure-P-4), has not been complied with by the Trial Court. He on the basis of these submissions prays for quashing of the order dated 08.12.2008 (Annexure-P-5), qua the petitioner. On the other hand, counsel for Union Territory, Chandigarh, has vehemently argued that the order passed by the learned Trial Court is in -4- Criminal Misc. No. M-6389 of 2009. accordance with law and in compliance of order passed by this Court, vide order dated 22.05.2007 (Annexure-P-4). He contends that the Trial Court has clearly observed in para-31 that misappropriation of public fund by a public servant in the shape of receipt of kick-backs by way of commission and allowing the purchase of sub-standard material etc. cannot be said to be an act in discharge of official duties. He on this basis contends that the Trial Court has, on appreciation of the facts, come to such a conclusion. He further submits that where the offence under Sections 406/409/120-B I.P.C. are involved, sanction under Seciton 197 Cr.P.C. is not required. I have heard counsel for the parties and have gone through the records of the case. The impugned order, on the question of law, cannot be said to be defective, but the law has to be made applicable to the facts of each case and cannot be put in straight jacket formula. Further in the present case, there were specific directions issued by this Court, which mandated the Trial Court to go into the nature of alleged offences, committed by public servants, which act whether was discharged in the official duties or not. This obviously requires the consideration of the facts and the particulars of the case of the petitioner with regard to his actions, which are under cloud before the Court. General statements and referring to the judgments of Hon'ble the Supreme Court or other Courts with regard to proposition of law would not be compliance of order passed by this Court, vide order dated 22.05.2007 (Annexure-P-4). The Trial Court had proceeded to decide the case without referring to the factual aspect of the matter and especially with regard to the case of the petitioner. Without going into the allegations, which are made against the petitioner and the evidence, which had been -5- Criminal Misc. No. M-6389 of 2009. collected by the prosecution, the allegations levelled against the petitioner whether they are in discharge of official duties or not, which require sanction under Section 197 Cr.P.C., is essential and the requirement of law, which the Trial Court had failed to go into. In view of the above, order passed by the learned Special Judge, Chandigarh, dated 08.12.2008 (Annexure-P-5), qua the petitoner, cannot be sustained and is, accordingly, set aside. A direction is issued to the learned Special Judge, Chandigarh, to re-consider the matter in the light of order dated 22.05.2007 (Annexure-P-4), passed by this Court and the observations made herein above and pass a fresh order within a period of one month from the date of receipt of certified copy of this order. Accordingly, the present petition stands disposed of. (AUGUSTINE GEORGE MASIH) JUDGE October 09, 2009. sjks. -6-