IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.2866 OF 2008 KAMAL KISHORE PRASAD,111,SRI KRISHNA NAGAR, RD.NO.22,KIDWAIPURI, PATNA VERSUS STATE OF BIHAR THROUGH CBI ----------- FOR THE PETITIONER:- MR ASHWANI KR.SIGH, SR ADV. & G.P.SINGH,ADV. FOR THE CBI:- MR BIPIN KR. SINHA. --------------- 10. 23.06.2010. Heard learned counsel for the parties. 2. The petitioner prays for quashing order dated 18.8.2007, passed by the Special Judge, CBI, Patna in R.C.31/A/97 being Special case no. 15 of 1997 rejecting the petitioner‟s discharge application filed under section 239 of the Cr.P.C. 3. The prosecution case in short is that the petitioner while functioning as Branch manager, Marufganj Branch, State Bank of India, Patna City entered into a criminal conspiracy with M/s Laxmi Traders, M/s Surya Plastic, M/s Trisul Enterprises and others, during the period 1989-91 and in furtherance thereof, fraudulently and dishonestly sanctioned Cash Credit (CC) limit causing loss to the bank to the tune of Rs. 5.25 lakhs. It is further the prosecution case that some of the firms were non-existent and the petitioner accepted the guarantee deeds executed by the persons who had already died. - 2 - Furthermore, new guarantors were accepted without informing Zonal office/Head office, SBI. Thus, he sanctioned and disbursed loan to M/s Surya Plastic in utter violation of Banking Rules and norms and overlooked the irregularities committed by the said firm. On the basis of aforesaid report filed by the Inspector of police, CBI, S.P., Patna, RC 31(A)/97-Pat was instituted under sections 120B, 418,420,467,468 & 471 I.P.C. and section 13(2) r/w 13(1)(d) of the P.C. Act, 1988 against five accused persons including the petitioner. The CBI after investigation submitted charge sheet under the aforesaid sections. 4. Counsel for the petitioner submits that he did not commit any offence in sanctioning loan to the firms in question, as he was fully empowered to do so, as per the Rules and norms in this regard. Pointing to suppl. affidavit dated 21.2.2008, he submits that apart from Audit & Inspection of Marufganj Branch, held on 25.1.1990 by Bank‟s central office, Bombay in which ranking of the Bank was upgraded first time in its history from „Fairy Run‟ to „Well Run‟, the Bank had also conducted Audit & Inspection of Marufganj Branch on 4.7.1999, finding the work of the Bank to - 3 - be well. It is further submitted that after joining of the petitioner on 23.5.1989, the loss making Branch earned a profit of Rs. 7.80 lakhs on 31.3.1991. 5. The petitioner submits that by order dated 14.6.1993, he was put under suspension in contemplation of departmental proceeding. On 9.3.1998, he was served with Article of charges. The enquiry officer concluded that the charged officer (petitioner) served the Bank with honesty and integrity, but failed to serve with devotion and diligence. However, the appointing authority differing with the enquiry report inflicted penalty of dismissal vide order dated 11.8.1999. 6. Learned counsel submits that this Court vide order dated 26.3.2003, passed in C.W.J.C.No. 2739/2000 set aside the impugned order of dismissal directing the petitioner to be reinstated in service. It was further observed that Appointing authority may proceed against the petitioner in accordance with law. Thereafter the Bank went in appeal before the L.P.A. Court. The Court vide order dated 22.4.2010, passed in L.P.A.No. 378 of 2003 stayed operation of order dated 26.3.2003. The appeal was ultimately dismissed with observation that respondent (petitioner) is entitled to his full - 4 - salary, less the subsistence allowance paid for the period of suspension. He would also be entitled to 75 % of the back wages, till superannuation. He is held entitled to continuity of service from the date of dismissal till superannuation for all other service entitlements and retrial dues. 7. It appears that the petitioner has challenged the impugned order on the following grounds/issues:- (1) Whether criminal prosecution is permissible, if one has already been exonerated in the departmental proceeding in respect of same charges. (2) Whether due sanction for prosecution was necessary in view of subsequent order of continuity of service, though it may have come into being much after taking of cognizance on 22.2.2002. (3) Whether any case would be made out against the petitioner under P.C. Act or Penal Code, in the facts of the case. 8. I will take up these issues one by one. 9.Issue no.1. Whether criminal prosecution is permissible if one has already been exonerated in the departmental proceeding in respect of same charges. - 5 - 10. The petitioner submits that once a delinquent is exonerated in departmental proceeding, criminal prosecution would be bad in law. In support of his submissions, he refers to a decision reported in case of P.S. Rajya Vs. State of Bihar, (1996)9 SCC 1. In the instant case, I find that out of 10 charges, 3 charge, namely 3,4 and 7 were not proved, whereas 7 charges, namely, 1,2,5,6,8,9 and 10 were partly proved during departmental enquiry. However, the Enquiry officer observed that the charged officer (petitioner) served the Bank with utmost integrity but failed to serve with devotion and diligence. The Appointing authority differing with the conclusion of the enquiry report, decided to inflict punishment of dismissal to the petitioner. Learned Single judge in his order dated 26.3.2003, passed in C.W.J.C. No. 2739/2000, quashed order of dismissal on the ground that Principle of natural justice was not adhered to in his case, and thus directed his reinstatement in service with liberty to respondents to proceed in accordance with law. The Bank filed L.P.A., being LPA No. 378 of 2003. The LPA Bench initially on 9.5.2003 stayed order, dated 26.3.2003 of learned Single judge The L.P.A. Bench too while affirming order of learned Single judge, refrained the authority from proceeding further in the matter, as on the ground of fault on their part, the - 6 - matter remained pending for long seven years. 11. It is not a case that the delinquent was completely exonerated of the charges, rather 7 of them stood partly proved, even as per report of the Enquiry officer. The Apex court in case of S.P., CBI Vs. Deepak Chaudhary and others, reported in 1996 Cr. L. J., 405 : 1995(6) SCC 225 observed that acquitting the accused on the ground that he was exonerated of charges by Disciplinary authority is not proper. In case of State of Orissa Vs. D.N. Padhi, reported in 2005(1) SCC 568, the Apex court held that at the stage of framing charge, the Court would only look into the materials on record produced by the prosecution and would not consider materials filed by the accused in defence. 12. Distinguishing the judgment rendered in case of P.S.Rajya Vs. State of Bihar, reported in (1996) 9 SCC 1, which has been relied upon by learned counsel for the petitioner, the Apex court in case of SPE & CBI, Andhra Pradesh Vs. M.Krishna Mohan, reported in 2007 (14) SCC 667 observed that the aforesaid judgment was rendered in the facts and circumstances of the case. It would be useful to quote para 32 and 33 of the judgment of the Apex court in case of State through SPE & CBI, Andhra Pradesh Vs. M. Krishna Mohan (Supra) which is quoted herein below:- 32. Mr Nageshwara Rao relied upon a decision of this - 7 - Court in P.s. Rajya Vs. State of Bihar. The fact situation obtaining therein was absolutely different. In that case, in the vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an application for quashing of the proceedings was filed before the High Court under Section 482 of the Code of Criminal Procedure which was allowed relying on State of Haryana Vs. Bhajan Lal holding ; (P.S.Rajya case, SCC p.9 para 23). “23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued.” 33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial. 13. Thus as per the decision of Hon'ble Apex court in case of State through SPE & CBI, Andhra Pradesh Vs. M. Krishna Mohan, reported in (2007) 14 Supreme Court Cases, 667 referred to above held that exoneration in departmental proceeding would ipso facto not entitle acquittal in criminal prosecution, more so, where departmental proceeding was initiated before commencement of proceeding. Supreme Court further observed that acquittal in departmental proceeding would be defence of accused - 8 - and only documents on record be looked into. 14. Recently in case of CBI Vs. V.K.Bhutiani, reported in (2009) 10 SCC 674, the Apex court once again was seized with the issue whether it would be proper to quash criminal prosecution on the ground that delinquent was absolved in criminal proceeding. The Apex court after considering both P.S. Rajya case and case of M.Krishn Mohan (Supra) observed that though the report in the departmental proceeding would be a relevant factor, it cannot be held to be the “be all or end all” when accused is being prosecuted for serious offences. (The underlining is mine for emphasis). Here also, the accused Bhutiani was given almost clean cheat by the Central Vigilance Commission. The High court on that basis quashed the criminal prosecution relying on judgment in P.S.Rajya case. The appeal was carried to Apex court. The Hon'ble Supreme Court in para 6 of its judgment, quoted para 8 of impugned order of the High Court in case of P.S.Rajya case, which is as follows:- 8. we have carefully gone through the aforesaid ruling. In para 8 of the impugned order, the Court opined as under: “In my opinion, this judgment squarely applies in the present case. The basic factors to establish conspiracy of the petitioner were all before the Central Vigilance Commission. After tasking all these factors into consideration, it found that the petitioner was not actually involved in any corrupt practice or in the conspiracy of the other accused persons a prayer for loan and the recommendation for it or opening of the - 9 - account were all observed to be in accordance with practice, although a haste on the part of the petitioner was proved. So far as valuation of the property offered as security is concerned, the petitioner had actually hot committed any fraud. He did not overvalue the property. The Central Vigilance Commission having taken note of the fact has held that it was a case of misjudgment rather than a case of conspiracy. The Vigilance Commission also went into the question whether the petitioner was at fault in not making enough inquires about the genuineness of the documents issued by A-3 and others and about the genuineness of the business run by A-3. Yet the Vigilance Commission has given a clean chit to the petitioner although it found the petitioner guilty to the extent of making a faulty judgment in recommending the proposal.” (emphasis supplied). We have deliberately quoted the above paragraph to note that the High court did not bother to examine the charge sheet ad the allegations made therein nor did nit examine the statement of the witnesses and/or the report of the handwritten (sic handwriting) experts which were the part of the charge sheet. In our opinion, the reliance of the high court on the ruling of P.S. Rajya was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here I this case. The Apex court after examining the issue observed that where there could be some material found in the charge sheet, then it would not be the function of the court to examine the charge sheet with a view as to whether the accused could be convicted or not. Para 12 of the judgment reads as follows:- 12. The ruling of P.S. Rajya was considered by this court in State Vs. M. Krishna Mohan wherein this court, after elaborate discussion, found that where the fact situation was different, reliance could not be made (sic placed) altogether on the report of the Central Vigilance - 10 - Commission. Relying on the ruling of the State of Haryana Vs. Bhajan lal this court reiterated the position that where there could be some material found in the charge sheet, then it would not be the function of the court to examine the charge sheet with a view as to whether the accused could be convicted or not. That would be a premature exercise. 15. In view of ratio laid down by the Hon'ble Apex court in cases noticed above, I find no merit in the submissions of petitioner that a delinquent exonerated in departmental proceeding would be ipso facto entitled to acquittal in criminal prosecution on that basis alone, and the same is accordingly rejected. Issue no.1 is thus decided against petitioner. 16. Issue no.2. Whether due sanction for prosecution was necessary in view of subsequent order of continuity of service, though it may have come into being much after taking of cognizance on 22.2.2002. 17. Petitioner has not been completely exonerated of 7 of the 10 charges. The petitioner submits that in view of order passed in LPA, he would be deemed to be in continuous service, as such, sanction under section 19 of the Prevention of Corruption Act, 1988 was a must for his prosecution and trial. He further submits that in view of Rule 3Q of SBI Officers Service Rules and Section 21 of the I.P.C., the petitioner would be deemed to be a public servant, and as such, protection under section 19 of the P.C. Act would be - 11 - available to a bank official. There could be no difficulty in accepting this submission of learned counsel for the petitioner that he would come within the meaning of a public servant and protection of section 19 of the P.C. Act would also be available to a Bank official in a case under the P.C. Act. However, the aforesaid plea would not be available to the petitioner in the instant case, as he was not a Bank official or an employee on the day the prosecution started against him, as he was dismissed much earlier. The following facts would illustrate the same. 18. The occurrence took place between 18.2.1991 when the petitioner was Branch Manager of SBI, Marufganj Branch. The F.I.R. was instituted on 24.6.1997. Charge sheet was submitted on 19.2.2002, cognizance was taken on 22.2.2002. Petition for discharge u/s 239 Cr.P.C. was rejected on 18.8.2007. The petitioner was dismissed from service on 11.8.1999. The learned Single judge in C.W.J.C. No. 2739 of 2000, by order dated 26.3.2003 directed for his reinstatement. The LPA court vide order dated 9.5.2003 stayed operation of order of leaned Single judge. On 22.4.2010, the LPA preferred by the Bank was ultimately dismissed. It would thus appear that the charge sheet was submitted on 19.2.2002 and cognizance was taken on 22.2.2002. The order dated 26.3.2003 of - 12 - reinstatement passed by learned Single judge, too was stayed in LPA vide order dated 9.5.2003, which was much subsequent to filing of charge sheet on 19.2.2002 and order of cognizance dated 22.2.2002. The Hon'ble Apex court in case of Balakkrishnan Ravi Menon Vs. Union of India, reported in (2007)1 SCC 45 held that as at the relevant time when charge sheet was filed, the petitioner was not holding the office in respect of which he has been alleged to have committed the offence, there was no question of obtaining the sanction. As such, the provision of sanction, necessary for prosecution and taking of cognizance, is not applicable in the petitioner‟s case, as he stood dismissed from service, much prior. We can look at this case from another angle. The LPA bench noticed that the learned Single judge while directing reinstatement of petitioner had granted liberty to the Appointing authority to proceed further in the matter after complying with the Principle of natural justice. The Bank instead of adhering to this observation, preferred LPA and obtained a blanket stay order over the matter, even in respect of liberty granted to it to proceed further against the petitioner. The Bank could have prayed for partial stay of order of reinstatement and without praying for a blanket stay against its own liberty to move ahead with the proceedings. On account of - 13 - such indifferent approach of the bank, the matter remained pending for years. As such, the Division Bench directed that after such a long time and in the facts of the case, it would not be appropriate to remit the matter for further consideration in the departmental proceeding. In such circumstances, the Division Bench of this Court held that the petitioner would be “entitled to continuity of service from the date of dismissal till superannuation for all other service entitlements and retrial dues.” ( The underlining is mine for emphasis). Thus, the petitioner was allowed continuity of service from the date of dismissal till superannuation for the limited propose of getting salary and retrial dues. The limited protection cannot be stretched and it cannot come in aid of the petitioner for scuttling criminal prosecution on the ground of want of previous sanction for prosecution. Admittedly, the petitioner was dismissed from service on 11.8.1999, much prior to filing of charge sheet and taking of cognizance. Thus in my view, he cannot be deemed to be in service for the purpose of getting protection of sanction under section 19 of the P.C. Act, 1988 as continuity of service accorded to the petitioner by this Court was for limited purpose of getting his salary and retrial dues. 18. Issue no.3. Whether any case would be made out against the petitioner under the P.C.Act or the Penal Code . - 14 - 19. The petitioner submits that there is no sufficient material for framing of charge. In support of submissions, learned counsel submits that the court can shift and weigh the offence at the stage of framing of charge for minimum purpose of finding out whether or not prima facie case has been made out. In support of his contention, learned counsel for the petitioner relied upon a decision rendered in case of Union of India Vs. Prafulla kumar Samal and another, reported in 1979 Supreme Court 366. 20. Learned counsel appearing for the CBI submits that the court at the stage of framing of charge cannot meticulously appreciate the materials on record, nor it can make a roving enquiry at this stage. 21. It is well settled that at the stage of framing of charge, courts cannot make roving enquiry and assess and weigh the offence meticulously. It has merely to see whether there is sufficient material to proceed against the petitioner. The learned Special judge has found that there is sufficient materials of proceeding against the petitioner for the purpose of framing of charge. Thus, I do not find any infirmity in the impugned order on this score as well. - 15 - 22. I am of the view that at the stage of filing of the charge sheet or taking of cognizance, the petitioner was not a public servant as he was no more holding office of a Bank official. As such, sanction for prosecution under section 19 of the Prevention of Corruption Act, 1988 was not required in his case. 23. I.A.No.763/2010 has been filed by the petitioner submitting that charges have been framed against him on 4.1.2010 under section 120B,480,420,467,468,471 read with sections 13(1) (d) of the P.C. Act, 1988. 24. This Court has already found that there is no ground for interfering with the order rejecting discharge application. Once the trial court has rejected the application, the necessary corollary would be that he would proceed to frame charge. However, it will be open to the petitioner to challenge the order framing charges in a separate application, if so advised. 25. With the aforesaid liberty, the instant application challenging the order dated 18.8.2007 rejecting the petition of discharge filed under section 239 Cr.P.C. is rejected. NAFR/Shashi. (Samarendra Pratap Singh,J.)