Crl. Misc. No. M-35429 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-35429 of 2009 DATE OF DECISION: 22.4.2010 J.C. Gilhotra ..........Petitioner Versus Union Territory, Chandigarh ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. R.C. Setia, Senior Advocate with Mr. Vishal Ranjan, Advocate for the petitioner. Mr. Rajiv Sharma, Advocate for U.T., Chandigarh. **** DAYA CHAUDHARY, J. The petitioner has filed the present petition under Section 482 Cr.P.C. for quashing of order dated 18.11.2009 passed by Special Judge, Chandigarh, wherein, the prayer of the petitioner for dropping the proceedings qua him on account of non-grant of sanction under Section 197 Cr.P.C. in case FIR No.1 dated 3.2.1998 registered under Sections 13 (1) (a) (b) (c) (d) and 13 (2) of the Prevention of Corruption Act read with Sections 406, 409, 420 and 120-B IPC at Police Station Vigilance, Chandigarh, has been rejected. Briefly, the facts of the case are that the petitioner was working as Superintending Engineer in the Engineering Department, U.T., Chandigarh, prior to his attaining the age of superannuation i.e. on Crl. Misc. No. M-35429 of 2009 (2) 31.3.1998. The allegations against the petitioner are that he in collusion and connivance with main accused K.K. Jerath and other co-accused has committed offences under Section 13 (1) (2) of the Prevention of Corruption Act read with Section 406,409,420 and 120-B IPC for which FIR No.1 dated 3.2.1998 was registered. As per case of the prosecution, no prior sanction under Section 197 Cr.P.C. was required to prosecute the petitioner, however, as per the petitioner, prior sanction was required as the alleged offence was committed by him in the discharge of his official duties. On this premise, the petitioner moved an application for his discharge, which was dismissed by the Special Judge, Chandigarh vide order dated 15.10.2004, against which, the petitioner approached this Court by way of filing Crl. Misc. No. 55889-M of 2004, which was allowed and impugned order dated 15.10.2004 was set aside and case was remanded to Special Judge, Chandigarh with a direction to reconsider the petitioner’s contention with regard to obtaining sanction under Section 197 Cr.P.C. In compliance of the directions issued by this Court on 22.5.2007, the petitioner again approached the Special Judge, Chandigarh, who again vide its order dated 8.12.2008 held that no prior sanction under Section 197 Cr.P.C. was required. The petitioner again approached this Court by way of filing Crl. Misc. No. M-6389 of 2009 against the order dated 8.12.2008 passed by Special Judge, Chandigarh and said petition was disposed on 9.10.2009 with a direction to the learned Special Judge, Chandigarh to reconsider the matter again in the light of order dated 22.5.2007 passed by this Court. The learned Special Judge, Chandigarh again passed order dated 18.11.2009 vide which the prayer of the petitioner for dropping the proceedings on account of absence of prior sanction under Section 197 Cr.P.C. was rejected. Now, the present petition is third round of litigation, which has Crl. Misc. No. M-35429 of 2009 (3) been filed for quashing of the order dated 18.11.2009, wherein, again the prayer of the petitioner is for dropping of the proceedings qua him on account of non-grant of sanction under Section 197 Cr.P.C. has been rejected. Mr. Setia, learned senior counsel for the petitioner submits that inspite of remanding the case on two occasions, the learned Special Judge has wrongly rejected his prayer by holding that no prior sanction was required as the allegations levelled against him does not relate to the period while he was discharging his official duties. Learned senior counsel for the petitioner further submits that no sanction under Section 197 Cr.P.C qua the petitioner was obtained by the prosecuting agency before prosecuting him and against that he moved an application before the Special Judge, Chandigarh, which was dismissed on 15.10.2004 against which the petitioner approached this Court by way of filing Crl. Misc. No. 55889-M of 2004 which was allowed vide order dated 22.5.2007, wherein, challenge qua sanction which was required under Section 19 of Prevention of Corruption Act was conceded by the counsel for the petitioner that the same was not required to be obtained in case under Section 406/409 IPC. Mr. Setia learned senior counsel also submits that because of the above said bifurcation of the allegations, the case was remanded two times by this Court but inspite of remand orders, the learned Special Judge, Chandigarh has not considered that aspect and his application has again been dismissed on the same ground. It is the positive case of the petitioner that whatever had been done by the petitioner was in the discharge of his official duties, for which prior sanction under Section 197 Cr.P.C. is mandatory. Mr. Rajiv Sharma, learned counsel for U.T., Chandigarh submits that it is a case of misappropriation of public funds by a public servant in the shape of receipt of kick-back by way of commission and Crl. Misc. No. M-35429 of 2009 (4) allowing purchase of sub-standard material etc., cannot be said to be an act in discharge of official duties. Mr. Sharma further submits that the trial Court has given a clear cut finding that in case of offence under Sections 406, 409 and 120-B IPC sanction under Section 197 Cr.P.C. is not required. Learned counsel also contends that as far as cases of other co- accused are concerned, they have already retired and the question of prior sanction does not arise at all. I have heard the arguments advanced by learned counsel for the parties and have also perused the record of the case. On two occasions, the case was remanded to the Special Judge, Chandigarh to give a finding whether the acceptance of kickbacks was a part of discharge of official duty or not and for that purpose specific directions were issued on both the occasions by this Court to Special Judge, Chandigarh to go into the nature of alleged offence committed by the public servants. The allegations against the petitioner are that he along with some other officials of Engineering Department, U.T., Chandigarh accepted kickbacks while discharging his official duty and the question was whether acceptance of kickbacks was part of official duty or not for which prior sanction under Section 197 Cr.P.C. was essential or not. The facts of the case are that Investigating Wing of Income Tax Department, U.T., Chandigarh raided the residence of K.K. Jerath, the then Chief Engineer of Engineering Department, U.T., Chandigarh on 20/21.11.1997. They also raided the residences of the officials of the Engineering Department, Contractors and suppliers and during raids huge amount of cash, jewellery and other documents were recovered which were taken into possession. On the basis of documents, it was found that Dinesh Sharma, Suresh Sharma and Sunil Kalia were working as middlemen between firms and the officers/officials of the Engineering Department. It was also found in the record that illegal gratifications Crl. Misc. No. M-35429 of 2009 (5) (kickbacks) were paid to the officers/officials of Engineering Department, U.T., Chandigarh. There was also entry in the record that the kickbacks were given to certain officers/officials of the Engineering Department and that was given even at the cost of quality of the material. It was also found in the investigation conducted by the Income Tax Department that there was some understanding with KK Jerath and other officials with the Firm to get maximum supply orders in exchange for a commission and for that a sub-standard material was purchased from the Firm. It was a case of the fraud played by the officers/officials of the Engineering Department with the Government for their own personal reasons. Involvement of petitioner-J.C. Gilhotra was also found in the said scam. Even the petitioner gave requirement for supply of material which was not required and that was done with a motive to accept the amount of kickbacks from Sharma Brothers and he caused wrongful loss to the State Exchequer. This was done by him with an intention to cause wrongful gain to himself and his colleagues, who received hefty amount towards kickbacks. The contention raised by petitioner was that it was a part of official act and was done in the discharge of his official duties, for which prior sanction is required, has no merit. The trial Court has held that receipt of kickbacks can never be said to be an act done in discharge of official duties of a person and in a situation giving of requirement for supply of material which was never required cannot be an act of innocence and honesty. It was done for personal reasons just to accept more kickbacks in the form of commission from the middlemen and for that purpose no prior sanction is required to be obtained before launching prosecution against the petitioner. It was found in the inquiry that supply orders were sent to the Firms for more material, which was in excess of the needs and requirement of the department and it was done with an intention to earn more kickbacks, which cannot be said to be an act relating to discharge of Crl. Misc. No. M-35429 of 2009 (6) official duties. It was done with a clear intention to earn more kickbacks for his benefit, which was a clear cut loss to the Government. Although it was done in the garb of doing an official act but it was for personal benefits only and receipt of kickbacks cannot be said to be an act in official discharge of official duties as it was done purely in the private capacity by public servant. The provisions of Section 197 Cr.P.C. were engrafted with the object of infusing fearlessness in discharging their services by the public servant so as to protect all their acts which are in furtherance of their official duties. These principles were developed to create confidence among the public servants to provide legal protection for all their official acts. The judgment of Constitution Bench of Hon'ble the Supreme Court in case of Matajog Dobey Vs. H.C. Bhari AIR 1956 SC 44 has supported this view. Hon'ble the Supreme Court has also placed reliance on its earlier judgments in the cases of Bakshish Singh Brar Vs. Gurmej Kaur 1988(1) RCR (Criminal) 35: P. Arulswami Vs. State of Madras, AIR 1967 SC 776, Matajog Dobey (supra); Rakesh Kumar Mishra Vs. State of Bihar, 2006 (1) RCR (Criminal) 456: and P.K. Pradhan Vs. State of Sikkim, 2001 (3) RCR (Criminal) 835. The following principles were laid on the basis of observations made by Hon'ble the Supreme Court:- (1)Protection is only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak by doing the objectionable act. (2)If in doing public duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. Crl. Misc. No. M-35429 of 2009 (7) (3)It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. Act can be performed in discharge of official duty as well as in dereliction thereof. Hon'ble the Supreme Court in para 50 of the judgment in the case of Parkash Singh Badal Vs. State of Punjab, 2007 (1) RCR (Criminal) 1 has observed that “the offence of cheating under Section 420 or for that matter offences relatable to Sections 467,468,471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.” In Bajinath Vs. State of M.P. (1996 SCR 210) Hon'ble the Apex Court has held as under:- “.......it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted.” Similarly in State of Punjab and another Vs. Gurdial Singh and others 1980 (2) SCC 471, it was observed as follows: “.......if the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal.” In Bakshish Singh Brar Vs. Smt Gurmej Kaur and another 1988 (1) RCR (Crl.) 35 (SC), the Court has emphasized on the balance between protection to the officers and the protection to the citizens by holding as under: “It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in Crl. Misc. No. M-35429 of 2009 (8) discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of this duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.” Similarly in P.Arulswami Vs. State of Madras, AIR 1967 SC 776, Hon'ble the Apex Court has held as under:- “....It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is Crl. Misc. No. M-35429 of 2009 (9) unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.” In B.Saha and Ors. Vs. M.S. Kochar 1979 (4) SCC 177, it has been held as under:- “The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197 (1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the sanction will be rendered altogether sterile, for, 'it is no part of an official duty to commit and offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.” In Shreekantiah Ramayya Munipalli Vs. The State of Bomaby 1955(1) SCR 1177, it has been held that it is not that every offence committed by a public servant which requires sanction for protection under section 197 of the Code nor even every act done by him while he is actually engaged for the purpose of his official duties. Following the above legal position, the Hon'ble Apex Court in Harihar Parshad etc. Crl. Misc. No. M-35429 of 2009 (10) Vs. State of Bihar 1972 (3) SCC 89 has held as under:- “As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409, Indian Penal Code is concerned and also Section 5(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 misconduct. Want of sanction under Section 197 of the Code of Criminal procedure is, therefore, no bar.” Now, the question for consideration is when charge is of misappropriation by public servant, whether sanction under Section 197 Cr.P.C. is required or not depends upon facts of each case. If the act of the officer/official are so integrally connected with the duties attached to the office as to be inseparable from them, then sanction under Section 197 (1) Cr.P.C. would be necessary but in case there is no connection between them and the performance of those duties, then no sanction is required. In the present case, there is no such connection between the acts complaints of with the duties attaching to the office. In Shambu Nath Mishra Vs. U.P. and others AIR 1997 SC 2102 and State of H.P. Versus M.P. Gupta 2004 (1) RCR (Criminal) 197 it has been held that it is not the official duty of the public servant to fabricate the false record or to misappropriate the public funds and to conspire to commit the offence of forgery and by using forged documents then sanction under Section 197 Cr.P.C. is not required. In Nirmal Singh Kahlon Vs. State of Punjab 2008 (2) RCR (Criminal) 208, it has been held that in case of commission of offence under Section 420/467/468/471 IPC, no prior sanction is required. Keeping in view the abovesaid discussion and well settled Crl. Misc. No. M-35429 of 2009 (11) legal position of law, there is no merit in the present petition and the same is dismissed. However, it is made clear that the trial Court shall not be influenced by any observation made in this order by considering it as an expression of opinion on the merits of controversy. 22.4.2010 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No