IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 91 of 2009 Reserved on: 03.09.2009 Date of decision: 28.10.2009 Narender Paul Singh Chauhan … Petitioner Versus State of Himachal Pradesh …Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. M.S. Guleria, Advocate. For the respondent: Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: The present petition has been filed by the petitioner under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, for quashing of the order passed by the learned Special Judge, Mandi, dated 3.1.2008, whereby the Special Judge took cognizance of the offences and issued process to the petitioner and others. Briefly stated, the facts of the case are that a case was filed before the Special Judge, Mandi, by the police under Sections 420, 467, 468, 471, 120-B IPC and Section 13(2) of the Prevention of Corruption Act, 1988. The learned Special Judge took cognizance and passed an order for summoning on 3.1.2008. Being aggrieved, the petitioner has come up by way of the present petition. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 I have heard the learned counsel for the parties and have also gone through the record. The submissions made by the learned counsel for the petitioner were that since the cognizance was taken by the learned trial Court and there was no sanction of the appointing authority to prosecute the accused, therefore, the impugned order is bad in the eye of law and is liable to be quashed. To substantiate his arguments that no cognizance can be taken by the Court without proper sanction for prosecution having been obtained, the learned counsel for the petitioner had placed reliance upon the following decisions:- The decision in Ashok Mehta & Anr. Vs. Ram Ashray Singh & Ors., 2006(2) CRIMINAL COURT CASES 703 (S.C.), shows that in considering the offence under the provisions of Prevention of Corruption Act, 1988, Sections 19, 13(2) and 13(1)(d), Indian Penal Code under Sections 467, 468, 471-A read with Section 120-B, it was observed that in a case of illegal gratification by public servant, cognizance can only be taken after sanction is obtained. The decision in Sri Surendra Nath Swain Vs. State of Orissa & Ors., 2005(4) CRIMINAL COURT CASES 796 (ORISSA), was relied upon and it was observed in para-6 of the judgment that the cognizance taken by Special Judge (Vigilance) is bad for want of appropriate sanction within the meaning of Section 19 of the said Act or Section 197 of the Code of Criminal Procedure. Reliance was placed upon the decision in Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr., 2005(4) CRIMINAL COURT CASES 670 (S.C.). It was observed that in absence of previous sanction of competent authority for prosecution, Court cannot 3 take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Prevention of Corruption Act, 1988. The decision in State of Goa Vs. Babu Thomas, 2005(4) CRIMINAL COURT CASES 532 (S.C.), was relied upon, wherein it was observed that the cognizance has been taken when there was no sanction for prosecution. Sanction was issued retrospectively. It was held that it is a fundamental error which invalidates the cognizance without jurisdiction. However, the Court authority was permitted to issue a fresh sanction order and proceed afresh from the stage of taking cognizance of offence in accordance with law. On the other hand, the submissions made by the learned Assistant Advocate General for the respondent were that no sanction is required in case offence is committed under the provisions of Indian Penal Code. It was also submitted that in case a person retires from government service, no previous sanction is required to take cognizance of the offence. To substantiate his submissions, the learned Assistant Advocate General had relied upon the following decisions:- The decision in K. Kalimuthu Vs. State, AIR 2005 Supreme Court 2257 was relied upon. A plea was raised that act done by accused was in discharge of official duties and hence he was entitled for protection under Section 197. It was held that this plea need not necessarily be considered as soon as the complaint is lodged and on the allegations contained therein since it can be considered at subsequent stage. It was held that order of High Court declining to consider applicability of Section 197 at stage of taking of cognizance by trial Court was not invalid. 4 The decision in State of Himachal Pradesh Vs. M.P. Gupta, AIR 2004 Supreme Court 730 was relied upon. It was observed that no sanction to prosecute is required for offence of forgery conspiracy and cheating. It was observed that it is no part of duty of public servant while discharging his official duties to commit forgery and indulge into conspiracy. It was held that want to sanction is no bar to prosecute public servant for said offences. Reliance was placed upon the decision in State of Kerala Vs. Padmanabhan Nair, AIR 1999 Supreme Court 2405. It was observed that accused had ceased to be public servant on date of taking of cognizance by Court. He cannot claim immunity on ground of want of sanction. Reliance was placed upon the decision in Parkash Singh Badal and another Vs. State of Punjab and others, (2007) 1 Supreme Court Cases 1. It was held that in the present case public servant in question had ceased to be a public servant since he had ceased to hold the office where the alleged offence was committed, question as to non-application of mind, etc. in grant of sanction had become academic. In view of the above discussion, it is clear that many questions are there which arise from the record as well as the contentions putforth by the learned counsel for the parties. It is clear from a perusal of the above discussion that in some of the cases it has been held that no sanction is required in case the offence is under the provisions of Indian Penal Code. It has also been observed that in case the government servant has retired, no sanction is necessary. These questions do not stand answered from the record of the learned Special Judge. It has been mentioned that the petitioner was working as S.D.O. but it is not 5 clear if he had ceased to hold the said post on the date the cognizance was taken by the Court. These questions have to be considered and decided by the Court as to whether the petitioner was in government service or not on the date of taking cognizance for which the evidence shall have to be produced by the parties before the trial Court. Moreover, it is also not clear in case the cognizance has been taken by the learned Special Judge under Sections of Indian Penal Code or under Section 13(2) of the Prevention of Corruption Act, 1988 also. This observation has been made by me since the impugned order dated 3.1.2008 reads as under:- ”Issue notice to the accused person for 27-3-08.” Prior to this, there is an office report that the challan has been filed under Sections 420, 467, 471, 120-B and 13(2) of P.C. Act. The Special Judge did not pass a speaking order under which sections the cognizance was taken and notices were issued to the petitioner and other accused persons. In view of the above discussion, it is clear that since no specific order was passed taking the cognizance and under which sections and it is also not clear if the petitioner had retired or was still in government service on the date of cognizance in regard to the plea of learned counsel for the petitioner that the previous sanction was applied twice which was refused. This fact is not clear from a perusal of the final report filed by the police. In such circumstances, I am of the opinion that all these pleas can be taken by the petitioner before the trial Court including the grant of the sanction and the trial Court shall consider the question under which section the petitioner has been summoned and as to whether sanction was necessary or not keeping in view the documents or evidence which may be placed before it in support of 6 these submissions. Therefore, the present petition is disposed of with the direction that these pleas shall be taken by the petitioner before the learned trial Court who shall pass a reasoned order after considering the facts and record of the case. The petition stands disposed of. ( V.K. Ahuja ), October 28, 2009 Judge (BSS)