Protection of sanction can’t be used for civil servants under corruption charges: High Court of Uttarakhand

IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Reserved Judgment Criminal Revision No. 3116 …. Revisionist Ram Sagar Central Bureau of Investigation .. Respondent versus Criminal Revision No. 3116 …. Revisionist Ram Sagar versus Central Bureau of Investigation .. Respondent Mr. Navneet Kaushik Advocate for the revisionist. Mr. Sandeep Tandon Advocate for the respondent CBI. Per: Hon’ble Lok Pal Singh J.] Both the criminal revisions are directed against the order dated 05.12.2015 passed by Special Judge Anti Corruption Dehradun whereby charges were framed against the revisionist under Sections 120B 420 477A in C.B.I. case no. 04 of 2014 as also under Sections 120B 420 of IPC in C.B.I. case no. 05 of 2014 both titled as C.B.I. vs Ram Sagar. Earlier both the criminal revisions were dismissed by this Court vide judgment and order dated 15.11.2018 holding that sanction under Section 197 of Cr.P.C. is not required to prosecute the revisionist. Feeling aggrieved by the judgment dated 15.11.2018 revisionist preferred two criminal appeals bearing Criminal Appeal no. 1763 of 2019 and Criminal appeal no. 1764 of 2019 both titled Ram Sagar Vs Central bureau of Investigation before the Hon’ble Apex Court. The Hon’ble Apex Court vide judgment and order dated 26.11.2019 allowed both the appeals and remitted the matter to this Court to decide afresh in accordance with law. Said judgment and order passed by the Hon’ble Apex Court in both the appeals is extracted “Leave granted. The High Court in our considered opinion has not considered the allegations made in the charge sheet relating to the contract matter. It has dealt with only in respect of the appointments and interpolation of the record. We also find that the reasons assigned are not sufficient to come to the conclusion. Therefore in our considered opinion interest of justice would be met in case the matter is reheard by the High Court so as to enable both the parties to put forth their respective case. The impugned judgment is set aside. The matter is remitted to the High Court for fresh hearing on the aspect of framing of charge discharge based on the material on record collected in both the charge sheets. The appeals are accordingly allowed. We hope and trust that the High Court will decide the matter as mentioned supra at an early date.” Before proceeding to decide both the revisions on merit this Court feels it necessary to state that arguments were advanced before this Court that due to lack of sanction under Section 197 of Cr.P.C. the prosecution cannot continue against the revisionist but while filing the appeals before the Hon’ble Supreme Court a new plea was raised that this Court has not considered the aspect of framing of charge discharge based on the material on record collected in both the charge sheets and having considered the submissions advanced on behalf of the revisionist Hon’ble Apex Court has passed the aforesaid order. A perusal of the grounds of criminal revisions would depict that the revisionist has not raised any ground that no prima facie evidence is available on record which lead to framing of charges against the revisionist. In view of the directions issued by Hon’ble Apex Court this Court is under obligation to decide these criminal revisions afresh. Brief facts of the case are that the revisionist Ram Sagar was the Director Aryabhatta Institute of Observational Sciences ARIES) Manora Peak Nainital at the relevant point of time. Instant case was registered in CBI Dehradun Branch on the order dated 16.04.2013 of this Court passed in WPPIL no. 012 filed by Sri D.N. Bhatt and another. 31 different allegations were made in the writ petition which were made basis of the registration of the instant FIR. Consequently the FIR was registered under Section 120B 409 420 of IPC and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act 1988 three named persons revisionist. During investigation it was revealed that out of total 31 allegations 29 allegations were either incorrect or were found to be procedural lapses on the part of Director ARIES or the Governing Council ARIES. Only two allegations were found to be criminal in nature during investigation. Since both the instances of conspiracy are different in nature and have been committed separately two separate charge sheets were filed against the revisionist. The revisionist had earlier moved two applications before the court below seeking discharge on preliminary ground of absence of sanction in respect of offences punishable under the Penal Code. Learned court below has dismissed said applications on 25.08.2015 observing that making selection and appointment may have been the official duty of the revisionist but making illegally and in the records cannot be termed as acts done in discharge of official duties. It was also observed that acts done by the revisionist cannot be termed as acts done in discharge of official duty. Thus there is no requirement of sanction under Section 197 of launching prosecution against the Challenging the order dated 25.08.2015 whereby the applications for discharge were dismissed by the trial court revisionist preferred two criminal revisions bearing nos. 319 & 320 of 2015 before a co ordinate Bench of this Court. The same were dismissed as infructuous vide order dated 06.10.2016 with liberty to move fresh revisions. Since there was no interim order granted in favour of the revisionist the trial court framed charges against the revisionist vide order dated 05.12.2015. Following charges were framed against the revisionist by the trial court on 05.12.2015 in CBI case no. 014: ARIES Manora Firstly that you while posted and acting as Peak Nainital Director Uttarakhand) during the years 2008 10 entered into criminal conspiracy with Shri Om Prakash Engineer ‘C’ ARIES Project Engineer Proprietor of M s Sood & Sood Faridabad Sh Des Raj Sood and Sh. A L. Sandhal Chief Consulting Engineer of M s TRFIyou all acted in contravention of laid down provision of contract to give undue benefit to M s Sood & Sood and also firm TRFI and thus caused a wrongful loss of Rs.70 81 346 to Govt. and also caused Thereby you wrongful gain to all of you. committed an offence punishable under Section 120B r w 420 IPC and Section 13(2) r w 13(1)(d) of PC Act 1988 and within the cognizance of this Secondly that you in the aforesaid time place and manner dishonestly and fraudulently in course of criminal conspiracy with one another made a wrongful loss of Rs.70 81 346 to Govt. ARIES) by adopting a wrongful formula under which both the class of 10CC and 10CA was adopted simultaneously by violating the contract agreement and laid down norm of CPWD manuals whose clause 32.9 clearly says that in a contract where clause 10CC is applicable 10CA is not be operational and indices were also not fizzed on the stipulated date of completion of work while calculating escalations and made excess payment of Rs.70 81 346 was made to contractor by wrongfully applying both clauses 10CA & 10CC and you thus committed an offence punishable IPC and within the under Section 420 of cognizance of this Court. Thirdly that you in the aforesaid period place and manner fraudulently or dishonestly in the payment of contract work to contract firm paid an excess amount of 70 81 346 as a wrongful gain and wrongful loss to Govt. and thus cheated ARISE by abusing your official position as public servant by adopting wrong formula for payment of contract work in the course of mutual conspiracy. Thus misused your official position as public servant and thereby you committed an offence punishable under Section 13(2) r w 13(1)(d) of P.C. Act 1988 within the cognizance of this Court. Following charges were framed against the revisionist by the trial court on 05.12.2015 in CBI case no. 014: ARIES Manora Firstly that you while posted and acting as Peak Nainital Director Uttarakhand) during the years 2008 09 entered into criminal conspiracy with Shri Om Prakash and in furtherance of the criminal conspiracy you appointed Om Prakash as Engineer ‘C’ Civil instead of the advertised post of Engineer ‘B’ Civil in ARIES Manora Peak Nainital by making false entries of words ‘for another persons’ and ‘Nai Bharti’ in the noting file by abusing your official position as public servant to accommodate Sh. Om Prakash the other selection committee members to recommend Sh. Om Prakash to a higher post than advertised and thus deprived the other probable candidates who could have applied if the post was advertised as Engineer ‘C’ and also deceived those aspiring candidates who had applied against advertisement for the post of engineer ‘B’ by shelving the process of selection in case of re advertisement. Thus you in conspiracy with Shri Om Prakash made interpolation in official records cheated the selection committee members and also the other aspiring candidates by selecting and appointing Sh. Om Prakash as Engineer ‘C’ against the advertised post of Engineer ‘C’ against the advertised post of Engineer ‘B’ and thereby you committed an offence punishable under Section 120B r w 420 477A IPC and Section 13(2) r w 13(1)(d) of PC Act 1988 and within the cognizance of this Court. Secondly that you in the aforesaid time place and manner dishonestly and fraudulently appointed Sh. Om Prakash as Engineer ‘C’ instead of post advertised post of Engineer ‘B’ and deprived the other probable aspiring candidates by making interpolation in the official records and also cheated the selection committee members and you thus committed an offence punishable under Section 420 IPC and within the cognizance of this Court. Thirdly that you in the aforesaid time place and manner dishonestly and interpolated in official records and re advertised the post with ulterior motive of favouring of Sh. Om Prakash in appointment of Engineer ‘C’ civil instead of post advertised as Engineer ‘B’ and altered official records purpose of cheating and thereby you committed an offence punishable under Section 477A IPC and within the cognizance of this Court. Fourthly that you in the aforesaid period place and manner fraudulently or dishonestly in the appointment of Engineer ‘C’ instead of post advertised an Engineer ‘B’ by abusing your official position as public servant altered the official records by interpolation to accommodate and favour Sh. Om Prakash. Thus misused your official position as public servant and thereby you committed an offence punishable under Section 13(2) r w 13(1)(d) of PC Act 1988 within the cognizance of this Court. Heard learned counsel for the parties and perused the entire record. Learned counsel for the revisionist would argue that so far the offence punishable under Section 13(2) r w Section 13(1)(d) of the Prevention of Corruption Act 1988 is concerned the revisionist is not challenging that part of the charge. However learned counsel for the revisionist would submit that since the prosecution did not obtain the sanction from the department to prosecute the revisionist in respect of offences punishable under the Penal Code as required under Section 197 of Cr.P.C. thus the trial cannot proceed in respect of charges under IPC. Though the matter has been remitted by Hon’ble Apex Court to this Court to consider the case on the aspect of framing of charge discharge based on the material on record however neither any ground is raised in the memo of criminal revisions nor any argument has been advanced in this regard by learned counsel for the revisionist. Learned counsel for the revisionist has confined his argument that as no sanction for prosecution has been obtained by the CBI under Section 197 of Cr.P.C. in view of the dictum of Hon’ble Apex Court in State of Punjab Vs Labh Singh 16 SCC 807 the charge should not have been framed against the revisionist in respect of the offences punishable under the Penal Code. Per contra learned counsel for the CBI would submit that the entire material was brought before the PIL court and having considered the gravity of offences the PIL was disposed of with the direction to the CBI to lodge the FIR against the revisionist and pursuant to the directions issued by the High Court first information report was lodged against the revisionist. Learned counsel for CBI has placed reliance on the judgment rendered by Hon’ble Apex Court in Inspector of Police & another Vs Battenapatla Venkata Ratnam & another 13 SCC 87. Relevant paragraph nos. 10 and 11 of said judgment are excerpted hereunder: “10. Public servants have in fact been treated as a special category under Section 197 CrPC to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest the same cannot be treated as a shield to protect corrupt officials. In Subramanian Swamy Vs Manmohan Singh 3 SCC 64 at para 74 it has been held that the provisions dealing with Section 197 CrPC must be construed in such a manner as to advance the cause of honesty justice and good governance. To “74. …Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of 11. The alleged indulgence of the officer in cheating misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and case loss to the Revenue. Unfortunately the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be construed it could be done at the stage of trial only.” Learned counsel for CBI vehemently argued that since the FIR was not lodged by any individual or the department against the revisionist therefore sanction for prosecution under Section 197 of Cr.P.C. is not required at all. In the counter affidavit filed by the CBI it is specifically stated that after framing of charges out of total 14 prosecution witnesses 05 prosecution witnesses have already been examined. Admittedly the FIR was lodged under the directions issued by this Court in Writ Petitionno. 07 of 2012 vide order dated 16.04.2013 directing the CBI to lodge the FIR on the basis of allegations made in the WPPIL and investigate the matter on the basis of said FIR. Thus when the FIR itself was lodged under the directions of the PIL Court the sanction under Section 197 of Cr.P.C. is not required at all. Therefore the contention of learned counsel for the revisionist that sanction under Section 197 of Cr.P.C. was mandatory to prosecute the revisionist is misconceived. It is trite that when an FIR against a government employee is lodged by an individual or the department itself the requirement of sanction for prosecution of such government employee under Section 197 of Cr.P.C. will come into play but when the FIR has been directed to be lodged under the orders of the court there is no requirement of sanction as required under Section 197 of Cr.P.C. Having gone through the dictum of Hon’ble Apex Court rendered in the judgments supra) the ratio laid down in Labh Singh’s case is not applicable in the facts and circumstances of the present case. Rather the ratio laid down in Battenapatla Venkata Ratnam’s case is fully applicable in the context of present case. The judgments were delivered by Hon’ble Apex Court placing reliance on Subramanian Swamy’s case wherein it has been held that the protection of sanction provided under Section 197 of Cr.P.C. is procedural provision. Therefore the procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. This Court is in conformity with the observations made by Hon’ble Supreme Court in the judgment that the technicalities should not come in the way of dispensation of justice. The ratio of judgment laid down in Subramanian Swamy supra) and Battenapatla Venkata Ratnam are fully applicable in the context of present case. Thus it is held that sanction under Section 197 of Cr.P.C. is not required to prosecute the revisionist. It is pertinent to mention here at the cost of repetition that though directions were issued by the Hon’ble Apex Court to this Court to re hear the matter in regard to the allegations made in the charge sheet relating to the contract matter and to adjudicate the matter afresh on the aspect of framing of charge discharge based on the material on record collected in both the charge sheets but it is equally true that the revisionist has not raised any plea before this Court that the court below has framed charges without there being any evidence against the revisionist therefore the revisionist is liable to be discharged. However considering the observations made by Hon’ble Apex Court this Court is again adjudicating the matter on the aspect of framing of charge discharge on merit. Having gone through the charges framed by the court below against the revisionist under Sections 120B 420 477A of IPC in C.B.I. case no. 04 of 2014 as also under Sections 120B 420 of IPC in C.B.I. case no. 014 and on perusal of the material available on record this Court is of the view that the charges in respect of selfsame offences have been framed on the evidence available on record and this Court is convinced that prima facie the charges in respect of the selfsame offences are made out against the revisionist. Perusal of the material brought on record would depict that there is sufficient evidence on record that the revisionist while holding the post of Director ARIES has adopted wrong formula in violation of the contract laid down under CPWD manuals thereby paid excess payment to the contractor besides fraudulently appointing a candidate of his choice on higher post instead of post advertised which was for lower post by making interpolation in the official records and also cheated the members of the selection committee made alteration in the official records fraudulently for the purpose of cheating which clearly resulted in wrongful gain to himself and loss to the Government. The fraudulent and dishonest acts committed on the part of the revisionist in no way can be said to have been done during discharge of his official duties functions as such protection under Section 197 of Cr.P.C. is not at all applicable to the revisionist. Charges under Sections 120B 420 477A of IPC in C.B.I. case no. 04 of 2014 as also under Sections 120B 420 of IPC in C.B.I. case no. 05 of 2014 were framed against the revisionist on the basis of material available on record. It is reiterated that the revisionist has not raised any ground in the criminal revisions that the charges have been framed without there being any evidence against him on record. In so far discharge of the revisionist is concerned the revisionist had earlier filed two revisions before this Court against the order dated 25.08.2015 passed by the trial court dismissing the applications for his discharge. Both the criminal revisions were dismissed as infructuous by this Court vide order dated 06.10.2016 with liberty to move fresh revisions. Neither the revisionist has prayed that he be discharged in respect of the charges framed against him nor has any argument been advanced that he is liable to be discharged. Their Lordships of the Hon’ble Apex Court in Raghubir Singh & others Vs State of Bihar 4 SCC 481 have held as under: “14. It was strenuously contended by Shri Jethmalani that there was no material whatsoever to warrant the framing of charges for any of the offences mentioned in the charge sheet other than Section 165 A. We desire to express no opinion on this question. It is not a matter to be investigated by us in a petition under Section 32 of the Constitution. We wish to emphasise that this Court cannot convert itself into the court of a magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of Having considered the submission of learned counsel for the parties and after perusal of the material brought on record this Court is of the firm view that the learned court below having considered the evidence available on record has rightly framed charges against the revisionist in respect of offences punishable under Sections 120B 420 477A of IPC in C.B.I. case no. 014 and the one under Sections 120B 420 of IPC in C.B.I. case no. 05 of 2014. Thus I am of the considered view that the learned court below did not commit framing charges against the revisionist. Both the criminal revisions are bereft of merit. The same are accordingly dismissed. Dt. January 25 2021. Lok Pal Singh J.) 

Summary: Civil servants cannot avail the protection of sanction granted to them as a matter of privilege when there are evident corruption charges framed against them. This was decided in the case of Ram Sagar v. Central Bureau of Investigation [Criminal Petition No. 313 of 2016] in the High Court of Uttaranchal by Hon’ble Justice Lok Pal Singh. The brief facts of the case are that the petitioner, who made the criminal revision petition in this case, is was the Director, Aryabhatta Research Institute of Observational Sciences (ARIES), Manora Peak, Nainital. A case was registered in CBI by an order passed by this court wherein allegations on more than 31 grounds were framed against the revisionist. These charges were of serious nature falling under the IPC. However, during the investigation it was revealed that total 31 allegations, 29 allegations were either incorrect or were found to be procedural lapses. Only two allegations of conspiracy were found to be criminal in nature during investigation. The revisionist had already applied for discharge on preliminary ground of absence of sanction in respect of offences punishable under the Penal Code which were dismissed by the court. The court defended its action stating that making appointment illegally and interpolation in the records cannot be termed as acts done in discharge of official duties by abusing his official position as public servant. counsel for the revisionist would argue that so far the offence punishable under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 is concerned, the revisionist did not challenge these provisions but the ones present in CrPC. The counsel for the revisionist submitted that since the prosecution did not obtain the sanction from the department to prosecute him in respect of offences punishable under the Penal Code, as required under Section 197 of Cr.P.C., thus the trial cannot proceed in respect of charges under IPC. Counsel for CBI relied on the judgment rendered by Apex Court in Inspector of Police &amp; another Vs Battenapatla Venkata Ratnam &amp; another,[(2015) 9 13 SCC 87] where it was held that “Public servants have, in fact, been treated as a special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as a shield to protect corrupt officials”. The court held that the ratio laid down in the aforementioned case is fully applicable in the context of present case. It went on to further state that the “technicalities should not come in the way of dispensation of justice” and that the procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.