apl.716.16.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.716 OF 2016
Sanjay s/o Laxman Kholapurkar,
Aged about 57 years, Occupation : Retired,
R/o 77-B, Pande Layout, Behind Water Tank,
Khamla, Nagpur. .... Appellant
-- Versus --
State of Maharashtra,
Through Superintendent of Police,
Anti Corruption Bureau, Nagpur. .... Non-Applicant
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Shri S.P. Dharmadhikari, Sr. Adv. with Shri Shyam Dewani, Adv. for the Applicant.
Shri S.M. Ukey, Additional Public Prosecutor for the Non-Applicant/State.
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CORAM : B.R. GAVAI & KUM. INDIRA JAIN, JJ.
DATE : 10th MARCH, 2017.
ORAL JUDGMENT :- (Per Kum. Indira Jain, J.) Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties. 02] By this application under Section 482 of the Code of Criminal Procedure and Articles 226 and 227 of the Constitution ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 2 of India, applicant seeks quashing of the criminal proceedings in Special Case No.23/2016 arising out of Crime No.3176/2016, registered with Sadar Police Station, Nagpur for the offences punishable under Sections 13(1)(c), 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 420, 120-B, 109, 465, 467, 468 and 471 of the Indian Penal Code. Applicant is arrayed as accused no.4 in the charge-sheet. 03] For the sake of convenience, we shall refer the applicant as accused no.4 and the sole non-applicant as complainant.
04] The facts giving rise to the present application may be stated in brief as under :
(I) Applicant was serving as Superintending Engineer in Irrigation Department of the Government of Maharashtra. In 2003, he was posted as an Administrator, Command Area Development Authority, Nagpur. In 2013, he took voluntary retirement from the government service. Before his ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 3 retirement, he was attached to Gosikhurd Project and was In-charge of Dam Construction, Rehabilitation and Right Bank Canal in Bhandara and Chandrapur Districts.
(II) In 2012, one Mohan Marotrao Karemore, Builder and Member of Loknayak Bapuji Ane Samajsevi Sanstha filed Public Interest Litigation No.83/2012 before this Court alleging a scam in various irrigation projects under Vidarbha Irrigation Development Corporation (V.I.D.C.). Another Public Interest Litigation No.92/2012 was preferred by the President of Jan Manch alleging some irregularities committed in the Irrigation Department.
(III) As appeared from the charge-sheet, hearing of both the petitions was taken up on 12/12/2014 and on behalf of the State, statement was made that the Government would conduct inquiry in the allegations made in the petitions. On the statement made on behalf of the State Government, both the petitions ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 4 were disposed of with liberty to petitioners to move the Court, if necessary action is not taken in the matter.
(IV) In pursuance to the statement made before the High Court, Government took decision to inquire into the alleged irregularities committed in various projects of V.I.D.C. The order was accordingly issued by the Home Department on 18/02/2015. On the basis of the decision of the Government, Anti Corruption Bureau, Mumbai issued a letter dated 26/03/2015 directing to initiate inquiry forthwith into the alleged corruption and irregularities in Gosikhurd Irrigation Project. In turn, Superintendent of Police, Anti Corruption Bureau, Nagpur issued direction on 31/03/2015 to conduct an inquiry. After conducting preliminary inquiry, it was revealed that cognizable offence has been committed by Contractors and Officers of V.I.D.C. An inquiry report was submitted to Anti Corruption Bureau, Headquarters, Mumbai for registration of offence. After obtaining permission from the Director General, ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 5 Anti Corruption Bureau, Mumbai, Enquiry Officer Police Inspector Yuraj Patki attached to Anti Corruption Bureau, Nagpur lodged F.I.R. at Sadar Police Station, Nagpur. Crime No.3176/2016, as stated above, was registered against the accused persons. Investigation was set into motion.
(V) From the investigation, it was revealed that accused named in the charge-sheet conspired in criminal activities in allotting tender to M/s F.A. Construction, Mumbai and further while evaluating pre-qualification of M/s. Shraddha Construction and Power Generation Pvt. Ltd., Pune, gave additional more marks and illegally qualified the said company. So far as accused no.4 is concerned, allegations are at page no.26 of the charge-sheet. The allegations in Marathi read thus : "vkjks i h dz - 4 %& Jh lat; y{e.k [kksykiqjdj] LosPNkfuo`Rr vf/kd{kd vfHk;ark xkslh[kqnZ izdYi eaMG] ukxiwj ¼fu;qDrhpk dkyko/kh vkWxLV 2006 rs tqyS 2010½ ;kauh yksdlsod ;k ukR;kus R;kapsdMs lksifoysY;k 'kkldh; fu/khpk ;ksX; [kcjnkjh ?ksoqu fofu;ksx dsyk ukgh- rlsp ;krhy ;'kLoh ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 6 da=kVnkjkps ykHkkdjhrk yksdlsod inkpk nq#i;ksx d#u [kkyhy izek.ks xqUgsxkjh d`R;ke/;s lgHkkxh >kY;kps fu"iUu >kys vkgs-
1½ iqoZ vgZrk vtZ Nkuuhps osGh xq.kkadu rDrs r;kj djrkuk vik= da=kVnkj J/nk dULVªD'ku vWUM ikWoj tujs'ku izk-fy- iq.ks ;kauk T;knk xq.k nsoqu Li/ksZdjhrk fu;eckg~;i.ks ik= Bjfoys o Li/kkZ >kY;kpk vkHkkl fuekZ.k dsyk-
2½ fufonk v?k;korhdj.k djrkauk fu;eckg~; ckchapk lekos'k d#u voS/ki.ks fufonsps eqY; #-7]38]66][email protected]& us ok<fo.;kph f'kQkjl dsyh-"
(VI) From the above, it is evident that main charge against accused no.4 is three fold viz. -
(a) During his posting from August, 2006 to July, 2010 as Superintending Engineer, Gosikhurd Project Circle, Nagpur, he in collusion with the co-accused involved in criminal acts and thereby caused wrongful gain to the successful contractors for the said work by abusing his position as public servant.
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(b) At the time of pre-qualification scrutiny, all applications received in pursuance of tenders for work, accused no.4 wrongfully held M/s Shraddha Construction and Power Generation Pvt. Ltd., Pune, a non-eligible contractor, as qualified for competing tender process by granting extra marks while preparing the chart of marks and created illusion that competitive bidding took place in the tender process.
(c) At the time of updation of tender, accused no.4 included illegal items in the tender and illegally made a show of increase in the cost of tender by Rs.7,38,66,000/-.
(VII) After completing investigation, charge-sheet was filed before the learned Special Judge, Nagpur. Applicant came to know that his name has been arrayed as an accused in the charge-sheet and the learned Special Judge has taken cognizance of the same. Being aggrieved with the launching of prosecution, filing of charge-sheet and taking of cognizance, applicant has ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 8 knocked the doors of this Court and seeks interference in its extraordinary jurisdiction.
05] We have heard Shri S.P. Dharmadhikari, learned Senior Counsel for the applicant and Shri S.M. Ukey, learned Additional Public Prosecutor for the non-applicant/State. The principal contention of the applicant is that the learned Special Judge could not have taken cognizance of alleged offences without sanction from the State Government under Section 197 of the Code of Criminal Procedure and on the sole ground, proceedings in Special Case No.23/2016 arising out of Crime No.3176/2016 registered with Sadar Police Station, Nagpur need to be quashed and set aside. Learned Senior Counsel vehemently submitted that question whether sanction is necessary or not may arise at any stage of the proceedings and in the given case, it would arise at the stage of inception itself. It is submitted that allegations made in F.I.R., if taken into consideration in entirety on their face value, would show that acts alleged against applicant were committed during the discharge of official duties. In this background, submission is that sanction under Section 197 of the Code of Criminal ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 9 Procedure is must and absence of sanction to prosecute the applicant would come in the way of the learned Special Judge in taking cognizance. Reference is also made to Government of Maharashtra's Gazette Notification dated 30/08/2016 amending Section 190 of the Code of Criminal Procedure and adding proviso to sub-section (1) after clause (c) of Section 190 of the Code of Criminal Procedure, which reads thus :
"Provided that, no Magistrate shall take cognizance of any offfence alleged to have been committed by any person who is or was a public Amendment of section 190 servant as defined under any other law for the time of Act 2 of being in force, while acting or purporting to act in the 1974.
discharge of his official duties, except with the previous sanction under section 197 of the Code of Criminal Procedure, 1973 or under any law for the time being in force :
Provided further that, the sanctioning authority shall take a decision within a period of ninety days from the date of the receipt of the proposal for sanction and in case the sanctioning authority fails to take the decision within the said stipulated period of ninety days, the sanction shall be deemed to have been accorded by the sanctioning authority." ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 10
06] On the point of sanction under Section 197 of the Code of Criminal Procedure, the learned Senior Counsel for the applicant placed vehement reliance on -
[i] N.K. Ganguly vs. Central Bureau of Investigation, New Delhi - [(2016)2SCC143] [ii] Amal Kumar Jha vs. State of Chhattisgarh and another - [AIR 2016 SC 2082] [iii] State of Orissa and others vs. Ganesh Chandra Jew - [AIR 2004 SC 2179].
07] On taking of cognizance, reliance is also placed on the decision of the Hon'ble Apex Court in Sunil Bharti Mittal vs. Central Bureau of Investigation - [(2015) 4 SCC 609]. 08] Per contra, learned Additional Public Prosecutor submits that indulgence of applicant/accused in criminal activities transpired during investigation cannot be said to be the acts in the discharge of his official duties and in such circumstance, question of obtaining sanction under Section 197 of the Code of Criminal Procedure would not arise. It is submitted that applicant misused his office for giving contract in favour of M/s Shraddha Construction and Power Generation Pvt. Ltd., Pune and while updating tender, illegally increased the costs of tender. ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 11 This act, according to the learned A.P.P., would not fall within the ambit of discharge of official duties and looking to the facts revealed during investigation, sanction to prosecute would not be essential. It is submitted that the learned Special Judge has rightly taken cognizance and no interference is warranted in the extraordinary jurisdiction. In support of the submissions, the learned A.P.P. placed reliance on decisions of the Apex Court in -
[i] Inspector of Police and another vs. Battenapatia Venkata Ratnam and another [AIR 2015 SC 2403] [ii] State of Punjab vs. Labh Singh [2015 (3) SCC (Cri) 601].
09] In view of the above, a simple but crucial question before us is whether in the given set of facts, sanction under Section 197 of the Code of Criminal Procedure is necessary or not.
10] On cursory perusal of charge-sheet and the connecting papers thereto, it can be seen that allegations against the applicant/accused no.4 are three fold, as stated supra. Needless to state that under Section 197 of the Code of ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 12 Criminal Procedure, public servant is entitled to protection not only in regard to an offence alleged to have been committed by him while acting as a public servant but also in respect of the offences alleged to have been committed by him while purporting to act in discharge of his official duties. 11] In the case on hand, it is not in dispute that in the year 2016, when F.I.R. was lodged, applicant had retired from service. So far as applicability of provisions of Section 197 of the Code of Criminal Procedure to a retired public servant is concerned, the Hon'ble Supreme Court in paragraph 19 in State of Orissa vs. Ganesh Chandra Jew (supra) observed thus :
19. We may mention that that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 13 Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance of this observation that the expression "was" come to be employed after the expression "is" to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.
12] The above proposition has been reiterated by the Hon'ble Supreme Court in State of Punjab vs. Labh Singh - [2015 (3) SCC (Cri) 601] relied upon by the learned A.P.P. and the law is now well settled that protection under Section 197 of the Code of Criminal Procedure is available to the public servant even after retirement.
13] Submission made on behalf of the State is that applicant can raise this issue during trial. It is pertinent to note that amendment to Section 190 reproduced above issues an injunction against the Magistrate from taking cognizance of any offence alleged to have been committed by any person, who is or was a public servant as defined under any other law for the ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 14 time being in force, while acting or purporting to act in the discharge of his official duties, except with the previous sanction under Section 197 of the Code of Criminal Procedure or under any other law for the time being in force. In view of this amendment, the learned Special Judge was not competent to take cognizance unless the acts alleged in the charge-sheet were out of the purview of the acts performed in the discharge of official duties.
14] With the assistance of the learned Senior Counsel and the learned A.P.P., we have gone through the contents of F.I.R. and also the facts revealed in the course of investigation as well as the charge-sheet. The true test as to whether the applicant/ accused no.4, a public servant, was acting or purporting to act in the discharge of his official duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. Taking the allegations as they are on their face value, we are of the considered view that the alleged offensive acts and conduct alleged against the applicant is ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:28:28 ::: apl.716.16.jud.doc 15 reasonably connected with the performance of his official duties. Therefore, the learned Special Judge could not have taken cognizance of the case without previous sanction of the concerned Government.
15] In the above premise, we find substance in the contention of applicant that prior sanction under Section 197 of the Code of Criminal Procedure is a sine qua non and in the absence of sanction taking of cognizance by the Special Court would not sustain in the eyes of law. On this ground alone, application deserves to be allowed. Hence, the following order :
i. Criminal application is allowed.
ii. The charge-sheet in Special Case No.23/2016 is quashed qua present applicant. However, we clarify that in the event the investigating agency applies and the competent authority grants sanction, the order passed by the Court would not come in the way of investigating agency in filing a fresh charge-sheet.
(Kum. Indira Jain, J.) (B.R. Gavai, J)
*sdw
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