Dr. Ram Babu vs State Of U.P. And Anr.
2018 Latest Caselaw 851 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 7.5.2018
 
Delivered on 24.5.2018
 

 
Court No. - 1
 

 
Case :- APPLICATION U/S 482 No. - 28527 of 2017
 

 
Applicant :- Dr. Ram Babu
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Sushil Kumar Dubey,Satish Trivedi,Sheshadri Trivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Satish Trivedi, learned counsel for the applicant assisted by Sheshadri Trivedi, learned counsel for the applicant and Sri Ashish Pandey, learned A.G.A. for the State and perused the record.

2. This application u/s 482 Cr.P.C. has been moved seeking quashing of the order dated 20.7.2013, whereby the court below has taken cognizance on the charge sheet dated 16.7.2013 and the order dated 13.1.2017, whereby the court below has rejected the discharge application and framed the charges against the applicant and the order dated 18.7.2017, whereby the court below rejected the application 51 Kha of the applicant in which prayer was made that the proceedings against the applicant were barred by Section 197 Cr.P.C. Besides that entire proceedings of the Criminal Case No. 07 of 2013 (State vs. Dr. Ram Babu) arising out of Case Crime No. 1492 of 2010, under Section 109, 420, 201, 120B, 417, 467, 468 & 477A of the IPC and Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, P.S. Sihani Gate, District Ghaziabad have been prayed to be quashed.

3. According to the FIR, the prosecution's case is that in 1987-1988 one Md. Anees, the then Senior Clerk of Chief Medical Officer, Ghaziabad had connived with S.N. Bahadur, the then Drawing and Disbursement Officer and had got stationary purchased for the office of the Chief Medical Officer and C.H.C./P.H.C., Ghaziabad from a firm, namely M/s Capital Cooperative Printers and Awam Publications Society Ltd., showing it to be registered with the Registrar Cooperative Societies and thereafter had prepared forged vouchers of Rs. 5,600/- instead of the approved amount of Rs. 4,800/- and thereby caused wrongful loss of Rs. 800/- to the Government and corresponding wrongful gain to themselves. Further it is alleged in the said FIR that during the period 1996-1997, the applicant who was the then Chief Medical Officer, Ghaziabad, Dr. R.P. Singh, the then Drawing and Disbursement Officer and Md. Anees, the then Senior Clerk in connivance and collusion with each other purchased stationary of Rs. 1, 63,941/- from M/s Capital Industrial Cooperative Limited, Raza Market Kashmiri Mohalla Lukcnow, showing the said firm registered with the Registrar Cooperative Societies without following the procedure of inviting tenders. Apart from the aforesaid, several other allegations were made which pertained to the period between 1992-2001, against Dr. V.K. Sharma, the then Procurement and Disbursement Officer, Md. Anees, Bhajan Lal, the then Senior Assistant in Cashier Office. Dr. Vinod Kumar was C.M.O. at that time, however, no allegations were levelled against the applicant with regard to the alleged transactions of purchase of medicines, rather the allegations against him were confined only to the purchase of stationary costing Rs. 1,63,941/- from a firm which is said to be not registered.

4. The contention of the learned counsel for the applicant is that the allegations against the applicant are that of misuse of his official position in order to obtain gain and cause corresponding loss to the public exchequer which pre-supposes that the said work was done in discharge of his official duty, despite that in an absolutely illegal and arbitrary manner the opposite party no. 2, Inspector U.P. Vigilance Department, Meerut conducted the investigation and submitted charge sheet against the applicant on 16.7.2013, whereon cognizance has been taken of the offences under Section 409, 417, 420, 467, 468, 471, 477-A and 120B IPC and Section 13(1)(d) and 13(2) of the Prevention of Corruption Act by the trial court on 20.7.2013. It is apparent that no prior sanction for prosecution had been taken under Section 197 Cr.P.C. from the the Competent Authority to proceed with the criminal prosecution against the applicant as the said Act is alleged to have been committed in discharge of his official duties. Further it is submitted that the applicant preferred discharge application dated 30.1.2014 under Section 227 Cr.P.C. raising objection that Government had not granted sanction under Section 197 Cr.P.C. for his criminal prosecution and that the matter was being examined by the State Government and hence he should be discharged but no orders were passed by the court below on the said application. Thereafter, an order dated 1.4.2015 was passed by the Secretary Chikitsa Anubhag-2, Lucknow reciting therein that investigation of the Case Crime No. 1492 of 2010 by the Vigilance Department, Uttar Pradesh and the inquiry report of the said department had been examined by the State Government and it was found that the applicant had retired in July, 2007 and that it was found at the relevant time that the applicant was not discharging the function of Drawing and Disbursement Officer and, hence, he was not involved in the transaction of bills pertaining to grant of contract to M/s Capital Printing Industrial Cooperative Society Limited. It was also found that the said firm had been duly registered with the Registrar Cooperative Societies, vide registration certificate dated 19.1.1988, therefore, in such a situation, there was no need for calling for quotations or tenders in pursuance of the order of State Government dated 3.6.1993. It was further mentioned that the applicant was not found guilty in the departmental inquiry and since no offence was found to have been committed by him, hence, there was no occasion for granting sanction for the criminal prosecution and accordingly, the Hon'ble Governor was pleased to pass the order closing the matter pending against the applicant. It is further submitted that pursuant to the said order of Government, the Investigation Officer submitted an application dated 14.5.2015 to the Special Judge, Anti Corruption, Meerut (trial court) stating therein that since in the matter of the applicant, which was referred to the State Vigilance Committee, which was decided in 147th meeting held on 9.12.2014 the applicant was not found guilty in departmental inquiry and that because matter was 17 years old, the prosecution of the applicant was irrelevant. In pursuance to the said decision of the Vigilance Committee, Secretary, Medical Anubhag-2, Government of U.P., finding that there was no relevance of granting sanction to prosecute the applicant, had directed the matter to to be closed. It is further mentioned that Investigating Officer had moved an application on 14.5.2015 along with Hon'ble Governor's order dated 1.4.2015 as well as a photostat copies of the order of U.P. Vigilance Department-2 dated 10.1.2015 for withdrawal of the prosecution against the applicant but the trial court had disposed of the said application only on the ground that the Public Prosecutor or Assistant Public Prosecutor in-charge of the case had not moved any application under Section 321 Cr.P.C. for withdrawal of the prosecution. It is further mentioned that after the communication to him of the order dated 1.4.2015 of State Government, the applicant had moved an application dated 12.5.2015 before the court concerned stating therein that in the present case the State Government had refused to grant prosecution sanction and had directed the matter to be closed but the learned trial court did not pass any order thereon and finally on 13.1.2017, the learned trial court proceeded to decide the discharge application dated 30.1.2014 by the impugned order dated 13.1.2017 rejecting the same. It is further contended by the learned counsel for the applicant that the impugned order denotes complete non application of mind and after rejection of the same, on the same day, charges have also framed against him. There is no allegation against the applicant of any embezzlement and defalcation of public funds.

5. It is further contended that the main ground on which the trial court rejected the said application seems to be that the question as to whether alleged offences have been committed by the applicant while acting or purporting to act in the discharge of his official duty could be determined during the trial which was absolutely illegal in teeth of the mandatory provisions of 197 Cr.P.C. as interpreted by the Apex Court in catena of cases. The court below absolutely failed to consider the issue that there was no sanction to prosecute the applicant granted by the competent authority. Vigilance Department could not submit charge sheet before the learned trial court directly and the same could only be submitted before the trial court after obtaining sanction under Section 197 of the Cr.P.C. from the Competent Authority. The applicant had retired from service in July, 2007 while the prosecution submitted charge sheet thereafter on 16.7.2013 clearly with a view to depriving the applicant of the protection under Section 19 of the Prevention of Corruption Act. The Apex Court in State of Punjab vs. Labh Singh, (2014) 16 SCC 807, has held that even in the case of retired employee the protection under Section 197 Cr.P.C. shall be available. It is further mentioned that the applicant had approached this Court for quashing the FIR dated 18.10.2010 through filing the Crl. Misc. Writ Petition No. 11332 of 2013, which was dismissed. When the charge sheet was submitted, the applicant had no knowledge of the same and could come to know about it only when process under Section 82 Cr.P.C. was adopted against him, whereafter he filed Crl. Misc. Application (u/s 482) Cr.P.C. No. 17913 of 2013 but that was dismissed as not pressed on 6.6.2013 and thereafter again preferred another Crl. Misc. Application (u/s 482 Cr.P.C.) No. 19988 of 2013 challenging the order dated 10.4.2013, whereby the trial court had issued proclamation under Section 82 Cr.P.C. which was disposed of vide order dated 18.6.2013 granting him protection in accordance with law because of the law laid-down in Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. The applicant has been released on regular bail by the trial court vide order dated 30.7.2013, hence, it is prayed that the proceedings in the present case are nothing but the abuse of process of court.

6. From the side of respondent no. 2, a counter affidavit has been filed by Sohan Lal Premi, Inspector of U.P. Vigilance, Meerut, in which, it is stated that an open inquiry was conducted vide order dated 17.1.2003 by the Vigilance Department and a report was submitted to the State Government on 4.2.2010 and by order of the State Government, FIR in this matter was lodged on 18.10.2010 at P.S. Sihani Gate, District Ghaziabad. After thorough investigation, the charge sheet was submitted against the accused-applicants on 16.7.2013 whereon cognizance was taken by the court below on 20.7.2013. It is further mentioned that since the applicant had retired in the month of July, 2007, there was no necessity of obtaining Sanction for prosecution under Section 19 of the P.C. Act and that the discharge application was rightly rejected. There is enough evidence on record against the applicant.

7. Learned counsel for the applicant filed rejoinder affidavit, in which the averments in the counter affidavit have been reiterated mainly emphasizing that once the applicant was charged with the offences under the IPC, prior sanction under Section 197 Cr.P.C. is a pre-requisite for the prosecution and in the current matter, there being no such prosecution sanction, the trial stands vitiated. It is further emphasized that it is a settled law that once the grant of prosecution sanction is refused that would mean the said act for which the demand of sanction is refused would be treated to have been done in discharge of his official duty and under Section 114(e) of the Evidence Act, the presumption would be raised that the official Act had been regularly performed. Further it is mentioned that there is no dispute with regard to the position of law, which is settled that even when a public servant has retired, the protection under Section 197 Cr.P.C. would remain available to him even after his retirement. Therefore, in the present case, due to want of the said sanction, proceedings need to be quashed.

8. From the facts narrated above, it is absolutely clear that the Government had not found the applicant guilty in departmental inquiry held against him nor was the evidence against him, was found sufficient to grant sanction to prosecute him as the same was refused. The communication was also made through proper channel to the court concerned, yet the trial court has proceeded to conduct the trial by taking cognizance and refusing the discharge application on the ground that question whether the alleged offences were committed by the applicant while acting or purporting act in his official duty would be determined in the trial.

9. Now, we have to analyze as to whether the view taken by the learned trial court is sustainable in the eyes of law or does it require to be set aside.

10. Learned counsel for the applicant has placed reliance upon Chittaranjan Das Vs. State of Orrissa, 2012 (76) ACC 612, Supreme Court, wherein it has been clearly laid down that the protection of Section 197 Cr.P.C. would remain available to the Government servant for any of his act performed in discharge of his official duty, even after he retires from service otherwise no public servant would be able to discharge his official duty without fear or favour. The relevant paragraph of the said judgment is being quoted hereinbelow:-

"9. We do not find any substance in the submission of Mr. Tripathy and the decision relied on is clearly distinguishable. Sanction is a devise provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the guilty. Here in the present case while the appellant was in service sanction sought for his prosecution was declined by the State Government. Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, Vigilance Department requested the State Government to reconsider its decision, which was not only refused but the State Government while doing so clearly observed that no prima-facie case of disproportionate assets against the appellant is made out. Notwithstanding that, Vigilance Department chose to file charge-sheet after the retirement of the appellant and on that Special Judge had taken cognizance and issued process. We are of the opinion that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of Public Servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility."

11. In view of above settled position of law, we find that there is no dispute with regard to the fact that the prosecution has failed to take sanction to prosecute the applicant in the present case prior to filing the charge sheet before the concerned court and even the learned trial court has proceeded to take cognizance on the said charge sheet vide order dated 20.7.2013 and thereafter vide order dated 13.1.2017, when an application for discharge was moved by the applicant, even that was rejected only mentioning in its order that at this stage in-depth analysis of the evidence collected by the prosecution could not be made. Further vide order dated 18.7.2017, the application moved from the side of the applicant regarding closing the prosecution proceedings, as no sanction was taken under Section 197 Cr.P.C., was also rejected without any justifiable reasons only mentioning that this is a matter of evidence as to whether offences which are being alleged to have been committed by the applicant were committed during discharge of his official duty, is a matter of evidence to be seen during the trial.

12. We are not inclined to accept the above reasoning given by the court below and more so when the applicant had been exonerated in the departmental inquiry and thereafter also the Government had refused to grant sanction to prosecute the applicant, even then learned court below has proceeded to hold trial of the applicant, is not found to be in accordance with law and we find that in view of no prosecution sanction having been taken under Section 197 Cr.P.C., the criminal prosecution against the applicant, who has retired long back, would not be justifiable and needs to be quashed.

13. We set aside all the three impugned orders and quash the criminal proceedings of the aforesaid case against the applicant. The application u/s 482 Cr.P.C. is, accordingly, allowed.

(Dinesh Kumar Singh-I, J.)           (Ramesh Sinha, J.) 
 
Order Date :- 24.5.2018
 
A.P. Pandey