Sanjay S/O. Laxman Kholapurkar vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 646 Bom

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

                            -------------
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.
                            -------------


                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

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

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

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,

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 :

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(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.

(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

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

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."

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.

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

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

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

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

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)
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