Bhayabhai Gigabhai Sutreja vs State Of Gujarat
2023 Latest Caselaw 2833 Guj

     R/CR.MA/18215/2021                           JUDGMENT DATED: 10/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 18215 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          BHAYABHAI GIGABHAI SUTREJA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR I.H.SYED, SENIOR ADVOCATE WITH MR. SURAJ A SHUKLA(7185) for
the Applicant(s) No. 1
 for the Respondent(s) No. 2
MR JK SHAH, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date :10/04/2023
                     ORAL JUDGMENT

1. By this application, under Section 482 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C."

for short), the applicant - original accused Bhayabhai Gigabhai

Sutreja, seeks to invoke inherent powers of this Court, praying

for quashment of FIR being I-C.R.No.2 of 2020 registered with

R/CR.MA/18215/2021 JUDGMENT DATED: 10/04/2023

ACB Police Station, Gandhinagar for the offences punishable

under Sections 13(1)(b) and 13(2) of the Prevention of Corruption

(Amendment) Act, 2018 (hereinafter referred to as "the PC Act"

for short).

2. The applicant herein was working as Class-I Regional

Officer with Gujarat Pollution Control Board and was posted at

Jamnagar. The applicant, being a Public Servant, has been

charged for the offences punishable under Section 13(2) read

with Section 13(1)(b) of the PC Act. Broadly, it is allegation

against the applicant that he by abusing his official position as a

public servant acquired and or in possession of pecuniary

resources or property disproportionate to his known source of

income, which he failed to satisfactorily account for.

3. It is a case of the prosecution that on 10.07.2020, P.I.,

Gandhinagar ACB received secrete information that the

applicant, being a public servant, is travelling from Jamnagar to

Gandhinagar having one black suitcase filled with huge amount

of cash allegedly obtained by misusing his position as a public

servant. A raid was conducted. The applicant when came out

from the bus and was about to sit in his private car, he was

restrained by police official and on preliminary search,

R/CR.MA/18215/2021 JUDGMENT DATED: 10/04/2023

Rs.4,95,813/- unaccounted cash was found from the black

suitcase. He was taken to Police Station where necessary entry

was being registered and unaccounted amount seized by the

police. He was produced before the Court and remanded for

substantial period. The police official seized one diary

maintained by the applicant, wherein the amount received from

the concerned factory owners noted in his handwriting. During

the investigation, bank locker jointly owned with the wife was

also searched and upon search of the bank locker, unaccounted

huge amount of cash worth Rs.55,69,500/- along with gold

ornaments worth Rs.72,22,579/- and silver ornaments found

and total recovery of Rs.1,27,95,874/- effected during the

investigation. During the investigation, the explanation

furnished by the applicant herein for the recovery of huge

amount and ornaments was not satisfactory as witnesses have

either denied or refused with respect to seized cash amount and

jewellery.

4. In the aforesaid facts, the applicant was apprehended in

the alleged offences and reserving the rights of the further

investigation, as contemplated under Section 173(8) of the

Cr.P.C., the chargesheet came to be filed for the offences, as

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referred above.

5. The subject FIR and subsequent proceedings of filing of the

chargesheet are sought to be quashed on the ground that it is in

derogation of newly added Section 17(A) of the PC Act, which

provides for prerequisite sanction of the Competent Authority to

remove the applicant from his office, before inquiring or

investigation into any offence alleged to have been committed by

him in his capacity as a public servant under the PC Act.

6. This Court has heard learned Senior Counsel Mr.I.H. Syed

assisted by learned advocate Mr.Suraj Shukla appearing for and

on behalf of the applicant, and on advance copy, learned APP

Mr.J.K. Shah for the respondent - State.

7. Mr.Syed, learned Senior Counsel raised the following

contentions:

(1) The lodgement of the FIR and filing of the

chargesheet is in clear violation of Section 17(A) of the PC

Act, whereby inquiry or investigation cannot be undertaken

without the prior permission of the Competent Authority

where the alleged act is relatable to any

"recommendations" made or "decision" taken by the public

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servant, in the discharge of his official functions or duties

and on this count, the proceedings is required to be

quashed.

(2) Relying on the guidelines for quashing of criminal

complaint laid down in the case of State of Haryana Vs.

Bhajanlal (1992 Supp.1 SCC 335), it is contended that

where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which

the criminal proceedings is instituted), to the institution,

then the further proceedings cannot be proceeded and it

amounts to misuse of process of the Court and law.

(3) The present case does not fall within the purview of

the PC Act in any manner, as there was no "demand" or

"acceptance" made by the applicant herein when he was

intercepted by the police official.

(4) The applicant herein is not at all having any

disproportionate assets to his known source of income. The

applicant and his wife having huge parcel of land for

agricultural purpose at their native village and the amount

recovered is pertaining to agricultural produceds. The

R/CR.MA/18215/2021 JUDGMENT DATED: 10/04/2023

applicant and his family members have furnished books of

accounts and copies of I.T. Returns to show the source of

cash amount and jewellery, and therefore, by no stretch of

imagination, it cannot be said that the recovered properties

acquired by misusing the position as public servant.

(5) The applicant was appointed as public servant in the

year 1996 and during the entire career not a single

complaint of such kind or otherwise being filed against

him, and therefore, the continuation of criminal

proceedings will amount to an abuse of process of the

Court and without any justifiable reason, the applicant has

to suffer immanence mental trauma, humiliation and

monetary loss.

8. In view of the aforesaid contentions, learned Senior

Counsel Mr.Syed submitted that considering the peculiar facts

and circumstances of present case, case is made out for

exercising inherent jurisdiction of this Court and has prayed to

quash the impugned FIR and chargesheet filed against the

applicant herein.

9. On advance copy, learned APP Mr.J.K. Shah for the

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respondent-State vehemently opposed the admission of the

petition and contended that Section 17(A) of the PC Act is not

applicable to the facts of present case, and therefore, the

contentions raised herein are misconceived and cannot be

accepted. He further submitted that the applicant, being a public

servant during his office, was found in possession of

unaccounted huge cash amount and gold jewellery

disproportionate to his known source of income and was failed to

satisfactory account for, and therefore, the contentions with

regard to books of accounts and filing of the I.T. Returns, etc. are

disputed question of facts and same can be decided only after

full-fledged trial and at this stage, when the averments made in

the complaint and chargesheet constitute the ingredients of

necessary offence alleged under the PC Act, this Court, at this

stage, cannot quash the proceedings.

10. Having regard to the facts and circumstances of present

case, the issue arise for determination is whether the FIR and

consequential proceedings are liable to be quashed in exercise of

extraordinary and inherent jurisdiction ?

11. Let us deal with the contentions with regard to bar of

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Section 17(A) of the PC Act.

12. Section 17(A) of the PC Act inserted by act of 16 of 2018,

with effect from 26.07.2018. The object of legislature is to protect

responsible public servant against the institution of possible

vexatious any enquiry, or inquiry or investigation into any

offence alleged to have been committed under the PC Act where

the alleged offences relatable to any recommendation made or

decision taken by such public servant in the discharge of his

official functions or duties.

13. Newly inserted Section 17(A) of the PC Act reads as under:

"17-A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties:- (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time

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when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.‟

14. A plain reading of Section 17(A) of the PC Act makes it

clear that the protection granted to a public servant is limited

to any action taken by him, which is relatable to any

recommendation made by him or decision taken by him in

discharge of official functions or duties. Thus, if the public

servant during his duties, takes any decision relatable to the

official work or make any recommendation, then Section 17(A)

of the PC Act would certainly rescue to the public servant.

15. In the facts of present case, the applicant, being a public

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servant, has been charged for the offences punishable under

Section 13(2) read with Section 13(1)(b) of the PC Act. There is a

specific allegation in the FIR that he has been found with

unaccounted cash amount disproportionate to his known

source of income. During the course of investigation, further

huge unaccounted cash amount, as noted earlier, had been

found along with the gold and silver jewellery and the

explanation sought was not satisfactory. Thus, chargesheet

came to be filed for the "criminal misconduct". Explanation-1 to

Section 13(1)(b) of the PC Act says that a person shall be

presumed to have intentionally enriched himself illicitly if he or

any person on his behalf is in possession of or has, at any time

during the period of office, been in possession of pecuniary

resources or property disproportionate to his known source of

his income, which the public servant cannot satisfactory

account for.

16. In light of the legal provisions of the PC Act and

considering the peculiar facts and circumstances of present

case, the questioned FIR and subsequent investigation thereof

was not on the premise of any "decision" nor "recommendation"

of the applicant nor he was under scanner of any decision

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taken during discharge of his official duties, and therefore, in

the considered opinion of this Court, the requirement of

approval before enquiry, or investigation, as required under

Section 17(A) of the PC Act would not apply. The observation

made by the Bench of the Delhi High Court in the case of

Manoj Prasad Vs. CBI (decision dated 11.01.2019 passed in

WP (Cri.) No.3292 of 2018) is relevant to refer, which reads as

under:

"36. The bar to enquiry or investigation under Section 17A of the PC Acct is apropos such alleged offence as may be relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties. In the present case, there is no recommendation or decision on record by a Public Servant in the discharge of his official functions. .The purpose of Section 17A can be read to be only to provide protection to officers/public servants who discharge their official functions and/or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger. Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties.

However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would

R/CR.MA/18215/2021 JUDGMENT DATED: 10/04/2023

not be necessary.

Amassing wealth by misappropriation or embezzlement is never considered to be in discharge of official duties and it does not seek to protect any person who is involved in garnishing wealth by corrupt means."

17. Thus, this Court finds that prima facie the offences alleged

do not come within the protective cover of Section 17(A) of the

PC Act requiring prior sanction for lodging the FIR as the

alleged offence of the applicant would not fall under the

category of "recommendation" or decision taken in the

discharge of his official duty. The offence does not fall within

the scope and range of official duties of the applicant.

18. The next contention raised is that the pecuniary resources

and the property seized having been properly explained by way

of furnishing documentary evidence, and therefore, no offence

as alleged is made out against the applicant herein.

19. Before adverting the issue raised herein, let us examine the

scope and ambit of power to be exercised by the High Court

under Section 482 of the Cr.P.C. to quash the FIR. The Apex

Court, in its various judgments, time and again, observed and

held that the inherent powers under Section 482 of the Cr.P.C.

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do not confer arbitrary jurisdiction of the High Court to act

according to whim or caprice and same has to be exercised

sparingly with circumspection and in the rarest of rare case.

The High Court is guided by the allegations made in the

complaint or chargesheet and it has be seen, if this allegation

constitutes any offence or not and whether resort to criminal

proceedings in such circumstances amount to an abuse of

process of the Court.

20. Reverting back to the facts of present case, there is a

specific allegation levelled in the FIR that the applicant was

found with pecuniary resources and properties disproportionate

to his known source of income. The Investigation Agency, after

considering the documentary evidence and explanation

furnished by the applicant - accused, finds that the applicant

intentionally enriches himself illicitly during the period of office.

In such circumstances, at this stage, in exercise of powers

under Section 482 of the Cr.P.C., this Court cannot enter into

merits of the case and conduct a mini trial to examine the

documentary evidence produced by the accused.

21. For the foregoing reasons, the contention, as raised above

that Section 13(2) read with Section 13(1)(b) of the PC Act are

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not attracted, has no any merits and this Court is not in

agreement with the contentions raised by the applicant herein.

22. Thus, it is not a fit case to exercise the powers under

Section 482 of the Cr.P.C. to quash the FIR and chargesheet.

Resultently, application stands dismissed and it is dismissed

at the admission stage.

(ILESH J. VORA,J) Rakesh