Susil Kumar Pattnaik vs State Of Odisha (Vigilance)
2021 Latest Caselaw 802 Ori

                     HIGH COURT OF ORISSA: CUTTACK
                                   CRLMC No.759 of 2020

        In the matter of an application under Section 482 of the Code of Criminal
        Procedure.

                                             -------------

        Susil Kumar Pattnaik                                 ....       Petitioner

                                               Versus

        State of Odisha (Vigilance)                          ....       Opposite party




                           For Petitioner        --     Mr.Gautam Mishra,
                                                        Sr.Advocate

                           For Opp. Party        --     Mr.Niranjan Moharana,
                                                        A.S.C .(Vigilance)



                                       JUDGMENT

PRESENT:

THE HON'BLE SHRI JUSTICE B.P.ROUTRAY Date of Hearing :27.11.2020 : Date of Judgment:25.01.2021

B.P.ROUTRAY, J. The petitioner has challenged the order dated 13.01.2020 of the

learned Special Judge, Vigilance, Berhampur passed in G.R.No.28 of

2013(V), wherein his prayer for discharge from the offences under Section

13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act (in

short "P.C.Act") and Sections 409/471/120-B of the Indian Penal Code (in

short "I.P.C.") has been rejected.

2. It is the case of the petitioner that he is presently working as

A.B.D.O. of Dharakote Block in the district of Ganjam. He was remained In-

charge Executive Officer of Chikiti N.A.C. from 1.3.2008 to 6.8.2009. It is

alleged that during the said period of his incumbency in Chikiti N.A.C., he,

by committing irregularity in tender process issued the work order to a non-

existent farm run by the co-accused-Priyabrata Biswal to procure the

Cesspool Emptier resulting wrongful loss to the public fund and unlawful

pecuniary advantage to the accused persons. Concerning manipulation of

tender papers and use of forged document in the transaction, the chargsheet

was filed by Vigilance Police in Berhampur Vigilance P.S.Case No.28 dated

30.9.2013 for the aforestated offences. Consequently cognizance for the

offences was taken on 29.11.2016 and subsequently the charge was framed

in the impugned order by refusing his prayer for discharge.

3. It is submitted that, the Director of P.R. Department,

Government of Odisha, who is the sanctioning authority, has declined to

issue sanction of prosecution against the petitioner and despite such refusal

of sanction, the learned court below has committed illegality in taking

cognizance of the offences against the petitioner as well as refusing his

prayer for discharge.

It is argued on behalf of the petitioner that sanction of

prosecution in respect of a public servant is the mandate of law for his

prosecution of the penal offences either under the P.C. Act or under the

I.P.C. When the prayer for sanction by the prosecuting agency has been

refused by the competent authority, the court cannot take cognizance of the

offences as barred under Section 19 of the P.C. Act as well as 197 of the

Cr.P.C. It is also submitted that since the public servant is protected

through sanction from facing the prosecution, in absence of such approval

from the competent authority, the proceeding is vitiated against him.

Accordingly, the petitioner prays for his protection.

4. The petitioner in support of his contention has relied on the

decisions of the Hon'ble Supreme Court in the case of State of Himachal vs.

Nishant Sareen, reported in (2010) 14 SCC 527, Nanjappa vs. State of

Karnataka, reported in (2015) 14 SCC 186 and Anil Kumar and others vs.

M.K.Aiyappa, reported in (2013) 10 SCC 705.

5. On the contrary, it is submitted by the learned counsel for the

Vigilance that admittedly the sanction sought for under Section 19 of the

P.C.Act against the petitioner has been refused by the competent authority.

But the sanction for prosecution of the petitioner for the offences under the

I.P.C. is not at all required and as such was never sought for. Learned

counsel further submits that since the offences under the I.P.C. have been

alleged in addition to the offences under the P.C.Act, the order taking

cognizance and consequent prosecution against the petitioner is never

vitiated as the law has been settled in catena of decisions that no sanction is

required for prosecution of the public servant in such matters where he has

misutilised his official position to commit the offences as the same is not a

part of his official duty. To support of his contention, he mainly relies on the

ratio decided in the case of Prakash Singh Badal and another vs. State of

Punjab and others, reported in AIR 2007 SC 1274 and additionally in other

cases Viz. Rajib Ranjan and others vs. R.Vijaykumar, reported in (2015) 1

SCC 513, P.K.Pradhan vs. State of Sikkim represented by the Central

Bureau of Investigation, reported in (2001) 6 SCC 704 and State, CBI vs.

Sashi Balasubramanian and another, reported in (2006) 13 SCC 252.

6. On the backdrop of those submissions and counter

submissions, the admitted facts as seen from the record are that, the

petitioner was working as In-charge Executive Officer of Chikiti N.A.C. from

1.3.2008 to 6.8.2009. It is also not disputed that the petitioner has issued

Order No.887 dated 12.6.2009 directing to supply the machine. It is also

admitted that the competent authority i.e., the Director of P.R. Department,

Government of Odisha has declined sanction of prosecution against the

petitioner for the offences under the P.C.Act. So far as the offences under the

I.P.C. are concerned, it is admitted on behalf of the Vigilance that no

sanction was sought for those offences against the petitioner. Thus, what is

derived from the submissions that, the sanction for prosecution has been

refused in respect of the offences under the P.C.Act and no sanction is there

in respect of the offences under the I.P.C.

7. It reveals that, the case of the prosecution relating to sanction is

segregated in two folds, one under Section 19 of the P.C.Act and the other

under Section 197 of the Cr.P.C. Coming to examine on the point of sanction

in respect of the offences under the P.C.Act, it is mentioned in the

chargsheet dated 3.10.2016 that, the Director, P.R. Department,

Government of Odisha has declined to issue sanction of prosecution against

the accused, Susil Kumar Patnaik (petitioner), ex-E.O., Chikiti N.A.C. under

Section 19(1) of the P.C. Act to prosecute under Sections 7, 10, 11, 13 and

15 of the P.C. Act. Therefore when the sanction has been clearly refused by

the competent authority for prosecution against the petitioner, the order

taking cognizance of the offences under the P.C.Act against the petitioner by

the learned Addl. Sessions Judge (Vigilance) does not seem appropriate.

Because Section 19 is clear that no cognizance can be taken for any offence

under the P.C.Act against a public servant without required sanction. The

present one is a case of refusal of sanction and not a case of mere absence of

sanction. There is difference between a case where sanction has been

refused and a case where there is no sanction. When the sanction has been

refused by the competent authority in clear words, it means that the

employer in his discretion has shielded his employee from prosecution and it

is to be remembered here that Section 19 is the statutory power in the hands

of the sanctioning authority with the object to ensure that a public servant

does not suffer harassment on false, frivolous or unsubstantiated

allegations. Therefore when the competent authority has refused to grant

sanction for prosecution, the petitioner has got immune in his favour from

prosecution and in such cases of refusal of sanction, the prosecution against

the public servant is certainly vitiated.

8. It is true that the petitioner has not questioned the order taking

cognizance but has challenged refusal of his prayer for discharge and the

question of framing the charge. But this will not preclude him raising the

question at the stage of framing charge. It cannot be said that the accused is

prohibited from exercising his right of discharge for the reason he has not

questioned the order of cognizance. Therefore the accused has every right to

question the framing of charge against him and for the same he need not

necessarily challenge the order of cognizance.

9. Now coming to the question of sanction in respect of the offences

under the I.P.C., it is the admitted case of the Vigilance that no sanction has

been sought for by the prosecution against the public servants as the same

is not required under Section 197 of the Cr.P.C. Here, the decisions of the

Hon'ble Supreme Court in the case of Prakash Singh Badal (supra), Rajib

Ranjan (supra) and P.K.Pradhan (supra) have been strenuously relied on by

the Vigilance Department.

In the case of Prakash Singh Badal (supra), it has been observed

as follows:

"35. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. This aspect makes it clear that the concept of Section 197 does not immediately get attracted on institution of the complaint case.

xxx xxx xxx

43. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

xxx xxx xxx

54. Great emphasis has been led on certain decisions of this Court to show that even in relation to the offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

55. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.

In the case of Rajib Ranjan (supra), it has been observed as follows:

"15. The sanction, however, is necessary if the offence alleged against public servant is committed by him "while acting or purporting to act in the discharge of his official duties". In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, following yardstick is provided by this Court in Dr. Budhikota Subbarao in the following words:

"6. ........If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."

16. This principle was explained in some more detail in the case of Raghunath Anant Govilkar v. State of Maharashtra, which was decided by this Court on 8-2-2008 in SLP (Crl.) No.5453 of 2007, in the following manner: (SCC pp.298-99, para 11)

"11. '7..... "66........On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli v. State of Bombay and Amrik Singh v. State of Pepsu was as follows: (Amrik Singh case, AIR p.312, para 8)

'8.......It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary.

The real question therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Sections 120-B read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a

criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

xxx xxx xxx

18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied."

In the case of P.K.Pradhan (supra), it has been held as follows:

"5. The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation.

xxx xxx xxx

15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection

under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

10. It is the contention of the petitioner that the aforesaid decisions

relied on by the Vigilance Department are not applicable to the present facts

of the case as they are distinguishable for the reason that in none of such

cases the grant of sanction under the P.C. Act was refused by the competent

authority.

11. It needs to be stated here that in the case of Prakash Singh

Badal(supra) where the offences alleged were both under the P.C. Act and

I.P.C., the sanction was granted under the P.C.Act and sanction was absent

in respect of the I.P.C. offences. In the case of Rajib Ranjan (supra), no

offence under the P.C.Act was alleged and all the offences alleged well under

the I.P.C. In the case of P.K.Pradhan(supra), the offences were under both

the I.P.C. and P.C.Act, but no sanction was granted or refused since both the

public servant accused persons have seized to continue as such public

servants at the time of taking cognizance.

12. Thus, the petitioner is found true in his contention that in such

decisions as cited by the Vigilance, grant of sanction was not declined. Even

though the afore cited cases are found some how different in the factual

context with the present case, still the petitioner cannot stand on his leg to

discard the observations of the Hon'ble Supreme Court made in those

decisions to distinguish those cases completely non- applicable in the facts

of present case. The Hon'ble Supreme Court have decided the principles of

law on requirement of sanction under Section 197 of the Cr.P.C. Law is well

settled that no question of sanction can arise under Section 197 unless the

act complained of is an offence, which was committed in the discharge of

official duty. It is further clear from the afore-stated observations of the

Hon'ble Supreme Court that there must be a reasonable connection between

the act and the official duty where the official act either have been performed

in the discharge of official duty or in dereliction of it. It is also settled that in

order to determine whether the act committed in course of the performance

of duty was a reasonable one or pretended or fanciful and the best time of

examining the same is the course of trial.

13. On the backdrop of the above stated principle, the time has

again come to turn to the factual aspect of the present case. As seen from

the contentions of the chargsheet, the petitioner issued quotation call notice

for purchase of two emptier and other machinery and three farms have

submitted their quotations, which were opened on 12.6.2009. Amongst those

three farms, except the farm selected, two other farms were non-existent and

the farm for which the order was placed to the co-accused Priyabrata Biswal,

its registration certificate was cancelled with effect from 21.12.2011 and it

has submitted a fake manipulated sales tax clearance certificate. The

machine (cesspool emptier) was procured by the accused Priyabrata Biswal

in pursuance to the order placed by the petitioner at a low price through

another registered farm belonging to him and the higher rate was paid to the

co-accused. Thus upon a close examination of such factual aspects in

commission of the offences including forgery and criminal conspiracy, it is

found such a complicated issue which is required to be appreciated in

course of trial. So at this stage, it would not be appropriated to opine that

the alleged offences under the P.C.Act and the I.P.C. are interrelated and

insegregable. Therefore, the refusal for discharge and framing of charge for

the offences under the I.P.C. against the petitioner cannot be discarded at

this stage.

14. In the result, the prayer of the petitioner is partly allowed where

he is directed to be discharged from the offences under the P.C.Act only. It is

needless here to hold that the prosecution against the petitioner for the

alleged offences under the I.P.C. is not impeded and in respect of the same,

the prayer of the petitioner is rejected.

With the aforesaid observation, the CRLMC is disposed of.

................................

B.P.Routray, J.

Orissa High Court, Cuttack.

The 25th January, 2021/CRB