Jitendranath Mohanty vs State Of Orissa
2023 Latest Caselaw 3286 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.5285 of 2015

  Jitendranath Mohanty                 ....           Petitioner
                            Mr. Hemanta Kumar Mund, Advocate



                               -Versus-


  State of Orissa                      ....       Opposite Party
           Mr. P.K. Pani, SC & Mr. N. Moharana, ASC (Vigilance)
            CORAM:
            JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:12.04.2023

1.

Instant petition under Section 482 Cr.P.C is at the behest of the petitioner invoking inherent jurisdiction of this Court for quashing of the criminal proceeding in connection with T.R. Case No. 13/33 of 2009/2007 pending in the file of learned Special Judge, Special Court, Bhubaneswar on the ground of lack of sanction under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'P.C. Act').

2. As per the pleading, the petitioner entered into service and posted as Assistant Engineer (Electrical) in O.S.E.B and was promoted to the rank of Executive Engineer in 1981 and thereafter, as Superintending Engineer (Grid Corporation of Odisha) in 1995 and during that time, a vigilance raid was conducted on 23rd August, 1996 at his residential house, Government quarters and office and later thereto, an inquiry was conducted to assess the income, expenditure and assets possessed by him and finally on 2nd September, 1996, the F.I.R. was lodged alleging commission of offences punishable under Sections 13(2) read with 13(1)(e) of the P.C. Act, consequent upon which, Cuttack Vigilance P.S. Case No. 70 of 1996 was registered by

Jitendranath Mohanty Vrs. State of Orissa

alleging that he possessed disproportionate assets to his known sources of income. After the chargesheet, as according to the petitioner, the prosecution was launched in T.R. Case No. 33 of 2007 before the court of learned Special Judge, Vigilance, Bhubaneswar and thereafter, the case was transferred to the court of learned Special Judge, Special Court, Bhubaneswar renumbered as T.R. Case No. 13 of 2009.

3. The petitioner in the midst of trial moved an application on 9th October, 2015 with a request to drop the prosecution on the ground of absence of sanction and jurisdiction of the Special court to proceed with the trial on the ground that chargesheet was submitted on 8th December, 2000 without having sanction in place which is a statutory mandate in view of Section 19 of the P.C. Act and by then he had not retired from service and was still a public servant. According to the petitioner, he joined in OSEB in 1966, promoted to the rank of Executive Engineer in 1981 and by the time, the F.I.R. was lodged on 2nd September, 1996, was serving as Superintending Engineer and was sent on deputation on 31st March, 1997 to GRIDCO, where his services were permanently absorbed and he finally retired on attaining the age of superannuation on 31st January, 2001 and therefore, till then he continued as public servant but without sanction being obtained, chargesheet was submitted against him. An objection was received from the Special Public Prosecutor, Special court, Bhubaneswar and it was stated that the cognizance of offences was taken to 6th December, 2007 long after the petitioner had retired from service and hence, there was no embargo in that regard without any sanction. Referring to Section 5(1) of the Special Courts Act, it was further stated that Section 19 of the P.C. Act shall have no application. The learned Special Judge, Special court, Bhubaneswar passed the order dated 18th November, 2015 and rejected the application of the petitioner. According to the

Jitendranath Mohanty Vrs. State of Orissa

learned Court below, there was considerable delay to entertain such a plea as to the sanction under Section 19 of the P.C. Act and in so far as the objection to the jurisdiction, referring to the decision of the Apex Court in Habibulla Khan Vrs. State of Orissa & Another reported in 1995 SCC (Cri) 382 concluded that Section 19 of the P.C. Act to be inapplicable since the case was transferred to the Special court as per the Orissa Special Courts Act, 2006 and pursuant to the declaration of the State Government under Section 5(1) of the said Act.

4. Heard Mr. Mund, learned counsel for the petitioner and Mr. Pani, learned counsel for the Vigilance Department.

5. Mr. Mund, learned counsel for the petitioner submits that no doubt the trial commenced and in the meantime, good number of witnesses from the side of prosecution have been examined but since the challenge is as to the jurisdiction, the proceeding initiated without a valid sanction being a nullity may be raised at any stage and while contending so, he cites the decision of the Supreme Court in Baij Nath Prasad Tripathi Vrs. The State of Bhopal AIR 1957 SC 494 and another decision in R.J. Singh Ahluwalia Vrs. the State of Delhi AIR 1971 SC 1552, wherein, conviction was challenged on such ground and for the first time before the appellate court which was accepted and it was held that in absence of sanction, the prosecution must fail. While challenging the jurisdiction of the learned Court below, Mr. Mund, further submits that the decision in Habibullah Khan (supra) is not applicable and in any view of the mater, declaration of the State Government under Section 5(1) of the Orissa Special Courts Act cannot validate lack of sanction and insofar as the said Act is concerned, after amendment, there has been a complete change and makeover since under the old Act, the State was required to satisfy itself about existence of a prima facie case

Jitendranath Mohanty Vrs. State of Orissa

which is no more available in the new Act as it left the State with no discretion to exercise. It is contended that with the view that no any prejudice would be caused to the petitioner, such a move challenging the very basis or foundation of the Vigilance prosecution cannot and could not have been rejected by the learned court below.

6. On the other hand, Mr. Pani, learned counsel for the Vigilance Department submits that any such sanction as required under Section 19 of the P.C. Act would be demanded at the time of taking cognizance of the offences if the accused is continuing as a public servant but in so far as the present is concerned, admittedly, the petitioner had ceased to be a public servant having retired on 31st January, 2001, whereas, the cognizance of offence was taken on 6th February, 2007. Furthermore, according to Mr. Pani, the Orissa Special Courts Act, 2006 envisages the Special court to take cognizance on the cases which are instituted before it or transferred under Section 10 of the said Act and there is no condition precedent akin to Section 19 of the P.C. Act where sanction for prosecution is necessary. In other words, Mr. Pani, learned counsel for the Vigilance Department submits that Section 4 of the Orissa Special Courts Act, 2006 enables a special court to take cognizance without any such condition as to previous sanction in terms of Section 19 of the P.C. Act. It is contended that unlike Section 19 of the P.C.Act, the Orissa Special Courts Act, 2006 specifies that the State Government shall make a declaration under Section 5(1) thereof, if it forms an opinion about the prima facie case to prosecute a public servant who holds high/political office and therefore, the decision in Habibulla Khan (Supra) was rightly applied vis-à-vis the petitioner. Lastly by placing reliance on a judgment of the Apex Court in Dr. Subramanium Swamy Vs. Dr. Manmohan Singh reported in 2012 CrLJ 1515, Mr. Pani, concluded his argument by stating that any such protection with a

Jitendranath Mohanty Vrs. State of Orissa

sanction is always to save honest public servants and cannot become a shield to protect corrupt which is what has been held in the decision (supra).

7. It is made to appear that the petitioner appeared before the Court of learned Special Judge, Vigilance, Bhubaneswar in the year 2008 and thereafter, the trial was commenced and in the meanwhile, the Special Court was established in view of Section 3(1) of the Special Courts Act, 2006 and pursuant to declaration of the State Government under Section (5) of the said Act, the case record was received on transfer by the Court of learned Special Judge, Special Court, Bhubaneswar and then, the trial resumed and by the time the proceeding was challenged, as many as 30 prosecution witnesses had already been examined from the side of Vigilance Department. At that stage, the petitioner moved the application dated 9th October, 2015 questioning the validity of the proceeding on the ground of absence of sanction. The learned Court below referred to Section 19(4) of the P.C. Act and concluded that no ground was shown as to what precluded the petitioner from raising such a question as to lack of sanction at any earlier stage of the proceeding since the time of his appearance on 12th March, 2008 and equally, there is no prejudice shown to have been caused to him demanding any interference and to drop the prosecution due to non-compliance of Section 19 of the P.C. Act. The decision in Habibulla Khan (supra) was placed reliance on by the learned Courts below while reaching at the conclusion.

8. Mr. Pani, learned counsel for the Vigilance Department referred to a decision of the Apex Court in Suresh Kumar Bhikamchand Jain Vrs. State of Maharashtra & Another reported in 2013 CrLJ 1625 to contend that at the time of submission of chargesheet, sanction is not to be obtained which is required to

Jitendranath Mohanty Vrs. State of Orissa

prosecute a public servant and demanded at the time of taking cognizance of the offences. In the aforesaid decision, it was held that sanction is an enabling provision to prosecute which is totally distinct from the concept of investigation which is concluded on filing chargesheet and both are on separate footing. In the case at hand, the petitioner was ceased to be a public servant as he retired on 31st January, 2002, whereas, the offences punishable under the P.C.Act was taken cognizance of by the learned Special Judge, Vigilance, Bhubaneswar on 6th April, 2007. Even though, the petitioner continued in service when the FIR was lodged and charge sheet was submitted, it was not obligatory on the part of the IO to obtain sanction at the time of filling of the chargesheet in order to prosecute him before the Court of learned Special Judge, Vigilance, Bhubaneswar. So on such a ground that the petitioner was in service till 31st January, 2001 and before submission of chargesheet, sanction under Section 19 of the P.C. Act was necessary cannot be countenanced. In the meanwhile, as earlier mentioned, the case was received by the court of learned Special Judge, Special Court, Bhubaneswar in the year, 2009. As such, a declaration under Section 5(1) of the Orissa Special Courts Act, 2006 was made on 21st November, 2008, later to which, the case of the petitioner stood transferred to the learned Court below.

9. It is contended by Mr. Mund that in absence of sanction under Section 19 of the P.C. Act, the prosecution cannot be validated with declaration under Section 5(1) of the Orissa Special Courts Act. As earlier discussed, there was no need for any sanction to be collected during investigation or at the time of submission of the chargesheet which was to be insisted upon while taking cognizance of the offences. By the time of the order of cognizance was passed by the learned Special Judge, Vigilance, Bhubaneswar in the year 2007, the petitioner was not in Government service

Jitendranath Mohanty Vrs. State of Orissa

and hence, there was no requirement of compliance of Section 19 of the P.C. Act. In any view of the matter, after the case was transferred, the trial was resumed. Such a transfer to the learned court below was by virtue of a declaration under Section 5(1) of the Orissa Special Courts Act. As per the said provision, all that the Special Courts Act would require for launching a criminal prosecution is the declaration of the State Government. Notwithstanding the change in the tenor of the provision in juxtaposition to the old Act which required a satisfaction about existence of a prima facie evidence to prosecute a person holding high/political office, it makes no difference vis-a-vis the case of the petitioner.

10. As it is already stated before, a prosecution whether to be with sanction or not is a matter to be considered at the time of taking cognizance of offence and since by 2007, he had already ceased to be a public servant, there was no need of any compliance of Section 19 of the P.C. Act. As to the declaration of Section 5(1) of the Orissa Special Courts Act, 2006 was made in 2008, in the humble view of the Court, the petitioner was rightly prosecuted before the learned lower court in accordance with law. In the context of sanction with reference the Special Court's Act, 1990 which came into force with effect from 27th July, 1992 and was stood repealed in 1995, the Apex Court in Habibulla Khan (Supra) concluded that in view of Section 5(1) of the Orissa Special Courts Act (old) and a declaration was made thereunder, Section 19 of the P.C. Act shall have no application.

11. Mr. Mund, learned counsel for the petitioner attempted to distinguish the case of the petitioner by advancing a spacious argument that in the old Act, there was a discretion left with the State Government to take a call as to if a person should be dealt with under the Act or not which was dispensed with in the new

Jitendranath Mohanty Vrs. State of Orissa

Act and therefore, absence of the sanction under Section 19 of the P.C. Act was inconsequential. Nevertheless, earlier there was an element of discretion rested with the State Government before making the declaration but with a change in Section 5(1) of the Special Courts Act, 2006, it has evaporated but the Court is of the considered view that the petitioner cannot derive any advantage as a consequence thereof.

12. In view of the declaration of the State Government in 2008, the case was received on transfer by the learned Court below which thereafter resumed trial and received evidence from the prosecution. Since, a declaration under Section 5(1) of the Special Court's Act, 2006 would suffice, the learned Special Judge, Special Court, Bhubaneswar was having the jurisdiction to receive and conduct trial of the case of the petitioner and therefore, the proceeding cannot be said to have been vitiated on any such ground as has been urged and agitated.

13. Accordingly, it is ordered.

14. In the result, the CRLMC stands dismissed.

(R.K. Pattanaik) Judge

Balaram