Rajendra Prasad @ Dr. Rajendra ... vs The State Of Bihar Through The ...
2022 Latest Caselaw 3000 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.240 of 2022
            Arising Out of PS. Case No.-2 Year-2021 Thana- VIGILANCE District- Patna
     ======================================================

RAJENDRA PRASAD @ DR. RAJENDRA PRASAD Son of Late Rammurti Yadav Resident of Village - Vice Chancellor House, Magadh University, Parmanand Path, Near D.M. Residence, Gaya Bihar.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Bihar, Patna. Bihar

2. The Principal Secretary of the Honble Governor, Bihar, patna. Bihar

3. The State of Bihar through Additional Cheif Secretary , Home Police Deptt.

Govt. of Bihar, Patna. Bihar

4. The Additional Chief Secretary, Vigilance Deptt., Govt. of Bihar. Bihar

5. The Director General of Police, Special Vigilance Unit , Daroga Prasad Rai Path, Patna, Bihar. Bihar

6. The Additional Director General of Police, Special Vigilance Unit Daroga parsad Rai Path, Road, Patna, Bihar

7. The Superintendent of Police, Special Vigilance Unit, Patna. Bihar

8. The Investigation officer Cum Dy. S.P.Special Vigilance Unit, Patna. Bihar

... ... Respondent/s ====================================================== with CRIMINAL MISCELLANEOUS No. 8186 of 2022 Arising Out of PS. Case No.-2 Year-2021 Thana- VIGILANCE District- Patna ====================================================== RAJENDRA PRASAD @ DR. RAJENDRA PRASAD S/o Late Rammurti Yadav Resident of Vice Chancellor House, Magadh University, Parmanand Path, near D.M. Residence, Gaya, Bihar

... ... Petitioner/s Versus The Vigilance Investigation Bureau, Bihar, Patna Bihar

... ... Opposite Party/s ====================================================== Appearance :

(In Criminal Writ Jurisdiction Case No. 240 of 2022) For the Petitioner/s : Mr. Jitendra Singh, Sr. Advocate Mr. Ranjeet Kumar, Advocate Mr. Jai Prakash Singh, Advocate Mr. Yogesh Kumar, Advocate Mr. Yash Singh, Advocate Ms. Ranjeeta Singh, Advocate Mr. Ayush Kumar, Advocate Mr. Tej Pratap Singh, Advocate Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

For the SVU : Mr. Rana Vikram Singh, Advocate (In CRIMINAL MISCELLANEOUS No. 8186 of 2022) For the Petitioner/s : Mr. Jitendra Singh, Sr. Advocate Mr. Ranjeet Kumar, Advocate Mr. Jai Prakash Singh, Advocate Mr. Yogesh Kumar, Advocate Mr. Yash Singh, Advocate Ms. Ranjeeta Singh, Advocate Mr. Ayush Kumar, Advocate Mr. Tej Pratap Singh, Advocate For the State : Mr. Mohammad Sufyan For the SVU : Mr. Rana Vikram Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR CAV JUDGMENT Date : 24-05-2022 Both the petitions viz. Cr. W.J.C. No. 240 of 2022,

seeking quashing of the subject FIR bearing Special Vigilance

Unit P.S. Case No. 02 of 2021 and Cr. Misc. No. 8186 of 2022,

seeking anticipatory bail in the subject FIR have been heard

together and are being disposed of by this common order.

2. Heard Mr. Jitendra Singh, learned Senior Advocate for

the petitioner in both the petitions and Mr. Rana Vikram Singh,

learned Advocate for the Special Vigilance Unit.

3. The subject FIR bearing Special Vigilance Unit P.S.

Case No. 02 of 2021 is sought to be quashed on the sole ground

that it is in derogation of the newly added Section 17A of the

Prevention of Corruption Act, 1988 (herein after called "the

Act") which provides for a pre-requisite of sanction of the

authority competent to remove the petitioner from his office,

before inquiring or investigating into any offence alleged to

have been committed by him in his capacity as Vice-Chancellor, Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

as the offences alleged are prima facie relatable to a decision

taken by him in discharge of his official functions or duties.

4. A brief description of the accusation against the

petitioner would be necessary for deciding the above noted

applications. In case the petitioner succeeds in the former

petition (Cr.W.J.C. No. 240 of 2022), there would be no

requirement of pressing the anticipatory bail application (Cr.

Misc. No. 8186 of 2022).

5. The subject FIR discloses that it was reliably learnt that

the petitioner, while working as Vice-Chancellor, Magadh

University, Bodh Gaya, had entered into a criminal conspiracy

with his P.A. -cum- Assistant viz. Subodh Kumar and two of the

private firms viz. M/s. XLICT Software Private Ltd., based in

Lucknow and M/s. Poorva Graphics and Offset Printers as also

the Finance Officer of Veer Kunwar Singh University as well as

the Registrar of Patliputra University and some others and had

thereby dishonestly cheated the Government ex-chequer to the

extent of approximately Rs. 20 Crores during the check-period

2019-21 while making purchases of various items like e-books

and OMR answer-sheets for use in University for conducting

examination and otherwise.

6. The reasons for prosecuting the petitioner is that such Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

purchases worth several crores were made by adopting a

procedure, which was arbitrary and with the sole purpose of

getting undue advantage to himself. There was no requisition or

tender and that the materials, in derogation of the financial rules,

were not procured through GEM. No procedural formalities

were complied with, despite the petitioner being apprised of

such requirements.

7. The allegation, therefore, in sum and substance, is that

ignoring the advice of the competent officers, the petitioner has

caused payment to private firms of huge amount of money from

Magadh University and Veer Kunwar Singh University, without

assessing the requirement for such purchases and violating the

tender procedure without any justification. There is a further

allegation of the purchases having been made on inflated cost.

The petitioner, according to the FIR, was also holding additional

charge of Vice Chancellor Veer Kunwar Singh University.

8. The E-Books which were purchased for Veer Kunwar

Singh University have not yet been put to any use for the reason

that there was no sufficient infrastructure for storage of those E-

Books and that such purchases were against the advice of the

Head of the Departments of various subjects, whose sanction

and recommendation were necessary for procurement of the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

books.

9. The FIR further discloses that no records were

preserved by the accused persons of the supply and

notwithstanding the objection note put up by officers dealing in

financial matters as well as the then Vice-Chancellor of Veer

Kunwar Singh University, payments were made to the private

firms. All this was done with the active support of the Finance

Officer of Veer Kunwar Singh University and the Registrar of

Patliputra University, both of whom have also been made

accused in this case.

10. The last of the allegations in the FIR is that the

petitioner has acquired huge movable and immovable property

at different places from such proceeds of crime.

11. Thus, the source information disclosed commission of

offences under Sections 120B and 420B of the Indian Penal

Code read with Sections 12 read with Sections 13(ii) read with

Sections 13(i)(b) of the Act.

12. The learned Senior Advocate for the petitioner has

also drawn the attention of this Court to a letter dated

25.01.2022, issued by the Principal Secretary to the Hon'ble

Governor of Bihar, addressed to the Chief Secretary of the State

of Bihar stating that the Hon'ble Governor-cum-Chancellor of Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

the Universities has come to know that FIR has been instituted

against the petitioner, who is a Vice-Chancellor of one of the

Universities, in teeth of the provisions contained in Section

17(A) of the Act, which is improper and against the rules in that

regard. The letter points out that prior sanction of the Chancellor

would be necessary before embarking on any investigation for

the offences under the Prevention of Corruption Act and the

Chancellor is the authority to grant such sanction. It has also

been highlighted in the aforesaid letter that because of lodging

of the subject FIR without the sanction of the Chancellor, an

atmosphere of fear has gripped the University and the

employees of the University are under great mental stress,

which is having a negative effect on their quality of work and is

also adversely affecting the educational environment of the

University. It was thus suggested in the letter that if at all any

action is required to be taken or investigation to be commenced,

the rules of procedure as provided under Section 17(A) of the

Act is required to be followed.

13. The justification or otherwise of this

letter/communication shall be dealt with later.

14. It further appears from the records that Section 409 of

the Indian Penal Code has been added in the list of charges vide Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

order dated 03.02.2022 of the learned Special Judge, Vigilance.

15. It would further be relevant to notice certain facts

which have been brought on record.

16. On a simultaneous search of the residence of the

petitioner at Bodh Gaya and Gorakhpur in the State of Bihar and

Uttar Pradesh respectively, there has been a recovery of several

incriminating materials, making out a prima facie case of

offences under various Sections of the Indian Penal Code and

Prevention of Corruption Act, 1988. An amount of Rs.

1,82,75000/- (One Crore and Eighty Two Lakhs Seventy Five

Thousand) has been recovered in cash from the almirah kept in

the room of the petitioner in his Gorakhpur residence, the key of

which was informed to be lying with the petitioner at Bodh

Gaya. Documents evincing investment of approximately Rs.

48,52,000/- in landed properties and pass-books in the name of

the petitioner and his wife, revealing stashing of an amount of

Rs. 99,87,193/- were recovered. Apart from gold jewelry worth

Rs. 42,84,247/- and silver jewelry woth Rs. 1,93,620/-, foreign

currency was also recovered from the Gorakhpur residence of

the petitioner without any valid paper. From the Bodh Gaya

official accommodation of the petitioner, a total of Rs.

1,57,000/- in cash and documents related to confidential work of Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

examination department and payment to the two companies who

have been named in the FIR, were recovered.

17. Preliminary investigations revealed active

involvement and connivance of the petitioner in the preparation

of forged agreement with the firms; fraudulent payments in

respect of OMR question booklets; E-Books and other materials

to the extent of Rs. 17 Crores (Rs. 15.55 Crores+ Rs. 1.45

Crores). It has also came to light that even when the degrees to

be given to the recipients had already been printed, a decision

was taken to print another set of degrees on exorbitant cost.

18. Mr. Jitendra Singh, learned Senior Advocate for the

petitioner has strenuously argued that the interdict of launching

any prosecution against the petitioner, without prior sanction of

the Chancellor, has been completely disregarded and FIR has

been lodged pursuant to which investigations are continuing. He

has further submitted that all the offences, which are alleged to

have been committed by the petitioner, are acts which are

relatable to the official functions and duties of a Vice-

Chancellor and even if it is found that such action was negligent

and without following the rules in that regard, that shall not take

away the protection granted to him under Section 17A of the

Act.

Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

19. He has further argued that purchase of OMR question

booklets, to be used in University examination and E-Books for

University library comes within the domain of the functions of a

Vice-Chancellor of a University. This being the case, before

investigating into the alleged offences, the mandate of law

required obtaining of prior sanction of the Chancellor to launch

any investigation.

20. The lodging of the subject FIR, without obtaining

prior sanction of the Chancellor, has been defended by the

Special Vigilance Unit by contending that in matters of financial

irregularities, when the act discloses prima facie offence under

the Act, and other Sections of the Indian Penal Code, there is no

requirement of any sanction, as what is protected is the decision

taken by a public servant in discharge of his official function or

duties and not any action erga omnes by the accused. It is no

part of the official duty of the Vice-Chancellor to fudge records;

purchase materials bypassing the rules; and ignoring the

objection of the finance department; and pressurizing the other

officials of the University working under him, to execute such

illegal action.

21. The source information to the Vigilance has disclosed

that the payment for purchase of OMR answer sheets and E- Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

Books have been credited in the account of a private person,

whose identity could not be traced. This is, it has been urged, is

one of the most stark illustrations of a person holding such a

high office of Vice-Chancellor of an University in belying the

trust reposed in him to maintain high academic standards and

excellence in the University.

22. The refrain of the petitioner, however, is that whatever

materials have been brought to the notice of this Court, some

part of which have been enumerated in the subject FIR, have has

been collected in the subsequent investigation, which is

prohibited under the law without appropriate sanction from the

concerned authority.

23. Thus, the sum and substance of the contention of the

petitioner is that the provisions contained in Section 17(A) of

the Act ought not to be rendered nugatory and since the subject

FIR and the ensuing investigation are in teeth of Section 17(A)

of the Act, the subject FIR be quashed and the pending

investigation be stopped.

24. In order to appreciate the contention of the parties, it

would be necessary to examine the provisions contained in

Section 17(A) of the Act which was introduced by Act No. 16 of

2018 with effect from 26.07.2018.

Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

25. Section 17(A) of the Act reads as follows:

[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. - 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 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 Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

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.]

26. A plain reading of the Section 17(A) of the Act makes

it obvious 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 a decision taken by him in

discharge of his official functions or duties.

(emphasis provided)

27. The first proviso to the Section further clarifies that

no such approval/sanction would 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.

28. The second proviso is in the nature of a duty of such

authority vested with the power of granting sanction, to take a

decision within a period of three months, which could be

extended by a further period of one month but only for reasons

to be recorded in writing by such authority, for such extension Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

of time.

29. The expression "undue advantage" has been defined

in Section 2(d) of the Act as;

                               "2(d)     "undue         advantage"   means    any
                         gratification      whatever,       other    than    legal
                         remuneration."

30. It would therefore be absolutely necessary to know as

to what constitutes an act which can be said to be relatable to

any recommendation made or decision taken in discharge of the

official functions or duties of a public servant for it to come

within the protective umbrella of Section 17 (A) of the Act as

also the purpose for such protection.

31. The primary law that regulates corruption related

offences by public servants is the Prevention of Corruption Act,

1988, which was hitherto not found to be strong enough to

tackle the growing menace of corruption.

32. Over the years, expert bodies such as 2 nd ARC and

Law Communication of India examined the 1988 Act and

suggested changes to it. This included changes in the definitiion

of bribe and procedure for attachment of property of public

servants, accused of corruption. Subsequently, in 2008, a bill to

amend 1988 Act was introduced in the Parliament. The bill

sought to extend the requirement of prior sanction under Section Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

19 of the Act. Section 17A was also introduced requiring prior

sanction for investigating public servants and provide for

attachment of property. However it lapsed with the dissolution

of 14th Lok Sabha.

33. By 2011, India had already ratified the United Nations

Convention against Corruption (UNCAC), 2005 and had agreed

to bring its domestic laws in line with the UNCAC, 2005. In

consequence thereof, in August, 2013 again, P.C. (Amendment)

Bill, 2013 was placed in Parliament. The statement of objects

and reasons declared that it was for bringing the Act in line with

UNCAC. The rationale for requiring prior sanction was to

protect public servants from harassment.

34. Prior sanction for prosecution was already existing in

the Act. However requiring prior sanction for investigation too

engendered discussion as to whether this protection was

necessary at two stages viz. at the stage of investigation and

later, at the stage of prosecution. The 2 nd ARC but had only

recommended for a limited sanction even at the stage of

prosecution.

35. The requirement of prior sanction before investigation

in the past, had not been approved in H.N. Rishbud and Inder

Singh Vs. State of Delhi; AIR 1955 SC 196. The only law Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

which contained similar provision of prior sanction of

investigation with respect to Joint Secretary and above level of

officers was Section 6A of Delhi Special Police Establishment

Act, 1946, which had been struck down by the Supreme Court

on grounds of impermissible classification as being capable of

impeding the pace of investigation.

36. Nonetheless, changes were introduced by expanding

the definition of bribe and clarifying the acts which would be

"criminal misconduct" by a public servant. Any fraudulent,

misappropriation of property entrusted to a public servant and

any intentional enrichment by illicit means during the period of

office which would include amassing of resources

disproportionate to one's known source of income would be

instances of criminal misconduct. The requirement of prior

sanction of the competent authority before the stage of

investigation was also introduced by inserting Section 17A of

the Act.

37. Thus the purpose behind the enactment of Section

17(A) of the Act was to give protection to public servants from

the threat and ignominy of malicious and vexatious

inquiry/investigation and the likelihood of them being put to

trouble for taking honest decisions. Such public servants who Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

have the responsibility to take major decisions must act fairly,

fearlessly and impartially. Only to prevent any vexatious

criminal action against them, without there being any

foundational fact for the same, is what is sought to be prohibited

by providing this protective insulation under Section 17(A), in

the form of a pre-requisite of prior sanction before launching

any investigation or lodging the FIR.

38. The Legislature and the Judiciary have all along been

the grappling with the menace of corruption which has grown

diametrically and which is having a continuous deleterious

effect on the entire economy of the nation and confidence of

general public about the Government being run within the

constitutional framework.

39. To understand the background of 17A of the Act, it

would be necessary travel somewhat more in history.

40. In Vineet Narayan and Ors. vs. Union of India &

Anr. (1998) 1 SCC 226, the Supreme Court, on finding that lack

of probity in public life had adversely impacted the society, had

issued certain directions for the proper functioning of the CBI

and giving to the Central Vigilance Commission a statutory

status. The sole purpose was to prevent honest officers

investigating high functionaries from being prevented from Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

investigating the case properly. The occasion for the Supreme

Court, in that case, to deal with the structure of the Central

Investigating Agency like CBI and making Central Vigilance

Commission more functional, arose when nothing concrete was

being done against the wrong doers who were mainly high

ranking politicians and bureaucrats whose names had surfaced

in the two diaries and two note books, which were seized by the

CBI from the premises of one Surendra Kumar Jain and his

brothers and relatives. The seized documents contained detailed

accounts of vast payments made to them but their names were

coded by initials which corresponded to the initials of men in

power. The Supreme Court therefore found the necessity of

evolving a desirable procedure to ensure that such investigation

is properly conducted.

41. The holders of public office are entrusted with certain

powers to be exercised in public interest alone. They hold the

office in trust of the people. Any breach of trust, the Supreme

Court declared, ought to be severely dealt with instead of being

pushed under the carpet. Any conduct amounting to an offence

was required to be promptly investigated and the offender

expeditiously prosecuted, which only would uphold the majesty

of law and vindicate the rule of law.

Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

42. The Government of India had earlier issued a Single

Directive to the CBI, which was a consolidated set of

instructions by various ministries/departments which was first

issued in 1969 and thereafter was amended on many occasions,

which laid down the modalities for initiating any inquiry or

registering a case against certain categories of civil servants.

Directive No. 4.7(3) prohibited any inquiry against a decision

making level officer (Joint Secretary or equivalent or above) in

the Central Government or any officer on deputation to a public

sector undertaking or of RBI or Executive Directors of SEBI

and Chairman and Managing Director and Executive Directors

of Banks, without prior sanction of the Secretary of the

Department concerned.

43. In Vineet Narayan (supra), the aforesaid Single

Directive was quashed.

44. The view of the Supreme Court was that law does not

classify offenders differently for treatment thereunder, including

investigation and prosecution for offences according to their

status in life. Every person accused of committing the same

offence is to be dealt with in the same manner in accordance

with law, which is equal in its application to everyone. For the

accusation of corruption which is more often than not based on Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

direct evidence, there would be no rationale for classifying them

differently. The investigation of such offences would not be

dependent on any inference by the departmental head as to

whether investigation should be undertaken.

45. Apart from this, what is really relevant to notice in the

aforesaid judgment is that the Supreme Court, while issuing

directions to implement the rule of law by keeping in mind the

concept of equality enshrined in Article 14 of the Constitution,

took note of the report of Lord Nolan of England on "Standards

in Public Life" and listed seven principles of public life, which

include;

(I) Holders of public office should take decisions solely in public interest and not in order to gain financial or other material benefits for themselves or their family (selflessness);

(II) Holders of public office should maintain highest level of integrity;

(III) They should make choices in carrying out public business, making public appointments, awarding contracts, only on merits; (IV) All holders of public office would be accountable for the decision and action to the public and therefore they must submit themselves to whatever scrutiny is appropriate to their office; (V) They must give reasons for their decision and restrict information only when wider public interest clearly demands (openness);

Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

(VI) They have a duty to declare any private interest relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest (honesty);

(VII) And lastly, the holders of public office must promote and support these principles by leadership and example.

46. The Supreme Court clearly defined the role of such

holders of public office. Any deviation from the path of

rectitude by such holders of public office would amount to

breach of trust and that it must be severely dealt with.

47. In that background, it would be relevant to refer to

Section 6(A) of Delhi Police Establishment Act, 1946 which has

now been struck down as unconstitutional in Subramaniam

Swami vs. Director CBI; 2014 (8) SCC 682.

48. The reason for referring to the aforesaid provision is

that perhaps Section 6(A) of the Delhi Police Establishment Act

is/was exactly similar in import to Section 17(A) of the

Prevention of Corruption Act, as has been noted above.

49. After the decision in Vineet Narayan (supra), an

ordinance was passed by the Government so as to comply with

the directions of the Supreme Court in Vineet Narayan. Later, a

Central Vigilance Commission Bill, 1998 was introduced in Lok

Sabha, which was referred to the Parliamentary Standing

Committee on Home Affairs, whose report was presented before Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

the Parliament. The Lok Sabha passed the Central Vigilance

Commission Bill, 1998 by adopting the amendments but before

it could be considered and passed by the Rajya Sabha, 12 th Lok

Sabha was dissolved on 26.04.1999 and as a result, the Central

Vigilance Commission Bill of 1998/1999 lapsed. The Central

Vigilance Commission Bill was re-introduced with the title

Central Vigilance Commission Bill, 2003, which was passed by

both the houses of Parliament and received the assent of the

President on 11.09.2003.

50. In the aforesaid Bill of 2003, there was a provision for

carrying out an amendment in the Delhi Police Establishment

Act pursuant to which Section 6(A) was inserted in the Act.

51. Section 6(A) of the Delhi Special Police

Establishment Act, 1946 as it stood in the statute read as

hereunder:

[6A. Approval of Central Government to conduct inquiry or investigation.--

(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to--

                                 (a)    the    employees    of     the   Central
                                 Government of the Level of Joint Secretary
                                 and above; and

Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.

(2) Notwithstanding anything contained in sub-

section (1), 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 gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).]

52. Challenging the insertion of the aforesaid Section in

Delhi Special Police Establishment Act, 1946, several writ

petitions were filed before the Supreme Court under Article 32

of the Constitution of India and the matter was referred to a

Bench of five Judges [Dr. Subramanian Swamy vs Director,

CBI & Anr.; (2014) 8 SCC 682]. The constitutionality and the

validity of Section 6(A) was questioned on the touchstone of the

Article 14 of the Constitution of India.

53. The provision was alleged to be subversive of

independent investigation of holders of public office, which

struck at the core of the rule of law viz. independent,

unhampered, unbiased and efficient investigation. It was called

irrational and arbitrary and an attempt of the legislature to Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

resurrect the single directive 4.7(3) which was quashed in

Vineet Narayan (supra).

54. The Supreme Court found the classification in Section

6(A) on the basis of status in Government service, to be

impermissible under Article 14 as it defeated the very purpose

of finding prima facie truth into the allegation of graft which

amounts to an offence under the Prevention of Corruption Act,

1988. The words of Hon'ble Justice Mathew in State of Gujarat

vs. Sri Ambika Mills Limited (1974) 4 SCC 656 was quoted by

the Supreme Court which declared that the equal protection of

laws is a pledge of the protection of equal laws. A reasonable

classification is one "which includes all those who are similarly

situated and none who are not".

55. While holding Section 6(A) of the Delhi Police

Establishment Act, 1946 to be unconstitutional, the Bench

explained that the "essence of police investigation is skillful

inquiry and collection of material and evidence in a manner by

which the potential culpable individuals are not forewarned.

The previous approval of the Government would result in

indirectly putting to notice the officers to be investigated before

the commencement of the investigation".

56. It was very pithily put by the Supreme Court that Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

Section 6(A) offended the signature tune in Vineet Narayan

(supra) viz. "however high you may be, the law is above you".

57. It was also observed that an office of public power

cannot be the workshop of personal gain.

58. In this factual background, the requirement under

Section 17A of the Act has to understood.

59. The Prevention of Corruption Act, 1988 is a special

statute and the very preamble of the Act declares that it has been

enacted to consolidate and amend the law relating to Prevention

of Corruption and for the matters connected therewith.

60. With the amendment of the Prevention of Corruption

Act, 1988 and insertion of Section 17(A), which is in pari

materia as noted above similar to the now invalid Section 6(A)

of the Delhi Police Establishment Act, 1946, what has been

protected is the action of a public servant which is relatable to

any recommendation made by him or decision taken by such

public servant in discharge of his official duties and not every

action which prima facie is criminal in nature.

(emphasis provided)

61. In order to appreciate what actually would constitute

an act by a public servant in discharge of his official functions

or duties, it would be profitable to refer to the provision of Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

Section 197 of the Code of Criminal Procedure, which

contemplates of prior sanction for prosecution and treats it as

sine qua non for prosecuting an offender who is a public servant

under the Indian Penal Code, if the offence alleged has been

committed by him while acting or purporting to act in the

discharge of his official duty, even though, Section 197(1) of the

Cr.P.C. and 17A of the P.C. Act, 1988 operate in two different

fields and in different situations.

62. Section 197(1) of the Code of Criminal Procedure,

1973 reads as follows:

"197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(emphasis provided)

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

63. Similar provision was there in Government of India

Act, 1935.

64. In Dr. Hori Ram Singh vs. the Emperor; AIR 1939

FC 43 the judges of the Federal Court had an occasion to look

into Section 270 of the Government of India Act, 1935, which

is, as noted above, is exactly similar to Section 197 of the Code

of Criminal Procedure.

65. While interpreting the said Section, Sulaiman J. had

observed that the Section does not mean that the very act which

is the gravamen of the charge and constitutes the offence should

be the official duty of the servant of the Crown. Such an

interpretation would involve a contradiction in terms, because

an offence can never be an official duty. The words used in the

Section are not " in respect of any official duty" but "in respect

of any act done or purporting to be done in the execution of his

duty". The two expressions are obviously not identical.

66. The test, according to the Federal Court, is "not that Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

the offence is capable of being committed only by a public

servant and not be anyone else, but that it is committed by a

public servant in an act done or purporting to be done in

execution of his duty. An act cannot be purported to be done in

execution of duty unless the offender professes to be acting in

pursuance of his official duty and means to convey to the mind

of another, an impression that his is so acting".

67. However, it was clarified that "such protection did not

apply to acts done purely in a private capacity by a public

servant. An example was given to substantiate the aforesaid

proposition that if a public servant accepts a reward/bribe while

actually engaged in some official work, he does not accept it in

his official capacity, much less in the execution of any official

capacity even though it is quite certain that he could never have

been able to take the bribe unless he were the official in-charge

of some official work. In this case he merely uses his official

position to obtain the illegal gratification".

68. The aforesaid opinion of Sulaiman, J. was concurred

by Vardhacharya, J. that "the aforesaid question is substantially

one of fact, to be determined with reference to the act

complained of and the attended circumstances and it would not

be desirable to lay down any hard and fast test". Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

69. In HHB Gill Vs. The King; AIR 1948 PC 128, the

Judicial Committee of the Privy Council, while referring to the

explanation in Dr. Hori Ram Singh, explained Section 197 of

the Cr.P.C. by saying that "a public servant can only be said to

act or to purport to act in the discharge of his official duty, if his

act is such as to lie within the scope of his official duty". It has

been further explained that a judge neither acts or purports to

act as a judge in receiving a bribe, though the judgment he

delivers may be such an act; nor does a government medical

officer act or purport to act as a public servant in picking the

pocket of a patient whom he is examining, though the

examination itself may be such an act. The test therefore was

whether the public servant, if challenged, can reasonably claim

that what he does, he does in virtue of his office".

70. Justice Vivian Bose, J. in his inimitable style in

Shreekantiah Ramayya Munipalli vs The State of Bombay;

AIR 1955 287 sounded a note of caution that "if the provisions

of 197 Cr.P.C. is construed too narrowly, it can never be

applied, for of-course it is no part of an official duty to commit

an offence and never can be. But it is not the duty one has to

examine so much as the act, because an official act can be

performed in the discharge of official duty as well as in Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

dereliction of it".

71. Not every offence committed by a public servant that

requires sanction under 197(1) of the Cr.P.C. nor every act done

by him while he is actually engaged in the performance of his

official duties, so that, if questioned, it could be claimed to have

been done by virtue of the office. It is only when the act

complained of is directly connected with the official duties that

sanction is necessary. (Amrik Singh Vs. State of Pepsu; AIR

1955 309).

72. A challenge was thrown against Section 197 Cr.P.C. as

discriminatory and violative of Article 14 of the Constitution in

Matajog Dobey Vs. H.C. Bhari; AIR 1956 SC 44.

73. While upholding the constitutionality and the validity

of Section 197(1) Cr.P.C., the Constitution Bench of the Hon'ble

Supreme Court declared that "no question of sanction can arise

under Section 197 unless the act complained of is an offence;

the only point to determine is whether it was committed in the

discharge of official duty. There must be a reasonable

connection between the act and the official duty".

74. It is required to be found out whether the act

complained against and the official duty are so interrelated that

one can postulate reasonably that it was done by the accused in Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

the performance of official duty, though possibly in excess of

needs and requirements of the situation.

75. It was also held that the requirement of such sanction

would have to be determined from stage to stage of the case.

76. Even with the explanation of Section 197(1) Cr.P.C.

with such felicity of expression by the outstanding judges of this

country, there remained a real difficulty in applying the test to

factual situations.

77. Recently, in Rakesh Kumar Mishra Vs. State of

Bihar; AIR 2006 SC 820, it has been held that before Section

197 can be invoked, it must be shown that the official concerned

is accused of an offence for an act which has been committed in

connection with the discharge of official duty or is merely a

cloak of officialdom for doing the objectionable act. Whether

there is a reasonable connection between the act and the

performance of official duty can be tested by putting a question

to him whether he is answerable for a charge of dereliction of

his official duty and if the answer is in the affirmative, it could

be said that the act was in discharge of his official duty and that

there was connection between the act complained and the

official duty.

78. The primal object therefore is to protect public Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

officers who have honestly discharged their duties in the

purported exercise of their powers.

79. If the act complained has no nexus or reasonable

connection or relevance to the official act or duty and the act is

otherwise illegal, unlawful or in the nature of an offence, the

shelter of 197 Cr.P.C. is not available, which protection is

qualified and conditional. [Shankaran Moitra Vs. Sadhana

Das & Anr.; (2006) 4 SCC 584]

80. With the aforesaid background facts viz. declaration of

Section 6(a) of the DSPE Act, 1946 to be unconstitutional and

the conditions under which protection could be granted under

Section 197(1) Cr.P.C., if Section 17(A) of the PC Act is

analyzed, it would become very clear that it is only for the

purposes of protecting public servants from baseless

prosecution.

81. The protective shield is for an honest public servant

and not for a corrupt one.

82. There is a clear division between those acts which

constitute an offence and those acts, though done while

discharging the official duties of the public servant, but which

do not constitute an act done in exercise of official duties or

functions.

Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

83. The expressions used in Section 17(A) clearly reflect

the legislative intent that there is no blanket protection or else it

would not satisfy the test of constitutionality. The use of the

words "relatable to any recommendation made or decision

taken by a public servant in discharge of his official function or

duties" tells it all.

84. It cannot be gainsaid that a public servant can not act

fearlessly if he is not insulated from frivolous and unnecessary

complaints. Every decision made by him ought not to be looked

at with suspicion or else no honest official would take any lead

in taking any decision which might raise eyebrows of some

section of the society. Many a times, a decision taken under

public law can be less advantageous or harmful for some

persons, specially when a policy decision is taken at a higher

level. In order to provide a protective, safe and congenial

atmosphere for a public servant to undertake such decisions, a

measure like Section 17(A) has been enacted.

85. One cannot also loose sight of the fact that Section

6(A) of the DSPE Act, 1946 was held to be unconstitutional

because it made a classification with respect to status of the

offender and did not leave it at protecting any officer or holder

of a public office who could have taken a decision against which Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

allegation could be raised that it was for the purposes of

achieving personal gain or for gain to his near and dear ones as

also because requiring any sanction before investigation may

breach the secrecy of the investigation and impede its pace.

86. As has been explained in the judgments referred to

above, classification is permissible, provided it meets the twin

test of being reasonable and having a proximate connection with

the object sought to be achieved by such classification.

87. Section 17(A) of the PC Act therefore may not be

straightaway dubbed as a resurrection of single directive 4.7.3

of the Central Government or Section 6(A) of the DPSE Act,

1946 which has been held to be unconstitutional. A

classification has been made but it has an object viz. to insulate

an action of a holder of public office, if it is in relation to any

recommendation made by him or a decision taken in discharge

of his official function or duties.

88. However, such classificatory protection, which is a

shield against unnecessary prosecution of honest officers,

cannot be used as a sword to stifle prosecution for per-se

criminal offences which can never be in discharge of official

duty or in connection with any recommendation made by a high

position holder of public office. The protective cover is in the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

nature of a permitted exception to the equality provision of the

constitution.

89. Any unnecessary and broad interpretation of the

section would defeat the very purpose of such protective

discrimination in favour of honest and dutiful officers. Had such

not been the intention of the legislature, there would have been

no necessity of introduction of the phrase "relatable to any

recommendation made or decision taken by public servant in

discharge of his official function or duties" in the Act and the

protection would have been given to any public servant accused

of any offence under the PC Act.

90. It cannot be forgotten that in Subramanyam Swami

Vs. Manmohan Singh and another, 2012 (3) SCC 64, Justice

A. K. Ganguli while supplementing and concurring with the

views of Hon'ble Justice G.S. Singhvi, J. has very aptly

observed as hereunder:-

"68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end.

Corruption devalues human rights, chokes Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it"

(emphasis provided)

91. Similar views have been expressed in two of the

judgments of Kerala High Court viz. Shankar Bhatt Vs. State

of Kerala; [2021(5) KHC 248] and T.O. Suraj Vs. State of

Kerala; 2021 SCC online 2896. and one of Delhi High Court in

Devendra Kumar Singh & Ors. Vs. CBI & Ors.; 2019 (1)

Crimes 726.

92. In Anil Vasantrao Deshmukh Vs. State of

Maharashtra, 2021 SCC Online Bombay 1192, the former

Minister of State of Maharashtra had preferred a petition under

Article 226 of the Constitution of India and Section 482 of the

Cr.P.C. for quashing the F.I.R. registered by C.B.I. and the

consequent proceedings initiated against him on the ground of

protection under Section 17(A) of the PC Act, 1988.

93. The Bench, noting that the history of prevention of

corruption laws reflected a constant tension between the two Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

objectives of eradication of corruption on one hand and

protection of innocent public servants on the other, held that in

view of the nature and the gravity of the allegation, which could

not have been said to be in discharge of official duty, the

protection of 17(A) of the Act was not available.

94. It was also observed that the power to quash the FIR

is required to be exercised sparingly and in exceptional cases.

Such powers are not to be exercised to stifle a legitimate

prosecution.

95. It is in this context that the letter written by the

Principal Secretary to the Hon'ble Chancellor to the Chief

Secretary, which has been referred to in one of the petitions,

appears to be unnecessary. This Court leaves it at that; for any

discussion on the justification of the letter would necessarily

require the view-point of the sender of the letter to be

scrutinized, which, in the opinion of this Court, may be

unnecessary at this stage.

96. Mr. Jitendra Singh, learned senior Advocate has very

strongly relied on the judgment of the Hon'ble Supreme Court

in Yashwant Sinha & Ors. Vs. Central Bureau Of

Investigation Its Director & Anr.; 2020(2) SCC 338, to contend

that the interdict in 17(A) of the Act is mandatory. Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

97. In the aforesaid case, a review was sought of a

judgment of the Supreme Court in Manohar Lal Sharma Vs.

Narendra Damodar Das Modi & Ors.; (2019) 3 SCC 25, in

which the decision of the Central Government of procurement

of 36 Rafale Fighter Jets for the Indian Air Force was

questioned and a request was made for a direction for

registration of FIR under the relevant provisions of IPC and a

court monitored investigation as illegality and non-transparency

in the procurement process was alleged. The petitioners had

also sought investigation into the reasons for cancellation of an

earlier deal, alteration in the pricing, and selection of a "novice"

company viz. Reliance Defence as the offset partner to the

exclusion of HAL, a known company.

98. Sri Yashwant Sinha, Sri Arun Shourie and Sri

Prashant Bhushan had also joined hands with the other

petitioners, who were aggrieved by the non-registration of FIR

by CBI, pursuant to a complaint made by them, disclosing a

prima facie offence of commission of a cognizable offence

under PC Act, 1988.

99. Keeping in mind the necessity of upgrading the

defence of the nation, the Bench had proceeded to set the

parameters and contours of judicial scrutiny of government Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

decisions in matters of defence, which according to the Bench

was narrower than the jurisprudence of judicial scrutiny of

award of tenders and contracts. Referring to its earlier decisions

in Jagdish Mandal Vs. State of Orissa; (2007) 14 SCC 517;

Tata Cellular Vs. Union of India; (1994) 6 SCC 651; Siemens

Public Communication Networks Pvt. Ltd. and another Vs.

Union of India & Ors; (2008) 16 SCC 215; Reliance Airport

Developers (P) Ltd. Vs. Airports Authority of India & Ors.;

(2006) 10 SCC 1, the Supreme Court had held that the extent of

permissible judicial review is not the same for every

procurement/tender etc. and a different/narrower test is to be

applied for any procurement for national security.

100. The Supreme Court, thus concluded that controversy

raised regarding decision making process, difference in pricing

and the choice of the aircraft was not required to be gone into as

it would neither be appropriate nor be within the experience of

the Court to step into that arena. The perceptions of individuals

cannot be the basis of a fishing and roving enquiry, specially in

such matters. However such views were primarily from the

standpoint of exercise of jurisdiction under Article 32 of the

Constitution of India.

101. While rejecting the review of such judgment, Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

Hon'ble Justice K. M. Joseph in Yashwant Sinha (supra) while

concurring with Hon'ble Justice Sanjay Kaul had observed that

in view of the Constitutional Bench judgments in Lalita Kumari

Vs. State of U.P.; 2014 (2) SCC 1 and P. Serajuddin Vs. State

of Madras; 1970 (1) SCC 595, the writ petitioners were not

justified in seeking relief of registration of F.I.R. and

investigation against the government servants without any

preliminary enquiry in the offence of corruption. In that context,

it was observed by Hon'ble Joseph, J. that in view of the

insertion of a new section namely 17(A) in the PC Act in the

year 2018, which has not yet been challenged, the appropriate

procedure for the writ petitioners would be to file a complaint in

accordance with law but subject to the respondent obtaining

previous approval and sanction under Section 17(A) of the

Prevention of Corruption Act.

102. Such an observation in Yashwant Sinha (supra),

cannot be read as an omnibus protective cover to any public

servant accused of committing a criminal act under the garb of

performing official duty. Moreover, the Apex Court, in that

instance, had not opined that the protection under Section 17A

of the Act was an omnibus protection, without following the test

of the alleged offence being in the nature of recommendation or Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

the decision taken being in discharge of official duty. Thus, the

observation is only a passing reference in the nature of a side-

wind, which does not sweep away the established parameters

under the Act, which has been explained by the Apex Court for

claiming protection under Section 17(A) of the Act.

103. If seen in this background, the act of the petitioner

does not at all appear to be in discharge of his official duty or in

connection with any recommendation made, entitling protection

under Section 17(A) of the Act.

104. There could be no parallel with the facts in

Manohar and Yashwant Sinha (supra) to the acts alleged

against the petitioner. In the former, there was a policy decision

and consequent recommendation in furtherance of national

security, whereas in the latter, an attempt has been made by the

petitioner to enrich himself illegally.

105. There cannot be two opinions regarding the official

duties of a Vice Chancellor who has to take all policy decisions

with respect to running of the University and ensuring that

timely examination is held and the sessions are completed

within the timeline. Nonetheless, making purchases worth

several crores from out-station companies; blatantly violating

the rules in that regard and ignoring the objection of the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

concerned officials of the finance section and procuring e-books

without assessing the need for the same and against the advice

of the departmental heads of subjects and pressurizing junior

officials of the University to sign the vouchers and the bills and

ensure payment to the companies through the account of an

unknown and untraceable person, is no discharge of official

duty.

106. The petitioner in his capacity as Vice Chancellor, has

not recommended that the rules of procedure be put on hold

because of some supervening circumstance/urgency of the

situation, but has stealthily procured items at high cost from

private firms against specific advice.

107. The petitioner was made known that such procedure

in financial matters cannot be ignored but despite that, he went

for such purchases from unknown firms and the payment was

made in the account of a person who is untraceable till today.

This, even at the risk of repetition, cannot be part of official

duty or relatable to any recommendation made with respect to

any policy decision.

108. A very disquieting set of facts have been brought to

the notice of this Court.

109. The very next day of the registration of the F.I.R. on Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

16.11.2021 and of simultaneous raids at three locations of the

petitioner namely V.C's Office at the University, his official

residence at Bodh Gaya and his native house at Gorakhpur

(U.P.), in which huge amount of cash and other incriminating

materials were recovered, he in his capacity as Vice Chancellor

had issued a letter on 18.11.2021 addressed to the Pro-Vice

Chancellor, the Registrar, the Financial Adviser, Finance Officer

and Controller of Examination, Magadh University, directing

them not to transfer or handover any official files or document

of the University to the Agency without the written request of

the agency and without prior executive order of the Vice

Chancellor or the permission of the Hon'ble Chancellor.

110. The Controller of the Examination namely one Mr.

Bhrigunath has alleged that he was pressurized and compelled

by the petitioner and his associates not to disclose any

information to SVU or else he would be removed from his post.

Similarly, other officials and staff of the University were also

threatened of being transferred and removed in case they did not

help the petitioner and his cronies to provide a cover up for the

illegal deeds. This Court has also been informed that the son of

the petitioner, who has been twice summoned under Section 160

Cr.P.C., has failed to appear before the investigating agency on Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

flimsy grounds.

111. In response to the aforesaid accusation against the

petitioner, Mr. Singh, learned senior advocate has submitted that

the Purchase Committee of Magadh University under the

Chairmanship of the erstwhile Vice Chancellor, Prof. Devi

Prasad Tiwary had resolved to purchase 30 lakh answer books

through GEM for which NIT was floated which was responded

by eight tenderers and out of them one Bindia Enterprises of

Gujarat was declared as the lowest bidder. 15 lakh answer books

were supplied and the process for payment was initiated which

was subsequently paid. It is the contention of Sri Singh that

Professor Tiwary, the erstwhile Vice Chancellor, Magadh

University had also been holding the charge of Veer Kunwar

Singh University where he had purchased OMR question

booklets without floating tender through GEM on the plea of

maintaining secrecy and prevention of any leakage of question

paper and question booklets.

112. The petitioner had joined as Vice Chancellor of

Magadh University, Gaya on 27.09.2019. During his tenure, the

Controller of Examination had requested the Bindiya

Enterprises to supply another 15 lakh copy/answer booklets

which were supplied and payments were also made on the same Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

rate as before. Thereafter, there was a total lock-down because

of Covid-19 pandemic. The U.G.C., considering the disastrous

effects of Covid-19 pandemic, had issued a set of guidelines for

the Universities to conduct all the examination and adopting

alternative and simplified mode and methods for completing the

process in a short period. The Universities were directed to

adopt innovative and efficient modes of examination by

reducing the time period of examination from three hours to two

hours. The examination could have been conducted in

offline/online mode by observing the guidelines of social

distancing. Pursuant to the aforesaid guidelines, a meeting of the

Academic Calendar Committee was held where it was resolved

to conduct OMR based examination with multiple choice type

questions, compatible with U.G.C. recommendation. The

aforesaid decision of the Committee had the approval of the

Hon'ble Chancellor.

113. It has thus been contended that printing of question

papers is required to be done in utmost confidence and secrecy.

For maintaining such secrecy, none of the Universities in Bihar

have ever obtained question papers through GEM/open tender.

114. The allegation of choosing fly- by-night firms is also

vehemently denied by the petitioner. He submits that quotations Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

were invited against which M/s XLICT Software Pvt. Ltd. and

Purva Enterprises offered their tenders, who agreed to supply

the OMR based question papers urgently. It has further been

argued that some of the employees of the University, for their

acts of omission and commission, who were punished at the

instance of the petitioner have made disparaging statements

before the SVU in retaliation to the action taken against them.

115. With respect to the recovery of cash and documents

of title from the native house of the petitioner, it has been urged

that it belongs to a Trust namely Pyari Devi Memorial Welfare

Trust which is a registered Trust. Under the aforesaid Trust, a

school affiliated to the CBSE is also being run. A request has

been made before the learned Special Judge, Vigilance in the

subject F.I.R. for release of the cash and documents which is

said to be the proceeds of crime/tainted property, which is

pending adjudication.

116. The learned counsel for the Special Vigilance Unit

however has taken this Court to various entries in the

investigation papers, which may even bring the case under the

1st proviso to Section 17(A) which forbids any such

approval/sanction as contemplated in the first part of Section

17(A) as the offences prima facie might require the arrest of the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

petitioner for attempting to accept undue advantage for himself

while committing such acts during the tenure of his service.

117. Those facts pointed out by the Special Vigilance Unit

are not being referred to and discussed in the order as any

deliberation on such materials might prejudice the case of the

petitioner in future. Even otherwise, at the stage of grant of bail,

the court is not required to enter into any detailed analysis of the

evidence of the case. Such an exercise is only to be taken at the

stage of trial.

118. However, from the attendant facts, it clearly emerges

that the petitioner has shown scant regard in the "Standards of

Public Life" as listed by Lord Nolan of England and

acknowledged by the Apex Court in Vineet Narayan (supra) in

all its aspects, viz. selflessness, integrity, honesty and openness.

119. Now, to the issue of anticipatory bail to the

petitioner:

120. By a series of decisions of the Supreme Court and of

this Court and all the High Courts, the principles to be followed

while granting bail has been explained.

121. In Prashant Kumar Sarkar Vs. Ashish Chaterjee;

2010 (14) SCC, the factors which are to be borne in mind while

considering an application for bail have been listed as Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

hereunder; (i) whether there is any prima facie or reasonable

ground to believe that the accused has committed the offence,

(ii) nature and gravity of accusation, (iii) severity of punishment

in the event of conviction (iv) dangers of the accused

absconding or fleeing, if released on bail (v) likelihood of the

offence being repeated (vi) reasonable apprehension of the

witnesses being influenced and (vii) danger of justice being

thwarted in case of grant of bail.

122. In P. Chidambaram Vs. Directorate of

Enforcement; (2020) 13 SCC 791 it has been held that basic

jurisprudence relating to bail remains the same in as much as the

grant of bail is the rule and refusal an exception so as to ensure

that the accused has opportunity of securing fair trial.

123. However, while considering the same, the gravity of

the offence is an aspect which is required to be kept in mind by

the court.

124. Gravity, for the said purpose, will have to be

gathered from the facts and circumstances arising in each case.

Keeping in view the consequence that might befall on society in

cases of financial irregularities, it has been held that even

economic offences would fall under the category of grave

offences and in such circumstances, while considering the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

application for bail in such matters, the courts are required to

deal with the same, being sensitive to the nature of allegation

made against the accused.

125. Regard being had to the overt act of the petitioner in

causing huge financial losses to the state exchequer, the

possibility of the petitioner tampering with the witnesses and the

evidence and the magnitude of dishonesty by a person holding

an office as high as that of a Vice Chancellor of the University

which is considered to be a temple of learning, this Court is not

persuaded to admit the petitioner to anticipatory bail.

126. To tie the strings together, the accusation against the

petitioner of committing ex facie criminal act of dishonestly

causing losses to the state revenue by blatantly flouting the

financial regulation in running the University; of making

attempts at tampering with the evidence and influencing the

witnesses and not cooperating with the investigation/preliminary

enquiry, the petitioner does not deserve the privilege of

anticipatory bail; more so, when he professes to be a man of

learning with immense experience in different fields specially in

military/defence strategy.

127. Thus, this Court finds that the prima facie the

offences alleged against the petitioner do not come within the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

protective cover of Section 17(A) of the PC Act, 1988, requiring

prior sanction for lodging the F.I.R. and continuing with the

investigation as such acts do not come within the category of

recommendation made or act done in exercise of official

duty/function.

128. For the aforenoted reasons, the prayer made on

behalf of the petitioner in Cr. W.J.C. No. 240 of 2022 for

quashing the subject F.I.R. as being in teeth of Section 17(A) of

the PC Act, 1988, is rejected.

129. For the reason of the gravity of offence committed

by the petitioner while holding high office of Vice Chancellor,

his making attempts at influencing the witnesses and tampering

with the evidence and not cooperating with the investigation, the

respondent SVU has made out a case for custodial interrogation

of the petitioner.

130. The prayer for anticipatory bail of the petitioner in

Cr. Misc. No. 8186 of 2022 is thus rejected with the observation

that in case the petitioner surrenders before the special court and

prays for bail, his application shall be considered on its own

merits without being prejudiced by any observation or comment

made in the order which is only for the purposes of deciding the

quashing and the anticipatory bail applications on behalf of the Patna High Court CR. WJC No.240 of 2022 dt.24-05-2022

petitioner and an order shall be passed with reasons.

131. Both the petitions are thus rejected.

                                                                     (Ashutosh Kumar, J)
krishna/Rishi
AFR/NAFR                AFR
CAV DATE                18.05.2022
Uploading Date          24.05.2022
Transmission Date