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SMT. NEERA YADAV versus C.B.I. (BHARAT SANGH)

High Court of Judicature at Allahabad

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Smt. Neera Yadav v. C.B.I. (Bharat Sangh) - CRIMINAL REVISION No. 2282 of 2004 [2005] RD-AH 6523 (28 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

C.J's Court.

Criminal  Revision  No.  2282   of  2004.

Smt. Neera Yadav ........... Revisionist

Versus

C.B.I. (Bharat Sangh) ........... Respondent.

With

Criminal  Revision  No.  2283   of  2004.

Smt. Neera Yadav ........... Revisionist

Versus

C.B.I. (Bharat Sangh) ........... Respondent.

With

Criminal  Revision  No.  2284   of  2004.

Smt. Neera Yadav ........... Revisionist

Versus

C.B.I. (Bharat Sangh) ........... Respondent.

With

Criminal  Revision  No.  2300   of  2004.

Smt. Neera Yadav ........... Revisionist

Versus

C.B.I. (Bharat Sangh) ........... Respondent.

With

Criminal  Misc. Application  No.  11017   of  2002.

Smt. Neera Yadav ........... Applicant

Versus

State of U.P. and another ........... Respondents.

With

Criminal  Misc. Application  No.  11018   of  2002.

Smt. Neera Yadav ........... Applicant

Versus

State of U.P. ........... Respondent.

With

Criminal  Misc. Application  No.  11019   of  2002.

Smt. Neera Yadav ........... Applicant

Versus

State of U.P. ........... Respondent.

With

Criminal  Misc. Application  No.  11187   of  2002.

Smt. Neera Yadav ........... Applicant

Versus

State of U.P. and another ........... Respondents.

With

Criminal  Misc. Application  No.  11227   of  2002.

Smt. Neera Yadav ........... Applicant

Versus

State of U.P. and another ........... Respondents.

With

Criminal  Revision  No.  3216   of  2004.

Rajiv Kumar ........... Revisionist

Versus

Central Bureau of Investigation ........... Respondent.

With

Criminal  Misc. Application  No.  10978   of  2002.

Rajiv Kumar ........... Applicant

Versus

Central Bureau of Investigation ........... Respondent.

With

Criminal  Revision  No.  2161   of  2004.

Dr. Mahesh Sharma ........... Revisionist

Versus

State of U.P. and another ........... Respondent.

With

Criminal  Misc. Application  No.  1859   of  2002.

Dr. Mahesh Sharma ........... Applicant

Versus

State of U.P. and another ........... Respondent.

With

Criminal  Revision   No.  1892   of  2002.

Ashok Chaturvedi ........... Revisionist

Versus

State of U.P. and another ........... Respondent.

With

Criminal  Misc. Application  No.  2191   of  2004.

Ashok Chaturvedi ........... Revisionist

Versus

State of U.P. and another ........... Respondent.

:::::::::::

Hon'ble Ajoy Nath Ray, CJ.

Hon'ble Ashok Bhushan, J.

(Delivered by Hon'ble Ashok Bhushan, J.)

I have advantage of listening to the judgment dictated by Hon'ble the Chief Justice. With profound respect I regret my inability to agree with the second part of the reasoning given in the judgment and the ultimate order proposed by his Lordship.

We have heard Sri D.S. Mishra, learned counsel for the applicant, Neera Yadav, Sri Gopal Chaturvedi, Senior Advocate for Rajiv Kumar, Sri U.N. Sharma, Senior Advocate for Dr. Mahesh Sharma, Sri V.P. Srivastava for Ashok Chaturvedi and Sri G.S. Hajela for C.B.I.

These are several criminal revisions arising out of order dated 27th April, 2004 passed by Special Judge (C.B.I.), Anti Corruption, U.P. (East), Ghaziabad. Along with criminal revisions, we have heard criminal misc. applications filed under Section 482 of Cr.P.C. praying for quashing four charge-sheets submitted before the Special Judge (C.B.I.) Anti-Corruption, U.P. (East), Ghaziabad.

Brief facts giving rise to these proceedings are; a public interest litigation was filed in the Apex Court being Writ Petition No. 1050 of 1997 by NOIDA Entrepreneurs Association. The Apex Court by an order dated 20th January, 1998 directed the Central Bureau of Investigation (hereinafter referred to as C.B.I.) to conduct an inquiry with regard to matter of allotment as well as conversion of plots in the NOIDA. In pursuance of the direction of the Apex Court, the C.B.I. carried on investigation and a first information report was lodged on 26th February, 1998. After investigation four charge-sheets were submitted on 16th October, 2002 giving rise to Special Trial No.19 of 2002, 20 of 2001, 21 of 2001 and 28 of 2002. Immediately after filing of the charge-sheet, criminal misc. applications were filed by the accused persons praying for quashing the charge-sheet in exercise of inherent jurisdiction of this Court under Section 482 of Cr.P.C. Certain interim orders were passed in those proceedings. However, the proceedings before the Special Judge were not stayed and the Special Judge proceeded with the special trials. The applicants in those proceedings filed an application for discharge under Section 227 of Cr.P.C.  A question was also raised that in absence of sanction under Section 197 of Cr.P.C., prosecution cannot proceed and the proceedings against the accused-applicants be dropped. The Special Judge heard the parties and passed an order dated 27th April, 2004 rejecting the objection of requirement of sanction under Section 197 of Cr.P.C. and decided to proceed with the case and directed for framing of charges against the accused-applicants. Against the order dated 27th April, 2004 passed by the Special Judge, criminal revisions have been filed. Smt. Neera Yadav has filed Criminal Revision No. 2284 of 2004 arising out of Special Case No.19 of 2002, Criminal Revision No. 2282 of 2004 has been filed by Smt. Neera Yadav against the order passed in Special Case No. 20 of 2002 and Criminal Revision No. 2283 of 2004 has been filed by Smt. Neera Yadav challenging the order dated 23rd April, 2004 passed in Special Case No. 28 of 2004. Criminal Revision No. 3216 of 2004 has been filed by Rajiv Kumar arising out of Special Case No. 19 of 2002. Criminal Revision No. 2191 of 2004 has been filed by Ashok Chaturvedi arising out of Special Case No. 21 of 2004. Criminal Revision No. 1892 of 2002 has been filed by Ashok Chaturvedi against order dated 21.10.2002 summoning the accused in above case. Dr. Mahesh Sharma filed Criminal Revision No. 2161 of 2004 and Criminal Revision No. 1859 of 2002 arising out of Special Case No.20 of 2002. All the above applicants have filed several Criminal Misc. Applications under Section 482 of Cr.P.C. praying for quashing the entire proceedings including charge-sheets submitted in above four special cases.

The facts have been noted in the judgment dictated by Hon'ble the Chief Justice and it is not necessary for me to again note the facts giving rise to above four cases except to recaptulate the facts of one case, i.e., Criminal Revision No. 2283 of 2004 (Smt. Neera Yadav vs. C.B.I.) which is being treated as leading case.

Sri D.S. Mishra, learned counsel appearing for the accused-applicant-revisionist, Smt. Neera Yadav has submitted that the Special Judge committed error in rejecting the application for discharge and further no prosecution against the applicants could have proceeded in absence of Sanction under Section 197 of Cr.P.C. He submitted that taking the entire documents and evidence collected by C.B.I., no offence at all was made out against the applicants and the applicants were entitled to be discharged. He took us to various evidence collected by the C.B.I. including statements recorded of the officials of the NOIDA and other persons and submitted that a perusal of the said documents did not make out any offence against the applicants. He further submitted that there was no evidence with the C.B.I. collected in the investigation on which any trial against the applicants could proceed.

Sri D.S. Mishra, learned counsel for Smt. Neera Yadav has  placed reliance on judgments of the Apex Court, namely, 1977 S.C.C. (Crl.) 356; Major S.K. Kale Vs. State of Maharashtra, 1979 S.C.C. (Crl.) 323 S.P. Bhatnagar Vs. State of Maharashtra for the proposition that for prosecution under the Prevention of Corruption Act, 1988, it is necessary to prove by the prosecution that accused has used any corrupt or illegal means. He submits, relying on the said decision, that there being no evidence that accused has used any corrupt or illegal means, no prosecution can proceed against the applicants. Sri Mishra has further placed reliance on the judgment of Apex Court reported in 2004 Crl. Law Journal 286; R. Sai Bharathi vs. J. Jayalalitha and others. Sri Mishra relying on the said judgment contended that instructions and guidelines issued by NOIDA, violation of which has been alleged in the charge-sheets, have no statutory force and mere violation of the said guidelines and instructions cannot give rise to any offence on the part of the applicant. He further contended, relying on the above judgment, that several decisions were taken by the Board, which is a collective body and for decision collectively taken, the applicant cannot be held responsible for any offence. Sri Mishra further has placed reliance on several other judgments of the Apex Court for the proposition that without sanction under Section 197 of Cr.P.C. the prosecution cannot proceed and the question of lack of sanction can be raised at any stage by the accused. He further contended that the act which was complained against the accused were done in discharge of the official duties and the protection under Section 197 of Cr.P.C. is fully applicable to her and in absence of sanction criminal case against her cannot proceed. Reliance has been placed on Gauri Shanker Prasad's case (2000 S.C.C. (Crl.) 872) and two other cases.

Sri G.S. Hajela, learned counsel, appearing for the C.B.I. has submitted, refuting the submissions of the counsel for the applicants, that while deciding an application under Section 227 of the Cr.P.C., the Special Judge was not required to shift the entire evidence nor the accused applicants were entitled to show any document or lead any evidence in their defence. He contended that  since the charge-sheets disclose the offence and there were documents and materials in support of the charge, the application under Section 227 of Cr.P.C. has rightly been rejected. He placed reliance on judgment of the Apex Court reported in 2000 (40) A.C.C. 123; State of U.P. Vs. Udai Narain for the proposition that details scrutiny at the stage of hearing the application for discharge is not necessary and scanning or scrutinising the evidence and materials at that stage is not warranted by law. He further submits on the question of sanction that sanction has been granted under Section 19 of the Prevention of Corruption Act, 1988 by the Central Government which is authority competent, hence the prosecution against all the applicants can proceed on the strength of the sanction. He further submits that sanction under Section 197 of Cr.P.C. is not required to be taken in the present case. Relying on the judgment of the Apex Court in Mohd. Hadi Raja Vs. State of Bihar and others; 1998 S.C.C. (Crl.) 1265, he submits that Smt. Neera Yaedav while working in the NOIDA is not a public servant and the servants of Government companies  or  public undertaking are not entitled for protection under Section 197 of Cr.P.C. On his submission with regard to Section 227 and 228 of Cr.P.C. two more judgments have been relied, namely, 1977 S.C. (Crl.) 533; State of Bihar Vs. Ramesh Singh and 2000 S.C.C. (Crl.) 1981; State of Tamilnadu Vs. J. Jai Lalita.

We have considered the submission of counsel for the parties and have perused the record.

The four charge-sheets which have been filed before the Special Judge give in detail the allegations on the basis of which offences are alleged to have been committed by the applicants. It will be useful to refer the relevant allegations as made in Charge Sheet No.4 of 2002 out of which Criminal Revision No. 2083 of 2004, the leading case arises. The substance of the charges of Charge Sheet No.4 is as follows:-

During tenure of Smt. Neera Yadav as Chairman-cum-Chief Executive Officer, NOIDA (from 10.1.1994 to 8.11.1995) a residential scheme No.1994/1 from 1.3.1994 to 7.3.1994 was announced which was extended up to 15.3.1994. The terms and conditions of the scheme required submission of application along with notarised affidavit, employees certificate and demand draft/pay order favouring NOIDA. Smt. Neera Yadav applied for residential plot in the category of employee of NOIDA (V). The application was signed by Smt. Neera Yadav and was not accompanied by attested photograph. The application was undated, notarised affidavit was not submitted and no demand draft/pay order was enclosed. A cheque being Cheque No.395207 of Rs.40,000/- dated 15th March, 1994 drawn on S.B.I. NOIDA towards registration money is said to be given which after close of the scheme was submitted in the Allahabad Bank on or about 24/25th March, 1994 which was sent for clearing by the Bank on 28th March, 1994 and the amount was encashed on 30th March, 1994. It is further alleged that the Branch Manager, Allahabad Bank visited the NOIDA on 17th March, 1994 and prepared a detailed list of all the bank instruments received up to 15th March, 1994. The list containing the names of all the bank instruments was prepared and the receipt was given on 17th March, 1994 itself.  In the said category (V) there were 163 bank instruments amounting to Rs.65,20,200/-. In the said list of 163 applicants the cheque of Smt. Neera Yadav dated 15th March, 1994 for Rs.40,000/- was not there. Subsequently when the cheque was received on 24/25th of March, 1994, the said list was corrected by the Branch Manager herself and at Serial No.164 in the said list name of Smt. Neera Yadav was added and the total amount was shown as Rs.65,60,200/- It is alleged that the application having not been submitted by Smt. Neera Yadav before the close of the scheme, she was not eligible for allotment in pursuance of the said application. It is further submitted that the allotment was made to Smt. Neera Yadav of Plot No. B-002G in Sector 27 which was subsequently converted into Plot No.26 in Sector 14-A measuring 450 square meters on direction of Smt. Neera Yadav. For revising the lay out and size proposal was approved by Smt. Neera Yadav on 21st May, 1994 and additional area was given to her. Smt. Neera Yadav has two unmarried dependant daughters, namely, Ms. Sanskriti Yadav, studying in U.K. and Ms. Suruchi Yadav studying in Kirorimal College, Delhi during the year 1994. As per the terms and conditions of residential scheme 1994(II) and 1994(III), the husband, wife and their dependent children were not separately eligible for allotment of any plot of land as they were to be treated as a single family. Smt. Neera Yadav adopted the modus operandi of getting two different commercial shops in the name of her daughters allotted which she got declared as functional by NOIDA, even though the said shops were not functional. She subsequently got two separate applications filed for allotment of residential plots in the names of Ms. Sanskriti and Ms. Suruchi in the residential scheme 1994(II) which remained open from 24.5.1994 to 8.6.1994. Ms. Sanskriti was allotted 450 square meters plot being Plot No.B-73/44. Smt. Neera Yadav converted the said plot of her daughter Ms. Sanskriti from Plot No. B-73/44 to Plot No.  A-33 in Sector 44 without any formal request of the allottee. The shop of Ms. Sanskriti Yadav was thereafter sold to one Mrs. Meenakshi Vijay on 19.10.1995. Ms. Suruchi applied for allotment of plot in the next residential scheme 1994(III). She was declared successful and allotted Plot No.B-88 in Sector 51. Smt. Neera Yadav converted her plot to Plot No.A-32 in Sector 44 on 10.10.1994 in violation of conversion guidelines. Major payment for the above said shops and plots was made by joint account of Smt. Neera Yadav and her husband Sri M.S. Yadav maintained in different banks of NOIDA and Delhi during the year 1994-95. Lease deeds of both the converted residential plots in the name of both the daughters were executed on 26.12.1994 duly signed by Ms. Suruchi Yadav on the basis of a power of attorney held by her from Ms. Sanskriti Yadav which she sent from Glasgow (U.K.) where she was studying during relevant period. Smt. Neera Yadav while posted and functioning as Chairman-cum-Chief Executive Officer (CCEO) by corrupt and/or illegal means or by otherwise abused her official position as a public servant got Plot No. B-002G  allotted in her name and subsequently got it converted into Plot No.26 in Sector 14-A measuring 450 square meters despite her application being incomplete  and submitted after closing date of the scheme. She dishonestly got the area of her plot increased from 450 square meters to 562.5 square meters after taking possession of the same. She also got two plots allotted in the name of her two daughters knowing it well that as per the rules of NOIDA only one plot of land could be allotted in NOIDA to one family. The plots of her two daughters were also converted from one sector to another in violation of conversion guidelines causing pecuniary advantages to herself and also her two daughters.

Before we proceed to consider the submissions raised by counsel for the applicants, challenging the order of Special Judge rejecting the application for discharge, it is useful to look into the relevant provisions.

Section 227 of Cr.P.C. provides for discharge which is to the effect that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

The scope and ambit of Section 227 of Cr.P.C. came for consideration before the Apex Court in several cases. In 1977 S.C.C. (Crl.) 533; State of Bihar Vs. Ramesh Singh the Apex Court considered Section 227 and held that it is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgement which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Cr.P.C.. Relevant observations made by the Apex Court, in paragraph 4, are extracted below:-

?4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ?the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing?, as enjoined by Section 227. If, on the other hand, ?the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

........ (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused?, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at the stage of trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgement which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scale of pan as to the guilt or innocence of the accused are something like even at the conclusion trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.?

Again in 2000(40) A.C.C. 123; State of U.P. Vs. Udai Narayan and another, the Apex Court held that the stage under Section 227 is not a stage of scanning and scrutinising the evidence and the materials produced by the prosecution. Relevant observations were made by the Apex Court in paragraph 5, which are extracted below:-

?5. Having examined the rival submission at the Bar and on scrutinising the impugned judgement of the High Court, we have no hesitation to come to the conclusion that the High Court committed serious error in discharging the accused persons by advancing elaborate arguments on scanning and scrutinizing the evidence and materials produced by the prosecution. We refrain from recording any positive conclusion on the materials as it may affect the trial. Suffice it to say that a bare perusal of the judgement of the High Court would indicate that the High Court exceeded its jurisdiction in ordering discharge of the accused persons as if sitting in appeal against an order of conviction........?

A three Judge Bench recently considered the scope ofSection 227 in 2005(1) Crimes 1 (SC); State of Orissa Vs. Debendra Nath Padhi. One of the questions referred before the three Judge Bench was as to whether at the stage under Section 227 the defence of the accused is required to be looked into. The three Judge Bench disapproved the earlier view taken by the Apex Court in (1996)9 SCC 766; Satish Mehra vs. Delhi Administration and another. Following was held in paragraph 23 of the judgement:-

?23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided.?

In paragraph 9 of the said judgement the three Judge Bench observed that if the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged.

Sri D.S. Mishra, learned counsel appearing for the applicant, Smt. Neera Yadav, has taken us to various materials which were collected by C.B.I. during investigation including the statements recorded, the notings of all the file, extract of proceedings, orders regarding allotment of plots, change of the lay out and other materials collected. Sri Mishra straneously contended that taking all materials on the record which have been submitted along with the charge-sheet, no offence is made out, hence it was a fit case for discharge under Section 227 of Cr.P.C.

We have also looked into the some of the statements which were recorded during investigation and other materials given by the counsel for the applicant. Just to satisfy us as to whether the contention that there is no material at all for proceeding against the accused could be accepted we have gone through several documents and statements which were on the record. Suffice it to say that stage under Section 227 of Cr.P.C. is not a stage on which the learned Judge is required to test the veracity of the materials or statements as laid down by three Judge Bench in State of Orissa's case (supra). The accused is entitled to be discharged if taking all the materials as true no case to proceed is made out. With regard to charges as contained in Charge Sheet No.4, as noted above, it is useful to refer certain statements  shown by the counsel for the applicant to test the correctness of the submission raised by Sri Mishra. With regard to allegations in Charge Sheet No.4 statement of Sri G.C. Tiwari, Senior Development Manager, NOIDA was referred to. Sri Tiwari was working at the relevant time in NOIDA and made statement with regard to Cheque No.395207 dated 15th March, 1994 of Smt. Neera Yadav. He stated in the statement that application along with cheque duly signed by Smt. Neera Yadav was given on 15th March, 1994 for an amount of Rs.40,000/-. He  further stated that the cheque was given back on the same day to Smt. Neera Yadav because  he was told that draft will be given. After 10 days she returned the cheque and asked Sri Tiwari to manage it to deposit in the Bank. The relevant portion of the statement of Sri G.C. Tiwari is extracted below:-

?.......... I am to state that Mrs. Neera Yadav give me the application duly signed by her to be registered for the scheme 1994-1. Except the signatures the application was totally blank. She also gave me the above said cheque of Rs.40,000/- drawn on SBI NOIDA saying that she would be giving a draft of the required amount.

I took the application and the cheque to Sh. B.K. Sharma and asked him to fill in the details of Smt. Neera Yadav. After making necessary entries I brought back the cheque in question and gave the same to Smt. Neera Yadav. After about 10 days or so she returned the same cheque to me and told me to manage its deposit in the bank. Accordingly, I sent some official (name not remember) to Allahabad Bank to deposit the said cheque which was deposited there accordingly sometime around 25th or 26th March, 1994. Since it was the case of Chairman herself I did not either raise any objection to it or gave any suggestion to her in this regard.?

As noted above, the manager of Allahabad Bank on 17th March, 1994 went in the NOIDA office to collect the bank instruments pertaining to residential scheme which was closed on 15th March, 1994. The statement of Smt. Kusum Manchanda, Manager Allahabad Bank was also recorded. In her statement she categorically stated that she went to NOIDA office and collected all the Bank instruments regarding all the five categories and mentioned the total amount of each category on separate list. She stated that 163 bank instruments were received in category (V) totalling Rs.65,20,200/-. It was stated by Smt. Manchanda that cheque of Smt. Neera Yadav was not there in 163 bank instruments. She stated that cheque of Rs.40,000/- was handed over to her in Bank on or about 28th March, 1994 which was sent for clearing on 28th March, 1994 and was credited on 30th March, 1994. Smt. Manchanda also stated that amount of 163 bank instruments amounting to Rs.65,20,200/- was sent for clearing and was credited on 21st March, 1994 in the Bank. She stated that when the cheque was received she herself added the name of Smt. Neera Yadav at Serial No.164 and made correction in the list. Relevant portion of the statement of Smt. Kusum Manchanda is extracted below:-

?.................. I remember that on 17.3.1994 I had gone to Noida office and met Sh. Ashok Dhamija, Accountant, Residential Deptt. and asked him to give the drafts for depositing in their account after releasing. Sh. Ashok Dhamija gave me the list of the applicants, draft no. and amounts of different categories in two copies. I had received the total drafts of five categories and mentioned the total amount of each category on the separate list. I had mentioned the total amounts of each category in the carbon copy of the list on which I had given receipt dt. 17.3.94 on all 1 to 24 pages for receiving the cheque/drafts.......... My attention is also drawn to page 19 of original list last entry written as S.No.164,05/165/94/2, Smt. Neera Yadav, Cheque No.395207 SBI dt.15.3.94, SBI Rs.40,000/-. In this connection I state that for making this entry Sh. Ashok Dhamija, Accountant Noida had come to me along with Ch.No.395207 dt. 15.3.94 for Rs.40,000/- issued by Smt. Neera Yadav favouring Noida. Similar entry is also mentioned in the carbon copy of the list (page-14) of drafts etc. wherein I had made the endorsement regarding receipt of drafts on 17.3.94. The entry in the original list in the red ink is in my hand writing which I had made on the request of Sh. Dhamija who had come to me along with above mentioned cheque No.395207. ............... Now, I have been shown page no.40 of clearing register of our Noida branch and after seeing the same I state that one cheque no.395207 drawn on SBI Noida favouring Noida Authority for Rs.40,000/- was sent to the clearing on 28.3.94. .......  Regarding receipt of cheque No.395207 for Rs.40,000/- drawn on SBI, NoidaI state that this cheque might have been given to me by Sh. Ashok Dhamija either in the morning of the day it was sent in clearing or in the evening of the preceding working day i.e. 25.3.94. On verifying I state that 26.3.94 and 27.3.94 were Bank holidays. At the time of receipt of cheque I had made entry in the original list which was the Bank document. I do not know who had made entry in the carbon copy of the list which was left with Noida as receipt of cheques/drafts. On receipt of this cheque the same was sent for clearing on 28.3.94. I had mentioned on page no.40 of the carbon copy of the list where I had received the cheques and after receiving this cheque I have mentioned as ?164 for Rs.65,60,200/-? and put my initials without date regarding receipt of the total amount. I had made entry for 164 instruments for Rs.65,60,200/- I have struck off the earlier endorsement regarding receipt of 163 instruments for Rs.65,20,200/-.?

With regard to allegations regarding allotment to two shops to Ms. Sanskriti and Ms. Suruchi allegation has been made that the functional certificate given to two shops are wrongly given. The shops were not functional. The statement of Sri Mani Ram Verma has been relied whose daughter-in-law has purchased one of the shops. He stated that the shop did not open during the relevant period. Statement of Sri S.K. Allen, Assistant Law Officer (Residential), NOIDA and Sri Jai Prakash, Development Manager (Infrastructure) were also recorded who stated that the applications submitted by Ms. Sanskriti Yadav and Ms. Suruchi Yadav with regard to allotment of shops were not complete. In application of Suruchi Yadav the column of parentage was blank and age of Ms. Suruchi was also not mentioned.

We have referred to the aforesaid statements only to see as to whether there was any material collected in the investigation on which charges can be based or substantiated.  We make it clear that it is not the stage to express any opinion as to the veracity of the statement noted above.

The cases relied by Sri D.S. Mishra, learned counsel for Smt. Neera Yadav also need to be considered. In Major S.K. Kale's case (supra) the Apex Court had laid down that in word ?abuse? used in Section 5(1)(d) of Prevention of Corruption Act the dishonest intention is implicit. To the same effect another judgment relied by Sri Mishra is S.P. Bhatnagar's case (supra). In the said case the Apex Court again laid down that abuse of office in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. The charges against Smt. Neera Yadav categorically state that abuse of the office by Smt. Neera Yadav was done with dishonest intention. The allegations made in the charge-sheet against the applicant, Neera Yadav, make out offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988. Another judgment relied by Sri Mishra is R. Sai Bharathi's case (supra). The said case is clearly distinguishable. First, before the Apex Court the case was that of a criminal appeal against final judgment in the criminal case and secondly one of the questions before the Apex Court was as to whether offence under Section 169 of I.P.C. was made out or not. Section 169 of I.P.C. uses the phrase ?legally bound not to?. Thus the prohibition in the said section was legal prohibition. In that context the Court observed that the code of conduct was non statutory which could not cover offence under Section 169 of I.P.C.

Similarly with regard to allegations made in other three sets of cases, the relevant materials were collected by CBI including the relevant notings of files of NOIDA, statement of relevant witnesses including several officials of the NOIDA and the other witnesses.

At this juncture, it will be relevant to note the submissions raised by other learned counsel appearing for different applicants. Sri Gopal Chaturvedi, Senior Advocate, appeared for Rajeev Kumar, who was allotted a plot in Sector 14-A. The submission of Sri Chaturvedi is that there was no legal evidence to make out any case against the applicant. He further submitted that the allegations under Section 13(1)(d)(ii) of the Prevention of Corruption Act are not made out against the applicant, hence the learned Special Judge committed error in not discharging the applicant. The applicant has been charge-sheeted under Section 13(1)(d) of the Prevention of Corruption Act. It is not a stage to express any opinion as to under which sub clause of 13(1)(d) the charges fall. The contention that the charges did not fall under Section 13(1)(d)(ii) needs no examination since the charges fall in any of sub clauses, namely, (i), (ii) or (iii) of Section 13(1)(d) of Prevention of Corruption Act. Sri Chaturvedi has also relied on the judgement of the Apex Court reported in AIR 1977 S.C. 1489; State ofKarnataka Vs. L. Muniswamy and others. The Apex Court in the said judgement had considered Section 227of the Cr.P.C. In paragraph 9 the Apex Court noted the earlier judgement in R.P. Kapur vs. the State of Punjab; AIR 1960 S.C  866, which had laid down that High Court in exercise of power under Section 561-A of the Code of 1898, cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. In paragraph 9 the said legal position as laid down in R.P. Kapur's case (supra) was not descented with. The Court, however, held in that case that the question is not whether any reliance can be placed on the veracity of this or that particular witness. The fact of the matter was that there was no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with the incident leading to the prosecution. Relevant extract of paragraph 9 of the said judgement reads as under:-

?9. Learned counsel for the State Government relies upon a decision of this Court in R.P. Kapur v. The State of Punjab, (1960)3 SCR  388: (AIR 1960 SC  866) in which it was held that in the exercise of its inherent jurisdiction under S. 561-A of the Code of 1898, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. That may be so. But in the instant case the question is not whether any reliance can be placed on the veracity of this or that particular witness. The fact of the matter is that there is no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with the incident leading to the prosecution ...................?

The above judgement does not help the applicant in any manner. The proposition as laid down by the Apex Court in the said judgement cannot be disputed.

Sri U.N. Sharma, learned Senior Advocate, appearing for Dr. Mahesh Sharma, has contended that in shifting of three residential plots there was only minor deviation in sector plan. He further contended that additional allotment to hospital was in public interest and offence under Section 13(1)(d)(iii) is not made out. He further contended that against Smt. Neera Yadav there being no sanction, the applicant Mahesh Sharma can also not be prosecuted. As observed above, it is not to necessary to express any opinion as to under which sub clause of Section 13(1)(d) the charges fall. The accused has been charge-sheeted under Section 13(1)(d), the charges fall in any of the sub clauses. The submission of the applicant that allotment of additional plots was in public interest, hence charge under Section 13(1)(d)(iii) is not made out, requires consideration of all facts and there is sufficient material on the record in support of the charges levelled, hence the prosecution case could not have been thrown out at this stage. The submission with regard to sanction will be shortly dealt with.

Sri V.P. Srivastava appearing for Ashok Chaturvedi has repeated the submission that there is no evidence to establish criminal conspiracy and the Special Judge committed error in refusing discharge of the applicant. Reliance has been placed by Sri Srivastava on judgements of the Apex Court in State of Karnataka Vs. L. Muniswami and others (supra) and AIR 1980 S.C. 52; Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others.  The relevant position as laid down in State of Karnataka's case (supra) has already been noted above which needs no repetition. The judgement in Superintendent & Remembrancer's case (supra) the Apex Court held that at the stage of framing the charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the Investigating Police Officer. The standard test, proof and judgement which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 of Cr.P.C.

The Special Judge in its separate orders dated 27th April, 2004 passed in four sets of cases, has considered in detail the materials collected by the prosecution during investigation which includes the statements recorded of various offices and employees of the NOIDA and other witnesses. The Special Judge after consideration of the charge-sheets, case diary and other materials was prima facie satisfied that there are no grounds not to proceed with the prosecution. The examination by Special Judge at the stage of Section 227 is in accordance with the proposition and test as laid down by the Apex Court in several judgments. No error has been committed by the Special Judge in coming to the finding that it is not a case in which the prosecution be thrown out at this stage. The Special Judge was satisfied that there is sufficient materials in support of the allegations made against the accused. I am in full agreement with the opinion expressed by Hon'ble the Chief Justice while discussing this part of the judgement and I am of the same view that no case was made out to discharge the applicants at that stage.

Now the legal submission raised by Sri Mishra with regard to want of sanction under Section 197 of Cr.P.C. is to be considered. The contention of Sri Mishra is that despite sanction under Section 19 of the Prevention of Corruption Act, 1988, sanction under Section 197 of Cr.P.C. is also necessary. He further submitted that, in fact, C.B.I. has made a request to the State Government for granting sanction which sanction was refused by the State Government. He further submitted that no sanction having been granted by the State Government, the applicants cannot be prosecuted. The question thus to be considered is as to whether for prosecution of the applicants apart from sanction under Section 19 of the Prevention of Corruption Act, sanction under Section 197 of Cr.P.C. is also necessary.

Before proceeding to examine further the submission, it is necessary to dispose of the preliminary argument raised by Sri G.S. Hajela, learned counsel appearing for C.B.I. Sri Hajela submitted that Smt. Yadav at the relevant time was posted in the NOIDA which is a separate authority and not the State Government. He submitted that applicant, in fact, is not even public servant who can claim any protection under Section 197 of Cr.P.C. Reliance has been placed by Sri Hajela on the judgement of the Apex Court in Mohd. Hadi Raja's case (supra). The Apex Court in the said judgement was considering a case with regard to prosecution of the officer of the public undertakings and the Government companies. It was laid down by the Apex Court that the officials of the Government Companies and public undertakings even falling within the definition of the State under Article 12 of the Constitution are not entitled for protection under Section 197 of Cr.P.C. It is relevant to note that in the same very judgement the Apex Court stated in paragraph 25 that whenever there was a felt need to include other functionaries within the definition of public servant, they have been declared to be public servants under several special and local acts. Paragraph 25 of the said judgement is extracted below:-

?25. It will be appropriate to notice that whenever there was a felt need to include other functionaries within the definition of ?public servant?, they have been declared to be ?public servants? under several special and local acts. If the legislature had intended to include officers of an instrumentality or agency for bringing such officers under the protective umbrella of Section 197 CrPC, it would have done so expressly.?

The NOIDA has been constituted under Uttar Pradesh Industrial Area Development Act, 1976. Smt. Yadav was Chairman-cum-Chief Executive Officer of the said Authority constituted under Section 3. Section 12 of Uttar Pradesh Industrial Area Development Act, 1976 provides that provisions of Chapter VII and Sections 30, 32, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 53 and 58 of the Uttar Pradesh Urban Planning and Development Act, 1973, as re-enacted and modified by the Uttar Pradesh President's Act (Re-enactment with Modifications) Act, 1974, shall mutatis mutandis apply to the Authority. Section 47 of the Uttar Pradesh Urban Planning and Development Act, 1973 provides as under:-

?47. Members and Officers to be public servants.- Every member and every officer and other employee of the Authority shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.?

The applicant by virtue of statutory provision, i.e., Section 12 of the Uttar Pradesh Industrial Area Development Act, 1976 read with Section 47 of the U.P. Urban Planning and Development Act, 1973 is public servant. Thus the submission of Sri Hajela cannot be accepted that the applicant is not a public servant. The case is fully covered by paragraph 25 of the judgement in Mohd. Hadi Raja's case (supra) which has been extracted above.

For appreciating the submission raised by Sri Mishra regarding sanction, it is relevant to note the relevant provisions. Section 197 of Cr.P.C. as existed in the old Code has been carried also in the new Code 1973 with little change. Section 197 of the Cr.P.C. is extracted below:-

?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 discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(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 affairs of a State, of the State Government;

[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.]

........................?

One more provision to be noted from the Cr.P.C. is Section 2(n) which defines ?offence?, which is extracted below:-

?2(n). ?offence? means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1872 (1 of 1871);?

Prior to Prevention of Corruption Act, 1988, the law pertaining the prevention of corruption was contained in the Prevention of Corruption Act, 1947. Similar provisions existed in 1947 Act in Section 6 which is extracted below:-

?6. Previous sanction necessary for prosecution.(1) No court shall take cognizance of an offence punishable under Sec. 161 or Sec. 164 or Sec. 165 of the Indian Penal Code (45 of 1860) or under sub-section (2) [or sub-section (3)] of Sec. 5 of this Act, alleged to have been committed by a public servant except with the previous sanction-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government.

(c) in the case of any other person, of the authority competent to remove him from his office.?

Section 19 of the Prevention of Corruption Act, 1988 is to the following effect:-

?19 Previous sanction necessary for prosecution.-(1) No Court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.?

Before proceeding to examine the statutory scheme, it is relevant to note some statutory principles for interpretation. The most firmly established rule of construction of statute is the rule laid down by Lord Coke in Heydon's case (1584)3 Co Rep 7a : 76 ER 637, which case has attained the status of classic in the statutory interpretation. The rule which is also known as ?purposive construction? or ?mischief rule? enables consideration of four matters in construing an Act, they are; (i) what was the common law before the making of the Act; (ii) what was the mischief and defect for which the common law did not provide; (iii) what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth; and the true reason of the remedy. The said rules of interpretation were approved in AIR 1955 SC  661; Bengal Immunity Co. Ltd. Vs. State of Bihar and others. The relevant observations in the said judgment are quoted below:-

?(22). It is a sound rule of construction of a statute firmly established in England as far back as 1584 when ? 'Heydon's case', (1584) 3 Co  Rep 7a (V) was decided that -

?......... for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

1st. What was the common law before the making of the Act,

2nd What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and

4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro privato commodo', and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, 'pro bono publico'?

One more general principle of statutory interpretation is that when alternate constructions are open, a statute should be so construed as to give effect to its object or policy. The Court, to the extent language permit, will be slow to adopt such a construction which may lead to defeating the object of the statute.

Now the object of the provisions of Prevention of Corruption Act, 1947 is required to be noted. The Prevention of Corruption Act, 1947 was enacted to make more effective provision for the prevention of bribery and corruption. The purposes and object of the Act was to purify the public administration. It is useful to refer the Constitutional Bench judgment of the Apex Court in context of Prevention of Corruption Act, 1947 reported in 1984 SCC (Crl) 172; R.S,. Nayak Vs. A.R. Antulay. Following was laid down in paragraph 18 of the said judgment:-

?18. Re. (a) : The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. ........?

In the present case we are concerned with the relevant provisions requiring sanction for prosecution of a public servant. The object underlying such provision was to save the public servant from the harassment on frivolous charges. Section 197 of the Cr.P.C. provides that when any person who is or was a Judge or Magistrate or a public servant 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. The object of sanction has been explained in a recent judgment by the Apex Court reported in (2004)2 S.C.C. 349; State of H.P. Vs. M.P. Gupta. Following was laid down by the Apex Court in paragraph 8 of the said judgment:-

?8. 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 the 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 of 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 official 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. ..................?

The provisions of sanction is also contained in Section 19 of Prevention of Corruption Act, 1988. For construing the provisions of sanction as contained in Section 197 of Cr.P.C. and Section 19 of the Prevention of Corruption Act, 1988, it is useful to note some noticeable difference in the scheme of sanction as contained in these two statutes. Following are the noticeable difference between these two statutes:-

The provisions of sanction under Section 197 of the Old Code has been retained under Section 197 of the Cr.P.C., 1973 with one noticeable change. The earlier provisions under Section 197 was available to a public servant who was continuing as public servant which provision has been changed extending the protection to a public servant who may be continuing as public servant or may have retired. Between the words ?who is? and ?a Judge or Magistrate?, the words ?or was? has been added in the new Cr.P.C. Thus the protection under Section 197 of Cr.P.C.  to a public servant is available even though he have retired from service. To the contrary, Section 19 of Prevention of Corruption Act, 1988 does not extend the benefit to a retired public servant. Sanction under Section 19 is required only with regard to a public servant who is continuing as such. This has been recently reiterated by the Apex Court in 1998(6) S.C.C. 411; Kali Charan Mahapatra Vs. State of Orissa. In paragraph 10 of the judgment the Apex Court noted the Section 19 and earlier Section 6 of the Prevention of Corruption Act, 1988 and following the earlier judgments of the Apex Court held that no sanction is required to prosecute a public servant after retirement under Section 19 of the Prevention of Corruption Act. Paragraph 10 of the said judgment is extracted below:-

"10.   Section 19(1) of the Act is in pari materia with Section 6(1) of the preceding enactment, i.e., the Prevention of Corruption Act, 1947 ( the old Act). When a similar contention was raised before a three -Judge Bench of this Court regarding Section 6 of the old Act in S.A. Venkataraman v. State  (AIR 1958 SC 107)  that contention  was repelled. It was held thus :

"The words in Section 6 (1)  of the Act are clear enough and they must be given effect to.  There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before  a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed.  It was suggested  that clause (c) in Section 6(1) refers to persons other than those  mentioned in clause (a) and (b).  The words ' is employed' are absent in this clause  which would , therefore, apply to a person who had ceased to be a public servant though he was so at the time of the commission of the offence . Clause (c) cannot be construed in this way.  The expression " in the case of a person' and in the case of any other person' must refer to a public servant  having regard  to the first paragraph of the sub-section.  Clauses  (a) and (b) , therefore,  would cover the case of a public servant who is employed in connection with the affairs of the Union or a State and is  not removable from his office save by or with the sanction of the Central Government or the State Government and clause (c) would cover the case of any other public servant whom a competent authority could remove from his office.  The more important words in clause (c) are ' of  the authority competent to remove him from his office'. ?

The  same view was adopted by another three Judge Bench in C.R. Bansi v. State of Maharastra (1977)3 SCC 537.  This was  followed in State of W.B.  v. Manumal Bhutoria (1977)3 SCC 440.  The Constutition Bench in K. Veeraswami  v. Union of India (1991) 3 SCC 655 upheld l the view that n o sanction is required to prosecute a public servant after retirement."

Thus the first difference which is apparent under Section 19 with that of 197 of Cr.P.C.  is that Section 19 does not give protection to a retired public servant.

The second most important difference between the scheme of Section 197 of Cr.P.C. and Section 19 of Prevention of Corruption Act, 1988 is with regard to sanctioning authority. Section 197(1) of Cr.P.C. has two clause, namely, (a) and (b). Under clause (a) sanctioning authority 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, is the Central Government. Under clause (b) previous sanctioning authority 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 State, is the State Government. Thus the scheme under Section 197 spelt out that sanctioning authority will be the authority with whom the public servant was employed at the time of alleged committal of offence. This scheme of sanctioning authority has gone substantial change in Section 19 of the Prevention of Corruption Act. Section 19(1) of the Prevention of Corruption Act now contains three clauses, namely, (a) (b) and (c). Section 19(1)(a) provides that in case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government and clause (b) provides that in case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government. Thus under Section 197 of the Cr.P.C. the sanctioning authority was the authority with whom a public servant was employed. Now clause (a) of Section 19 provides for another condition, i.e., who is employed in connection with the affairs of Union and not removable from his office save by or with the sanction of Central Government, meaning thereby that the person who is working with a particular Government must also be removable by that Government only then that authority will be the sanctioning authority. Clause (c) provides that in case of any other person authority competent to remove him from his office. Thus taking illustration of Smt. Neera Yadav, admittedly, she belongs to all India cadre, i.e., Indian Administrative Service, whose appointing authority is the Central Government. At the relevant time she was working at NOIDA, i.e., in connection with the affairs of the of the State and according to Section 197(1)(b) of Cr.P.C. her sanctioning authority will be the State Government but the position is changed under Section 19. Under Section 19, for applicability of clause (a) or (b), both the conditions should be fulfilled, i.e., working with the affairs of the Union or State and removable from his office by the said Government. Smt. Neera Yadav who was working with the affairs of the State Government is not removable by the State Government, hence her case will neither fall in Section 19(1)(a) nor in 19(1)(b) but fall in 19(1)(c).  The change in the scheme with regard to sanctioning authority is to make that authority as sanctioning authority who is competent to remove the public servant from service. This concept is further re-enforced in view of the specific provisions of Section 19(2) which provides that where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office.

The above differences with regard to sanctioning authority have been explained and noticed by the Apex Court in A.I.R. 1962 SC  1573 (V 49 C 228); R.R. Chari vs. State of Uttar Pradesh. The Apex Court in the said judgment has held that position regarding sanctioning authority under Section 6 of Prevention of Corruption Act, 1947 is substantially different as compared to Section 197 of Cr.P.C. In the said case the employee was employee of the Assam Government and his services were lent to the Union of India and at the relevant time he was posted at Kanpur. The prosecution under Section 6 was initiated on the sanction granted by the Central Government. The Apex Court held that since he was not removable by the Central Government being employee of the Assam Government, Central Government was not the sanctioning authority. After considering the scheme under Section 197 of Cr.P.C. and Section 6 of the Prevention of Corruption Act, 1947, which is pari materia to Section 19 of the Prevention of Corruption Act, 1988, following was laid down in paragraph 21:-

"21.  It would be noticed that the scheme of this section is different  from that of S. 197 of the Code of Criminal Procedure .  The requirement  of the first part of S. 197(1) which constitute s a sort of preamble  to the provisions of S. 197(1) (a) and (b) respectively, has been introduced by S. 6 severally in Cls. (a) and (b) .  In other words, under Cls. (a) and (b) of S. 197(1) the authority competent to grant the sanction is determined only by reference to one test and that is  the test provided  by " the affairs in connection with which the public servant is employed"; if the said affairs are the affairs of the Federation, the Governor-General grants  the sanction; if the said affairs are the affairs of a Province, the Governor grants the sanction.    That is the position under S. 197 (1) as it then stood.  The position under   6 of the Prevention of Corruption Act is substantially different.  Clauses (a) and (b) of this Section deal with persons permanently employed in connection with the affairs of the Federation or in connection with the affairs of the Province respectively, and in regard to them, the  appropriate authorises are the Central Government  and the Provincial Government.  The case of a public servant whose services are loaned by one Government to the other , does not fall either under Cl. (a) or under cl. (b), but it falls under cl. (c). Having regard to the scheme of the three clauses of S. 6, it is difficult to construe the word " employed" in cls (a) and (b) as meaning  "employed for the time  being".  The said words, in the context  must mean "permanently employed".  It is not disputed that if the services of a public servant permanently employed by a   Provincial Government are loaned to the Central Govt., the authority to remove such public servant from office would not be the borrowing  Government but the loaning Government  which is the Provincial Government and so, thee can be no doubt that the employment referred to in cls. (a) and (b) must mean the employment of a permanent character and would not include the ad hoc or temporary employment of an officer whose services have been loaned by one Government to the other.  Therefore,  the appellant's case  for the purposes of sanction  under S. 6 will fail under cl. (c) and that inevitably means that it is only the Provincial Government of Assam which could have given a valid sanction under S. 6.  At the relevant time S. 6 had come into operation and S. 6 expressly bars the cognizance of the offences under S. 161 unless a valid sanction had been obtained as required by it.  Therefore, in the absence of a valid sanction, the charge against the appellant under S. 161 and S. 165 could not have been tried and that renders the proceedings against the appellant in respect of two charges without jurisdiction.?

Thus the above shift and change in the statutory scheme under Section 19 shows that the legislature has leaned in favour of the sanctioning authority who have the power to remove the public servant. The said has been done purposely with an object to be achieved. A servant belonging to a particular Government when faces prosecution, it is in the public interest that the Government who has power to remove should be approached for sanction and should be aware of the conduct of the said public servant. The sanctioning authority may after coming to know about the prosecution of its servant may take appropriate measure and apply its mind for grant of sanction to the facts of a particular case. Thus the departure from the scheme of sanction has been consciously made under Section 19 with a purpose and object. The Apex Court in R.S. Nayak's case (supra) had noted the object and purpose of conferring power of sanction to an authority who has power to remove a servant. Following observations were made in paragraph 23:-

?23. ............... The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant.......?

The third noticeable difference between the scheme of Section 197 of Cr.P.C. and Section 19 of the Prevention of Corruption Act is, under Section 197 protection is available to a public servant when he is accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. Under the scheme of Section 19 the acts and omission of public servant may have been committed while acting or purporting to act in discharge of official duty or may not, be so. The scheme of the offences which have been incorporated in Section 7 to 11 and 13, make it clear that for offence under Prevention of Corruption Act, 1988, it is not necessary that the public servant may be acting or purporting to  act in discharge of his official duty. This is clarified by the provisions themselves. For example, taking Section 7 of the Prevention of Corruption Act which provide that whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration as a motive or reward for doing or forbearing to do any official function...... shall be punishable with imprisonment..... Thus the offence under Section 7 can be made against a person who is even excepting to be a public servant. This clearly shows that it is not necessary that action be in discharge of the official duty. The scheme of offence as mentioned in other provisions is also to the same effect.

The fourth difference between the scheme of the said sections is that protection under Section 197 is available to a Government servant who is removable by the Government. Now the scheme of Section 19 makes protection available to all category of Government servant who are removable by the Government or any other appointing authority. This is a departure from the scheme of sanction under Section 197 of Cr.P.C.

Now the other provisions of Prevention of Corruption Act, 1988 are to be looked into to find out the intention of the Act. Section 3 of Prevention of Corruption Act provides Central Government or the State Government may, by notification, appoint Special Judges for offences punishable under the Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). Section 3 is extracted below:-

?3. Power to appoint special Judges.-(1) The Central Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:-

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

(2) A personal shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).?

Section 5 of the Prevention of Corruption Act provides for procedure and powers of special Judge. The most important provisions are in Sections 5(3) and 5(4) which are extracted below:-

?5. Procedure and powers of special Judge.-(1) .....

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

(3). Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.?

(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.?

Sub-section (4) of Section 5  again provides that without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to the proceedings before a special Judge. Section 19 itself contains provisions, i.e., in Section 19(3) which provides that notwithstanding anything contained in the Cr.P.C., no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irrgularity in, the sanction required under sub-section (1).  A perusal of the aforesaid section makes it clear that Cr.P.C. has been made applicable subject to certain express provision laid down in the Act as well as the general provision contained in Section 5(3). The scheme of the Act delinate that in several places procedure of Cr.P.C. has been specifically overridden but those provisions which provides for departure from procedure of Cr.P.C. are not exhaustive and general provision under Section 5(3) providing that provisions of Cr.P.C. shall, so far as they are not in consistent with this Act, apply.  Section 5(4) unequivocally states that provisions of Section 5(3) is a general provision which states that provisions of Code of Criminal Procedure so far as they are not inconsistent with this Act apply to the proceedings before the special Judge. Section 5(4) declares the above provision in Section 5(3) as general provision which re-enforces the interpretation that the instances given in Prevention of Corruption Act, 1988 expressing overriding provision of Cr.P.C. are not exhaustive and are only few instances. Section 19(3) is also one of the specific instance given in which Code of Criminal Procedure was overridden. Thus inconsistency in the special Act with regard to Code of Criminal Procedure is not provided of all eventualities or possibilities and provisions of the special Act and Cr.P.C. have to be looked into to find out the inconsistency. The sanction with regard to offences under Prevention of Corruption Act, 1988 has been specifically provided under Section 19, thus the provisions of sanction in Section 197 of Cr.P.C. covering the offence encompassed under Prevention of Corruption Act, 1988 has to give way to the provisions under the Prevention of Corruption Act, 1988.

The Cr.P.C. is a general law and the Prevention of Corruption Act is a special law. The maxim ?Generalibus specialia derogant? is fully attracted in the present case. It is useful to refer a Supreme Court judgment in which the repugnancy of Cotton Textiles (Control of Movement) Order, 1948 with Essential Supplies (Temporary Powers), Act 1946 was considered. In A.I.R. 1954 S.C. 465 (Vol. 41 C.N. 112); Harishankar Bagla and another vs. The State of Madhya Pradesh, following was laid down in paragraph 12:-

?12. ................... In our opinion the construction placed on Section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of Section 6 certainly is not to repeal any one of those laws or abrogate them. Its object is simply to bye-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder.......?

Section 4(1) of the Prevention of Corruption Act, 1988 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force the offences specified in sub-section (1) of Section 3 shall be tried by special Judges only. Section 19 prohibits the Special Judge to take cognizance of the offences punishable under Sections 7, 10, 11, 13 and 15 except with the previous sanction under the 1988 Act. Prohibiting to take cognizance of the offences as mentioned in above sections unless sanction is also required under Section 197 of Cr.P.C. for cognizance as enumerated cannot be read. While proceeding under the Prevention of Corruption Act sanction under Section 19 is sufficient to take cognizance of any offence.

At this stage it is also relevant to note that it is the choice of the prosecution as to for which offence the person is prosecuted if the act make out offence under more than one statute.  Section 26 of the General Clauses Act provides as under:-

?26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.?

The above proposition has also been laid down in 1967 S.C. 1701; Chandrika   Vs. State of Bihar.

The Apex Court had occasion to consider the scheme of sanction under Section 197 of Cr.P.C. as well as under Section 19 of Prevention of Corruption Act, 1988 in Kailcharan Mahapatra's case, 1998 (6) S.C.C. 411. Kali Charan Mahapatra was an I.P.S. Officer. A raid was conducted at his residence when he was still in service. A case against him was registered on 13.12.1990. During investigation he retired. A charge-sheet was submitted on 30.9.1992 against Kalicharan under Section 13(2) read with Section 13(1)(e). The prosecution was challenged and objection was raised before the Special Judge which was dismissed. Kalicharan moved to the High Court under Section 482 of Cr.P.C. to get the prosecution quashed which was dismissed. The matter went to the Apex Court. The contention raised before the Apex Court was that since Section 197 requires sanction for prosecution of public servant who may have retired, no prosecution can proceed against the appellant without taking any sanction. The Apex Court repelled his submission and made following observations in paragraph 13:-

?13. It must be remembered that in spite of bringing such a significant change to Section 1997 of the Code in 1973, Parliament was circumspect enough not to change the wording in Section 19 of the Act which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the Code concerns a public servant who ?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?, whereas the offences contemplated in PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code.?

In another case the Apex Court had occasion to consider the said aspect of the matter which is reported in (1999)5 S.C.C. 690; State of Kerala Vs. V. Padmanabhan Nair. In the said case the appellant had retired as Superintending Engineer, P.W.D. After retirement he was arrayed as one of the accused for the offence under Sections5(2) of the Prevention of Corruption Act, 1947 and Sections 406, 409, 201 read with Sections 120-B and 109 of the I.P.C. Learned Single Judge of the High Court of Kerala quashed the criminal proceedings. The State of Kerala appealed against the said Judgment. Before the special Judge objection was raised by the appellant that without sanction under Section 197 of Cr.P.C. the prosecution cannot proceed. The Special Judge overruled the objection by making following observation, which are quoted below:-

?there is no necessity at all to obtain a sanction under Section 197 of the Code to proceed against the petitioner under the provisions of the PC Act, 1947.?

The Apex Court held in paragraph 6 of the said judgment as under:-

?6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings in so far as they related to offences under the PC Act.?

From foregoing discussions and the law laid down by the Apex Court, as noted above, the intention of the legislature clearly decipherable is that provisions of sanction given under Section 19 of 1988 Act covering the offences covered under the 1988 Act shall override the similar provision of sanction contained in Section 197 of Cr.P.C.  According to generality of the provision as contained in Section 5(3) of the Prevention of Corruption Act, the provisions of Section 197 of Cr.P.C. in so far as offence under Prevention of Corruption Act, 1988 are concerned will be inconsistent to Section 19 of the Prevention of Corruption Act, 1988 and provisions of Section 197 of Cr.P.C. in so far as sanction of the offences under 1988 Act is concerned shall give way to the provisions of the special Act. Further, as noted above, there is marked difference in the scheme of sanction as contained under Section 19 of 1988 Act compared to scheme of sanction under Section 197 of Cr.P.C. Under Section 19 the legislature has empowered the authority who is competent to remove the public servant the power of sanction. In case the submission is accepted that even after sanction under Section 19 of 1988 Act, additional/double sanction under Section 197 of Cr.P.C. has also to be obtained, the very purpose of Section 19 and the legislative intent shall be defeated. When the sanctioning authority has purposely and consciously changed the scheme of sanction under Section 19, sanction under Section 197 of Cr.P.C. will defeat the object and purpose of Section 19 and such an interpretation will destroy the very purpose and object of the special Act. Applying the rule of interpretation as noted above, the provisions of special Act has to be given effect and additional/double sanction under Section 197 of Cr.P.C. is neither necessary nor contemplated according to the scope and object of the special Act. The marked differences noted between the provisions of Section 19 of 1998 Act and Section 197 of Cr.P.C. also indicate that the scheme and purpose of Section 197 of Cr.P.C. has been consciously changed by legislature and requirement of additional sanction or double sanction under Section 197 of Cr.P.C. shall make the provisions of Section 19 redundant. Thus, it is held that for offences covered under Prevention of Corruption Act, 1988 sanction under Section 19 is sufficient and no further sanction is required under Section 197 of Cr.P.C. In a given case when apart from offence covered under 1988 Act there are other offences distinct and separate from offences under 1988 Act sanction may be required under Section 197 of Cr.P.C. but in the present case the offence under which accused applicants have been charged being covered under the special Act, no further sanction under Section 197 of Cr.P.C. is required.

The scheme of Section 19, as noted above, if applied to the case of Smt. Neera Yadav, she being I.A.S. Officer, her sanctioning authority under Section 197 Cr.P.C. is State with regard to whose affairs she is working but sanctioning authority for the offence under 1988 Act is the authority who has power to remove the said public servant. If still it is insisted that for prosecution under Prevention of Corruption Act the sanction be obtained under Section 197 by the State Government, the very purpose and object for change in the scheme of sanctioning authority under Section 19 shall be defeated and the authority who is competent to remove shall be deprived in getting a public servant who is removable by the said Government prosecuted under Prevention of Corruption Act, 1988.

At this juncture it is relevant to note Section 2(n) of the Cr.P.C. which defines ?offence?. It can be contended, relying on Section 2(n) read with Section 197 that offence punishable under any statute may also require sanction under Section 197. In this case we are not concerned with any general proposition except as to whether the offence punishable under 1988 Act will require sanction under Section 197 of Cr.P.C. As noted above, the offence under Prevention of Corruption Act, 1988 are exclusively triable by the special Judge and the sanctioning authority has been  provided in Section 19 who is authority competent to remove. When special law provides for different scheme of sanctioning authority under Section 19, there is no requirement of taking sanction under Section 197 of Cr.P.C.

One more submission which has arisen in the present case needs consideration. In the case of the applicants except in one case i.e., Criminal Revision No.2283 of 2004, the applicants have been charged for the offence punishable under Section 120-B of I.P.C. along with 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. It is submitted that in view of the fact that applicants have been charged with Section 120-B of I.P.C. the sanction under Section 197 Cr.P.C. is must. For appreciating the contention, it is again necessary to come to scheme under the Prevention of Corruption Act. As noted above under Section 3(1) provides the offences which are triable by the special Judge. The said offences are as follows:-

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

Section 4 provides for cases triable exclusively by special Judges. Thus Section 3 clearly makes the offence of conspiracy to commit any offence under the Prevention of Corruption Act also triable by special Judge. When conspiracy has been expressly included in the Prevention of Corruption Act, it does not lie to contend that for the offence of criminal conspiracy under Section 120-B  of I.P.C.  sanction under Section 197 of Cr.P.C. is required. For all offence triable under Prevention of Corruption Act, the power of sanction is conferred on the competent authority under Section 19. In 1999 (39) A.C.C. 473; P. Nallammal Vs. State rep. By Inspector of Police, the Apex Court held that clause (b) of sub-section (1) of Section 3 encompasses the offences committed in conspiracy with others or by abetment of any of the offences punishable under the Prevention of Corruption Act. If such conspiracy or abetment of any of the offences punishable under the Prevention of Corruption Act can be tried only by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the public servant. Relevant observations have been made by the Apex Court in paragraphs 7, 8 and 9 which are extracted below:-

"7.    Before dealing with the contention advanced by the appellants we may point out that Section 4 of the P. C. Act confers  exclusive  jurisdiction to Special Judge appointed under the P. C. Act to try the offences specified in Section 3(1) of the P.C. Act.   To understand  the exclusivity of such jurisdiction it is advantageous to extract Section 4 (`1) of the P.C. Act as under:

"Notwithstanding anything contained  in the  Code of Criminal procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section  (1) of Section 3 shall be tried by Special Judges only,"  

8.      The placement of the monosyllable "only" in the sub section is such that the very object of the sub-section can be discerned as to emphasize the exclusivity of the jurisdiction of the Special Judge to try all the offences enveloped in Section 3(1) .  That can be further noticed while reading that sub-section. It is as follows :-

" The Central Government or the State Government may, by notification  in the Official Gazette, appoint as many Special judges as may be necessary for such area  or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely :--

(a) any offence punishable under this Act: and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a)"  

9.    Thus, clause (b) of the sub-section encompasses the offences the offences committed in conspiracy with others or by abetment of  " any of the offences" punishable under the P.C. Act.  If such conspiracy or abetment of " any  of the offences" punishable under the P. C. Act can be tried "only" by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of  trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant  to commit any offence under the P. C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the court of a Special Judge having jurisdiction in the matter."  

Thus the conspiracy to commit any offence enumerated in the Prevention  of  Corruption  Act, 1988  has  also  to  be  tried by special Judge for which sanction under Section 19 is sufficient. In the present case sanction has been granted by the Central Government under the Prevention of Corruption Act. Sanction order clearly reveals that sanction has been granted for prosecution under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act read with Section 120-B of I.P.C. The sanction having been granted for criminal conspiracy which is also an offence under Prevention of Corruption Act, mere addition of charge under 120-B of I.P.C. does not require any sanction under Section 197 of Cr.P.C.

There is one more reason for holding that sanction under Section 197 Cr.P.C., if necessary, for offence under Section 120-B of I.P.C. is not required in the present case, i.e., the act of criminal conspiracy is no part of the duty of a public servant while discharging official duty. In 1972 (3) S.C.C. 89; Harihar Prasad Vs. State of Bihar it was held that for offence under Section 120-B of Cr.P.C. sanction under Section 197 Cr.P.C. is not required. In  State of Kerala Vs. V. Padmanabhan Nair (supra) to the same effect observations were made in paragraph 7 which are extracted below:-

?That apart, the contention of the respondent that for the offence under Sections 406 and 409 read with Section 120-B of I.P.C. sanction under Section 197 of the Code is a condition precedent for launcing the prosecution is equally fallicious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli vs. State of Bombay and also Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad as follows: (SCC p. 115, para 66)

?As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is 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.?

In the facts of the present case the criminal conspiracy alleged against the applicants cannot be said to have been committed in discharge of any official function, hence the sanction is not required under Section 197 of Cr.P.C.

Now the cases cited by Sri D.S. Mishra need to be considered. Reliance has been placed upon AIR 1996 SC  901; R. Balakrishna Pillai Vs. State of Kerla and another.  In the above case prosecution was launched on two charges, one under Section 120-B of I.P.C. and second under Section 5(1)(d) and 5(2) of P.C. Act. With regard to second charge under P.C. Act, the contention was not even raised which has been noted in paragraph 2 of the judgment. The Apex Court in the said judgment observed to the following effect:-

?The second charge relate to commission of offence punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act which we are not concerned because it was not contended before us by counsel for the appellant that sanction under Section 197 of Code was required in so far as charge was concerned?

With regard to charge of criminal conspiracy on facts of that case Supreme Court held that sanction under Section 197 was required. Relevant facts and observations have been made in paragraph 7 of the said judgment which are extracted below:-

?7. In the present case, the appellant is charged with having entered into a criminal conspiracy with the co-accused while functioning as a Minister. The Criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka 'without the consent of the Government of Kerala which is an illegal act' under the provisions of the Electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules framed thereunder. The allegation is that hein pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore (Karnataka) which profited the private industry to the tune of Rs.19,58,630.40 or more and it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in the discharge of his duties as a Minister. The allegation is that it was an illegal act inasmuch as the consent of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected. For that reason, it is said that he had committed an illegality and hence he was liable to be punished for criminal conspiracy under Section 120-B, I.P.C. It is, therefore, clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and would, therefore, attract the protection of Section 197(1) of the Act.?

In the said judgment the sanction with regard to offence under Section 120-B was found necessary on the facts of that case. The Apex Court noted earlier judgments of the Apex Court and observed that there cannot be any general proposition with regard to not taking sanction for offence under Section 120-B and it depends on facts of each case. As observed above, I am satisfied that criminal conspiracy alleged against the accused in the present case cannot be said to have been committed in discharge of any official duty.

Sri Mishra has further placed reliance on the judgment of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat; 1997 SCC (Crl) 1120. In the above case the Apex Court examined the requirement of sanction under Section 6 of the Prevention of Corruption Act, 1947. The Apex Court held that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which afford protection to government servants against frivolous prosecutions. In the present case sanction has been granted by the Central Government under Section 19 after due consideration of matter. This judgment does not help the applicant in any manner. Another case relied by Sri Mishra is 2001 SCC (Crl.) 18; Abdul Wahab Ansari Vs. State of Bihar in which case the Apex Court held that plea regarding sanction can be raised at any stage and it need not be raised only when Court reaches the stage of framing the charge. The Court further held that since offence was committed during discharge of official duty, hence sanction under Section 197 of Cr.P.C. was must. The above case also does not help the applicant in the present case. Reliance has also been placed by Sri Mishra upon 2001 A.Cr.R. 7 (L.B.); Ravindra Kumar Sharma, I.A.S. Vs. State through C.B.I. and another. In the said case Ravindra Kumar Sharma, the applicant, was sought to be prosecuted under Section 120-B, 420, 467, 468, 471, 420/511, I.P.C.  and Sections 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The Central Government who was the sanctioning authority under the Prevention of Corruption Act had refused to grant sanction. The State Government had also refused to grant sanction with regard to offence under Indian Penal Code vide order dated 26.2.1997. Subsequently on review, the State Government granted sanction on 29.5.1997. Learned single Judge held the review order as unsustainable and quashed the same.  In consequence of the judgment of the learned single Judge there was no sanction for proceeding under the Prevention of Corruption Act, 1988, hence the entire prosecution before the Special Judge, Anti Corruption was quashed. Relevant observations have been made in paragraph 19 of the judgment which do support the view which I have taken in the present case. Relevant observations made in paragraph 19 of the said judgment are extracted below:-

"19. Tested on the touchstone of the above mentioned four principles based on the case laws cited above, I find that the Special Judge  has no jurisdiction to try the present case because admittedly there is no sanction for prosecution of the applicant under the Prevention of Corruption Act.  He cannot even try the applicant for the allied offences of the Indian Penal Code on the pretext  that he has jurisdiction to try for such offences under the Criminal Law Amendment Act.  The Special judge  would have jurisdiction to try for the allied offences  under the Indian Penal Code only if there had been a valid sanction for prosecution under the Prevention of Corruption Act.  In the present case, as admittedly there is no sanction for prosecution of the applicant under the Prevention of Corruption Act, the Special Judge has no jurisdiction to try the applicant for the allied offences under the Indian Penal  Code.  Therefore, the order dated 29.9.1998 passed by the Special Judge, Anti Corruption (West) U.P., Lucknow, in the present case is bad in the eye of law and is liable to be set aside."

In the above case it has been observed that Special Judge would have jurisdiction to try for the allied offences under the Indian Penal Code only if there had been valid sanction for prosecution under the Prevention of Corruption Act. The observation do support that under the  Prevention of Corruption Act the allied offences could have also been gone into  if there is a valid sanction.  In the present case,  there being valid sanction under Section 19 of 1988 Act, the Special Judge has jurisdiction to try for the offence under Section 120-B of the Indian Penal Code  which is an offence covered under Section 3 of the Prevention of Corruption Act.

In view of the foregoing discussion it is held that in the present case prosecution for the offence under Section 13 (1) (d) read with Section 13(2) of  the Prevention of Corruption Act /120 B of the Indian Penal Code is not vitiated for want of any  sanction under Section 197 of Cr.P.C.  After the sanction granted under Section 19 of the  Prevention of Corruption Act the accused can be prosecuted by the Special Judge under the Prevention of Corruption Act. The Special Judge has not committed any error in rejecting the application for quashing the prosecution for want of sanction under Section 197 of the Criminal Procedure Code.   There is no error in exercising the  jurisdiction by the Special Judge to try case.  The prosecution of the applicant on the strength of the charge sheet dated 22.11.2002 cannot be said to be an abuse of process of the court.  No case is made out for exercise of inherent jurisdiction of this Court under Section 482 of Cr.P.C.

In the result, in my opinion, all the criminal revisions and criminal miscellaneous applications deserve to be dismissed.

Dated 28.11.2005.

Rakesh/SCS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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