Dismissed

Laljit Prasad Sinha v. The State Of Jharkhand Through Anti Corruption Bureau Vigilance

Jharkhand HC11 Dec 2019Cr.M.P./60/2018

Case brief

AI extract

What is this about?

Single judge quashed a direction to quash criminal proceedings. The court held that because the petitioner's alleged misconduct (sheltering mafias, false evidence) did not involve discharge of official duty, Section 197 Cr.P.C protection did not apply, and retirement did not bar IPC prosecution for these specific charges.

What did the court decide?

Petition for quashing the order taking cognizance is dismissed. The question of sanction regarding official duty will be open for consideration during the trial.

Laljit Prasad Sinha Vs The State Of Jharkhand Through… — Quashing and FIR | Jharkhand HC (2019)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶2

Cr. M.P. No.60 of 2018

¶3

Laljit Prasad Sinha, son of late Kailash Prasad Sinha, resident of Ttrawan, P.O. & P.S. Manpur, District Nalanda, Bihar

¶4

… … Petitioner

¶5

Versus

¶6

The State of Jharkhand through Anti-Corruption Bureau … (Vigilance) … Opposite Party

¶7

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

¶8

For the Petitioner : Mrs. J. Mazumdar, Adv. : Mr. Kumar Basant, Adv.

¶9

For the Opposite Party : None

¶10

¶11

07/11.12.2019 Heard Mrs. J. Mazumdar, learned counsel appearing on behalf of the petitioner along with Mr. Kumar Basant, Advocate.

¶12

2. Nobody appears on behalf of the opposite party.

¶13

3. This petition has been filed for the following relief:

¶14

“For quashing the entire criminal proceeding including the order dated 21.11.2017 passed in connection with in connection with vigilance case no.69 of 2016 corresponding to vigilance P.S. Case No.65 of 2016 by learned Special Judge (ACB), Ranchi, whereby and whereunder cognizance of the offences punishable under Section 409 of the Indian Penal Code and Sections 13(1) (d) r/w and 13(2) of the Prevention of Corruption Act, 1988 has been taken against the petitioner, now pending in the court of learned Special Judge (A.C.B), Ranchi.”

¶15

4. The only ground which has been raised by the learned counsel for the petitioner during his arguments to challenge the order taking cognizance dated 21.11.2017 is that there is no sanction for prosecution against the petitioner for the alleged offence. The learned counsel for the petitioner submits that the cognizance has been taken under the provisions of Indian Penal Code, 1860 as well as the provisions of Prevention of Corruption Act, 1988 and the learned court below has taken cognizance by indicating that since the petitioner has retired,

¶16

¶17

therefore, no sanction for prosecution is required. The learned counsel further refers to judgment passed by Hon’ble Supreme Court reported in (2014) 16 SCC 807 State of Punjab Vs. Labh Singh to submit that it has been held by the Hon’ble Supreme Court that so far as Prevention of Corruption Act, 1988 is concerned, sanction may not be required once a public servant retires from service, but so far as Indian Penal Code is concerned, sanction for prosecution would be required even after retirement. Accordingly, she submits that cognizance which has been taken against the petitioner under Section 409 of Indian Penal code is fit to be quashed and set aside in absence of prosecution sanction. The learned counsel for the petitioner has also relied upon judgment passed by Hon’ble Supreme Court reported in ( 2016) 8 SCC 722 Surinderjit Singh Mand and Another Vs. State of Punjab and Another to submit that even in cases where a person is to be made an accused under Section 319 Cr.P.C, sanction for prosecution is a condition precedent for taking cognizance of offence against such person. She refers to para 30 and 31 of the said judgment.

¶18

5. After hearing the learned counsel for the petitioner and upon perusal of the F.I.R., this Court finds that the F.I.R was instituted on the basis of written report given by the Inspector of Police, Anti-Corruption Bureau, Ranchi, alleging that the petitioner during his posting as Ranger of Forest, East Range, Ranchi, had given shelter to the various forest mafiya and caused illegal harvesting of several forest wood and even after receipt of complaint of the villagers, he did not take any action against them. It is further alleged that 6 trucks unauthorized loaded with such wood were apprehended and in this regard Forest Case No.59 of 2012 and Forest Case No.73 of 2012 were lodged in which the petitioner had signed but subsequently made some over writing and gave shelter to the theft of forest wood. It is also alleged that the petitioner was given power of

¶19

¶20

Magistrate along with force and vehicle facility to stop theft of forest wood, but he did nothing during his period of posting from 26.09.2012 to 26.07.2013. It is also alleged that on 03.06.2009, a raid was conducted in Sarita Saw Mill and unauthorized wood were seized and license of Sarita Saw Mill was cancelled but in such case, the petitioner deposed falsely and gave false evidence in court in favour of said Sarita Saw Mill and when explanation was asked from him, he gave another evidence in court. It is also alleged that the villagers had also confirmed the fact that the petitioner was involved in the crime of theft of forest wood.

¶21

6. Considering the nature of allegation levelled against the petitioner, this Court is of the considered view, at this stage, that said allegations cannot be said to be done in discharge of official duty and accordingly protection under Section 197 of the Indian Penal Code would not be available to the petitioner. In such circumstances, this Court is not inclined to quash the order taking cognizance on the sole ground which has been raised by the petitioner i.e., absence of sanction for prosecution under Section 197 of Cr.P.C in view of the judgment passed by the Hon’ble Supreme Court which has been decided on 05.12.2019 in Criminal Appeal No.1837 of 2019 in the case of Station House Officer, CBI/ACB/Bangalore Vs. B.A Srinivasan and Another. Considering the nature of allegations, this Court prima facie finds that the allegations against the petitioner reflects abuse of his official position for the commission of alleged offence. Thus, the impugned order taking cognizance does not call for any interference by this Court.

¶22

7. The learned counsel for the petitioner has relied upon a judgment passed by the Hon’ble Supreme Court reported in ( 2014) 7 SCC 215 Rishipal Singh Vs. State of Uttar Pradesh and Another, para 16 to 18, which are quoted herein below for ready reference:

¶23

¶24

“16. If we look at the complaint and the letter addressed by the complainant to the Branch Manager, the entire grievance of the complainant appears to be that based on the written information which had been given to the appellant on 17-5-2004, when the stolen cheque was presented, he should have given a complaint to the police. As the appellant has not chosen to give the complaint to the police, according to the complainant the other accused hatched a conspiracy with the appellant Branch Manager and accordingly cheated him.

¶25

17. It is no doubt true that the courts have to be very careful while exercising the power under Section 482 Cr.P.C. At the same time we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. A clear reading of the complaint does not make out any offence against the appellant Branch Manager, much less the offences alleged under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC. We are of the view that even assuming that the Branch Manager has violated the instructions in the complaint in letter and spirit, it all amounts to negligence in discharging official work, at the maximum it can be said that it is dereliction of duty.

¶26

18. In view of our above discussion, we have come to an irresistible conclusion that continuation of the criminal proceedings against the appellant for commission of the alleged offence under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC is a pure abuse of process of law and the complaint case deserves to be quashed in the interest of justice.”

¶27

8. Upon perusal of the judgment passed by Hon’ble Supreme Court which is reported in ( 2014) 7 SCC 215 Rishipal Singh Vs. State of Uttar Pradesh and Another, this Court finds that the said judgment does not apply to the facts and circumstances of this case. In the said judgement, the Hon’ble Supreme Court found that the action/non-action on the part of

¶28

¶29

the Branch Manager of the Bank was at best amounting to negligence in discharging of his official work and at the maximum, it could be said that it was dereliction of duty and reading of the complaint did not make out any criminal case against the accused.

¶30

However, in the instant case, this Court is of the considered view that the allegations which have been levelled against the present petitioner, cannot be said to be acts/omissions in discharge of his official duty or mere negligence or simply dereliction of duty and accordingly, the judgment relied upon by the petitioner does not apply to the facts and circumstances of this case.

¶31

9. The learned counsel for the petitioner has relied upon another judgment passed by the Hon’ble Supreme Court reported in (2014) 16 SCC 807 State of Punjab Vs. Labh Singh para 9 and 10, which are quoted herein below for ready reference:

¶32

9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman Vs. State while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman was adopted by this Court in C.R. Bansi Vs. State of Maharashtra and in Kalicharan Mahapatra Vs. State of Orissa and by the Constitution

¶33

¶34

Bench of this Court in K. Veeraswami V. Union of India. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.

¶35

10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 Cr.P.C is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13-9-2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned, as laid down by this Court in State of H.P. V. Nishant Sareen, the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material.”

¶36

10. So far as the judgment reported in (2014) 16 SCC 807 (Supra) is concerned, the facts of the said case clearly indicates that the matter was placed before the concerned authority for grant of sanction for prosecution which was rejected twice and after the retirement of the accused, cognizance was taken by the court under the provisions of Prevention of Corruption Act, 1988 as well as under the provisions of Indian Penal Code. The Hon’ble Supreme Court held that so far as cognizance under the provision of Prevention of Corruption Act, 1988 is concerned, if the incumbent has retired from service and after his retirement, the court is asked to take cognizance, there is no such bar from taking cognizance in absence of sanction for prosecution. Further, the Hon’ble Supreme Court in the aforesaid case held that unlike Section 19 of the Prevention of Corruption Act, 1988, the protection under Section 197 of Cr.P.C is available to the public servant concerned even after retirement and held that the concerned High Court was absolutely right in setting aside the

¶37

¶38

order of the Special Judge taking cognizance for the alleged offence under Indian Penal Code.

¶39

11. The aforesaid judgment also does not apply to the facts and circumstances of this case, in as much as, there is no such corresponding fact in this case regarding placing the matter for grant of sanction before the sanctioning authority prior to retirement of the petitioner and as already held above, the alleged offence against the present petitioner cannot, prima facie be said to be done in discharge of his official duty.

¶40

12. So far as the judgement reported in (2016) 8 SCC 722 (supra) is concerned, there is no doubt about the legal proposition that sanction for prosecution under Section 197 Cr.P.C and/or sanction mandated under special statute as postulated under Section 19 of the Prevention of Corruption Act, 1988 would be required in appropriate case before taking cognizance of offence against a public servant. But at the same time it has also been held in the said judgement that such protection of obtaining prosecution sanction is available only when the alleged offence, attributed to the accused, has been committed by the accused “while acting or purporting to act in the discharge of his official duty” .

¶41

This judgment also does not help the petitioner in any manner as this Court is of the considered view, at this stage, that the alleged offence cannot be said to have been done by the petitioner while acting or purporting to act in the discharge of his official duty.

¶42

13. The Hon’ble Supreme Court has also held in para 12 of another judgment passed in Criminal Appeal No.1837 of 2019 as follows:

¶43

“12. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression ‘while acting or

¶44

¶45

purporting to act in discharge of their official duty’, would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation, this Court stated:

¶46

“15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it.

¶47

¶48

In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.”

¶49

14. In view of the aforesaid judicial pronouncement and considering the nature of allegation involved in this case, at this stage, it cannot be said that the alleged action/non-action of the petitioner was while acting or purporting to act in discharge of his official duty so as to entitle him for any protecting under Section 197 of Indian Penal Code. Admittedly, there is no dispute that petitioner has retired and accordingly no sanction will be required for prosecuting the petitioner for the alleged offence under Prevention of Corruption Act, 1988. Consequently, this Court does not find any illegality in the impugned order taking cognizance against the petitioner. However, during trial and upon consideration of evidence, it is found that the action/non-action of the petitioner was in discharge of his official duty, it will still be open to the petitioner to agitate the point of sanction.

¶50

15. This petition is accordingly dismissed with the aforesaid observations.

¶51

16. Interim order, if any, stands vacated.

¶52

17. if are Pending interlocutory applications, any,

¶53

dismissed as not pressed.

¶54

18. Let a copy of this order be communicated to the learned court below through FAX.

¶55

(Anubha Rawat Choudhary, J.)