Dismissed

Surtaram and Ors. v. State and Anr.

Rajasthan HC6 Sept 2017CRLMP/2432/2015

Case brief

AI extract

What is this about?

This criminal miscellaneous petition sought quashing of corruption proceedings against three petitioners alleging illegal land allotment. The Court rejected the defense that sanction under the Prevention of Corruption Act was required, holding that allegations of acting without good faith and causing loss to the public exchequer negate the protection of Section 19, leading to dismissal.

What did the court decide?

The criminal miscellaneous petition under Section 482 CrPC for quashing of the impugned order and FIR was dismissed.

Surtaram and Ors. Vs State and Anr. — Corruption | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 2432 / 2015

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Surtaram S/o Sh. Moola Ram presently working as Gram Sewakcum Secretary Gram Panchayat Khariya Patawaton, Kolayat, Bikaner.

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Smt. Bayala Bano W/o Sh. Noor Mohd. By caste Muslaman Teli, R/o Village Jhaju, Teh. Kolayat, Dist. Bikaner.

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Mohd. Rafiq S/o Noor Mohd., by caste Musalman Teli, R/o Village Jhajhu, Teh. Kolayat, Dist. Bikaner.

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----Petitioner

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Versus

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1.State of Rajasthan through PP

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Mahendra Singh S/o Ganesh Dan Charan R/o Village Ratadiya, Tehsil Nokha, Dist. Bikaner.

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----Respondent

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_____________________________________________________ For Petitioner(s) : Mr. BL Tiwari

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For Respondent(s) : Mr. VS Rajpurohit, PP

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Mr. Om Singh Chouhan, for the complainant Mr. Parbat Singh, Additional SP, ACB Bikaner.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order

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06/09/2017

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Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. for quashing of order dated 22.04.2015 passed by learned Sessions Judge Prevention of Corruption Act, Bikaner in PC No.1/15 and consequential orders and FIR No.179/15 dated 10.08.2015 P.S. Jaipur under Section 13(1)(d), 13(2) P.C. Act, 1988.

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Learned counsel for the petitioner has at the outset submitted that respondents were required to comply with the provision of Section 19 of the P.C. Act 1988, by taking appropriate

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(2 of 7)

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[CRLMP-2432/2015]

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sanction to prosecute the present petitioner.

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Learned counsel for the petitioner has relied upon the judgment in Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr. reported in 2014 Cri.L.J. 1, the relevant portion of this judgment, reads as under :-

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“7. Shri Uday U. Lalit, learned senior counsel appearing for the respondents, on the other hand, submitted that the question raised in this case is no more res integra. Reference was made to the judgment of this Court in Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64. Learned senior counsel submitted that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant be not unnecessarily harassed on a complaint, failing which it would not be possible for a public servant to discharge his duties without fear and favour. Learned senior counsel also placed reliance on the judgment of this Court in Maksud Saiyed v. State of Gujarat and Others(2008) 5 SCC 668 and submitted that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is of paramount importance. Learned senior counsel submitted that the requirement of sanction is a prerequisite even for presenting a private complaint under Section 200 Cr.P.C. and the High Court has rightly quashed the proceedings and the complaint made against the respondents.

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11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore,

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(3 of 7)

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[CRLMP-2432/2015]

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clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.

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12. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and

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(xii) as under:

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“(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty.

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(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.” The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:

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(4 of 7)

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[CRLMP-2432/2015]

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“19. Previous sanction necessary for prosecution.

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—(1) No court shall take cognizance of an offence punishable under Sections

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7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction—

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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;

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

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c) in the case of any other person, of the authority competent to remove him from his office.”Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:

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“Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

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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 absence of, or any error, omission or irregularity in the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

b) xxx xxx xxx

(5 of 7)

[CRLMP-2432/2015]

c) xxx xxx xxx”

13. Learned senior counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).

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14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer, Commanding v. CBI and opined as follows:

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“Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part

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(6 of 7)

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[CRLMP-2432/2015]

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of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”

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15. We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.”

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Learned Public Prosecutor has vehemently opposed the submission and stated that elementary ingredients of the relief sought by the petitioner is to ascertain prima facie whether the public servant was acting in good faith while preforming his duty.

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On bare perusal of the FIR, it is clear that the petitioners caused 264 Square feet of land to be allotted to their family member and others without adopting the procedure of law. The action of the petitioners was contrary to the settled law of Rule 157 (1) of the Rajasthan Panchayati Raj Rules, 1998 and the allegation is that it caused loss to the public exchequer. Since, the allegations levelled do not fall within the purview of action in good faith and apparently the performance of the duty was allegedly without any good faith to cause loss to the public exchequer and undue profit to the family members.

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In light of such allegation, at this stage, without making any comments on merits, this Court does not find any

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(7 of 7)

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[CRLMP-2432/2015]

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interference in the constrained jurisdiction of Section 482 of Cr.P.C. The allegation of causing corruption by the present petitioner are at large and same has been caused under their authority and control and therefore, the protection of Section 19 of PC Act 1988 which is available only for public servant acting in good faith is apparently not available, hence, the misc. petition is dismissed.

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(DR. PUSHPENDRA SINGH BHATI)J.

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sudheer

Surtaram and Ors. v. State and Anr.

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Surtaram and Ors. v. State and Anr.

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