Chittaranjan Das Vs.
State of Orissa
J U D G M E N T
of unnecessary details the facts giving rise to the present appeal are that the
appellant, a member of the Orissa Administrative Service, at the relevant time
was serving as a Deputy Secretary to the Government of Orissa in the Irrigation
Department. The officers of the Vigilance Department searched his house after obtaining
a search warrant from the Court, on 17th March, 1992. It led to registration of
a first information report against the appellant. During the investigation, it was
found that the appellant possessed disproportionate assets of Rs.5,58,752.40.
As the appellant was removable
from service by the State Government, the Vigilance Department sought its sanction
for prosecution of the appellant. The State Government by its letter dated 13th
May, 1997, declined to grant sanction and advised that the proposal for prosecuting
the appellant be dropped. The appellant superannuated from service on 30th June,
1997. It seems that even after the retirement of the appellant, the Vigilance Department
wrote on 25th of March, 1998 for reconsideration of the earlier order refusing
the sanction for prosecution of the appellant. The State Government by its
letter dated 31st July, 1998 wrote back to the Vigilance Department and
declined to grant sanction for prosecution, as in its opinion there was no prima
facie case against the appellant and the assets held by him were not
disproportionate to the known sources of his income.
Accordingly, the State
Government reiterated that there is "no justification for reconsideration
of the earlier orders refusing the sanction of prosecution" of the appellant.
Notwithstanding the aforesaid refusal of the Government, the Vigilance Department
on 10th September, 1998 filed charge-sheet against the appellant under Section 5(2)
read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 alleging acquisition
of disproportionate assets of Rs.18.104.22.168 between 1st January, 1980 and 31st
December, 1985. The charge-sheet was laid before the Special Judge (Vig.), Bhubneshwar
who by its order dated 2nd August, 1999 took cognizance of the aforesaid offence
and issued non-bailable warrant against the appellant.
aggrieved by the above order taking Cognizance of offence and issuance of the non-
bailable warrant of arrest, filed petition under Section 482 of the Code of Criminal
Procedure seeking quashing of the aforesaid order inter alia on the ground that
his prosecution without sanction of the State Government is bad in law but the
High Court by its Order dated 22nd September, 2003 disposed of the application with
liberty to the appellant to raise this contention before Special Judge (Vig.) at
the time of the framing of the charge.
thereafter filed an application for discharge before the trial court which dismissed
the same by order dated 9th June, 2004 inter alia on the ground that the appellant
having retired from service, prior sanction is not necessary. Appellant
challenged the aforesaid order before the High Court which by the impugned
order rejected the challenge and while doing so observed as follows:
On a conspectus of the
facts and circumstances involved in the case and the position of law in the
matter of sanction vis-`-vis the impugned order, this Court does not find any
illegality in that order so as to invoke the inherent power with a view to
quash the impugned order. Be that is it may, it is made clear that the disputed
question as to whether in the present case a sanction order is necessary and
whether that was refused by the State Government and what is the consequence thereof,
may be gone into at the time of trial if raised by the accused-petitioner notwithstanding
rejection of his application by the impugned order inasmuch as the foregoing discussion
by this Court in any manner does not interfere with that right of the accused
to be pursued, if so legally advised at the time of trial."
Vinoo Bhagat appearing on behalf of the appellant submits that the State
Government having refused to grant sanction for prosecution and thereafter
declined to reconsider this decision and further having declined to grant sanction
for the prosecution of the appellant his prosecution is illegal and an abuse of
the process of the Court.
S.C. Tripathy, however, appearing on behalf of the respondents submits that the
charge-sheet was filed after the retirement of the appellant and in fact on
that basis cognizance of the offence was taken and process issued thereafter
and hence, the appellant cannot challenge his prosecution on the ground of want
of sanction. According to him, as the appellant ceased to be a public servant
on the date when the Court took cognizance of the offence and issued process,
sanction for his prosecution is not necessary at all.
do not have the slightest hesitation in accepting the broad submission of Mr.
Tripathi that once the public servant ceases to be so on the date when the Court
takes cognizance of the offence, there is no requirement of sanction under the
Prevention of Corruption Act. However, the position is different in a case where
Section 197 of the Code of Criminal Procedure has application. In fact, the
submission advanced finds support from the judgment of this Court in the case of
N. Bhargavan Pillai (dead) by LRs. & Anr. vs. State of Kerala AIR 2004 SC
2317 where it has been held as follows : "
correct legal position, therefore, is that an accused facing prosecution for offences
under the Old Act or New 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. But the position is different in cases where Section
197 of the Code has application."
in the present case, we are faced with the situation in which Vigilance Department
asked the State Government to grant sanction while the appellant herein was in service
which it refused. Not only that Vigilance Department sought for reconsideration
of the decision by the State Government which prayer was also rejected. In fact
the State Government reiterated that there is no prima facie case against the appellant
and the assets held by him were not disproportionate to the known sources of his
income. Mr. Tripathy points out that refusal to grant sanction under Section 19
of the Prevention of corruption Act, 1947 while the 8appellant was in service is
of no consequence as undisputedly charge-sheet against the appellant was filed and
further the Court had taken cognizance of the offence and issued process after
He points out in the case
of N. Bhargavan Pillai (Supra) sanction sought for was refused but this Court
did not find any illegality in that.8. We do not find any substance in the
submission of Mr. Tripathy and the decision relied on is clearly distinguishable.
Sanction is a devise provided by law to safeguard public servants from
vexatious and frivolous prosecution. It is to give them freedom and liberty to perform
their duty without fear or favour and not succumb to the pressure of
unscrupulous elements. It is a weapon at the hands of the sanctioning authority
to protect the innocent public servants from uncalled for prosecution but not intended
to shield the guilty.
Here in the present case
while the appellant was in service sanction sought for his prosecution was declined
by the State Government. Vigilance Department did not challenge the same and
allowed the appellant to retire from service. After the retirement, Vigilance Department
requested the State Government to reconsider its decision, which was not only
refused but the State Government while doing so clearly observed that no
prima-facie case of disproportionate assets against the appellant is made out. Notwithstanding
that Vigilance Department chose to file charge-sheet after the retirement of the
appellant and on that Special Judge had taken cognizance and issued process.
We are of the opinion
that in a case in which sanction sought is refused by the competent authority,
while the public servant is in service, he cannot be prosecuted later after retirement,
notwithstanding the fact that no sanction for prosecution under the Prevention
of Corruption Act is necessary after the retirement of Public 10Servant. Any
other view will render the protection illusory. Situation may be different when
sanction is refused by the competent authority after the retirement of the public
servant as in that case sanction is not at all necessary and any exercise in
this regard would be action in futility.
we revert to the decision of this Court in the case of N. Bhargavan Pillai
(Supra) relied on by the respondents. True, it is that in paragraph 5 of the said
judgment, it has been observed that "it is a case where the sanction which
was sought for was refused" but from this paragraph, it is not clear whether
it was sought before or after the retirement of the public servant. However, while
reading the judgment as a whole, it is apparent that in this case Charge-sheet against
the public servant was filed after retirement. Further, sanction for his
prosecution was sought and refused thereafter.
This would be evident
from the following narration of facts in the said judgment: "3............The
managing Director of the Corporation wrote to the Director of Vigilance (Investigation)
along with a copy of Ext.P-I report. The Director of Vigilance (Investigation) sanctioned
registration of a case. On the basis of the direction the then Deputy Superintendent
of Police, Vigilance, Kollam (PW-10) registered a case as per Ext. P-39. He
entrusted the investigation to Inspector of the Kollam Vigilance Unit-I
(PW-11), who conducted the investigation and sent a report to his higher authorities.
In the meantime, the accused
retired from service on 28-2-1992. Since he had retired from service sanction for
prosecution became unnecessary. The case was transferred to the newly established
Pathanamthitta Vigilance Unit. PW-12, the Deputy Superintendent of Police, Vigilance,
Pathanamthitta Unit who was put in charge of this case also verified the records
and filed the charge sheet." (underlining ours) Thus in the case relied on,
the sanction for prosecution was not necessary and therefore its refusal had no
bearing on the Trial of the public servant. However, in the present case
sanction was sought and refused while the appellant was in service. Hence, this
judgment does not lend any support to the contention of the respondents and is
also, the facts of the case are so telling that we are of the opinion that the
prosecution of the appellant shall be an abuse of the process of the Court. According
to the First Information Report, appellant possessed disproportionate assets worth
Rs.5.58 lakhs. However, according to the charge-sheet, the disproportionate assets
were to the extent of Rs.1.44 lakhs only. State Government while declining to grant
sanction for prosecution observed that assets possessed by the appellant are
not disproportionate to his known source of income.
are further of the opinion that no disputed question being involved, the High
Court instead of making observation as to "whether in present case
sanction order is necessary and whether that was refused by the State Government
and what would be the consequence thereof" to be decided by the trial court,
ought to have decided the issues itself. The facts being not in dispute the
High Court erred in not deciding these issues.
the result, we allow this appeal, set aside the order of the High Court and quash
the appellant's prosecution in TR No. 113 of 1999, pending in the Court of Special
Judge (Vig.) Bhubaneshwar.
................................................J. (CHANDRAMAULI KR. PRASAD)