State of
M.P. Vs. Sheetla Sahai & Ors. [2009] INSC 1388 (4 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF
2009 [Arising out of SLP (Crl.) No. 4130 of 2006] State of Madhya Pradesh
...Appellant Versus Sheetla Sahai & Ors. ...Respondents
S.B.
SINHA, J :
1.
Leave granted.
2.
Appellant is before us being aggrieved by and dissatisfied with a
judgment and order dated 12.01.2006 passed by a learned Single Judge of the
Madhya Pradesh High Court allowing the criminal revision applications filed by
the respondents herein arising out of the orders dated 21.12.1998 2 and
13.05.1997 passed by the Special Judge, Bhopal in Special Case No. 6 of 1997.
3.
The respondents herein were proceeded against for commission of
offences under Section 13(1)(d)(2)(ii-iii) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (for short "the Act") and Section
120B of the Indian
Penal Code, 1860.
4.
Before proceeding further, we may notice the positions held by the
respondents herein. Respondent No. 1 Sheetla Sahai was Minister for Water
Resources of the State of Madhya Pradesh. Respondent No. 2 D.V.S.R. Sarma and
the respondent No. 7 S.W. Mohgoankar were the Secretary to the Government of
Madhya Pradesh. Respondent No. 3 P.V. Srinivasaiyah was the Engineer-in-Chief
and the respondent No. 4 A.S. Laxminarsimhaiya was the Deputy Secretary in the
Government of Madhya Pradesh. Respondent No. 5 V.R.B. Gopal and the respondent
No. 6 M.N. Nadkarni were the Chief Engineers, Hasdeo Bango Project. Respondent
No. 11 R.P. Khare was the Secretary, Control Board for Major Projects.
5.
Appellant under the aegies of the World Bank undertook
construction of the Hasdeo Bango Masonry dam project. For the aforementioned
purpose, the respondent Nos. 8, 9 and 10 herein, viz.,M/s Progressive
Constructions Pvt. Ltd., M/s Prasad & Company, M/s SEW Construction Co.
(hereinafter referred to as "the contractors") were awarded contracts
in terms whereof they were required to excavate stones etc. from Therma Pahar
Quarry, which was situate at only 12 kms. away from the site, for use of the
stone to be extracted there from for construction of masonry spillway.
6.
One of the terms of the said contract is as under:
"...The
tenderer should satisfy himself regarding availability of the required quality
and quantity of the materials, if any quarry is changed for any reason
whatsoever, no claim shall be entertained on this account."
In
addition to the guidelines, a plan was also supplied to the contractors containing
the following note:
"the
contractor shall extract materials from the approved sources and quarry areas
to be designated by the engineer-in-charge for their particular contract group.
They shall have no claim for any material collected elsewhere without 4 having
obtained the prior approval in writing of the engineer in charge. Such material
shall become the property of the department unless approval to use the same is
subsequently accorded by the engineer-in-charge, in which case, however, the
contractor shall not be entitled for any extra rate or lead."
7.
However, on the premise that whereas eight lakh cubic meters of
stones of the requisite specification were required for masonry work, only one
lakh cubic meter stone was available from the Therma Pahar Quarry, permission
was sought for by the contractors to excavate stones, rubbles and other
materials from a quarry known as Katghora Quarry which was situated at a
distance of 22 kms. from the dam.
8.
The question was considered by the concerned engineers. The
District Mining Officer and the Additional Collector Korba, having regard to
the fact that the mining leases in respect of the said quarries were to be
granted, asked them not to do so as the stones in the hillocks of villages
Katghora, Hunkra and Maheshpur were found to be suitable for the masonry work
of the dam, as would appear from a letter dated 14.07.1983 issued by the
Executive Engineer to the Additional Collector, Korba.
9.
The Superintending Engineer, respondent No. 7 herein also by his
letter dated 28.07.1983 addressed to Shri R.C. Gupta, the then Executive
Engineer stated:
"I
am informed that Rampura quarry near Katghora on Kathora Ambikapur road, may
also yield good masonary stones. You may also explore this possibility and let
me know if the stones were got tested. If not, the samples from this quarry may
also be tested. Case could also be moved to obtain lease for this quarry."
10.
A request was also made to the Mining Officer of Bilaspur to the
same effect by Shri R.C. Gupta, the then Executive Engineer by a letter dated
16.10.1983, stating:
"...Adequate
quantity of rubble is not available from Therma quarries of Forest Department
acquired for this purpose and Geologist, Geological Survey of India had
intimated that about one lakh cum. of rubble can only be extracted from Therma
quarries. For completion of this major dam about ten lakh cum. rubble & metal
are needed. Out of which 1 lakh cum. can be extracted from Therma quarry, about
three lakh cum. can be used out of the stone received from excavation of
foundation of dam, remaining 6 (six) lakh cum. is required from adjacent stone
quarries like Katghora, Hukra & Maheshpur. Hence, I have requested in my
letter cited above (copy enclosed) 6 to additional Collector, Korba, to reserve
rubble quarries in the surroundings of the above villages so that rubble from
these quarries can be extracted for completion of the Bango Dam in time.
Now I
understand that you have proposed the above quarries for auction on 20th &
21st Oct.'83. I request to delete the rubble quarries situated in the
surrounding of Katghora, Hukra & Maheshpur from the purview of auction and
transfer to Irrigation Department. Depending upon the quantity of rubble
required by each agency executed masonry works at Bango Dam, allotment of
individual quarries will be made by us after the agencies deposit the royalty
charges which will be refundable to them after awarding the certificate of
utilizing the material in bonafide Government works.
Till the
formalities are over for transfer of the above quarries to Irrigation
Department, I request to delete the following quarries from the purview of
auction.
S.No.
Name of PC No. Name of Khasra No. Area Village material
1. Hukra
47 Stone 347/1 17.396 Hec.
2.
Maheshpur 31-A Stone 1/1-K 30.425 Hec."
11.
The Additional Collector (Mining Section), Korba in response
thereto by a letter dated 22.11.1983 addressed to the Executive Engineer
reserved 7 the aforementioned quarries for extraction of stones departmentally,
subject to the conditions mentioned therein.
12.
Yet again, the Executive Engineer by a letter dated 05.12.1984
addressed to the Superintending Engineer brought to his notice that alternative
sites for quarrying operations for extraction of stones were necessary, inter
alia, stating:
"2.
The quarrying operations for extraction of stones was started in the real sense
during 82-83 working season, i.e., prior to the area was ready for starting the
masonry. The contractors after the start of quarry operations, repeatedly
wrote, regarding the non availability of sufficient stones of requisite
quality. They had also brought out that the yield of even this small quantity
of stone was very much less. In consultations with the department and the resident
geologist, they have opened more number of quarry faces, but this did not
result yields. This office has also carried out case studies which has
established the yield of useful stone to be very much less. The details
enclosed at Annexure A. Even the quantum of stone available is less, when
compared to the requirement.
3. It was
reported that the quantum of useful rubble available in the entire Therma Pahad
Hills is to the tune of one lakh cum. against the total requirement of 8 lakh
cum. for the entire dam.
This was
based on the detailed investigations and 8 report of the Resident Geologist.
Even this quantity can be extracted with much difficulty.
Therma
Pahad Quarry on the visual appearance and the random bore holes, initially
appeared to be good. As such this was declared as quarry for masonry stone and
accordingly estimates prepared and designated as the specified quarry in the
quarry map enclosed along with the agreements.
The
contractors naturally could not have investigated the quarry by actual opening/
operation, and have inspected the quarry with the data available to them.
Therefore neither department nor the contractor could have foreseen the non
availability of useful stone in the required quantity from the designated
quarry."
It was
requested:
"It
is therefore requested that the sanction may be obtained for payment of
additional leads and communicated. However, the payment towards additional
wasteful expenditure incurred in therma quarries as claimed by contractors is
recommended for rejection."
13.
The Superintending Engineer brought the same to the notice of the
Chief Engineer by a letter dated 18.12.1984 stating that there had always been
a controversy regarding the use of those stones as rubble in masonry dam. A
question was also raised as to whether the department would permit additional
payment due to change in the quarry. If such a step is not taken, 9 the
contractor may put an end to the contract and, thus, inter alia requested that
payment of additional leads from Katghora quarry may be allowed.
14.
It appears that even the Central Water Commission of the
Government of India by a letter dated 04.05.1984 informed the Chief Engineer of
the project to the following effect:
"Please
refer to your letter on the above mentioned subject. You have proposed to use
stone from Therma Pahar quarry for the construction of the dam. Though the
stone from this quarry has been approved as Granite, the Compressive strength
of the stone from this quarry varies from 289 kg/cm to 373 kg/cm, which is very
low. It is necessary that the reasons for such low strength for the Granite are
investigated before deciding to use the same for the construction of the
dam."
15.
By a letter dated 7.06.1983, the Executive Engineer of the Quality
Control Division brought the following to the notice of the Superintending
Engineer of the Quality Control Department:
"Thus,
it is noticed the mica existing in the rocks under question varies from 7% to
11%. No mention of the permissible percentage of mica is given in IS codes or
other books. Only Hand book on civil engineering by PN Khanna, reveals that 10
2% of mica is permissible. In view of the above it is submitted that the
pigmetite band stones are not fit for use in masonry dam from quality control
unit Machadoli's point of view. This is, however, continuously used in masonry
on dam blocks 16, 17, 18, 19, 25, 26, 27, 28, 29, 35, 37 in which work
continuously in progress. If the higher authority deems it fit, that use of
pigmetite is to be continued by overruling the opinion of the undersigned clear
written instructions may kindly be issued to this office for guiding the
A.R.Os. Quality Control deployed on Quality control work of masonry dam.
Early
reply is solicited."
16.
In view of the aforementioned development, the Chief Engineer of
the Project brought the same to the notice of the Secretary of the Major,
Medium and Minor Irrigation Department, Bhopal by a letter dated 11.01.1985
inter alia making the following recommendations:
"(i)
Permitting the Chief Engineer for declaring Katghora quarry as an additional
quarry for balance quantity of rubble quarry for rubble for masonry dam other
than one lakh cubic meter of rubble, as assessed by the geologist to be
extracted by the contractors from Therma Pahad quarry as far as possible in the
contracts mentioned in this letter.
(ii) To
allow payment of additional leads from Katghora quarry for cum of masonry at
the rates detailed in table at para 5.3 above."
11 Along
with the said letter, various other documents were enclosed as specified
therein including a letter dated 4.05.1990, wherein it was inter alia stated:
"10.
In view of the above, the Chief Engineer submitted proposals on 4.07.85 for
Government Orders. According to the above proposals sanction to pay extra lead
amounting to Rs. 1,23,23,767/- has been sought. This amount is about 3% of the
total amount of contract of Rs. 41.77 crores. The Chief Engineer had also
sought the opinion of the World Bank, and the World Bank gave a suggestion to
deal the issue with in the contractual provisions. Similar problem has been
raised by the contractors in Bansagar Project also, and the Executive Committee
had recommended approval of lead payment.
11.
According to the Chief Engineer's report, the Executive Engineers had reported
that only 30% to 35% useful stones can be extracted which was not economical.
This project is under construction with the World Bank assistance, will have to
be completed on time, to supply water to the National Thermal Power
Corporation, and also to the M.P.E.B. Power Station. In view of this stones
have been brought from Katghora quarry situated at 22 Km. where sufficient
quality of stones are available.
In case,
due to above reasons had the Agreements drawn been cancelled and new tenders
recalled the cost would have been more. Further, precious time would have been
lost in this process which would have affected the works and it would not be 12
possible to supply water to N.T.P.C. and M.P.E.B."
17.
In a letter dated 14.02.1985 addressed to the Chief Engineer, the
World Bank stated:
"We
note you have referred the matter to the Secretary, Irrigation Department,
Bhopal for decision. We suggest that the matter be resolved within contractual
limits."
18.
Pursuant thereto and in furtherance thereof, even the Progress
Review Committee observed in its note dated 14.05.1985 as follows:
"27.
Chief Engineer (HBP) explained his proposal submitted through his memo No.
1916/HB/84 dated 29/3/85. He gave the background of the change of quarry, in
view of unexpectedly low yield of useful stone from the Therma Pahad quarry,
approved in the technically sanctioned, sanctioned estimate and also on which
basis tenders had been invited and contractors' rates accepted. He informed the
Committee that the total extra commitment for the various contracts worked out
to Rs. 1.23 crores - approximately 3% of the total contract value.
28.
Financial Adviser observed that he had no offered any comments on the merit of
the case, as 13 then appeared to him essentially a claim case.
PRC does
not deal such claim cases.
29. The
Committee observed that the World Bank too vide their letter of 14/2/85 had
suggested that the matter be resolved within contractual limits.
30. In
view of the above, the Committee did not examine the proposal of Chief Engineer
and refrained from giving any comments in the matter at this stage."
19.
However, the contractors invoked the arbitration agreement
contained in the said contract in the year 1987 and an ad hoc settlement was
proposed.
20.
The matter was placed before the Financial Adviser. The Financial
Adviser in his note dated 4.01.1991 to the Secretary, while stating that the
Financial Adviser functions as a consultant offering comments on cases referred
to him in the light of his background, experience and expertise and going by
the facts placed before him which may not be treated as a substitute for
vetting by the Finance Department wherever such vetting is required under the
rules of governmental business, inter alia made the following comments:
14
"...However, since the whole contract action was based on the presumption
that the required quantity of material of required specification would be
available from a quarry with in 12 KM of the work site, it can be reasonable
assumed that the contractors have quoted their rates on this assumption. The
departmental estimates were also based on this assumption. Since, later on,
this assumption was found to be invalid and majority of the material had to be obtained
from a quarry with an average lead of 22 KM from the work site as against 12 KM
in respect of the contemplated quarry, the contractors have a reasonable case
for additional payment on account of extra lead of the material brought by them
from this second quarry.
Thus,
their claim is based on consideration of equity rather than there of law."
In regard
thereto, the Financial Adviser opined:
"4.
Since the proposed settlement will amount to extra-contractual payment, it has
to be ensured that the proposed settlement is acceptable to the contractors
concerned. In other words, the settlement has to be a negotiated settlement and
should not leave room for further disputes with the various contractors. Since
the purpose of the whole exercise is to avoid arbitration it could even be
ascertained if there are any other disputed issues in these contracts. If an
overall settlement of all the disputes could be attempted and a sort of package
deal is evolved in respect of each contract so that the contracts are finalized
once for all leaving no scope for arbitration on the other hand 15 if the
contractors intend to take resort to arbitration for other issues, this issue
could also go in for arbitration. A package approach would allow negotiation in
a spirit or give and take for an over- all settlement of all disputes."
21.
The then Secretary (Irrigation) Shri M.S. Billore constituted a
committee comprising of the Engineer-in-Chief P.V. Srinivasaiyah, the Chief
Engineer, the Financial Adviser, Secretary (Control Board) and the Deputy
Secretary, some of whom are Accused Nos. 3, 4,5 and 11.
22.
The said Committee submitted a report in respect whereof the
Secretary made a note that the same be critically examined.
The
Officer on Special Duty noticed the recommendations of the Committee, which are
as under:
"(i)
As the quarry has been changed by the Department due to Technical reasons the
contractors cannot be held responsible.
(ii) When
the Department itself did not know about the quarry's unsuitability it will be
unfair to expect the contractors to bring stones from the changed quarry at the
same rates.
(iii)
Payment to the extent of actual quantity brought from the quarries be
made."
16 The
proposals of the Chief Engineer, the quantities under each agreement, the rate
and the amount were also noticed. It was proposed:
"Therefore,
it is proposed to approve payment for actual quantity and the Chief Engineer
may be informed to take undertakings from the contractors before making the
payment."
The
Financial Adviser was asked to examine the said proposal in details. Some
discussions apparently were held and it was found necessary to obtain the
following information before taking decision at the government level:
"1.
After the inspection of the Geologists how much quantity has been brought from
Therma Pahad by each contractor.
2. How
much quantity has been brought from Katghora quarry.
3. How
the records are kept by the Department about the quantity of stones brought
from different quarries."
A draft
letter was also prepared.
23.
On or about 6.04.1991, one Shri Uday Shinde in his note stated
that the Chief Engineer had not sent any detail in regard to Block 31-38 as in
the agreement only Therma Pahar quarry had been shown for the balance work and
as the original file was sent to the Hon'ble Minister, it was not possible to
deal with the case. The file was re-submitted and the amount payable to the
contractor for additional lead was again put up for administrative approval.
Yet again, the Engineering in-Chief Committee was asked to examine the matter.
24.
In a note to the Secretary dated 27.04.1991, the salient features
in respect of the aforementioned matter were placed again to which Shri M.S. Billore
by his note dated 1.05.1991 opined :
"Since
government decision has already been informed to the Chief Engineer, Hasdeo
Bango Project through government letter No: 9/CP/B/31/89/319, Bhopal dated
28.2.89. Hence, any action at government level is not pending in this case and
Chief Engineer to take action in this case as per government order."
25.
Allegedly, the respondent No. 1 who was Minister at the relevant
point of time sat over the file for a period of about six months. He on
4.11.1991 noted:
"I
have studied the case. Whenever any opinion has been sought by the Secretary,
from whichever authority, they gave their opinion as per their wisdom. Every
time the Secretary has been seeking the opinion from one after another officer.
In this
process he spent a period of one year between 3.5.90 to 1.5.91. In accepting
the opinion or recommending any action, it was expected from the Secretary to
take into consideration the fact that the opinions had been given as per their
wisdom. Therefore, question does not arise to take any action against the
subordinate officers.
No basis
appears for the Secretary to take a totally different view than the unanimous
opinions.
Therefore,
it is necessary to investigate the basis on which the Secretary Shri Billore
had rendered his opinion.
The new
Secretary to study the case and give opinion."
26.
Pursuant thereto or in furtherance thereof, the respondent No. 2
Shri D.V.S.R. Sarma submitted a report upon constitution of a Committee,
stating:
19
"(i) Due to technical reasons, the department has changed the quarry.
Therefore, its liability should not be upon the contractors.
(ii) When
the Department had not any knowledge about the quarry, and to expect this that
even under the changed quarry the contractor should fetch/ transport the stones
at the same rate, is also not proper.
(iii)
Where & Where (sic) and for that much of the quantities, the materials have
been brought from a quarry at more distance, it is proper to make payment for
that much excess distance."
27.
The respondent No.1 approved the said note of the respondent No. 2
on or about 20.01.1992 whereupon the amount in question was sanctioned.
28.
Thereafter, the accounts were audited and one Shri G.K. Shukla,
Deputy Accountant General reported:
"a)
The clause of the agreement noted above and the quarry chart clearly bring out
that in the event of change of quarry on whatever reasons no claim will be
entertained and contractor should before quoting rates, visit the quarry site
and satisfy himself regarding quantity and quality of the material available.
Thus, the sanction appears a negotiated settlement beyond the contractual
provisions, for which concurrence of Finance Department ought to have been
obtained.
20 b) The
PRC considered this as a claim case which was to be decided by Arbitrator under
M.P.
Adhikaran
Adhiniyan, 1983.
c) The
Member, World Bank suggested to resolve the matter within the contractual
limits.
d) The
Secretary Irrigation had earlier rejected the case as it was not admissible.
e) The
rates quoted by the contractors were inclusive of all lead and lift, being item
rate tender."
The
Auditor General of India also took note of the said report, stating:
"Therefore,
in spite of the report of the Geologist that the good quality of stone was
available in sufficient quantities in the upper portion of the quarry situated
in the hill mentioned in the agreement and in spite of there being specific
provision in the agreements that no additional payment would be acceptable in
the event of change in leads or change in quarry, the payments made to the
contractors were irregular and resultantly made additional gains of Rs. 102.46
lacs to them."
29.
Pursuant thereto or in furtherance thereof, a complaint was
lodged.
The
matter was investigated by the Special Police Establishment. They collected all
the materials and filed a chargesheet in the Court of learned 21 Special Judge
on 27.03.1997. The case was registered as Special Case No. 6 of 1997.
30.
By an order dated 13.05.1997, the learned Special Judge took
cognizance of the case, opining:
(i) As
none of the accused is a public servant, no sanction was required to be
obtained in terms of Section 19 of the Act.
(ii)
Criminal misconduct relating to corrupt practice under Section 13(1)(d)(ii-iii)
of the Act has nothing to do with normal activity and work under government
duty of any public servant at any time.
31.
In the year 1997, the respondent Nos. 1 and 2 had filed a revision
application before the High Court.
32.
The Special Judge framed charges against the respondents on or
about 29.07.1999; a sample copy whereof reads as under:
"You
were working as Minister In-charge, Ministry of Water Resources, Government of
Madhya Pradesh from June 1990 to September 22 1992. On the recommendatory note
of Shri D.V.S.R. Sharma ignoring the letter dated 14.02.85 of the Finance
Branch of World Bank and earlier decision dated 18.02.85 according to which the
case of extra lead was to be decided within the ambit of the contract in
respect of payment of extra lead to the concerned Tender Contractors for
transportation of stones used in construction work of masonry non-flow dam
upstream in Hasdeo Bango Project. You in conspiracy with the employees and
Tender Contractors accorded administrative sanction and payment of one crore
two lac forty six thousand two hundred rupees was made to the Contractors
towards extra lead.
Hence,
you while holding the post of public servant misusing the position of the post
provided financial benefit to the Tender Contractors without public interest.
Your
above act being offence under Section 13(1)(D)(ii-iii), the Prevention of
Corruption Act, 1988 is punishable under Section 13(2) the Prevention of Corruption
Act, 1988. In the alternative, you in criminal conspiracy with Shri D.V.S.R.
Sharma, Secretary, working in the Ministry of Water Resources, Government of
Madhya Pradesh and other employees and contractors acted as mentioned above,
which is punishable under Section 13(1)(D)(ii and iii) read with Section 120B
IPC, which is within the jurisdiction of this Court.
Hence, I
hereby direct that you will be tried for the offence mentioned above by this
Court."
33.
Aggrieved by and dissatisfied therewith, the respondents filed
revision applications before the High Court, which by reason of the impugned
order have been allowed. The State is, thus, before us.
34.
Mr. K.T.S. Tulsi, learned senior counsel appearing on behalf of
the appellant, in support of the appeal, inter alia would submit:
(i) The
High Court committed a serious error in opining that an order of sanction in
terms of Section 197 of the Code of Criminal Procedure was required to be
obtained despite the fact that the respondent Nos. 1 to 7 were no longer
holders of public office(s).
(ii)
While exercising its revisional jurisdiction, the High Court could not enter
into the question of appreciation of evidence as also the probative value of
the materials brought on record, contrary to the tests laid down by this Court
in Soma Chakravarty v. State Through CBI [(2007) 5 SCC 403] as the tests for
framing of charge are different from the tests for recording a judgment of
acquittal against an accused insofar as whereas in the former, strong suspicion
would be sufficient, in the latter proof beyond any reasonable doubt is
necessary.
24 (iii)
The prosecution agency being a special agency constituted under the Madhya
Pradesh Special Police Establishment Act, which functions under the
jurisdiction of the Lokayukata, only because all materials have been made part
of the chargesheet, the same could not have been relied upon by the High Court
as the only materials upon which the prosecution would rely upon for proving
its case would be the terms of the contract, the note sheets, the letters dated
4.08.1983, 11.08.1983, 16.08.1983, 17.08.1983, 10.07.1984, 14.11.1984 and
2.03.1988, in terms whereof the contractors were categorically informed that
they would not be entitled to any extra amount towards additional lead or
otherwise.
(iv) The
World Bank having opined that stones from alternative sources may be obtained
within the budgeted amount, the extra amount could not have been sanctioned by
the respondents.
(v) By
reason of the acts of the respondents, the State has suffered a loss to the
extent of Rs. 1.02 crores and in that view of the matter, the High Court should
not have passed the impugned order.
(vi) As
none of the accused is a public servant, the question of obtaining sanction in
terms of Section 19 of the Act did not arise.
25 (vii)
Criminal misconduct relating to corrupt practices under Section
13(1)(d)(ii-iii) of the Act cannot be mingled with the normal activity and
duties of the public servant at any time, and, thus, no order of sanction was required
to be obtained even under Section 197 of the Code of Criminal Procedure, 1973.
(viii)
The Indian Institute of Technology having tested the rocks excavated from
Therma Pahar Quarry and having opined that they can safely be used for rubble
masonry as well as for coarse and fine aggregate, any opinion rendered contrary
thereto or inconsistent therewith should have been ignored.
35.
Mr. U.U. Lalit and Mr. Vivek Tankha, learned senior counsel
appearing on behalf of the respondents, on the other hand, urged :
(i) The
court at the stage of framing of charge and consequently the High Court in
exercise of its jurisdiction under Sections 397 and 401 of the Code of Criminal
Procedure were entitled to consider the entire materials on record for the
purpose of arriving at a finding as to whether the contents thereof, even if
taken to be 26 correct in their entirety, constituted a prima facie case
against the accused or not.
(ii) It
would not be correct to contend that although all the documents collected during
investigation form part of the final report submitted by the Special Police
Establishment in terms of Sub- section (5) of Section 173 of the Code of
Criminal Procedure, for the purpose of framing of charge or otherwise the
prosecution can rely only on a few of them so as to make a distinction between
the documents which are in favour of the prosecution and those which are in
favour of the accused.
(iii) The
materials brought on record clearly show that the concerned authorities found
it necessary to explore the possibility of procuring stones of requisite
quality from other sources as they had proceeded on a wrong premise that stone
of requisite quality to the extent of 8 lakh cubic meters would be available in
the quarry in question.
(iv)
Although the contract could be considered to show that no claim for any
material collected elsewhere, without obtaining the prior approval of the
Engineer In-charge, as was contended by the prosecution, was admissible, on a
close reading of the terms of the 27 contract it would appear that a
contingency of this nature, viz., that the parties entered into a contract on a
mistaken fact was not contemplated as the contractors cannot be asked to take
upon themselves the financial burden in respect of matter for which they were
not responsible.
(v) A
decision having been taken by the highest authority not only upon taking into
consideration the opinion of all concerned, viz., from Executive Engineer to
the Minister concerned but also in view of the opinion of the Government of
India and on the basis of two reports of the Committee, viz., reports by
respondent No. 2 D.V.S.R. Sarma Committee and respondent No. 3 P.V. Srinivasaiyah
Committee, no interference with the impugned judgment is warranted.
(vi) The
documents relied upon by the prosecution, even if given face value and taken to
be correct in their entirety, do not disclose commission of any offence under
the Prevention of Corruption Act as no allegation had been made as regards
misuse or abuse of office.
(vii) The
State having acted within its jurisdiction in taking a decision in regard to
making of extra payment by way of novation of the 28 original contract, no
exception thereto can be taken as the situation was unforeseen. Even the
arbitral tribunal having passed an award in favour of the contractor which is
in consonance with a decision of this Court in K.N. Sathyapalan (Dead) by LRs.
v. State of Kerala & Anr. [(2006) 12 SCALE 654], the respondents cannot be
said to have committed any offence.
(viii) In
any view of the matter, no evidence has been brought on record to show that any
conspiracy was entered into by the respondents inter se.
(ix)
Assuming that the respondents have arrived at a wrong conclusion, the same
would only constitute an error of judgment and not a criminal misconduct.
(x) The
malafide attitude on the part of the State would be evident from the fact that
the respondents herein who were members of the Committee have also been roped
in although they had made fair, proper and impartial recommendations which
could have been accepted or rejected. Even the respondent No. 1 in his note
dated 4.11.1991 did not issue any direction to make payment but merely asked
the respondent No. 2 to have a re-look at the entire matter as prior to the
purported opinion of Mr. Billore, as contained in his 29 note dated 1.05.1991
he had opined otherwise, viz., not in the tune of the recommendations made by
the Quality Control Department, i.e., in favour of the contractors.
(xi)
There is nothing on record to show that the respondent Nos. 1 to 7 herein have
done any act which was beyond their official duty and hence, the impugned
judgment is unassailable.
36.
The question raised before us is required to be determined on the
backdrop of factual matrix involved herein. We have taken into consideration in
details the background materials only with a view to consider as to whether the
High Court was right in opining that no case for framing of charges against the
respondents was made out.
The fact
that the State entered into contracts with the respondent Nos. 8, 9 and 10 is
not in dispute. The basic terms of the contract, which we have taken note of,
are also not in dispute. What is in dispute is the interpretation and
application thereof.
37.
The contract contained an arbitration clause. The respondents
herein invoked the said arbitration agreement, as noticed hereinbefore, as far
back 30 in the year 1987. Indisputably, an award had been made in their favour
on the basis of a settlement arrived at by and between the parties. Such a
settlement was arrived at on the basis of the stand taken by the authorities of
the State of Madhya Pradesh upon entering into detailed deliberations.
38.
The learned counsel for the parties took us through the entire
agreement to raise rival contentions as to whether despite the apparent rigours
contained therein, the contractors could have been paid any additional amount
towards extra lead.
39.
We think a construction of the terms of contract in the light of
the factual matrix of the matter to which we have adverted to heretobefore, as
has been argued by the respondents, is possible. It is, however, not necessary
for us to delve deep into the matter inasmuch as we are concerned only with the
question as to whether the materials brought on record form sufficient basis
for framing of charges under Section 13(1)(d)(ii-iii) of the Act read with
Section 13(2) thereof read with Section 120B of the Indian Penal Code or not.
40.
At the outset, however, we must place on record that construction
of the dam over river Hasdeo Bango became necessary for the purpose of supply
of water to the National Thermal Power Corporation. It was a World Bank
project. The project was required to be completed within a time frame.
Stones
required to be used for the construction of the dam, as of necessity, were
required to be of sufficient strength. The opinion of the Indian Institute of
Technology, referred to by Mr. Tulsi, is not on record. Correspondences as also
the opinion of the Central Water Commission, Government of India, however,
point out that stones of requisite strength were not available at Therma Pahar
Quarry. The quantum of stone required was eight lakh cubic meters and only one
lakh cubic metres was available thereat. The balance seven lakh cubic meters of
stone was, thus, required to be obtained from the quarries situated at villages
villages Katghora, Hunkra and Maheshpur.
41.
Stone is a minor mineral within the meaning of the provisions of
the Mines
and Minerals (Regulation and Development) Act, 1957 and
the Minor Mineral Concession Rules framed by the State. Lease and/ or licence
for extraction thereof is to be granted by the Collector. Although the Mines
Department of the State intended to grant `Quarry lease' in favour of others 32
having regard to the requirements of the State, the said quarries were reserved,
subject to certain conditions.
42.
The respondent Nos. 8 to 10, in view of the provisions of the
Mines and Mineral (Regulation and Development) Act, 1957 and the Madhya Pradesh
Minor Mineral Concession Rules could not have on their own undertaken mining
operation for the purpose of extracting the said minor mineral. They could have
done so only on a licence granted in their favour by the Collector/State.
However, as the hillocks of the villages in question were reserved for
departmental use, only by reason thereof the contractors could carry on mining
operation thereat and not otherwise. It was, therefore, a conscious decision on
the part of the competent authorities of the State.
43.
The contract itself suggests that there was a possibility of
dispute in regard to allocation of the parts of the quarries. A dispute
resolution mechanism by creating a forum viz. the Office of the Superintending
Engineer was created.
44.
The intra-departmental and inter-departmental correspondences and
notesheets to which we have adverted to heretobefore clearly go to show that 33
the authorities incharge of construction of the dam were aware of the
difficulties which were being faced by the contractors. Their apprehension was
that in the event the contractors were not permitted to mine stones from
Katghora Quarry and other Quarries, they may leave the job as a result whereof
the entire project might come to a stand-still.
45.
The representations made by the contractors for the aforementioned
purpose, even if to be ignored, the intra-departmental and inter-departmental
correspondences cannot be. They clearly point out a clear picture as regards
necessity for explaining the possibilities of extracting stones from some other
mines for being used in the construction of dam.
46.
We would proceed on the basis that two divergent opinions on the
construction of the contract in the light of the stand taken by the World Bank
as also the earlier decision taken by the State was possible. That, however,
would not mean that a fresh decision could not have been taken keeping in view
the exigencies of the situation. A decision to that effect was not taken only
by one officer or one authority. Each one of the authorities was ad idem in
their view in the decision making process. Even the Financial Adviser who was
an independent person and who had nothing to do with the 34 implementation of
the project made recommendations in favour of the contractors stating that if
not in law but in equity they were entitled to the additional amount.
47.
From the materials available on record, it is crystal clear that
the decision taken was a collective one. The decision was required to be taken
in the exigency of the situation. It may be an error of judgment but then no
material has been brought on record to show that they did so for causing any
wrongful gain to themselves or to a third party or for causing wrongful loss to
the State
48.
Section 13 of the Act provides for criminal misconduct by a public
servant. Such an offence of criminal misconduct by a public servant can be said
to have been committed if in terms of Section 13(1)(d)(ii-iii) a public servant
abuses its position and obtains for himself or for any other person any
valuable thing or pecuniary advantage; or while holding office as a public servant,
obtains for any person any valuable thing or pecuniary advantage without any
public interest. Sub-section (2) of Section 13 provides that any public servant
who commits criminal misconduct shall be 35 punishable with imprisonment for a
term which shall be not less than one year but which may extend to seven years
and shall also be liable to fine.
49.
Criminal conspiracy has been defined in Section 120A of the Indian
Penal Code, 1860 to mean:
"When
two or more persons agree to do, or cause to be done,-- (1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy:
Provided
that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanation.--It
is immaterial whether the illegal act is the ultimate object of such agreement,
or is merely incidental to that object."
Section
120B of the Indian
Penal Code provides for punishment for criminal
conspiracy.
50.
Criminal conspiracy is an independent offence. It is punishable
separately. Prosecution, therefore, for the purpose of bringing the charge of
criminal conspiracy read with the aforementioned provisions of the Prevention
of Corruption Act was required to establish the offence by applying the same
legal principles which are otherwise applicable for the purpose of bringing a
criminal misconduct on the part of an accused.
51.
A criminal conspiracy must be put to action inasmuch as so long a
crime is generated in the mind of an accused, it does not become punishable.
What is
necessary is not thoughts, which may even be criminal in character, often
involuntary, but offence would be said to have been committed thereunder only
when that take concrete shape of an agreement to do or cause to be done an
illegal act or an act which although not illegal by illegal means and then if
nothing further is done the agreement would give rise to a criminal conspiracy.
Its
ingredients are (i) an agreement between two or more persons;
(ii) an
agreement must relate to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means.
What is,
therefore, necessary is to show meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act by illegal means.
52.
While saying so, we are not oblivious of the fact that often
conspiracy is hatched in secrecy and for proving the said offence substantial
direct evidence may not be possible to be obtained. An offence of criminal
conspiracy can also be proved by circumstantial evidence.
In Kehar
Singh and Ors. v. State (Delhi Administration), [1988 (3) SCC 609 at 731], this
Court has quoted the following passage from Russell on Crimes (12th Edn. Vol
1):
"The
gist of the offence of conspiracy then lies, not in doing the act, or effecting
the purpose for which the conspiracy is formed, nor in attempting to do them,
nor in inciting others to do them, but in the forming of the scheme or
agreement between the parties. Agreement is essential. Mere knowledge, 38 or
even discussion, of the plan is not, per se enough"
In State
(NCT) of Delhi v. Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600], this Court
stated the law, thus:
"101.
One more principle which deserves notice is that the cumulative effect of the
proved circumstances should be taken into account in determining the guilt of
the accused rather than adopting an isolated approach to each of the
circumstances. Of course, each one of the circumstances should be proved beyond
reasonable doubt. Lastly, in regard to the appreciation of evidence relating to
the conspiracy, the Court must take care to see that the acts or conduct of the
parties must be conscious and clear enough to infer their concurrence as to the
common design and its execution."
We may
also notice that in Ram Narayan Popli v. CBI [(2003) 3 SCC 641], it was held:
"...Law
making conspiracy a crime is designed to curb immoderate power to do mischief
which is gained by a combination of the means. The encouragement and support
which co-conspirators give to one another rendering enterprises possible which,
if left to individual effort, would have been impossible, furnish the ground
for visiting 39 conspirators and abettors with condign punishment..."
In Yogesh
@ Sachin Jagdish Joshi v. State of Maharashtra [(2008) 6 SCALE 469], this Court
opined:
"23.
Thus, it is manifest that the meeting of minds of two or more persons for doing
an illegal act or an act by illegal means is sine qua non of the criminal
conspiracy but it may not be possible to prove the agreement between them by
direct proof.
Nevertheless,
existence of the conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the accused. But the incriminating
circumstances must form a chain of events from which a conclusion about the
guilt of the accused could be drawn. It is well settled that an offence of
conspiracy is a substantive offence and renders the mere agreement to commit an
offence punishable even if an offence does not take place pursuant to the
illegal agreement."
Ex facie,
there is no material to show that a conspiracy had been hatched by the
respondents.
53.
Mr. Tulsi would suggest that the very fact that the respondent No.
1 being a Minister kept the file with him for a period of six months so as to
see that the then Secretary Mr. M.S. Billore retires so as to enable him to
obtain 40 opinion of another officer would prima facie establish that he
intended to cause pecuniary gain to the respondent Nos. 8, 9 and 10.
We have
noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make
any recommendation. He merely lamented the manner in which the former Secretary
Mr. M.S. Billore acted as prior thereto, the said authority himself for all
intent and purport had accepted the recommendations of the authorities incharge
of construction of the dam including the Chief Engineer. He constituted a
committee. He obtained the opinion of the Financial Adviser. If upon
consideration of the entire materials on record, independent opinion had been
rendered and recommendations were made, it is difficult to comprehend as to how
that by itself would constitute a criminal misconduct or leads to the
conclusion of hatching any criminal conspiracy. Recommendations made by the
Committee or the opinion rendered by an independent officer like Financial
Adviser need not be acted upon. It was for the State to take a decision.
Such a
decision was required to be taken on the basis of the materials available.
41 In
Inspector Prem Chand v. Govt. of N.C.T. of Delhi & Ors. [2007 AIR SCW
2532], this Court observed:
"In
State of Punjab and Ors. vs. Ram Singh Ex.
Constable
[1992 (4) SCC 54], it was stated:
"Misconduct
has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A
transgression of some established and definite rule of action, a forbidden act,
a dereliction from duty, unlawful behaviour, wilful in character, improper or
wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior,
delinquency, impropriety, mismanagement, offense, but not negligence or
carelessness.' Misconduct in office has been defined as:
"Any
unlawful behaviour by a public officer in relation to the duties of his office,
willful in character. Term embraces acts which the officer holder had no right
to perform, acts performed improperly, and failure to act in the face of an
affirmative duty to act."
In P.
Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct'
has been defined as under:
"The
term `misconduct' implies, a wrongful intention, and not a mere error of
judgment.
Misconduct
is not necessarily the same thing as conduct involving moral turpitude.
42 The
word `misconduct' is a relative term, and has to be construed with reference to
the subject matter and the context wherein the term occurs, having regard to
the scope of the Act or statute which is being construed. Misconduct literally
means wrong conduct or improper conduct."
[See also
Bharat Petroleum Corpn. Ltd. vs. T.K. Raju, [2006 (3) SCC 143]."
54.
Even under the Act, an offence cannot be said to have been
committed only because the public servant has obtained either for himself or
for any other person any pecuniary advantage. He must do so by abusing his
position as public servant or holding office as a public servant. In the latter
category of cases, absence of any public interest is a sine qua non. The
materials brought on record do not suggest in any manner whatsoever that the
respondent Nos. 1 to 7 either had abused their position or had obtained
pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without any
public interest.
55.
Whether, on the one hand, the dam should be constructed within a
time frame fixed by the World Bank is a public interest or whether sticking to
the terms of the contract which may lead to abandonment of work by the
contractors would be a public interest is a matter over which a decision was 43
required to be taken, particularly when the authorities proceeded on the basis
that they had made advertisements and called for the tender on a wrong premise,
viz., the stones available in the quarry in question for supply of requisite
quality of stone was not in requisite quantity.
56.
It is also interesting to notice that the prosecution had
proceeded against the officials in a pick and choose manner. We may notice the
following statements made in the counter-affidavit which had not been denied or
disputed to show that not only those accused who were in office for a very
short time but also those who had retired long back before the file was moved
for the purpose of obtaining clearance for payment of additional amount from
the government, viz., M.N. Nadkarni who worked as Chief Engineer till
24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989
have been made accused but, on the other hand, those who were one way or the
other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D.
Nanhoria have not been proceeded at all. We fail to understand on what basis
such a discrimination was made.
57.
In Soma Chakravarty (supra), whereupon strong reliance has been
placed by Mr. Tulsi, this Court opined:
44
"23. In a case of this nature, the learned Special Judge also should have
considered the question having regard to the "doctrine of parity" in
mind.
An
accused similarly situated has not been proceeded against only because, the
departmental proceedings ended in his favour. Whether an accused before him
although stands on a similar footing despite he having not been departmentally
proceeded against or had not been completely exonerated also required to be
considered. If exoneration in a departmental proceeding is the basis for not
framing a charge against an accused person who is said to be similarly
situated, the question which requires a further consideration was as to whether
the applicant before it was similarly situated or not and/or whether the
exonerated officer in the departmental proceeding also faced same charges
including the charge of being a party to the larger conspiracy."
58.
There cannot be any doubt whatsoever that the tests for the
purpose of framing of charge and the one for recording a judgment of conviction
are different.
A
distinction must be borne in mind that whereas at the time of framing of the
charge, the court may take into consideration the fact as to whether the
accused might have committed the offence or not; at the time of 45 recording a
judgment of conviction, the prosecution is required to prove beyond reasonable
doubt that the accused has committed the offence.
59.
In this case, the probative value of the materials on record has
not been gone into. The materials brought on record have been accepted as true
at this stage. It is true that at this stage even a defence of an accused
cannot be considered. But, we are unable to persuade ourselves to agree with
the submission of Mr. Tulsi that where the entire materials collected during
investigation have been placed before the court as part of the chargesheet, the
court at the time of framing of the charge could only look to those materials
whereupon the prosecution intended to rely upon and ignore the others which are
in favour of the accused. The question as to whether the court should proceed
on the basis as to whether the materials brought on record even if given face
value and taken to be correct in their entirety disclose commission of an
offence or not must be determined having regard to the entirety of materials
brought on record by the prosecution and not on a part of it. If such a
construction is made, Sub-section (5) of Section 173 of the Code of Criminal
Procedure shall become meaningless.
46 The
prosecution, having regard to the right of an accused to have a fair
investigation, fair inquiry and fair trial as adumbrated under Article 21 of
the Constitution of India, cannot at any stage be deprived of taking advantage
of the materials which the prosecution itself has placed on record.
If upon
perusal of the entire materials on record, the court arrives at an opinion that
two views are possible, charges can be framed, but if only one and one view is
possible to be taken, the court shall not put the accused to harassment by
asking him to face a trial.
{See
State of Maharashtra and Others v. Som Nath Thapa and Others [(1996) 4 SCC
659]}.
60.
This leaves us with the question as to whether an order of
sanction was required to be obtained. There exists a distinction between a
sanction for prosecution under Section 19 of the Act and Section 197 of the
Code of Criminal Procedure. Whereas in terms of Section 19, it would not be
necessary to obtain sanction in respect of those who had ceased to be a public
servant, Section 197 of the Code of Criminal Procedure requires sanction both
for those who were or are public servants.
61.
Strong reliance has been placed by Mr. Tulsi on a judgment of this
Court in Centre for Public Interest Litigation and Another v. Union of India
and Another [(2005) 8 SCC 202]. In that case, it was held:
"9.
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 his
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 from
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
48 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.
There
cannot be any universal rule to determine whether there is a reasonable
connection between the act done and the official duty, nor is it possible to
lay down any such rule. One safe and sure test in this regard would be to
consider if the omission or neglect on the part of the public servant to commit
the act complained of could have made him answerable for a charge of
dereliction of his official duty. If the answer to this question is in the
affirmative, it may be said that such act was committed by the public servant
while acting in the discharge of his official duty and there was every
connection with the act complained of and the official duty of the public
servant. This aspect makes it clear that the concept of Section 197 does not
get immediately attracted on institution of the complaint case.
10. Use
of the expression "official duty" implies that the act or omission
must have been done by the public servant in the course of his service and that
it should have been in discharge of his duty.
The
section does not extend its protective cover to every act or omission done by a
public servant in service but restricts its scope of operation to only those
acts or omissions which are done by a public servant in discharge of official
duty.
11. If on
facts, therefore, it is prima facie found that the act or omission for which
the accused was charged had reasonable connection with discharge of his duty
then it must be held to be official to which applicability of Section 197 of
the Code cannot be disputed."
62.
Were the respondent Nos. 1 to 7 required to act in the matter as a
part of official duty? Indisputably, they were required to do so. Be he an
Executive Engineer, Superintending Engineer, Chief Engineer, Engineer-in-Chief,
Secretary or Deputy Secretary, matters were placed before them by their
subordinate officers. They were required to take action thereupon. They were
required to apply their own mind. A decision on their part was required to be
taken so as to enable them to oversee supervision and completion of a
government project. The Minister having regard to the provisions of the Rules
of Executive Business was required to take a decision for and on behalf of the
State. Some of the respondents, as noticed hereinbefore, were required to
render their individual opinion required by their superiors. They were members
of the Committee constituted by the authorities, viz., the Minister or the
Secretary. At that stage, it was not possible for them to refuse to be a Member
of the Committee and/ or not to 50 render any opinion at all when they were
asked to perform their duties.
They were
required to do the same and, thus, there cannot be any doubt whatsoever that
each one of the respondent Nos. 1 to 7 was performing his official duties.
63.
For the purpose of attracting the provisions of Section 197 of the
Code of Criminal Procedure, it is not necessary that they must act in their
official capacity but even where a public servant purports to act in their
official capacity, the same would attract the provisions of Section 197 of the
Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna
Das and Another [(2006) 4 SCC 584].
The
question came up for consideration before this Court in Matajog Dobey v. H.C.
Bhari [AIR 1956 SC 44 : 1955 (2) SCR 925] wherein it was held:
"17.
Slightly differing tests have been laid down in the decided cases to ascertain
the scope and the meaning of the relevant words occurring in Section 197 of the
Code; "any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty". But the
difference is only in language and not in substance.
The
offence alleged to have been committed must 51 have something to do, or must be
related in some manner with the discharge of official duty. No question of
sanction can arise under Section 197, unless the act complained of is an
offence; the only point to determine is whether it was committed in the
discharge of official duty. There must be a reasonable connection between the
act and the official duty. It does not matter even if the act exceeds what is
strictly necessary for the discharge of the duty, as this question will arise
only at a later stage when the trial proceeds on the merits.
What we
must find out is whether the act and the official duty are so inter-related
that one can postulate reasonably that it was done by the accused in the
performance of the official duty, though possibly in excess of the needs and
requirements of the situation. In Hori Barn Singh v. Crown Sulaiman, J.
observes:
"The
section cannot be confined to only such acts as are done by a public servant
directly in pursuance of his public office, though in excess of the duty or
under a mistaken belief as to the existence of such duty. Nor is it necessary
to go to the length of saying that the act constituting the offence should be
so inseparably connected with the official duty as to form part and parcel of
the same transaction."
The
interpretation that found favour with Varadachariar, J. in the same case is
stated by him in these terms at p. 187: "There must be something in the
nature of the act complained of that attaches it to the official character of
the person doing it."
In
affirming this view, the Judicial Committee of the Privy Council observe in
Gill case: "A public servant can only be said to act or purport to act in
the discharge of his official duty, if his act is such as to lie within the
scope of his official duty ...
The test
may well be whether the public servant, if challenged, can reasonably claim
that, what he 52 does, he does in virtue of his office." Hori Ram case is
referred to with approval in the later case of Lieutenant Hector Thomas Huntley
v. King- Emperor but the test laid down that it must be established that the
act complained of was an official act appears to us unduly to narrow down the
scope of the protection afforded by Section 197 of the Criminal Procedure Code
as defined and understood in the earlier case. The decision in Meads v. King
does not carry us any further; it adopts the reasoning in Gill's case."
The said
principle has been reiterated by this Court in B. Saha v. M.S. Kochar [(1979) 4
SCC 177] in the following terms:
"17.
The words "any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty" employed in
Section 197(1) of the Code, are capable of a narrow as well as a wide
interpretation. If these words are construed too narrowly, the section will be
rendered altogether sterile, for, "it is no part of an official duty to
commit an offence, and never can be". In the wider sense, these words will
take under their umbrella every act constituting an offence, committed in the
course of the same transaction in which the official duty is performed or
purports to be performed. The right approach to the import of these words lies
between these two extremes. While on the one hand, it is not every offence
committed by a public servant while engaged in the performance of his official
duty, which is entitled to the protection of Section 197(1), an act
constituting an offence, directly and reasonably connected with his official
duty will 53 require sanction for prosecution under the said provision. As
pointed out by Ramaswami, J., in Baijnath v. State of M.P., "it is the
quality of the act that is important, and if it falls within the scope and
range of his official duties, the protection contemplated by Section 197 of the
Criminal Procedure Code will be attracted".
18. In
sum, the sine qua non for the applicability of this section is that the offence
charged, be it one of commission or omission, must be one which has been
committed by the public servant either in his official capacity or under colour
of the office held by him."
[See also
R. Balakrishna Pillai v. State of Kerala and Another [(1996) 1 SCC 478] In
Rakesh Kumar Mishra v. State of Bihar and Others [(2006) 1 SCC 557], this Court
held:
"12.
It has been widened further by extending protection to even those acts or
omissions which are done in purported exercise of official duty; that is under
the colour of office. Official duty, therefore, implies that the act or
omission must have been done by the public servant in the course of his service
and such act or omission must have been performed as part of duty which further
must have been official in nature. The section has, thus, to be construed
strictly, while determining its applicability to any act or omission in the
course of service. Its operation has to be limited to those duties which are
discharged in the course of duty.
But once any
act or omission has been found to 54 have been committed by a public servant in
the discharge of his duty then it must be given liberal and wide construction
so far its official nature is concerned. For instance a public servant is not
entitled to indulge in criminal activities. To that extent the section has to
be construed narrowly and in a restricted manner. But once it is established
that an act or omission was done by the public servant while discharging his
duty then the scope of its being official should be construed so as to advance
the objective of the section in favour of the public servant. Otherwise the
entire purpose of affording protection to a public servant without sanction
shall stand frustrated. For instance a police officer in the discharge of duty
may have to use force which may be an offence for the prosecution of which the
sanction may be necessary. But if the same officer commits an act in the course
of service but not in the discharge of his duty and without any justification
therefor then the bar under Section 197 of the Code is not attracted..."
64.
Reliance has been placed by Mr. Tulsi on Parkash Singh Badal v. State
of Punjab and Others [(2007) 1 SCC 1] wherein this Court held:
"38.
The question relating to the need of sanction under Section 197 of the Code is
not necessarily to be considered as soon as the complaint is lodged and on the
allegations contained therein. This question may arise at any stage of the
proceeding.
The
question whether sanction is necessary or not may have to be determined from
stage to stage."
55 In
that case, the appellant therein was charged for commission of an offence of
cheating under Section 420 and Sections 467, 468, 471 and 120B of the Indian Penal Code.
In the
factual matrix involved therein, it was held:
"29.
The effect of sub-sections (3) and (4) of Section 19 of the Act are of
considerable significance. In sub-section (3) the stress is on "failure of
justice" and that too "in the opinion of the court". In
sub-section (4), the stress is on raising the plea at the appropriate time.
Significantly,
the "failure of justice" is relatable to error, omission or
irregularity in the sanction.
Therefore,
mere error, omission or irregularity in sanction is (sic not) considered fatal
unless it has resulted in failure of justice or has been occasioned thereby.
Section 19(1) is a matter of procedure and does not go to the root of
jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c)
of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act
[Section 19(2) of the Act] question relates to doubt about authority to grant
sanction and not whether sanction is necessary."
65.
In State of Karantaka v. Ameerjan [(2007) 11 SCC 273], it was held
that an order of sanction is required to be passed on due application of mind.
66.
Thus, in this case, sanction for prosecution in terms of Section
197 of the Code of Criminal Procedure was required to be obtained.
67.
For the reasons aforementioned, there is no merit in this appeal
which is dismissed accordingly.
...............................J. [S.B. Sinha]
................................J. [Cyriac Joseph]
New Delhi;
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