STATE OF M.P vs. RAM MANOHAR PANDEY

' 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2-SY'.:J- 2014 (Arising out of SLP(Crl.) No.9809/2013) STATE OF M.P. ... APPELLANT VERSUS RAM MANOHAR PANDEY .. . RESPONDENT e WITH Digitally signed by SANDEEPNA KUMARI Date: 2018.08.03 15:29:36 +0530 ,.,.fRIMINAL APPEAL NO. 2 S-1../ g 2014 v _/' (Arising out of SLP(Crl.} No.9976/2013) SANDEEPNA KUMARI JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted e . 2. These appeals have been preferred by the appellant-State s ~ of Madhya Pradesh against the common order dated November, 2012 passed by the Division Bench of the High Court of Madhya Pradesh, Bench at Indore. By the common impugned order, the Division Bench allowed the two revision petitions preferred by respondent-Ram Manohar Pandey and quashed the order dated 16 th September, 2011 passed by the Special Judge (under Prevention of Corruption Act, 1988), Ujjain in Special Case No.16 of 2004 with respect to Crime \ # 2 No.66 of 1993 and Special Case No. 17 of 2004 with respect to Crime No. 67 of 1993. 3. The respondent- who was appointed on the post of a Sub- Engineer w.e.f. 1.7.1972 in the Medical Council, Biaora, District Rajgarh was initially promoted to the higher post of Assistant Engineer and thereafter to the post of e was placed on deputation with Municipal Corporation, Ujjain Executive Engineer by resolution dated 9th May, 1988. He from 1991-1993 as City Engineer. While he was working there, r- D ~ certain charges of corruption were made against him. The S.P, Special Police Establishment Lokayukta, Ujjain filed complaints against the respondent which were registered as Crime Nos. 66 of 1993 and 67 of 1993 for offence under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. 4. In the year 2004, when sanction was sought for prosecuting the respondent and some others, the Municipal Corporation, Ujjain by resolution Nos.343 and 344 dated 23 ~ September, 2004 refused to grant sanction. In spite of the same, charge-sheet was filed against the respondent and others before the Trial Court. The charge sheet was challenged by the respondent by filing an application and the same was dismissed by order dated 24th September, 2004. l 3 ·, 5 . Thereafter prosecution sought sanction from the State Government to prosecute the respondent and some others . But the State Government refused to grant sanction by order dated 22 nd August, 2006. 6. As the matter remained pending an application for discharge was filed by the respondent. The Special Judge, Prevention of Corruption Act, Ujjain, by its order dated 9 th September, 2009 discharged the respondent with following observation: "In the case before me, the accused Ram Manohan Pandey was working on the post of Executive Engineer in Municipal Corporation, Ujjain on deputation and at present he has been working as Engineer in Municipal Corporation, Ratlam. Accused Ram Manohar Pandey being a Government Servant (Civil Servant) is a public servant and having transferred from the Municipal Corporation Ujja i n, he is now working at Ratlam and he is neither a retired personnel nor attained the age of superannuation and also he has not been discharged , nor was dismissed . In the above situation there is prior need of taking prosecution sanction against Ram Manohar Pandey for his trial in respect of of fences under Prevention of Corruption Act. Since, prosecution sanction has not been granted against the accused Ram Manohar Pandey, therefore, c ognizance of offence could not be taken against him. Therefore, he is hereby discharged." 7 . The aforesaid order was not challenged by the State and, therefore, the order of discharge reached finality . \ 4 8. The respondent attained the age of superannuation on 30 th September, 2009 and consequently was superannuated from service. Subsequently, a fresh challan was filed by prosecution on gth December, 2009 against the respondent and some other contrary to the order dated 9th September, 2009. This time when the respondent filed applications for discharge which were rejected by the Trial Court v ide order e dated 31 •t March, 2010. 9. Being aggrieved, the respondent filed two revision petition nos. 802 of 2010 and 803 of 2010 challenging th . order of Trial Court dated 31 st March, 2010. However, both the petitions were dismissed by the High Court by the common order dated 1 st October, 2010. 10. Thereafter, respondent filed applications under Section 19 of the Prevention of Corruption Act before the Special e Judge, Ujjain , (Prevention of Corruption Act) in Special Case No . 16 of 2004 and Special Case No. 17 of 2004 with . . ~ respect to t e h Crime No. 66 of 1993 and Crime No. 67 of 1993 respectively. The Trial Court vide its common order dated 16 th September, 2011 rejected the applications filed by the respondent. 11. Being aggrieved by the said order dated 16 th September, 2011, the respondent filed Revision Petition Nos. 1361 of 2011 and 1362 of 2011 before the High Court of Madhya 5 Pradesh, Bench at Indore. The Division Bench of the High 5t h Court by the common impugned order dated November, 2012, allowed both the petitions and quashed the order dated 16th September, 2011 in Special Case Nos. 16 and 17 of 2004 with respect to Crime Nos. 66 and 67 of 1993 respectively with following observations:- As per investigation made by the " Lokayukt organization they admitted that the over payment was made on the basis of running bills submitted by the contractor but no final payment was made in respect of work of Coaltaring of road during Singhastha (1991-92) . The payment of running bill is like an advance payment and the mistake about the payment can be corrected at the time of preparation of the final bill. They also found that no excess coal tar was supplied to the contractor and all the work was done within the permissible limit of Madhya Pradesh Works Department Manual, the question of pertaining the prosecution to prosecute the present petition after his retirement does not arise." 12. Being aggrieved by the said judgment, the appellant herein filed the instant special leave petitions. 13. Learned counsel appearing on behalf the appellant • broadly made the following submissions. (i) The High Court committed gross error of law while entertaining the Criminal Revision for the same subject matter though the same was barred under Section 397(3) of Cr.P.c. \ 6 (ii) The High Court erroneously passed the order in Criminal Revision No. 1362 of 2011 merely on the basis of a verdict given by this Court in another case. @ > He placed reliance in the decision of this Court in State of Madhya Pradesh vs. Sheetla Sahai and Others, (2009)8 617 and Subramanian Swamy vs. Manmohan Singh sec and Another, (2012) 3 sec 64. 14. On the other hand, according to the learned counsel for the respondent sanction was once refused by the State ae was not granted before the retirement and therefore the respondent cannot be prosecuted after his retirement. It was further contended that revision petition under Section 3 97 Cr.P.C. cannot be treated as a petition under Section 482 Cr.P.C. He also relied on the decision of this Court Chittaranjan Das v. State of Orissa, (2011)7 SCC 167, etc,. 15. We have considered the rival contentions raised by learned counsel for the parties and have perused the record. ~ 16. The alleged complaint was filed against the respondent and others including one D. L. They were Rangotha. prosecuted under Sections 13(1) (d) and 13(2) of the Prevention of Corruption Act, 1988. 17 . When the respondent and others were in service, the Municipal Corporation, Ujjain by Resolution Nos. 343 and 344 7 dated 23 rd September, 2004 refused to grant sanction for prosecuting the respondent and others . In spite of the same, charge-sheet was filed on the next day i.e. 24 th September, 2004 before the Trial Court. 18. It is pertinent to note that the appellant-State also by letter dated 22 nd August, 2006 refused to grant sanction to prosecute the respondent who was accused no. 4 . One of the grounds taken was that the respondent is not an employee of • the State Government but as an employee of the Municipal ~ Corporation. 19. We have noticed that Municipal Corporation had already refused to grant sanction by resolution dated 23 rd September, 2004. 20. The co-accused D.L. Rangotha moved before the Madhya Pradesh High Court in Criminal Revision No.165 of 2005 . He brought to the notice of the High Court that the State Government has refused to grant sanction but still charge- sheet was filed. However, the High Court by order dated 2 nd February, 2009 dismissed the revision petition filed by said D. L. Rangotha and held that fresh challans can be filed after retirement. 21. Against the order dated 2n d February, 2009 the said D.L. Rangotha move before this Court. In Criminal Appeal No. 1213 of 2013- D. L. Rangotha vs. State of M.P., this Court \ 8 ) having noticed the aforesaid fact that the State Government had already refused to grant sanction under Section 197 of the Code of Criminal Procedure for filing Criminal Case @) against the said D.L. Ranghotha and relying on the decision of this Court in Chittaranjan Das held that the State of Madhya Pradesh cannot prosecute the said appellant-D.L. Rangotha. 22. In the case of respondent, the Special Judge, Prevention of Corruption Act 9th September, 2009 by order dated discharged the respondent. The appellant had failed to ma ~ J it clear as to how a fresh challan was filed against the gth 2009 respondent on December, which is contrary to the order of discharge dated 9th September, 2009 passed by the Special Judge, Prevention of Corruption Act, Ujjain. 23. In the case of Chittaranjan Das, this Court held - "14 . We are of the opinion that in a case in which sanction sought for 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 necessary after the is retirement of the public servant . 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 . " ' • 9 In the case of 24 . Subramanian Swamy v . Manmohan Singh, (2012) 3 sec 64 , while dealing with the question of grant of sanction for prosecution of a public servant , this Court observed as follows : " 75. Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under the PC Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration . In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice is advanced . In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. • 76 . The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of the Rule of Law tvhich is fundamental in the administration of justice . Delay in granting such sanction has spoilt many valid prosecutions and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds . I may hasten to add that this may not be the ' \ 10 • factual general popular position in this (sic case) but the demoralising effect of such a perception is profound and pernicious . 79. Article 14 must be construed as a guarantee against uncanalised and arbitrary power . Therefore, the absence of any time- limit in granting sanction in Section 19 of the PC Act is not in consonance with the requirement of the due process of law which has been read into our Constitution by the Cons ti tu ti on Bench decision of this Court in Maneka Gandhi v . Union of India (1978) 1 248." sec 25 . In view of the aforesaid observation , the Court was of • the view that the parliament should consider constitutional imperative of Article 14 enshrining the rule ~due of law wherein process of law" has been read into by introducing a time-limit in Section 19 of the Prevention of Corruption Act , 1988 for its working in a reasonable manner . 26 . In the State of M.P. vs. Sheetla Sahai this Court deprecated the discrimination between the two sets of - officials . In the said case, the prosecution had proceeded against the officials in a pick and choose manner. A few who held off ice only for a short period or who had retired befor ' the process of the decision making began were proceeded against and a few who were connected with the decision were 1 not proceeded against. 27. However, in view of the facts as noticed above including the fact that the State refused to grant sanction while the respondent was in service and he was discharged by the Court • 11 of competent jurisdiction earlier and in view of the decision of this Court in che case of Chittarajan Das, we are of the view that ic is not a fit case to grant the relief claimed by the State. We find no merit in these appeals, these are accordingly dismissed. Seit- .••.•.•.......••....••••..........•.•••...•.•...... J . (SUDHANSU JYOTI MUKHOPADHAYA) • • • I - Sc\ ...••.............•.•......•.•.......•......•...... J • (PRAFULLA C. PANT) NEW DELHI, DECEMBER 09, 2014 . • • '