STATE OF PUNJAB Vs. LABH SINGH
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 2168 of 2010, Judgment Date: Dec 17, 2014
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2168 OF 2010
STATE OF PUNJAB .... Appellant
Versus
LABH SINGH .... Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal by special leave challenges the judgment and order dated
17.01.2006 passed by the High Court of Punjab and Haryana in Criminal
Revision No.1743 of 2005 whereby it set aside the order of the Special
Judge, Patiala dated 07.06.2005 framing charges against one Sikandar Singh
and the present respondent.
2. FIR No.57 was lodged with Police Station, Vigilance Bureau, Patiala
Range, Patiala on 13.08.1997. It was alleged that semi-Government letter
dated 04.03.1994 had stated that pursuant to certain raids conducted at the
site for checking the earth work done on Bhakra main line, it was found
that as regards four projects cross sections/estimates were not prepared
before doing any work and that it appeared that the estimates were actually
prepared by the concerned Government servants after completion of work
thereby violating provisions of PWD code and causing loss to the tune of
Rs.3,69,603 to the exchequer. Pursuant to said FIR crime was registered
and investigation was undertaken by the Vigilance Bureau.
3. When request was made for grant of sanction to prosecute the
Government servants in question, it was refused by the department on
13.09.2000. Yet another attempt was made in the year 2003 requesting
sanction to prosecute but such request was again rejected by the department
on 24.09.2003. Despite such refusal for issuance of sanction, challan
under section 173 of Criminal Procedure Code was filed on 09.11.2004 in the
court of Additional Sessions Judge/Special Judge, Patiala. The allegations
in the challan dated 09.11.2004 were to the following effect:
"During the checking of the aforesaid works, it was found that regarding
the work done on the above mentioned 4 works, cross sections/estimates etc.
have not been prepared, which is mandatory before doing any work. From
this, it appears that after completing the work, this was done to prepare
cross sections estimates according to their own wish by the suspected
officers. Checking memo was prepared at the spot, upon which signatures of
concerned J.E and Sub Divisional Engineer were obtained, who admitted that
before doing the aforesaid works, they did not prepare any cross section or
estimates. From this, it is clearly established that the suspected officer
did not get prepared the cross sections and estimates for embezzling the
government treasury at a large scale. In the aforesaid works, for
starting/finishing the repair works without preparing estimates, the
following officers are responsible."
The challan so presented had arrayed two public servants namely Shri
Sikandar Singh, SDO and Shri Labh Singh, Junior Engineer in addition to
five private individuals. Shri Sikandar Singh and Shri Labh Singh had
retired on 13.12.1999 and 30.04.2000 respectively, i.e., even before the
request for issuance of sanction was rejected on the first occasion. The
aspect regarding their retirement and refusal to grant sanction was dealt
with in the challan in following terms:
"In view of the refusal of granting sanction for prosecution by the
department, it is impossible to present challan against the employees who
are in service, but the employees who have retired, challan can be
presented against them in the court."
4. The Special Judge framed charges on 07.06.2005 against all seven
accused for the offences under sections 218/409/465/467/120B IPC and under
section 13(1)(C) read with section 13(1)(2) of the Prevention of Corruption
Act, 1988 ('POC' Act, for short). Out of six charges framed, one pertained
to the offence under section 13(1)(C) read with section 13(1)(2) of the POC
Act while other five related to offences under the Indian Penal Code.
5. The public servants namely Sikandar Singh and Labh Singh challenged
the aforesaid order dated 07.06.2005 by filing Criminal Revision No.1743 of
2005 in the High Court of Punjab and Haryana. The High Court took the view
that the department had refused sanction to prosecute public servants and
yet a challan was presented on the premise that no sanction was required
after retirement of those public servants. The High Court observed;
"These petitioners and others have been charged for offence under the
Prevention of Corruption Act and also for offences under the Indian Penal
Code. Section 197 Cr.P.C. bars cognizance by the Court of an offence by a
public servant even after retirement. Even otherwise, it is discriminatory
for the petitioners when other co-accused who are still in service, cannot
be prosecuted for want of sanction and present petitioners are being
prosecuted only because they have retired."
The High Court allowed the petition and set aside the order dated
07.06.2005 passed by the Special Judge, Patiala.
6. This appeal by State of Punjab takes exception to the order of the
High Court. During the pendency of this appeal the first respondent
Sikandar Singh expired and his name was deleted from the array of parties
vide order dated 20.09.2010 passed by this Court, leaving Labh Singh as the
only respondent before the Court. The stand taken in the petition of
appeal on behalf of the appellant is as under:
"It is humbly submitted that order passed by Hon'ble High Court is
erroneous in law as u/s 197 Cr.P.C. respondents can be convicted and no
previous sanction is required as the respondents are no longer in service
and have been retired in the years 1999/2000. Secondly, there was no
discrimination as the other persons were in service and since respondents
have been retired no previous sanction is required. It was also submitted
that other persons will also be prosecuted as and when they are retired."
Appearing for the State Mr. Sanchar Anand, learned advocate submitted that
sanction to prosecute was not required at all. Ms. Jaspreet Gogia, learned
advocate appearing for the respondent supported the view taken by the High
Court.
7. In the present case the public servants in question had retired on
13.12.1999 and 30.04.2000. The sanction to prosecute them was rejected
subsequent to their retirement i.e. first on 13.09.2000 and later on
24.09.2003. The public servants having retired from service there was no
occasion to consider grant of sanction under section 19 of the POC Act.
The law on the point is quite clear that sanction to prosecute the public
servant for the offences under the POC Act is not required if the public
servant had already retired on the date of cognizance by the court. In
S.A. Venkataraman v. State[1] while construing section 6(1) of the
Prevention of Corruption Act, 1947 which provision is in pari materia with
section 19(1) of the POC Act, this court held that no sanction was
necessary in the case of a person who had ceased to be the public servant
at the time the court was asked to take cognizance. The view taken in S.
A. Venkataraman (supra) was adopted by this court in C.R. Bansi v. State of
Maharashtra[2] and in Kalicharan Mahapatra v. State of Orissa[3] and by the
Constitution Bench of this court in K. Veeraswamy v. Union of India[4].
The High Court was not therefore justified in setting aside the order
passed by the Special Judge insofar as charge under the POC Act was
concerned.
8. However as regards charges for the offences punishable under the IPC
concerned the High Court was absolutely right in setting aside the order of
the Special Judge. Unlike section 19 of the POC Act, the protection under
section 197 of Cr.P.C. is available to the concerned public servant even
after retirement. Therefore, if the matter was considered by the
sanctioning authority and the sanction to prosecute was rejected first on
13.09.2000 and secondly on 24.09.2003, the court could not have taken
cognizance insofar as the offences punishable under the Indian Penal Code
are concerned. As laid down by this Court in State of Himachal Pradesh v.
Nishant Sareen[5], the recourse in such cases is either to challenge the
order of the Sanctioning Authority or to approach it again if there is any
fresh material.
9. In the circumstances, in our view the order under appeal passed by
the High Court is correct insofar as charges under IPC are concerned but
must be set aside as regards charge under POC Act is concerned.
10. Before we part, we must record that we do not approve the stand taken
by the appellant in the petition. The prosecution cannot keep waiting till
a public servant retires and then choose to file charge-sheet against him
after his retirement, thereby setting at naught the protection available to
him under Section 19 of the POC Act. The appeal thus stands allowed
partly. No order as to costs.
.............................J.
(Dipak Misra)
.............................J.
(Uday Umesh Lalit)
New Delhi,
December 17, 2014
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[1] 1958 SCR 1040
[2] (1970) 3 SCC 537
[3] (1998) 6 SCC 411
[4] (1977) 3 SCC 440
[5] (2010) 14 SCC 527
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