Prof. N.K.Ganguly Vs Cbi New Delhi

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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.798 OF 2015

PROF. N.K. GANGULY ……APPELLANT Vs.

CBI NEW DELHI ……RESPONDENT

WITH CRIMINAL APPEAL No. 799/2015 CRIMINAL APPEAL No. 800/2015 CRIMINAL APPEAL NO. 801/2015 CRIMINAL APPEAL No. 930/2015

AND CRIMINAL APPEAL No.1537/2015

(Arising Out of SLP (Crl) No.9838 of 2015) (@ SLP (Crl)………………… CRL. M.P. NO.9612 of 2015)

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J U D G M E N T V.GOPALA GOWDA, J. Delay condoned. Leave granted in Special Leave

Petition (Crl)………………Crl.M.P. No.9612 of 2015.

2.These appeals arise out of the common judgment and order

dated 27.05.2013 passed in Application Nos. 480 of

2013, 41206, 40718, 41006 and 41187 of 2012 and judgment

and order by the High Court of Judicature at Allahabad

dated 07.10.2014 passed in Application No. 277KH of 2014

in Special Case No. 18 of 2012 by the learned Special

Judge, whereby the High Court dismissed the applications

filed by the appellants herein under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred

to as “the CrPC”) to quash the criminal proceedings of

Special Case No. 18 of 2012 as well as the summoning

order dated 08.11.2012 passed by the learned Special

Judge, Anti Corruption, CBI, Ghaziabad. All the appeals

are being disposed of by this common judgment.

3.As the facts in all the appeals are common, for the sake

of convenience, we refer to the facts of Criminal Appeal

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No. 798 of 2015, in this judgment which are briefly

stated hereunder:

4.The Indian Council of Medical Research (hereinafter

referred to as “ICMR”), a registered society under the

Societies Registration Act, 1860 is a premier research

institute dealing with the formulation, coordination

and promotion of bio-medical research. Its functional

object is to initiate, aid develop and coordinate

medical and scientific research in India and to

promote and assist institutions for the study of

diseases, their prevention, causation and remedy. It

is fully funded by the Government of India through

Department of Health Research, Ministry of Health and

Family Welfare. The Institute of Cytology & Preventive

Oncology (hereinafter referred to as “ICPO”) is one of

the institutes of ICMR, the main aim of which is to

promote research in the field of cancer.

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5. On 30.11.2010, a criminal case was registered under

Section 120-B of the Indian Penal Code (hereinafter

referred to as the “IPC”) read with Section 13(1)(d)

and 13(2) of the Prevention of Corruption Act, 1988

(hereinafter referred to as the “P.C. Act, 1988”) on

the basis of written complaint filed by M.R. Atrey,

Sub-Inspector of Police, CBI, EOU, VII, New Delhi

against the appellants herein namely N.K. Ganguly, the

then Director General, Mohinder Singh, the then Sr.Dy.

Director General-Admin, P.D. Seth, the then Financial

Advisor, A.K. Srivastava, Executive Engineer, all from

ICMR, New Delhi and B.C. Das, the then Director ICPO,

NOIDA and other unknown persons in the matter relating

to the alleged unauthorized and illegal transfer of

plot no.119, Sector 35, NOIDA, measuring 9712.62 sq.

meters from ICPO, NOIDA to ICPO-ICMR Cooperative Group

Housing Society Ltd. NOIDA (hereinafter referred to as

the “ICPO-ICMR Housing Society”).

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6.In the preliminary inquiry in the matter, it was found

that the aforesaid officials and the other unknown

persons had entered into a criminal conspiracy by

abusing their official position as public servants and

had unauthorisedly and illegally transferred the

aforesaid plot from ICPO to ICPO-ICMR Housing Society at

a consideration of Rs.4,33,90,337/- which was much lower

than the then prevailing sector rate of Rs.18,000/- per

sq.mtrs. of NOIDA, thereby, giving themselves and other

members of the ICPO-ICMR Housing Society an undue

pecuniary advantage. It was also revealed in the enquiry

that the membership of the ICPO-ICMR Housing Society was

granted to such persons who were otherwise not eligible

for getting membership as per the bye-laws of the society and terms and conditions stipulated and approved

by ICMR for membership in the said society. It was

further revealed that the officers of New Okhla

Industrial Development Authority (hereinafter referred

to as “NOIDA”) allowed the transfer of the said plot

unauthorisedly and illegally from ICPO to ICPO-ICMR

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Housing Society, despite the fact that they were not

competent to pass such order of transfer.

7.During the course of investigation by CBI, apart from

the aforesaid named accused persons in the FIR, the

fact of the involvement of other officials namely,

L.D. Pushp, the then Administrative Officer, ICPO,

Jatinder Singh, the then Senior Accounts Officer,

ICMR, Dr. S.K. Bhattacharya, the then Additional

Director General, ICMR, Dr. Bela Shah, Head of NCD

Division, ICMR, Smt. Bhawani Thiagarajan, the then

Joint Secretary, Ministry of Health and Family

Welfare, Government of India, S.C. Pabreja, the then

Manager (Residential Plots), NOIDA and R.S. Yadav, OSD

(Residential Plots), NOIDA, was revealed.

8.After completion of the investigation, a charge-sheet

was filed against the appellants for the alleged

offences committed by them on account of unauthorised

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and illegal transfer of the plot in question in favour

of the ICPO-ICMR Housing Society.

9.The competent authority of ICMR granted sanction under

Section 19 of the P.C. Act, 1988 for prosecuting A.K.

Srivastava and Dr. Bela Shah. The charge-sheet was

filed before the learned Special Judge, Anti

Corruption, CBI (hereinafter referred to as the

“Special Judge”) against all the appellants, except

R.S. Yadav, OSD, NOIDA, under Section 173(2) of CrPC

for the offences punishable under Section 120-B of IPC

read with Section 13(1)(d) and 13(2) of the P.C. Act,

1988. The requisite sanction for prosecution against

R.S. Yadav was declined by the Competent Authority.

After considering the charge-sheet and other materials

available on record, the learned Special Judge came to

the conclusion that a prima facie case appeared to

have been made out by the CBI against the appellants.

Accordingly, the learned Special Judge vide his order

dated 08.11.2012 has taken cognizance and summons were

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issued against the appellants to face the trial for

the said offences.

10. Aggrieved of the order of taking cognizance and

issuance of summons, the appellants filed applications

before the High Court of Allahabad under Section 482

of CrPC, urging various grounds and prayed that the

entire proceedings on the file of the learned Special

Judge in the case No. 18 of 2012 be quashed. Finding

no merit in the applications filed by the appellants,

the High Court refused to interfere with the order of

the learned Special Judge dated 08.11.2012 and

dismissed the same. The learned Judge of the High

Court held as under:

“.....at this stage it cannot be said that no offence under Section 120B IPC read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act is made out against the petitioners. There are sufficient materials available on record which may prima facie establish the involvement of the petitioners accused in commission of the aforesaid offences by getting the plot in question

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transferred for the purposes of constructing flats to ICPO-ICMR Cooperative Group Housing Society (a private housing society) in which they were also the members and ultimately after construction of the flats they also obtained individual flats after getting pecuniary benefit for themselves and others and caused loss to the ICPO/ICMR (a fully govt. funded body). Due to the said transfer of plots allotted to ICPO for staff quarters, the officials of the ICPO have been permanently deprived of getting official quarters in future.

......In this case, the role of each petitioners in processing, approving and ultimately getting the plot in question transferred to ICPO-ICMR Cooperative Group Housing Society (a private housing society) has been categorically assigned by the prosecution and after conducting thorough and detailed investigation in the matter, the charge sheet has been submitted against them, on which the learned Special Judge, Anti Corruption, CBI, Ghaziabad has taken cognizance. In my considered opinion, there appears to be no infirmity, illegality, irregularity or jurisdictional error in submitting the charge sheet by the CBI and taking cognizance thereon by the learned Special Judge, Anti Corruption, CBI, Ghaziabad.”

Hence the present appeals.

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11. We have heard Mr. P.P Khurana, Mr. Gopal

Subramanium and Mr. R Basant, the learned senior

counsel appearing on behalf of the appellants, and Mr.

P.S Patwalia, the learned Additional Solicitor General

and Ms. Kiran Suri, learned senior counsel appearing

on behalf of the respondent. On the basis of the

factual evidence on record produced before us, the

circumstances of the case and also in the light of the

rival legal contentions urged by the learned senior

counsel for both the parties, we have broadly framed

the following points that would arise for our

consideration:-

1) Whether an offence under Section 120B IPC is

made out against the appellants, and if so,

whether previous sanction of the Central

Government is required to prosecute them for the

same?

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2) Whether the order dated 08.11.2012 passed by

the learned Special Judge taking cognizance of the

offence against the appellants is legal and valid?

3) What order?

Answer to Point Nos. 1 and 2: 12. As the point numbers 1 and 2 are inter-related, we

answer them together by assigning the following

reasons:

The issue of prior sanction required to be obtained

against the appellants in order to prosecute them for

the offence said to have been committed by them under

Section 120B, IPC has to be examined in light of the

allegations contained in the charge-sheet that was filed

before the learned Special Judge by the respondent

herein.

13. The learned senior counsel appearing on behalf of

the appellants contended that the entire transaction

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of transferring the plot in question in favour of the

ICPO-ICMR Housing Society was handled in a transparent

manner, and it was done keeping in view the dire need

of housing of the employees of ICPO-ICMR. The learned

senior counsel submitted that the transfer of the said

plot from ICPO to the ICPO-ICMR Housing Society was

done after obtaining legal opinions and necessary

sanction from the competent authority of NOIDA. The learned senior counsel further contended that the CBI

withheld the report of the Comptroller and Auditor

General of India (CAG) while submitting the charge-

sheet before the learned Special Judge, which is not

tenable in law.

14. It is further contended by Mr. P.P. Khurana, and

Mr. Gopal Subramanium, the learned senior counsel

appearing on behalf of some of the appellants that no

prior sanction was obtained from the Central

Government, which was mandatorily required under

Section 197, CrPC as the appellants were employed as

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public servants at the time of commission of the

alleged offences. It is contended by them that the

transfer of the plot in question occurred when the

appellants were holding public office and the alleged

offences were committed by them, if at all, in

discharge of their official duty. Thus, the learned

Special Judge erred in taking cognizance of the

offences alleged against the appellants without prior

sanction of the Central Government having been

obtained by the respondent. The learned senior counsel

further contended that the learned Special Judge

should not have taken cognizance in the absence of

prior sanction obtained from the Central Government,

especially in light of the fact that taking cognizance

of the alleged offences and setting the wheel of the

criminal justice system in motion is a matter which

could affect the fundamental rights guaranteed to the

appellants under Articles 14, 19 and 21 of the

Constitution of India.

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15. The other learned counsel appearing on behalf of

other appellants have adopted the arguments made by

Mr. P.P Khurana and Mr. Gopal Subramanium and they

have filed their written submissions in support of

their contentions, which are also considered by this

Court.

16. On the other hand, Mr. P.S. Patwalia, the learned

Additional Solicitor General and Ms. Kiran Suri,

learned senior counsel appearing on behalf of the

respondent contended that the legal submissions

advanced by the learned senior counsel appearing on

behalf of the appellants are wholly untenable in law

for the reason that the very act of the appellants

constitute an offence under IPC, as they entered into

a conspiracy to illegally transfer the plot in

question in favour of the said society referred to

Supra without obtaining the permission of the

competent authority of NOIDA, with an ulterior motive

to make unlawful gain for themselves. The appellants

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became members of the ICPO-ICMR Housing Society, even

though they were not eligible to be enrolled as

members of the society, and thereafter proceeded to

transfer the plot at a value which was much lesser

than the prevailing market rate at the time, thus

making an unlawful gain for themselves, which is an

offence under Section 13(1)(d) of the P.C. Act, 1988,

punishable under Section 13(2) of the Act. It is

further contended that the CBI filed the charge-sheet

against the appellants after due investigation, and

therefore, the High Court has rightly dismissed the

applications filed by them under Section 482 of CrPC

by passing a valid judgment and order which does not

call for interference by this Court in exercise of its

appellate jurisdiction. The illegal acts done by the

appellants in transferring the said plot at a lower

price cannot be said to have been carried out in

exercise of their official duty. Therefore, no

previous sanction from the Competent Authority was

required under Section 197 of CrPC to prosecute the

appellants for the alleged offence. The learned

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Additional Solicitor General and the learned senior

counsel appearing on behalf of the respondent submit

that this is the reason that the present cases are not

ones which warrant for this Court to exercise its appellate jurisdiction and quash the proceedings as

prayed by the Appellants.

17. The FIR and the charge-sheet both contain

references to the allegations made against the

appellants and other unknown persons, that they

entered into a criminal conspiracy by abusing their

official positions as public servants during the year

2006-2007 and illegally transferred the plot in

question from ICPO to ICPO-ICMR Housing Society at a

much lower price than the then prevailing sector rate.

On this basis, it is alleged that the appellants

dishonestly obtained an undue pecuniary advantage for

themselves and others to the extent of

Rs.13,14,36,823/- by illegally transferring the plot

in favour of the above said society with an ulterior

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motive. The process of transfer of the plot was

initiated by B.C. Das, the then Director, ICPO, vide

letter dated 29.03.2006 on the basis of a

representation prepared by L.D. Pushp, the then

Administrative Officer, ICPO, containing signatures of

51 employees of ICPO sent to Mohinder Singh, Sr. Dy.

Director General (Admn), ICMR. The said representation

was for the purpose of establishment of the ICPO-ICMR

Housing Society with an object to promote control,

coordinate and take charge of the plot in question.

The final approval for transfer of the plot and

formation of the proposed ICPO-ICMR society was given

by the appellant N.K. Ganguly, the then Director

General of ICMR on 06.06.2006 and the same was

approved and communicated by A.K. Srivastava,

Executive Engineer vide letter dated 09.06.2006 to

B.C. Das. On 12.06.2006, N.K. Ganguly recorded a note

in the file stating that “the proposal was approved

provided it was under the provisions of laws and land

use for which it was acquired”. The aforesaid

allegations contained in the chargesheet suggest that

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a conspiracy was hatched by the appellants to commit

an offence under Section 13(1)(d) of the P.C. Act,

1988. A perusal of the chargesheet reveals that there

is sufficient material on record to indicate the

existence of the alleged conspiracy. In view of the

same, Section 197 of CrPC is squarely applicable to

the facts of the present case.

18. At this stage, it is important to examine the

concept of criminal conspiracy as defined in IPC.

Section 120-A of the IPC reads as under:

“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.”

19. In the instant case, it is alleged in the charge-sheet

that the appellants entered into an agreement to

commit an illegal act, which is an offence punishable

under Section 120B of IPC. Therefore, the provision of

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Section 197 of CrPC is squarely applicable to the

facts of the case. Prior sanction of the Central

Government was required to be taken by the respondent

before the learned Special Judge took cognizance of

the offence once the final report was filed under

Section 173(2) of CrPC. In this regard, Mr. Gopal

Subramanium, learned senior counsel appearing on

behalf of the appellant has very aptly placed reliance

on the decision of a three judge bench of this Court

in the case of R.R. Chari v. State of Uttar Pradesh1,

wherein, while examining the scope of Section 197 of

CrPC, this Court made an observation indicating that

the term “cognizance” indicates the stage of

initiation of proceedings against a public servant.

The Court placed reliance upon the judgment of the

Calcutta High Court delivered in the case of

Superintendent and Remembrance of Legal Affairs, West

Bengal v. Abhani Kumar Bannerjee2, wherein it was held

that before taking cognizance of any offence, a

1AIR 1951 SC 207 2 AIR 1950 Cal 437

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Magistrate must not only be said to have applied his

mind to the contents of the petition-

“but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,-- proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

20. Both the learned senior counsel placed reliance on

another judgment of a three judge bench of this Court

in Shreekantiah Ramayya Munipalli v. State of Bombay3.

In that case, the allegation against the appellant

therein and two other government servants was that

they had conspired to defraud the Government in

respect of certain properties and arranged to sell the

goods to the approver. The case against them was

registered under Section 120-B read with Section 409

3 AIR 1955 SC 287

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of IPC. While considering the contention advanced that

the said acts could not be said to have been committed

in discharge of official duty, Bose, J. placed

reliance upon the observations made by the Federal

Court in the case of Dr. Hori Ram Singh v. Emperor4,

wherein Vardachariar, J observed that in respect of a

charge under Section 409 of IPC, the official capacity

is relevant only for entrustment, and not necessarily

in respect of misappropriation or conversion which may

be the act complained of. It was held by this Court

that the correct position of law was laid down in the

case of Hori Ram Singh, which is as under:-

“I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests.”

Bose, J., further held in Shreekantiah case referred to

supra that there are cases and cases and each must be

decided on its own facts. It was held as under:

4 AIR 1939 FC 43

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“Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course, it is no part of an official’s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. ”

(emphasis laid by this Court)

While considering the facts of the case, Bose J.

observed that the offence in question, could not have

been committed any other way, and held as under:

“...If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately; there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the order, and the only difference would lie in the intention with which it

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was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.” (emphasis laid by this Court)

21. Mr. Gopal Subramanium, the learned senior counsel on

behalf of some of the appellants has further rightly

placed reliance upon the judgement of a three judge

bench of this Court in the case of Amrik Singh v.

State of Pepsu5 to buttress the contention that the

issue of requirement of prior sanction under Section

197 of Cr.PC can be raised at any stage of the

proceedings, and not just at stage of framing of

charges. The decision in the case of Hori Ram Singh

(supra) was also quoted with approval, especially the

categorisation of situations in three scenarios, as

under:

“a) Decision which held that sanction was necessary when the act complained of attached to the official character of the person doing it; b) Judgments which held that sanction was necessary in all cases in which the official character of the person gave him

5 AIR 1955 SC 309

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an opportunity for the commission of the crime; and

c)Those which held it was necessary when the offence was committed while the accused was actually engaged in the performance of official duties.“

It was further held in the Amrik Singh case that:

“The result of the authorities may thus be summed up: it is not every offence committed by a public servant that requires sanction for prosecution u/s 197 of the Cr.PC; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be invested at the trial and could not arise at the stage of grant of sanction, which must precede the institution of the prosecution.”

(emphasis laid by this Court)

The position of law, as laid down in the case of Hori

Ram Singh was also approved by the Privy Council in the

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case of H.H.B. Gill v. The King6, wherein it was observed

as under:

“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.”

22. Reliance was further rightly placed by the learned

senior counsel on the decision of a constitution bench

of this Court in the case of Matajog Dobey v. H.C.

Bhari7, which pertained to an income tax

investigation. It was alleged by the appellant therein

that while conducting a search, the officials of the

income tax department had forcibly broke open the

entrance door of the house and interfered with the

boxes and drawers of the tables. It was also alleged

by the appellant therein that the officials tied him

and beat him up. Upon an enquiry of the said

complaint, the magistrate came to the conclusion that 6 AIR 1948 PC 128 7 AIR 1956 SC 44

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a prima facie case had been made out and issued

process. During the course of trial, the issue

pertaining to want of sanction was urged. This Court

held as under:

“Article 14 does not render Section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.”

(emphasis laid by this Court)

On the other hand, ordinary citizens not so engaged do

not require this safeguard. It was further observed

that:-

“....Whether sanction is to be accorded or not, is a matter for the Government to consider. The absolute power to accord or withhold sanction on the Government is irrelevant and foreign to the duty cast on that Court which is the ascertainment of the true nature of the act.”

The Court finally summed up the result of the discussion

as follows:-

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“There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.....” (emphasis laid by this Court)

In the case of Satwant Singh v. State of Punjab8, a

constitution bench of this Court while examining the

scope of Section 197 of CrPC, observed as follows:

“It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under s.161 of IPC, is one of them and the offence of cheating or abetment thereof is another... where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences...... ...the Act of cheating or abetment thereof

8 AIR 1960 SC 266

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has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”

In the case of R.R. Chari referred to supra, while

examining the scope of Section 197 of CrPC, this Court

held as follows:

“It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants form frivolous prosecution.....”

(emphasis laid by this Court)

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The learned senior counsel further placed reliance on a

three judge bench decision of this Court in the case of

Baijnath Gupta v. State of Madhya Pradesh9, wherein the

question that arose before this Court was whether the

conviction of the appellant under Sections 409 and 477A

of the IPC was illegal for want of sanction. This Court

observed as follows:

“It is not that every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. 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. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or

9 AIR 1966 SC 220

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in excess of it that the protection is claimable.”

(emphasis laid by this Court)

In the case of B. Saha v. M.S Kochar10, the constitution

bench of this Court observed that the question of

sanction under Section 197 of CrPC could be raised and

considered at any stage of the proceedings. On the

issue of when the protection of Section 197 of CrPC is

attracted, this Court held as under:

“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.”

The learned senior counsel further placed reliance on

the decision of a constitution bench of this Court in

the case of R.S Nayak v. A.R Antulay11, wherein

certain observations were made with regard to Section 6

of P.C Act, 1988, as under:

10 (1979) 4 SCC 177 11 (1984) 2 SCC 183

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“Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants....The Legislative advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how taht power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged

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by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit interference of knowledge about the fuctions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority done would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office...... (emphasis laid by this Court)

23.Mr. P.P. Khurana, the learned senior counsel appearing

on behalf of some of the appellants has further placed

reliance upon the judgments of this Court in the cases

of R. Balakrishna Pillai v. State of Kerala12, Abdul

Wahab Ansari v. State of Bihar13, Shankaran Moitra v.

Sadhna Das14 and State of M.P v. Sheetla Sahai15, in

12 (1996) 1 SCC 478 13 (2000) 8 SCC 500 14 (2006) 4 SCC 584 15 (2009)8 SCC 617

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support of his submission that the acts constituting

the offence were alleged to have been committed by the

appellant in discharge of his official duty and that

being the fact, it was not open to the Special Judge

court to take cognizance of the offences without

obtaining the previous sanction of the Central

Government by the respondent.

24. The learned Additional Solicitor General, on the other

hand, appearing on behalf of CBI placed strong

reliance on the decision of this Court in the case of

Prakash Singh Badal v. Union of India16 to buttress his

contention that no sanction was required to be taken

in the instant case as the Appellants have entered

into a criminal conspiracy, therefore, it cannot be

said to be a part of their official duty as the public

servants. The act of the appellants of transferring

the plot in question in favour of the aforesaid

society, allotted in favour of ICMR for the purpose of

construction of the flats and allotting the same in

16 (2007) 1 SCC 1

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favour of the employees of ICPO-ICMR society without

obtaining the order from either CEO or Chairman of the

NOIDA with a motive to make wrongful gain for

themselves after entering into a conspiracy cannot be

said to be an act that has been carried out in

discharge of their official duty. The learned

Additional Solicitor General placed reliance on the

following paragraphs of the Prakash Singh Badal case

(supra):-

“49. Great emphasis has been led on certain decisions of this Court to show that even in relation to offences punishable under Section 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra's case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

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50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.”

Mr. P.P Khurana and Mr. Gopal Subramaniam, the learned

senior counsel appearing on behalf of some of the

appellants, on the other hand, contend that the

decision in the Prakash Singh Badal case needs to be

appreciated in light of the facts of that case. Thus,

while stating that the offences under Sections

420,467,468,471 and 120B of IPC can by no stretch of

imagination and by their very nature be regarded as

having been committed by any public servant while

acting or purporting to act in discharge of his

official duty, this Court did not mean that merely

because an official was charged with an offence under

these sections, no sanction was required to be taken.

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The learned counsel placed reliance on the following

paragraph of the judgment to emphasise the same:

“51. In Baijnath v. State of M.P. (1966 (1) SCR 210) the position was succinctly stated as follows:

"..it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted.”"

The learned senior counsel also placed reliance on the

three judge bench decision of this Court rendered in

the case of Shreekantiah Ramayya Munipalli, referred to

supra, wherein it was held as under:

“18. ....If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of ofcourse it is no part of an official’s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.... 19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it

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can be established.... Now it is evident that the entrustment and/ or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity....”

25. From a perusal of the case law referred to supra,

it becomes clear that for the purpose of obtaining

previous sanction from the appropriate government

under Section 197 of CrPC, it is imperative that the

alleged offence is committed in discharge of official

duty by the accused. It is also important for the

Court to examine the allegations contained in the

final report against the Appellants, to decide whether

previous sanction is required to be obtained by the

respondent from the appropriate government before

taking cognizance of the alleged offence by the

learned Special Judge against the accused. In the

instant case, since the allegations made against the

Appellants in the final report filed by the respondent

that the alleged offences were committed by them in

discharge of their official duty, therefore, it was

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essential for the learned Special Judge to correctly

decide as to whether the previous sanction from the

Central Government under Section 197 of CrPC was

required to be taken by the respondent, before taking

cognizance and passing an order issuing summons to the

appellants for their presence.

Answer to Point No.3

26.We have adverted to the contentions advanced by the

learned counsel appearing on behalf of both the parties.

We find much merit in the contention advanced by the

learned senior counsel & other counsel appearing on

behalf of the appellants and accept the same. We

accordingly pass the following order:

For the aforesaid reasons, we set aside the impugned

judgment and order of the High Court dated 27.05.2013

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passed in Application Nos. 480 of 2013, 41206, 40718,

41006 and 41187 of 2012 and order dated 7.10.2014 passed

in Application No. 277KH of 2014 in Special Case No. 18

of 2012 and quash the proceedings taking cognizance and

issuing summons to the appellants in Special Case No.

18 of 2012 by the Special Judge, Anti Corruption (CBI),

Ghaziabad, U.P. in absence of previous sanction obtained

from the Central Government to prosecute the appellants

as required under Section 197 of CrPC. The appeals are

allowed. All the applications are disposed of.

………………………………………………………J. [V. GOPALA GOWDA]

………………………………………………………J. [AMITAVA ROY] New Delhi, November 19, 2015

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ITEM NO.1A-For Judgment COURT NO.10 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 798/2015 PROF. N.K.GANGULY Appellant(s) VERSUS CBI NEW DELHI Respondent(s) WITH Crl.A. No. 799/2015 Crl.A. No. 800/2015 Crl.A. No. 801/2015 Crl.A. No. 930/2015 Crl.A. No. 1537/2015 @ SLP (CRL.) NO.9838/2015 @ SLP (CRL.)...CRLMP No.9612/2015 Date : 19/11/2015 These appeals were called on today for pronouncement of JUDGMENT. For Appellant(s) Mr. P.P. Khurana, Sr. Adv. Mr. Arun K. Sinha,Adv.

Mr. Rajesh Singh Chauhan, Adv. Mr. Sachin Sood, Adv.

Mr. Jetendra Singh, Adv. Ms. Kalpana Sabharwal, Adv. Ms. Priyanka Singh, Adv.

Ms. Manju Jetley,Adv. Mr. Kumar Kaushik, Adv. Mr. Bhupesh Sharma, Adv. Mr. Shiv Ram Pandey, Adv. Mr. S.D. Singh, Adv. Mr. Vijay Kumar, Adv. Mr. J. Singh, Adv.

Ms. Bharti Tyagi,Adv.

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Mr. T. Srinivasa Murthy, Adv. Ms. Shruti Iyer, Adv. Mr. T. Rahman, Adv. Mr. Kushagra Pandey, Adv.

Mr. Senthil Jagadeesan,Adv. For Respondent(s) Mr. B. V. Balaram Das,Adv.

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Amitava Roy.

Delay condoned. Leave granted in Special Leave Petition (Crl.).........Crl.M.P. No.9612 of 2015.

The appeals are allowed in terms of the signed

Reportable Judgment.

All the applications are disposed of.

(VINOD KUMAR) COURT MASTER

(MALA KUMARI SHARMA) COURT MASTER

(Signed Reportable Judgment is placed on the file)

PROF. N.K.GANGULY Vs CBI NEW DELHI

PROF. N.K.GANGULY Vs CBI NEW DELHI