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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

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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  

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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  

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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  

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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.  

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Venkataraman v.  State1 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 Maharashtra2 and in  

Kalicharan Mahapatra v. State of Orissa3 and by the Constitution Bench of  

this court in K. Veeraswamy v.  Union of India4.  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  

1  1958 SCR 1040  2 (1970) 3 SCC 537 3 (1998) 6 SCC 411 4 (1977) 3 SCC 440

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as the offences punishable under the Indian Penal Code are concerned.  As  

laid down by this Court in State of Himachal Pradesh v. Nishant Sareen5,  

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

5 (2010) 14 SCC 527

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