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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 459 OF 2013 (@SPECIAL LEAVE PETITION (CRIMINAL) No. 1593 of 2007)

STATE OF UTTARAKHAND      … APPELLANT

VERSUS

YOGENDRA NATH ARORA & ANR.  …RESPONDENTS

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

Yogendra Nath Arora (hereinafter referred to as  

“the Accused”) was earlier employed as Deputy General  

Manager  in  U.P.  Industrial  Consultants,  an  

undertaking  of  the  State  of  Uttar  Pradesh.  

Consequent upon reorganization of the State of Uttar  

Pradesh, he was taken on deputation on 23rd January,  

2003  and  posted  as  Deputy  General  Manager  of  the  

State  Industrial  Development  Corporation,

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(hereinafter referred to as “SIDCUL”), a Government  

undertaking  of  the  State  of  Uttarakhand.   While  

working as the Deputy General Manager of SIDCUL,  a  

trap  was  laid  on  30th of  June,  2004  and  he  was  

arrested while accepting an illegal gratification of  

Rs.30,000/-.  This led to lodging of Criminal Case  

No. 168 of 2004 at Police Station Dalanwala, District  

Dehradun under Section 7 read with Section 13(1)(d)  

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

(hereinafter referred to as “the Act”).  The accused  

was  repatriated  on  the  same  day  to  his  parent  

organization by the State Government of Uttarakhand.  

It also granted sanction for his prosecution on 23rd  

of August, 2004 and the charge sheet was submitted on  

25th of August, 2004 in the Court of Special Judge,  

Anti-Corruption-II,  Nainital.   Accused  prayed  for  

discharge, inter alia contending that the materials  

on  record  are  not  sufficient  for  framing  of  the  

charge and further, in the absence of valid sanction  

from  the  competent  authority,  as  required  under

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Section  19(1)(c)  of  the  Act,  the  trial  can  not  

legally proceed.  The Special Judge, by his order  

dated 18th of August, 2005 rejected his contention,  

inter  alia,  observing  that  there  is  sufficient  

material on record for framing of the charge.  As  

regard the plea of absence of sanction, the learned  

Judge observed as follows:  

“…the  question  of  sanction  being  merely an incident to the trial of the  case  is  not  to  be  considered  at  this  stage.  It is undoubtedly true, that the  accused was an employee of the State of  Uttar  Pradesh  and  was  on  deputation  to  the  State  of  Uttaranchal  and  under  the  subordination and administrative control  of the State of Uttaranchal.  Thus, the  question  of  sanction  being  incident  to  the trial of the case and on perusal of  the  record,  there  is  a  sufficient  material on record to charge the accused,  the  accused  shall  be  charged  under  Section 7 read with Section 13(a)(d) and  13(2)  of  the  Prevention  of  Corruption  Act, 1988.”

Accordingly,  the Special  Judge rejected  the  

prayer of the accused.  

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Aggrieved by the same, the accused preferred  

an application under Section 482 of the Criminal  

Procedure Code before the High Court challenging  

the aforesaid order.  It was contended before the  

High Court that the accused being an employee of  

an undertaking of the State Government of Uttar  

Pradesh, the State Government of Uttarakhand is  

not competent to grant sanction.  This submission  

found favour with the High Court.  The High Court  

held  that  the  accused  being  an  employee  of  an  

undertaking  of  the  State  Government  of  Uttar  

Pradesh and having been repatriated to his parent  

department,  it  is  the  State  Government  of  the  

Uttar Pradesh which is competent to remove him and  

to  grant  necessary  sanction.   Accordingly,  the  

High Court quashed the prosecution of the accused  

being without valid sanction and, while doing so,  

observed that the State Government of Uttarakhand  

shall be at liberty to prosecute the accused after

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obtaining valid sanction from the State Government  

of Uttar Pradesh.

Aggrieved by the aforesaid order, the State of  

Uttarakhand has filed the present special leave  

petition.

Leave granted.

It is common ground that without prejudice to  

the contention raised in the present appeal, the  

State Government of Uttarakhand has written to the  

State  Government  of  Uttar  Pradesh  for  granting  

sanction.  But, till date no decision has been  

communicated.

Ms.  Rachana  Srivastava,  learned  counsel  

representing  the  State  of  Uttarakhand  concedes  

that sanction by the competent State Government is  

necessary  for  prosecution  of  an  accused  for  an  

offence punishable under Section 7 and 13 of the  

Act.  She  points  out  that  the  accused  being  on

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deputation  to  an  undertaking  of  the  State  

Government  of  Uttarakhand,  it  had  the  power  to  

repatriate  him  which  would  mean  the  power  of  

removal  from  office  by  the  State  Government  of  

Uttarakhand.   According  to  her,  dislodging  an  

accused from an office and repatriating him would  

mean removal from his office. Removal from office,  

according to her, would not mean the removal from  

service.  She emphasizes that the expression used  

in Section 19(1)(c) is ‘removal from his office’  

and not ‘removal from service’.  Section 19(1)(c)  

of the Act which is relevant for the purpose reads  

as follows:

“19.  Previous  sanction  necessary  for  prosecution.(1)  No  court  shall  take  cognizance  of  an  offence  punishable  under  Sections  7,10,11,13  and  15  alleged  to  have  been  committed  by  a  public  servant,  except  with  the  previous sanction,-………..

(a) xxx xxx xxx

(b) xxx xxx xxx

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(c)in the case of any other person,  of  the  authority  competent  to  remove him from his office.”

In support of the submission reliance has been  

placed to a Constitution Bench judgment of this  

Court in the case of R.S. Nayak v. A.R. Antulay,  

(1984) 2 SCC 183 and our attention has been drawn  

to the following passage from paragraph 23 of the  

judgment which reads as follows:

“…Each of the three clauses of sub- section(1)  of  Section  6  uses  the  expression ‘office’ and the power to grant  sanction  is  conferred  on  the  authority  competent  to  remove  the  public  servant  from his office and Section 6 requires a  sanction  before  taking  cognizance  of  offences committed by public servant.  The  offence would be committed by the public  servant by misusing or abusing the power  of office and it is from that office, the  authority must be competent to remove him  so as to be entitled to grant sanction.  The removal would bring about cessation of  interrelation between the office and abuse  by  the  holder  of  the  office.   The  link  between  power  with  opportunity  to  abuse  and the holder of office would be severed  by removal from office.  Therefore, when a  public servant is accused of an offence of  taking  gratification  other  than  legal

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remuneration for doing or forbearing to do  an official act (Section 161 IPC) or as a  public  servant  abets  offences  punishable  under  Sections  161  and  163  (Section  164  IPC)  or  as  public  servant  obtains  a  valuable thing without consideration from  person  concerned  in  any  proceeding  or  business transacted by such public servant  (Section  165  IPC)  or  commits  criminal  misconduct as defined in Section 5 of the  1947 Act, it is implicit in the various  offences  that  the  public  servant  has  misused or abused the power of office held  by him as public servant.  The expression  ‘office’  in  the  three  sub-clauses  of  Section  6(1)  would  clearly  denote  that  office which the public servant misused or  abused for corrupt motives for which he is  to be prosecuted and in respect of which a  sanction to prosecute him is necessary by  the competent authority entitled to remove  him from that office which he has abused.  This interrelation between the office and  its abuse if severed would render Section  6  devoid  of  any  meaning.   And  this  interrelation clearly provides a clue to  the  understanding  of  the  provision  in  Section  6  providing  for  sanction  by  a  competent authority who would be able to  judge  the  action  of  the  public  servant  before  removing  the  bar,  by  granting  sanction, to the taking of the cognizance  of  offences  by  the  court  against  the  public  servant.   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

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be able to know whether there has been a  misuse  or  abuse  of  the  office  by  the  public  servant  and  not  some  rank  outsider.”

In fairness to her, she concedes that power  

to remove the accused from service is with the  

State  Government  of  Uttar  Pradesh  and  if  her  

contention that power to repatriate would mean the  

power to remove from service does not find favour,  

it shall be the State Government of Uttar Pradesh  

which would be competent to grant sanction.

Mr.  R.G.  Srivastava,  learned  counsel  

representing the accused, however, contends that  

the  expression  removal  from  office  would  mean  

termination from service and undisputably in the  

facts  of  the  present  case  it  was  the  State  

Government of Uttar Pradesh which was competent to  

terminate the service of the accused.  According  

to  him,  removal  from  office  would  mean  removal  

from permanent employment.  

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In  view  of  the  rival  submissions,  the  

question which falls for determination is as to  

whether  the  expression  removal  from  his  office  

would mean dislodging him from holding that office  

and  shifting  him  to  another  office.  In  other  

words,  the  power  of  the  State  Government  of  

Uttarakhand to repatriate the accused would mean  

that  it  has  power  to  remove.  In  our  opinion,  

office means a position which requires the person  

holding it to perform certain duties and discharge  

certain obligations and removal from his office  

would  mean  to  snap  that  permanently.  By  

repatriation,  the  person  holding  the  office  on  

deputation  may  not  be  required  to  perform  that  

duty and discharge the obligation of that office,  

but nonetheless he continues to hold office and by  

virtue thereof performs certain other duties and  

discharge certain other obligations. Therefore the  

power to repatriate does not embrace within itself

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the  power  of  removal  from  office  as  envisaged  

under  Section  19(1)(c)  of  the  Act.  The  term  

removal means the act of removing from office or  

putting an end to an employment.  The distinction  

between dismissal and removal from service is that  

former  ordinarily  disqualifies  from  future  

employment  but  the  latter  does  not.  Hence,  we  

reject this submission of Ms. Srivastava.

The view which we have taken finds support  

from the decision of this Court in the case of  

V.K. Sharma v. State (Delhi Admn.), 1975 (1) SCC  

784 in which it has been held as follows:

“…..The  purport  of  taking  the  sanction from the authority competent  to  remove  a  corrupt  government  servant from his office is not only  to  remove  him  from  his  temporary  office  but  to  remove  him  from  government service.”

We  are  told  by  Ms.  Srivastava  that  the  

request of the State Government of Uttarakhand for  

sanction of prosecution of the accused is still

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pending  before  the  State  Government  of  Uttar  

Pradesh.  Hence,  we  deem  it  expedient  that  the  

latter takes decision on the request so made, if  

already not taken, within 8 weeks from the date of  

communication of this order. It is made clear that  

we are not expressing any opinion in regard to the  

merit of the request made by the State Government  

of  Uttarakhand  and  it  shall  be  decided  by  the  

State Government of Uttar Pradesh on its own merit  

in accordance with law.

Let a copy of this order be forwarded to the  

Chief Secretary of the State Government of Uttar  

Pradesh for appropriate action forthwith.  

In the result, we do not find any merit in  

this appeal and it is dismissed accordingly with  

the aforesaid observation.

 …………………………………………………………J.  (CHANDRAMAULI KR. PRASAD)

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…………….………………………………………J.                        (V. GOPALA GOWDA)

NEW DELHI, MARCH 18,2013