Page 1

REPORTABLE

   IN THE SUPREME COURT OF INDIA         CRIMINAL APPELATE JURISDICTION          CRIMINAL     APPEAL     No.     1804     of     2012   

(Arising out of SLP (Crl.) No.3841 of 2012)

C.K. Jaffer Sharief     … Appellant  Versus STATE (Through CBI)            …Respondent  

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J   

Leave granted.

2. The judgment and order of High Court of Delhi dated  11.4.2012 affirming the order of the learned trial  court rejecting the application filed by the appellant  for discharge in the criminal prosecution initiated  against him has been challenged in the present appeal.

1

Page 2

3. The above order of the High Court challenged in the  present proceeding came to be passed in the following  facts :

An FIR dated 03.06.1998 was filed by the  Superintendent of Police, CBI/ACU.XX/New Delhi alleging  commission of the offence under Section 13(2) read with  13(1)(d) of the Prevention of Corruption Act, 1988  (hereinafter referred to as ‘the Act’) by the appellant  during his tenure as the Union Railway Minister from  21.06.1991 to 13.10.1995.  Commission of the offence  under the aforesaid provision of the Act was alleged on  the basis that the appellant had dishonestly made the  Managing Directors of RITES (Rail India Technical &  Economics Services Ltd.)  and IRCON (Indian Railway  Construction Co. Ltd.) to approve the journeys of  S/Shri B.N. Nagesh, the then Additional PS to Railway  Minister, S.M. Mastan and Murlidharan, Stenographers in  the railway cell and one Shri Samaullah (domestic help  of the appellant) to London  in connection with the  medical treatment of the appellant.  It was alleged in  

2

Page 3

the FIR that the two Public Sector Undertakings did not  have any pending business in London at the relevant  point of time and the journeys undertaken by the  aforesaid four persons were solely at the behest of the  appellant who had compelled the services of the  concerned employees to be placed in the two  undertakings in question. Pecuniary loss to the Public  Sector Undertakings was, therefore, caused by the  wrongful acts of the appellant.

4. On the basis of the aforesaid FIR, Case no.  RC.2(A)/98-ACU.IX was registered and investigated upon.  Final report of such investigation was submitted in the  court of learned Special Judge, Patiala House, New  Delhi on 22.10.2005.  In the said final report it was,  inter-alia, stated that there was “ample documentary  and oral evidence to prove the facts and  circumstances  of the case, as stated above, which constitute offences  punishable under Section 13(2) read with 13(1) (d) of  the Prevention of Corruption Act, 1988”. Sanction for  prosecution, under Section 19 of the Act was however  

3

Page 4

refused by the competent authority.  Accordingly, in  the final report it was mentioned that the proceedings  against the accused appellant be dropped.

5. The learned trial court by its order dated  25.08.2006 declined to accept the closure report filed  by the investigating agency and observed that there  appears to be prima facie evidence with regard to  commission of offence under Section 13(2) read with 13  (1)(d) of the Act and, possibly, the entire material  collected in the course of investigation had not been  placed before the sanctioning authority.  

6. Pursuant to the order of the learned trial court  the matter was once again looked into by the  investigating agency who submitted another report dated  01.08.2007 stating that all materials collected during  investigation had been placed before the authority  competent to grant sanction including such  clarifications as were sought from time to time.   

7. On receipt of the aforesaid report dated  01.08.2007, the learned trial court by its order dated  

4

Page 5

26.07.2008 took cognizance of the offence punishable  under Section 13 (2) read with Section 13(1)(d) of the  Act.   

8. Thereafter, the accused appeared before the learned  trial court and filed an application seeking discharge  which being refused by the order of the trial court  dated 27.01.2010, the appellant moved the High Court of  Delhi under Article 226 of the Constitution read with  Section 482 of the Code of Criminal Procedure for  setting aside the order dated 27.01.2010 passed by the  learned Special Judge, CBI, Rohini, New Delhi and for  quashing  of the criminal proceeding pending before the  said court. The aforesaid application having been  dismissed by the impugned judgment and order dated  11.04.2012 of the High Court of Delhi the present  appeal has been filed.

9. We have heard Shri P.P. Rao, learned senior counsel  for the appellant and Shri Mohan Jain, learned ASG for  the State.  

5

Page 6

10. Shri Rao, learned senior counsel for the appellant  has submitted that he would not assail the impugned  order of the High Court on the ground of absence of  requisite sanction either under the provisions of the  Act or under the provisions of the Cr.P.C.  Shri Rao  has submitted that the aforesaid issue need not be gone  into in the present appeal in as much as the  allegations made in the FIR and facts appearing from  the reports of the investigating agency, ex facie, do  not make out the commission of any offence by accused- appellant under Section 13(1)(d) of the Act so as to  warrant the continuance of the prosecution against him.  Drawing the attention of the court to the consideration  of the statements of the witnesses, examined in the  course of investigation, by the High Court,  particularly, Shri B.N. Nagesh (PW 33), Shri  Murlidharan (PW 34) and Shri S.M. Mastan it is  contended that from the statements of the aforesaid  persons it is crystal clear that while in London the  persons accompanying the appellant had performed  various official duties.  It is submitted that the  

6

Page 7

accused-appellant, while undergoing medical treatment  in London, did not cease to be the Railway Minister and  during the period of his treatment the appellant had  attended to the work and duties connected with the  Ministry as well as the RITES and IRCON of which  bodies, as the Railway Minister, the appellant was the  Head.  The persons who accompanied the appellant to  London thereby causing alleged pecuniary loss to the  Public Sector Undertakings had actually assisted the  Minister in due discharge of his duties while abroad.  The said fact having appeared from the statements of  the persons recorded by the investigating authority  under Section 161 Cr.P.C., according to Shri Rao, ex  facie, the ingredients necessary to constitute the  offence under Section 13(1)(d) are not present.  It is  therefore contended that the High Court has grossly  erred in not quashing the criminal proceeding against  the appellant and in permitting the same to continue.

11.  Opposing the contentions advanced on behalf of the  accused-appellant, Shri Jain, learned ASG has urged  

7

Page 8

that the sole issue agitated by the accused-appellant  before the learned trial court was with regard to the  inherent lack of jurisdiction to continue with the  prosecution in the absence of sanction either under the  provisions of the Act or under the provisions of the  Cr.P.C. Before the High Court the validity of the order  dated 27.1.2010 of the learned trial court refusing to  discharge the accused was the only issue raised. It is,  therefore not open to the appellant to widen the ambit  of the challenge to the validity of the impugned  criminal proceeding as a whole. In this regard the  learned ASG has placed before us the application filed  by the accused-appellant for discharge; the trial  court’s order dated 27.01.2010 as well as the relevant  part of the order dated 11.04.2012 of the High Court.  Shri Jain has further submitted that in the present  case the requirement of obtaining sanction under  Section 197 Cr.P.C. does not arise in view of the  specific allegations in the FIR which pertain to  commission of the offence under section 13(2) read with  section 13(1)(d) of the Act.  Admittedly, the accused-

8

Page 9

appellant having ceased to be a Minister as well as a  Member of Parliament w.e.f. 10.11.2000 no question of  obtaining sanction under Section 19 can arise in the  present case, it is argued. Shri Jain has also  submitted that in any case, the materials brought on  record, at this stage, cannot conclusively prove that  the offence as alleged has not been committed by the  accused-appellant. The matter has to be determined in  the course of the trial which may be permitted to  commence and be brought to its logical conclusion.

12. At the very outset we wish to make it clear that we  do not agree with the contention advanced by the  learned ASG to the effect that the only issue raised by  the appellant before the High Court was with regard to  the absence of sanction for the impugned prosecution.  While the above may have the complexion of the  proceeding before the learned trial court, in the  application filed by the accused-appellant before the  High Court the validity of the continuance of the  criminal proceeding as a whole was called into  

9

Page 10

question, inter-alia, on the ground that ex-facie the  ingredients of the offence under Section 13 (1)(d) are  not made out on the allegations levelled.  We have  already noticed that before the High Court two reliefs  had been prayed for by the appellant, namely,  interference with the order of the learned trial court  dated 27.01.2010 as well as for quashing of the  criminal  proceeding.  In view of the aforesaid  position demonstrated by the relevant records we do not  find any reason to confine the scope of the present  appeal to the issue of sanction and test the legal  validity  of the order of the learned trial court dated  27.1.2010 and the impugned order of the High Court  dated 11.04.2012 only on that basis.  Rather we are of  the view that the accused-appellant having raised  issues concerning the validity of the proceeding as a  whole on the ground that, ex facie no offence is  disclosed, it is open for the appellant to raise the  said question in the present appeal.

1 0

Page 11

13. Section 13(1)(d) of the Act may now be extracted  below :

“Section 13 : Criminal misconduct by a public servant – (1)  a public servant is said to commit the offence of criminal  misconduct,-

(a)……

(b)……

(c ) ..…

(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for  any other person any valuable thing or pecuniary advantage;  or

(ii) by abusing his position as a public servant, obtains  for himself or for any other person any valuable thing or  pecuniary advantage; or

(iii) while holding office as a public servant, obtains for  any persons any valuable thing or pecuniary advantage  without any public interest. Or

(e)……..”

14. A bare reading of the aforesaid provision of the  Act would go to show that the offence contemplated  therein is committed if a  public servant obtains for  himself or any other person any valuable thing or  pecuniary advantage by corrupt or illegal means; by  abusing his position as public servant or without any  public interest.  The aforesaid provision of the Act,  

1 1

Page 12

i.e, Section 13(1)(d) are some what similar to the  offence under Section 5(1)(d) of the Prevention of  Corruption Act, 1947.

15. Adverting to the facts of the present case it has  already been noticed that the only allegation against  the appellant is that he had prevailed upon RITES and  IRCON to take the four employees in question on  “deputation”  for the sole purpose of sending them to  London in connection with the medical treatment of the  appellant.  It is also alleged that neither RITES nor  IRCON had any pending business in London and that none  of the four persons had not performed any duty  pertaining to RITES or IRCON while they were in London;  yet the to and fro air fare of all the four persons was  paid by the above two Public Sector  Undertakings. On  the said basis it has been alleged that the accused  appellant had abused his office and caused pecuniary  loss to the two Public Sector Undertakings by arranging  the visits of the four persons in question to London  

1 2

Page 13

without any public interest. This, in essence, is the  case against the accused-appellant.  

16.   A fundamental principle of criminal jurisprudence  with regard to the liability of an accused which may  have application to the present case is to be found in  the work “Criminal Law”  by K.D. Gaur.  The relevant  passage from the above work may be extracted below:

“Criminal guilt would attach to a man for  violations of criminal law. However, the rule  is not absolute and is subject to limitations  indicated in the Latin maxim, actus non facit  reum, nisi mens sit rea.  It signifies that  their can be no crime without a guilty mind. To  make a person criminally accountable it must be  proved that an act, which is forbidden by law,  has been caused by his conduct, and that the  conduct was accompanied by a legally  blameworthy attitude of mind. Thus, there are  two components of every crime, a physical  element and a mental element, usually called  actus reus and mens rea respectively.”

17. It has already been noticed that the appellant  besides working as the Minister of Railways was the  Head of the two Public Sector Undertakings in question  at the relevant time. It also appears from the  materials on record that the four persons while in  

1 3

Page 14

London had assisted the appellant in performing  certain tasks connected with the discharge of duties as  a Minister.  It is difficult to visualise as to how in  the light of the above facts, demonstrated by the  materials revealed in the course of investigation, the  appellant can be construed to have adopted corrupt or  illegal means or to have abused his position as a  public servant to obtain any valuable thing or  pecuniary advantage either for himself or for any of  the aforesaid four persons. If the statements of the  witnesses examined under Section 161 show that the  aforesaid four persons had performed certain tasks to  assist the Minister in the discharge of his public  duties, however insignificant such tasks may have been,  no question of obtaining any pecuniary advantage by any  corrupt or illegal means or by abuse of the position of  the appellant as a public servant can arise. As a  Minister it was for the appellant to decide on the  number and identity of the officials and supporting  staff who should accompany him to London if it was  anticipated that he would be required to perform his  

1 4

Page 15

official duties while in London. If in the process, the  Rules or Norms applicable were violated or the decision  taken shows an extravagant display of redundance it is  the conduct and action of the appellant which may have  been improper or contrary to departmental norms. But to  say that the same was actuated by a dishonest intention  to obtain an undue pecuniary advantage will not be  correct. That dishonest intention is the gist of the  offence under section 13(1)(d) is implicit in the words  used i.e. corrupt or illegal means and abuse of  position as a public servant. A similar view has also  been expressed by this Court in M.     Narayanan     Nambiar    vs.     State     of     Kerala  1   while considering the provisions of  section 5 of Act of 1947.  If the totality of the  materials on record indicate the above position, we do  not find any reason to allow the prosecution to  continue against the appellant. Such continuance, in  our view, would be an abuse of the process of court and  therefore it will be the plain duty of the court to  interdict the same.

1 (1963) Supp. (2) SCR 724

1 5

Page 16

18.    For the aforesaid reasons we allow this appeal,  set aside the judgment and order dated 11.04.2012 of  the High Court and the order dated 27.01.2010 of the  learned trial court and quash the proceedings  registered against the accused-appellant.  

................J. [P. SATHASIVAM]

................J. [RANJAN GOGOI]

New Delhi, 09th November, 2012.      

1 6