REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.820 OF 2007

CHITTARANJAN DAS               … APPELLANT

VERSUS

STATE OF ORISSA      …RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Bereft of unnecessary details the facts giving  

rise to the present appeal are that the appellant,  

a member of the Orissa Administrative Service, at  

the relevant time was serving as a Deputy Secretary  

to  the  Government  of  Orissa  in  the  Irrigation  

Department.   The  officers  of  the  Vigilance  

Department  searched  his  house  after  obtaining  a  

search warrant from the Court, on 17th March, 1992.

It  led  to  registration  of  a  first  information  

report  against  the  appellant.   During  the  

investigation,  it  was  found  that  the  appellant  

possessed  disproportionate  assets  of  

Rs.5,58,752.40.   As  the  appellant  was  removable  

from service by the State Government, the Vigilance  

Department sought its sanction for prosecution of  

the appellant.  The State Government by its letter  

dated 13th May, 1997, declined to grant sanction and  

advised  that  the  proposal  for  prosecuting  the  

appellant be dropped.  The appellant superannuated  

from service on 30th June, 1997.  It seems that even  

after  the  retirement  of  the  appellant,  the  

Vigilance Department wrote on 25th of March, 1998  

for reconsideration of the earlier order refusing  

the sanction for prosecution of the appellant.  The  

State Government by its letter dated 31st July, 1998  

wrote back to the Vigilance Department and declined  

to  grant  sanction  for   prosecution,  as  in  its  

opinion there was no prima facie case against the  

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appellant  and  the  assets  held  by  him  were  not  

disproportionate  to  the  known  sources  of   his  

income.   Accordingly,  the  State  Government  

reiterated  that  there  is  “no  justification  for  

reconsideration of the earlier orders refusing the  

sanction  of  prosecution”  of  the  appellant.  

Notwithstanding    the  aforesaid  refusal  of  the  

Government,  the  Vigilance  Department  on  10th  

September,  1998  filed  charge-sheet  against  the  

appellant  under  Section  5(2)  read  with   Section  

5(1)(e) of the Prevention of Corruption Act, 1947  

alleging  acquisition of disproportionate assets of  

Rs.1.44.234.78  between  1st January,  1980  and  31st  

December, 1985.  The charge-sheet was laid before  

the Special Judge (Vig.), Bhubneshwar who by its  

order dated 2nd August, 1999 took cognizance of the  

aforesaid offence and issued non-bailable warrant  

against the appellant.

2. Appellant, aggrieved by the above order taking  

Cognizance  of  offence  and  issuance  of  the  non-

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bailable warrant of arrest, filed petition under  

Section  482  of  the  Code  of  Criminal  Procedure  

seeking quashing of the aforesaid order inter alia  

on the ground that his prosecution without sanction  

of the State Government is bad in law but the High  

Court  by  its  Order  dated  22nd September,  2003  

disposed  of  the  application  with  liberty  to  the  

appellant to raise this contention before Special  

Judge (Vig.) at the time of the framing of the  

charge.

3. Appellant, thereafter filed an application for  

discharge before the trial court which dismissed  

the same by order dated 9th June, 2004 inter alia on  

the ground that the appellant having retired from  

service,  prior  sanction  is  not  necessary.  

Appellant challenged the aforesaid order before the  

High Court which by the impugned order rejected the  

challenge and while doing so observed as follows:

“6. On  a  conspectus  of  the  facts  and  circumstances involved in the case and the  position of law in the matter of sanction  

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vis-à-vis the impugned order, this Court  does not find any illegality in that order  so as to invoke the inherent power with a  view to quash the impugned order.  Be that  is  it  may,  it  is  made  clear  that  the  disputed  question  as  to  whether  in  the  present case a sanction order is necessary  and whether that was refused by the State  Government  and  what  is  the  consequence  thereof, may be gone into at the time of  trial if raised by the accused-petitioner  notwithstanding  rejection  of  his  application by the impugned order inasmuch  as the foregoing discussion by this Court  in any manner does not interfere with that  right of the accused to be pursued, if so  legally advised at the time of trial.”

4. Mr. Vinoo Bhagat appearing on behalf of the  

appellant submits that the State Government having  

refused  to  grant  sanction  for  prosecution  and  

thereafter declined to reconsider this decision and  

further having declined to grant sanction for the  

prosecution  of  the  appellant  his  prosecution  is  

illegal and  an abuse of the process of the Court.

5. Mr. S.C. Tripathy, however, appearing on behalf  

of the respondents submits that the charge-sheet  

was filed after the retirement of the appellant and  

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in fact on that basis cognizance of the offence was  

taken and process issued thereafter and hence, the  

appellant cannot challenge his prosecution on the  

ground of want of sanction.  According to him, as  

the appellant ceased to be a public servant on the  

date when the Court took cognizance of the offence  

and issued process, sanction for his prosecution is  

not necessary at all.

6. We  do  not  have  the  slightest  hesitation  in  

accepting the broad submission of Mr. Tripathi that  

once the public servant ceases to be so on the date  

when  the  Court  takes  cognizance  of  the  offence,  

there  is  no  requirement  of  sanction  under  the  

Prevention  of  Corruption  Act.   However,  the  

position is different in a case where Section 197  

of the Code of Criminal Procedure has application.  

In fact, the submission advanced finds support from  

the  judgment  of  this  Court  in  the  case  of  N.  

Bhargavan Pillai (dead) by LRs. &  Anr. vs. State  

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of Kerala AIR 2004 SC 2317 where it has been held  

as follows :

“8. The correct legal position, therefore,  is that an accused facing prosecution for  offences  under  the  Old  Act  or  New  Act  cannot claim any immunity on the ground of  want  of  sanction,  if  he  ceased  to  be  a  public servant on the date when the Court  took cognizance of the said offences.  But  the position is different in cases where  Section 197 of the Code has application.”

7. However, in the present case, we are faced with  

the situation in which Vigilance Department asked  

the State Government to grant sanction while the  

appellant herein was in service which it refused.  

Not  only  that  Vigilance  Department  sought  for  

reconsideration  of  the  decision  by  the  State  

Government which prayer was also rejected.  In fact  

the State Government reiterated that there  is no  

prima  facie  case  against  the  appellant  and  the  

assets held by him were not disproportionate to the  

known sources of his income.  Mr. Tripathy points  

out that refusal to grant sanction under Section 19  

of the Prevention of corruption Act, 1947 while the  

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appellant was in service is of no consequence as  

undisputedly  charge-sheet   against  the  appellant  

was  filed  and  further  the  Court  had  taken  

cognizance of the offence and issued process after  

his retirement.  He points out in the case of N.  

Bhargavan Pillai (Supra) sanction sought for was  

refused but this Court did not find any illegality  

in that.

8. We do not find any substance in the submission  

of  Mr.  Tripathy  and  the  decision  relied  on  is  

clearly  distinguishable.  Sanction  is  a  devise  

provided by law to safeguard public servants from  

vexatious and frivolous prosecution.  It is to give  

them  freedom  and  liberty  to  perform  their  duty  

without  fear  or  favour  and  not  succumb  to  the  

pressure of unscrupulous elements.  It is a weapon  

at  the  hands  of  the  sanctioning  authority  to  

protect the innocent public servants from uncalled  

for  prosecution  but  not  intended  to  shield  the  

guilty.   Here  in  the  present  case  while  the  

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appellant was in service sanction sought for his  

prosecution was declined by the State Government.  

Vigilance Department did not challenge the same and  

allowed  the  appellant  to  retire  from  service.  

After  the  retirement,  Vigilance  Department  

requested the State Government to reconsider its  

decision, which was not only refused but the State  

Government while doing so clearly observed that no  

prima-facie case of disproportionate assets against  

the appellant is made out.  Notwithstanding that  

Vigilance  Department  chose  to  file  charge-sheet  

after the retirement of the appellant and on that  

Special  Judge  had  taken  cognizance  and  issued  

process.  We are of the opinion that in a case in  

which sanction sought is refused by the competent  

authority, while the public servant is in service,  

he  cannot  be  prosecuted  later  after  retirement,  

notwithstanding  the  fact  that  no  sanction  for  

prosecution under the Prevention of Corruption Act  

is  necessary  after  the  retirement  of  Public  

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Servant.  Any other view will render the protection  

illusory.  Situation may be different when sanction  

is  refused  by  the  competent  authority  after  the  

retirement of the public servant as in that case  

sanction is not at all necessary and any exercise  

in this regard would be action in futility.

9. Now we revert to the decision of this Court in  

the case of N.  Bhargavan Pillai (Supra) relied on  

by the respondents.  True, it is that in paragraph  

5 of the said judgment, it has been observed that  

“it is a case where the sanction which was sought  

for was refused” but from this paragraph, it is not  

clear whether it was sought before or after the  

retirement of the public servant.  However, while  

reading the judgment as a whole, it is apparent  

that in this case Charge-sheet against the public  

servant  was  filed  after  retirement.   Further,  

sanction for his prosecution was sought and refused  

thereafter.   This  would  be  evident  from  the  

following narration of facts in the said judgment:

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“3…………The  managing  Director  of  the  Corporation  wrote  to  the  Director  of  Vigilance  (Investigation)  along  with  a  copy of Ext.P-I report.  The Director of  Vigilance  (Investigation)  sanctioned  registration of a case.  On the basis of  the  direction  the  then  Deputy  Superintendent  of  Police,  Vigilance,  Kollam  (PW-10)  registered  a  case  as  per  Ext. P-39.  He entrusted the investigation  to Inspector of the Kollam Vigilance Unit- I (PW-11), who conducted the investigation  and   sent  a  report  to  his  higher  authorities.  In the meantime, the accused  retired from service on 28-2-1992.  Since  he had retired from service sanction for  prosecution became unnecessary.  The case  was transferred to the newly established  Pathanamthitta Vigilance Unit.  PW-12, the  Deputy  Superintendent  of  Police,  Vigilance, Pathanamthitta Unit who was put  in charge of this case also verified the  records and filed the charge sheet.”

 (underlining ours)  

Thus in the case relied on, the sanction for  

prosecution  was  not  necessary  and  therefore  its  

refusal had no bearing on the Trial of the public  

servant.  However, in the present case sanction was  

sought  and  refused  while  the  appellant  was  in  

service.  Hence, this judgment does not lend any  

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support to the contention of the respondents and is  

clearly distinguishable.

10. Otherwise also, the facts of the case are so  

telling  that  we  are  of  the  opinion  that  the  

prosecution of the appellant shall be an abuse of  

the process of the Court.  According to the First  

Information  Report,  appellant  possessed  

disproportionate  assets  worth  Rs.5.58  lakhs.  

However,  according  to  the  charge-sheet,  the  

disproportionate  assets  were  to  the  extent  of  

Rs.1.44  lakhs  only.   State  Government  while  

declining  to  grant  sanction  for  prosecution  

observed that assets possessed by the appellant are  

not disproportionate to his known source of income.

11. We are further of the opinion that no disputed  

question being involved, the High Court instead of  

making observation as to “whether in present case  

sanction order is necessary and whether that was  

refused by the State Government and what would be  

the consequence thereof” to be decided by the trial  

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court,  ought  to  have  decided  the  issues  itself.  

The facts being not in dispute the High Court erred  

in not deciding these issues.

12. In the result, we allow this appeal, set aside  

the  order  of  the  High  Court  and  quash  the  

appellant’s  prosecution  in  TR  No.  113  of  1999,  

pending  in  the  Court  of  Special  Judge  (Vig.)  

Bhubaneshwar.

    …..………….………………………………….J.                   (G.S. SINGHVI)

  ..…. ………..……………………………….J.                           (CHANDRAMAULI KR. PRASAD) NEW DELHI, JULY 4, 2011.  

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