Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019) Station House Officer, CBI/ACB/Bangalore  vs.  B.A. Srinivasan

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1837 OF 2019 (Arising out of Special Leave Petition (Crl.) No.6106 of 2019)

STATION HOUSE OFFICER, CBI/ACB/BANGALORE      …Appellant

VERSUS

B.A. SRINIVASAN AND ANR.       …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This Appeal challenges the judgment and order dated 08.08.2018

passed by the High Court1 allowing Criminal Revision Petition No.834 of

2015  preferred  by  the  Respondent  No.  1;  and  thereby  discharging  the

Respondent No.1 of the offences punishable under Sections 419, 420, 467,

468, 471 read with Section 120B of the Indian Penal Code, 1860 (‘IPC’, for

1   The High Court of Karnataka at Bangalore

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short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act,

1988 (‘the Act’, for short).

3. The Respondent No. 1 retired on 31.10.2012 as Assistant General

Manager, Vijaya Bank.  On 28.10.2013, FIR being RC 12(A)/2013 was

registered pursuant  to  complaint  given by the General  Manager,  Vijaya

Bank, Head Office, Bangalore against the Respondent No.1 in respect of

the offences mentioned hereinabove.   After completion of  investigation,

charge-sheet  was  filed on 31.10.2014 against  the Respondent  No.1 and

other accused in respect of said offences.  It was alleged inter alia :-

“3. That Shri B.A. Srinivasan (A-1) while working as Assistant General Manager (AGM) and Branch Head, Vijaya  Bank,  Mayo  Hall  Branch,  Bangalore  during the period from 11.01.2010 to 20.10.2012 entered into a criminal  conspiracy with Shri  B.Lakshman (A-3), Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5) to cheat and defraud Vijaya Bank, Mayohall Branch, Bangalore  and  to  extend  undue  financial accommodation  to  M/s.  Nikhara  Electronics  and Allied  Technics  (A-2)  on  the  basis  of  fake  and fabricated documents and in furtherance of  the said criminal  conspiracy,  Shri  B.A.  Srinivasan  (A-1) sanctioned and disbursed Rs.200 lakhs of Term Loan and  Rs.100  lakhs  of  Cash  Credit  Hypothecation (Working  Capital)  in  favour  of  M/s.  Nikhara Electronics and Allied Technics (A-2) without proper due diligence and in gross violation of all extant rules and regulations of Vijaya Bank, and hence, facilitated A-3 and A-4 to divert the loan-funds against the terms and  conditions,  thereby  causing  wrongful  loss  to Vijaya Bank and corresponding gains to others.

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019) Station House Officer, CBI/ACB/Bangalore  vs.  B.A. Srinivasan

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… … …

8. That Shri B. Lakshnian (A-3) and his wife Smt. Shanta  Gowda  (A-4)  fraudulently  created  an agreement dated 10.06.2011 on the photocopy of e- stamp  paper  having  franking  No.57724  dated 08.06.2011  and  submitted  a  copy  of  the  same  to Vijaya Bank to support their dishonest claim of taking over  M/s.  Nikhara  Electronics  &  Allied  Technics, proprietary concern by making a payment of Rs.1.00 Crore as goodwill to Shri Venkataramana Bhat (A-6). Shri  B.A. Srinivasan (A-1) dishonestly accepted the photocopy of the agreement intentionally omitting to ascertain its genuineness or authenticity.  It is revealed that the above agreement was fraudulently created on the photocopy of e-stamp paper franked vide 57724 dated  08.06.2011  and  the  original  stamp  paper remained blank was seized from the office premises of Shri  S.V. Isloor (A-5).   It  is thus established the fraudulent  intentions  of  all  the  accused  persons  to create forged documents as and when required and to misrepresent that the proprietary unit was taken over by A-3 and A-4 from A-6.

…  … …

16. That Shri B.A. Srinivasan (A-1) in furtherance of criminal  conspiracy  with  the  other  accused dishonestly, by abusing his official position as AGM & Branch  Head  of  Vijaya  Bank,  Mayohall  Branch fraudulently  considered  the  loan  application, processed  loan  proposals  in  gross  violation  of  the rules and regulations of Vijaya Bank in this regard in order to favour the accused persons.  He intentionally accepted  the  inflated  financial  statements  submitted by A-3 and A-4 even though they were not audited and  considered  them  for  working  out  the  credit assessment  of  the  borrower  firm  i.e.,  M/s.  Nikhara Electronics and Allied Technics (A-2).  He purposely did not exercise due diligence to analyse the financial statements  submitted  by  the  borrower  firm  which contained  several  inconsistencies.   He  also  did  not conduct the mandatory pre-sanction verification at the

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address of the borrower firm to ascertain whether any business activities such as manufacturing of electric equipment etc., were going on as claimed in the loan application.  The criminal acts of Shri B.A. Srinivasan (A-1)  facilitated  the  accused  private  persons  to misrepresent  the  existence  of  M/s.  Nikhara Electronics and Allied Technics (A-2), which actually existed  only  on  the  forged  partnership  deed  dated 10.06.2011, created by A-3 and A-4.

17. That  Shri  B.A.  Srinivasan  (A-1)  prepared  the Credit  Process  Note  himself  and  obtained  the signatures of Shri Jyoti Prakash Shetty, the then Asst. Manager in the column of  appraising official.   Shri Nabeel Ahmed, the then Probationary Manager was also  made  to  put  his  initials  in  the  process  note, merely as a token of his training.  It is revealed that A- 1 prepared the proposals for an aggregate amount of Rs.300  lakh  (term  loan  of  Rs.200  lakhs  and  cash credit  of  Rs.100  lakhs)  as  against  the  request  for Rs.350 lakhs  (term Loan  of  Rs.200  lakhs;  working capital of Rs.130 lakhs and Bank Guarantee of Rs.20 lakhs)  without  there  being  any clarification/justification  for  such  reduction  in  the requirements of the applicant.

18. That  Shri  B.  Lakshman  (A-3)  fraudulently submitted a forged Letter No. REFREF: SP: QT: 155: 2011  dated  10.08.2011  purportedly  signed  as  JAK, Partners, M/s. V-Tech Engineering Enterprises along with Quotations/Proforma Invoices for an aggregate amount  of  Rs.2,69,60,496/-  which were  purportedly issued by M/s.V-Tech Engineering Enterprises.

… … …

33. That  Shri  B.A.  Srinivasan (A-1)  was also fully aware that property offered as collateral security was in occupation of third parties (tenants).  However, A-1 dishonestly  and  fraudulently  chose  to  ignore  this important fact, in spite of his field inspection and also the observations made by the valuer in his Valuation Report.  Concurrent Auditor of the Bank also pointed out this fact in her report adding that the tenants in

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occupation  of  collateral  security  would  adversely affect  the  interests  of  the  bank,  in  the  event  of necessity, to enforce sale of the property to recover its dues.  It is also revealed that tenants were paying rents to  Shri  Nagesh  s/o  late  Krishnappa,  who  sold  the property to Shri Nilakanth Sanikop, from whom A-3 purchased the property.  A-1 intentionally omitted to make any endeavour to ascertain the nature of rights of the tenants, despite the fact that in future it would affect the enforceability of the mortgaged property by the bank.  

34. That Shri B.A. Srinivasan (A-1) also violated the extant rules of the bank by not obtaining the Legal Audit  Report,  on  the  mortgaged  property,  prior  to processing and sanctioning of loans to M/s. Nikhara Electronics  and  Allied  Tekchnics.   Shri  B.A. Srinivasan  (A-1)  obtained  this  report  only  on 19.04.2012, more than six months after the loan was sanctioned and disbursed.

35. By the above said acts, Shri B.A. Srinivasan (A- 1), the then AGM, Vijaya Bank, Mayo Hall Branch, Bangalore;  M/s.  Nikhara  Electronics  and  Allied Technics  (A-2);  Shri  B.  Lakshman  @  Lakshman Reddy  (A-3);  Smt.  Shanta  Gowda  (A-4);  Shri S.V.Isloor (A-5) and Shri Venkataramana Bhat (A-6) committed the offences of cheating and personating as proprietor,  M/s.  V-Tech  Engineering  Enterprises, committed forgery of documents such as Quotations, Cash/Credit  Bills,  vouchers  etc.  for  the  purpose  of cheating,  using the forged documents as genuine in pursuance  of  the  criminal  conspiracy  among themselves, thereby causing wrongful loss to the bank and  corresponding  gains  to  themselves  and  others. Investigation  also  establishes  that  Shri  B.A. Srinivasan (A-1) committed the  offence of  criminal misconduct by gross abuse of his official position as the then AGM of Vijaya Bank,  Mayo Hall  Branch, Bangalore, and caused accrual of pecuniary advantage to  the  accused  private  persons,  attracting  the  penal provisions of the Prevention of Corruption Act, 1988. That,  the above acts  of Shri  B.A. Srinivasan (A-1),

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M/s. Nikhara Electronics and Allied Technics (A-2), Shri B. Lakshman (A-3), Smt. Shanta Gowda (A-4), Shri  Shripad  Vishwanath  Isloor  (A-5)  and  Shri Venkataramana  Bhat  (A-6)  constitute  offences punishable u/s 120-B r/w 420, 419, 468 & 471 IPC and 13(2) r/2 13(1)(d) of the Prevention of Corruption Act, 1988.

36. That Shri  B.A. Srinivasan (A-1) is retired from the  services  of  Vijaya  Bank  on  31.10.2012;  hence sanction for prosecution u/s 19 of the PC Act, is not required.”

4. After  the  cognizance  was  taken  by  the  concerned  court,  an

application was moved by the Respondent No.1 seeking discharge in terms

of Sections 227 and 239 of the Code of Criminal Procedure, 1973 (‘the

Code’, for short).   This application was rejected by the Additional City

Civil  and  Sessions  Judge  and  Principal  Special  Judge  for  CBI  cases,

Bangalore, vide order dated 13.04.2015.  It was observed:-

“…As  can  be  seen  from  the  charge  sheet  and statement of witnesses, accused No.1 has deliberately violated the rules and regulations and bank norms of the  bank  while  processing  the  loan  application  of accused No.2 firm and thereby he had entered into criminal  conspiracy  with  accused  Nos.3  to  6  and accepted the fabricated and forged vouchers, invoices inflated  financial  statements  in  order  to  facilitate accused Nos.3 and 4 to avail the term loan of Rs. Two Crores cash credit and Rs. One Crore.  The said term loan  and  cash  credit  of  Rs.Three  Crores  were misutilised for the purpose other than for which the loan was sanctioned.  Thus, all materials clearly go to show that there was dishonest intention on the part of the accused No.1 from the inception itself.  The said circumstances  and  materials  collected  by  the

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Investigating Officer clearly reveal that accused No.1 had  entered  into  criminal  conspiracy  with  accused Nos. 3 to 6 and he had accepted the forged, fabricated invoices  and  inflated  financial  statement  knowingly fully well that they were forged. …

…   … …

Though accused No.1 was public servant, it is alleged that he has retired from the service from Vijaya Bank on 31.10.2013.  Therefore, sanction as required u/s 19 of  PC Act,  1988  to  prosecute  accused  No.1  is  not required.  The discharge application filed by accused No.1 is devoid of merits and on the contrary, there are sufficient materials against accused No.1 for framing charge for the offences punishable u/s 120B, 420, 471 IPC  and  u/s.  13(2)  r/w  13(1)(d)  of  Prevention  of Corruption Act, 1988….”

5. The  Respondent  No.1,  being  aggrieved,  preferred  Criminal

Revision Petition No. 834 of 2015 in the High Court, which was allowed

by the judgment and order presently under appeal. The High Court, thus set

aside  the  order  dated  13.04.2015  as  regards  the  Respondent  No.1  and

discharged him of the offences with which he was sought to be charged.  

6. While dealing with the submission that the allegations against the

Respondent No.1 could, at best, be administrative lapses, the High Court

observed:-

“10… …These aspects of administrative lapses, it is to  be  stated,  cannot  be  considered  at  the  time  of framing charge.  Unless the witnesses are subjected to cross-examination,  no finding can be given whether the omission in following the procedure amounts to administrative lapse or was deliberate.  Therefore, this

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point of argument cannot be a ground for discharging accused No.1.  Therefore, given a conclusion, it can be opined that the materials on record are sufficient to frame a charge against accused no.1, the findings of the Special Court in this regard do not indicate non- application of mind or, any infirmity or illegality in coming  to  an  opinion  that  accused  no.1  cannot  be discharged on this ground.  This finding needs to be sustained.

           On the issue of sanction, the High Court, however, stated:-

“11.      However, another finding regarding sanction cannot be sustained.  The special court has held that the  sanction  is  not  necessary  as  accused  no.1  has retired by the time charge-sheet was filed.  But the argument  of  petitioner’s  counsel  is  that  sanction  in accordance  with  Section  197  CrPC  is  necessary. Before adverting to this point, I think it necessary to opine  that  the  offences  triable  by  Special  Judge related to time when an accused was in service as a public  servant.   Sanction  under  Section  19  of Prevention of Corruption Act is necessary to see that a public servant is not entangled in a frivolous and false case.  Sanction insulates a public servant from a false or  vexatious  or  frivolous  prosecution.   Therefore,  a protection  available  to  a  public  servant  while  in service should also be available after his retirement. It cannot be forgotten that even after retirement, he is prosecuted  for  offences  under  prevention  of Corruption Act.  Indeed, the retirement removes one from the garb of a public servant; but justice requires that  same protection  should  be  available  even after one’s retirement. …”

(underlined by us)

Thereafter, while dealing with submissions based on the decisions

of  this  Court  in  Kalicharan  Mahapatra   vs.   State  of  Orissa2,  R.

2  AIR 1998 SC 2595

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Balakrishna Pillai  vs.   State of Kerala3,  State of Punjab  vs.   Labh

Singh4 and  N.K.  Ganguly   vs.   CBI,  New  Delhi5, the matter  was

considered as under:-

“The  learned  standing  counsel  for  CBI  submitted insofar  as  offences  under  Indian  Penal  Code  are concerned,  they  cannot  be  said  to  have  been committed  in  discharge  of  official  duty;  sanction therefore  is  not  necessary  even  under  Section  197 CrPC.   If  the  allegations  levelled  against  the  first accused are seen,  and particularly with reference to conspiracy, it is to be stated at the stage of framing charge, it is difficult to discern whether offences can be connected to  official  capacity or  not.   Thorough trial  requires  to  be  held.   If  facts  in  N.K.  Ganguly (supra) are seen, there also the accused were sought to be  prosecuted  for  the  offences  under  Prevention  of Corruption  Act  in  addition  to  some of  the  offences under Indian Penal Code.  Thus seen, the first accused should  get  the  benefit  of  discharge  for  absence  of sanction under Section 197 of CrPC. …”

Thus, it was concluded that the material on record was sufficient

to frame a charge against Respondent No.1.  The benefit of discharge was

however granted on the issue of absence of sanction under Section 197 of

the Code.

7. In this appeal challenging the view taken by the High Court, we

heard  Mrs.  Sonia  Mathur,  learned  Senior  Advocate,  in  support  of  the

3 (1996) 1 SCC 478 4 (2014) 16 SCC 807 5 (2016) 2 SCC 143

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appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent

No.1.

8. Mrs.  Sonia Mathur,  learned Senior Advocate,  submitted that  the

protection under Section 19 of the Act is available to a public servant only

till he is in the employment and no sanction is necessary after the public

servant has demitted office or has retired from service.  As regards sanction

under Section 197 of the Code, it was submitted that for an action to come

within  the  purview  of  Section  197  of  the  Code,  it  must  be  integrally

connected with the official duties or functions of a public servant and that

if the office was merely used as a cloak to indulge in activities which result

in unlawful gain to the beneficiaries, the protection under said Section 197

would not be available.  

  It  was  also  submitted  that  the  decision  of  this  Court  in  N.K.

Ganguly  vs.  Central  Bureau of  Investigation,  New Delhi5 was  in  the

context of the peculiar facts involved therein.

On the  other  hand,  Mrs.  V.  Mohana,  learned  Senior  Advocate,

submitted that  the Respondent No. 1 retired in the year 2012; that the

allegations levelled against him would, at best, amount to administrative

lapses on his part and there was certainly no criminal intent so as to attract

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the charges under the relevant sections; and that this Court may not in its

jurisdiction under Article 136(1) of the Constitution interfere in the matter.

9. In  S.A.  Venkataraman  vs.   The  State6 while  dealing  with  the

requirement  of  sanction  under  the  pari  materia provisions  of  the

Prevention of Corruption Act, 1947, it was laid down that the protection

under the concerned provisions would not be available to a public servant

after he had demitted his office or retired from service.  It was stated:-

“… …if an offence under s. 161 of the Indian Penal Code was committed by a public servant, but, at the time  a  court  was  asked  to  take  cognizance  of  the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary. The words in s. 6(1) of the Act are  clear  enough and they must  be  given effect  to. There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in  the case of  a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. … …”

The law so declared by this Court has consistently been followed.

For example, in Labh Singh4  it was observed:-  

“9. In the present case the public servants in question had  retired  on  13-12-1999  and  30-4-2000.  The sanction to prosecute them was rejected subsequent to

6 [1958] SCR 1037

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their retirement i.e. first on 13-9-2000 and later on 24- 9-2003.  The  public  servants  having  retired  from service  there  was  no  occasion  to  consider  grant  of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the  date  of  cognizance  by  the  court.  In  S.A. Venkataraman v. State6  while construing Section 6(1) of  the  Prevention  of  Corruption  Act,  1947  which provision is in pari materia with Section 19(1) of the PC  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. Venkataraman6 was  adopted  by  this  Court  in  C.R. Bansi v.  State  of  Maharashtra7 and  in  Kalicharan Mahapatra v. State of Orissa2 and by the Constitution Bench of  this  Court  in  K.  Veeraswami v.  Union of India8. The High Court was not therefore justified in setting aside the  order  passed by the  Special  Judge insofar as charge under the PC Act was concerned.”

10. Consequently,  there  was  no occasion  or  reason  to  entertain  any

application seeking discharge in respect of offences punishable under the

Act, on the ground of absence of any sanction under Section 19 of the Act.

The High Court was also not justified in observing  ‘that the protection

available to a public servant while in service,  should also be available

after his retirement’.    That statement is completely inconsistent with the

law laid down by this Court in connection with requirement of sanction

under Section 19 of the Act.

7   (1970) 3 SCC 537 8   (1991) 3 SCC 655

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11. Again, it has consistently been laid down that the protection under

Section 197 of the Code is available to the public servants when an offence

is  said  to  have  been  committed  ‘while  acting  or  purporting  to  act  in

discharge of their official duty’,  but where the acts are performed using

the office as a mere cloak for unlawful gains, such acts are not protected.

The statements of law in some of the earlier decisions were culled out by

this Court in Inspector of Police and another  vs.  Battenapatla Venkata

Ratnam and another9 as under:-

“7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or  not  but  whether  the  alleged  offences  have  been committed by them “while acting or purporting to act in discharge of their official duty”. That question is no more res integra. In  Shambhoo Nath Misra v.  State of U.P.10, at para 5, this Court held that: (SCC p. 328)

“5.  The  question  is  when the  public  servant  is alleged  to  have  committed  the  offence  of fabrication  of  record  or  misappropriation  of public fund, etc. can he be said to have acted in discharge  of  his  official  duties.  It  is  not  the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc.  in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public  fund,  etc.  It  does  not  mean  that  it  is integrally  connected  or  inseparably  interlinked with  the  crime committed  in  the  course  of  the

9   (2015)13 SCC 87 10  (1997) 5 SCC 326

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same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion  that  the  view  expressed  by  the  High Court as well as by the trial court on the question of  sanction  is  clearly  illegal  and  cannot  be sustained.”

8. In  Parkash Singh Badal v.  State of Punjab11, at para 20

this Court held that: (SCC pp. 22-23)

“20. The principle of immunity protects all acts which the public servant has to perform in the exercise  of  the  functions  of  the  Government. The  purpose  for  which  they  are  performed protects  these  acts  from  criminal  prosecution. However,  there  is  an  exception.  Where  a criminal  act  is  performed  under  the  colour  of authority but which in reality is  for the public servant’s own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.”

and thereafter, at para 38, it was further held that: (Parkash Singh Badal case11, SCC p. 32)

“38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to  be  considered  as  soon  as  the  complaint  is lodged and on the allegations contained therein. This  question  may  arise  at  any  stage  of  the proceeding.  The  question  whether  sanction  is necessary or not may have to be determined from stage to stage.”

9. In a recent decision in Rajib Ranjan v. R. Vijaykumar12 at para 18, this Court has taken the view that: (SCC p. 521)

“18.  …  even  while  discharging  his  official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct,

11  (2007) 1 SCC 1 12  (2015) 1 SCC 513

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such  misdemeanour  on  his  part  is  not  to  be treated  as  an  act  in  discharge  of  his  official duties and, therefore, provisions of Section 197 of the Code will not be attracted.”

(emphasis already supplied)

12. It  has also been observed by this Court that,  at  times,  the issue

whether  the  alleged  act  is  intricately  connected  with  the  discharge  of

official  functions  and  whether  the  matter  would  come  within  the

expression ‘while acting or purporting to act in discharge of their official

duty’,   would get crystalized only after evidence is led and the issue of

sanction can be agitated at a later stage as well.  In P.K. Pradhan  vs.  State

of  Sikkim  represented  by  the  Central  Bureau  of  Investigation13, this

Court stated:-

“15.  Thus,  from  a  conspectus  of  the  aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the  accused  that  there  is  reasonable  connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it.  For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such  that  the  same  cannot  be  separated  from  the discharge  of  official  duty,  but  if  there  was  no reasonable  connection  between  them  and  the performance  of  those  duties,  the  official  status furnishes  only  the  occasion  or  opportunity  for  the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence

13 (2001) 6 SCC 704

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establishes  that  the  act  purported  to  be  done  is  in discharge  of  duty,  the  proceedings  will  have  to  be dropped.  It  is  well  settled that  question  of  sanction under Section 197 of the Code can be raised any time after  the  cognizance;  maybe  immediately  after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well.  But there  may  be  certain  cases  where  it  may  not  be possible  to  decide  the  question  effectively  without giving  opportunity  to  the  defence  to  establish  that what he did was in discharge of official duty. In order to  come  to  the  conclusion  whether  claim  of  the accused that the act that he did was in course of the performance  of  his  duty  was  a  reasonable  one  and neither  pretended  nor  fanciful,  can  be  examined during the course of trial by giving opportunity to the defence  to  establish  it.  In  such  an  eventuality,  the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.”

(underlined by us)

13.   The offences involved in the case of  N.K. Ganguly5 were under

Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e.

relating to conspiracy to commit offences punishable under the provisions

of the Act. Secondly, the conclusion was drawn in the context of the facts

available therein which is evident from the following: -

“35. 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  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

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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 essential  for  the  learned  Special  Judge  to  correctly decide as to whether the previous sanction from the Central  Government  under  Section  197  CrPC  was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.”     

(underlined by us)

14.  We now turn to the cases relied upon by Mrs. V. Mohana, learned

Senior Advocate.   In  Rishipal Singh  vs.   State of  Uttar Pradesh and

another14 this Court observed:-

“13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts  to  abuse  of  process  of  law  and  whether continuation  of  the  criminal  proceeding  results  in miscarriage of justice or when the court comes to a conclusion  that  quashing  these  proceedings  would otherwise serve the ends of justice, then the court can exercise  the  power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the  complaint  whether  prima  facie  discloses  an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact.”

14 (2014) 7 SCC 215

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This decision thus dealt with the parameters which ought to be

considered  while  entertaining  an  application  under  Section  482  of  the

Code and is not a decision directly on the point.   The decision in  Anil

Kumar Bose  vs.  State of Bihar15  pertained to a case which had arisen

after  a  full  fledged  trial,  where,  as  regards  offence  punishable  under

Section 420/34 IPC, it was observed that the essential ingredient being

mens rea,  mere failure on part of the concerned employees to perform

their duties or to observe the rules/procedure may be administrative lapses

but could not be said to be enough to attract the penal provisions under

Section  420  IPC.   The  matter  was  considered  after  the  facts  had

crystalized  in  the  form of  evidence  before  the  court  and as  such,  this

decision is of no relevance for the present purposes.

15.  Having considered the matter  in  entirety,  in  our  view,  the High

Court clearly erred in allowing Criminal Revision Petition and accepting

the  challenge  raised  by the  Respondent  No.1  on  the  issue  of  sanction.

We, thus, allow this Appeal, set aside the view taken by the High Court,

restore  the order  passed by the Trial  Court  and dismiss  the application

seeking discharge preferred by the Respondent No.1.

15 (1974) 4 SCC 616

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16.  It  is  made  clear  that  we  have  adverted  to  the  facts  and  the

allegations only for the purpose of considering the basic issue pertaining to

issue of sanction and we shall not be taken to have expressed any view on

merits which shall be considered independently.  It has been stated by the

learned  counsel  that  the  matter  is  listed  before  the  Special  Court  on

11.12.2019.  The Respondent No.1 shall appear before the Special Court

on that day and the matter shall, thereafter, be proceeded in accordance

with law.  

17. This Appeal is allowed in aforestated terms.   

………………………J. [Uday Umesh Lalit]

………………………J. [Indu Malhotra]

………………………J. [Krishna Murari]

New Delhi; December 05, 2019.