SURINDER KUMAR BANSAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The question for consideration in this revision petition, which has been raised by counsel for the petitioner, is : Whether in addition to the sanction required under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C. Act'), the sanction under Section 197 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is also required for the prosecution of an accused public servant under the P.C. Act, even if he ceases to be a public servant on the date of taking cognizance of the alleged offence?

(2.) In order to appreciate the aforesaid question, certain facts of the rase are necessary. At the time of the alleged occurrence, the petitioner was working as Chief Engineer, Irrigation, Punjab Before him, an appeal arising from an order passed by the Executive Engineer was filed by the complainant Tarlochan Singh. The said appeal was decied by the petitioner on 5-12-2002 and the matter was remanded to the Executive Engineer for fresh adjudication. As per the complainant, the petitioner demanded a bribe of Rs. 5,000/- for deciding the said appeal, on which a trap was conducted on 28-1-2003 and an amount of Rs. 5,000/- was recovered from the petitioner. Hence, FIR No. 12 dated 28-1-2003 under Sections 7, 13 (2) of the P.C. Act was registered at Police Station Vigilance Bureau, Patiala. Thereafter, on 31-1-2003, the petitioner retired from service. After his retirement, the challan was filed and charge was framed against the petitioner. At the stage of prosecution evidence, the petitioner moved an application for dropping the proceedings on the ground that the prosecution has not obtained the sanction as required under Section 197 of the Code as well as Section 19 of the P.C. Act, which is mandatory and sine qua non for taking cognizance of the offence under the P.C. Act. The learned Special Judge, Patiala, while following the decision of the Hon'ble Apex Court in State of Kerala v. M. M. Manikantan Nair, 2001 (2) RCR (Cri) 657 : (2001 Cri LJ 2346) and Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : (1998 Cri LJ 4003), dismissed the said application while holding that no sanction under Section 197 of the Code and Section 19 of the P.C. Act is required for prosecution of a public servant after his retirement. Hence this petition.

(3.) Learned counsel for the petitioner, in view of the law laid down by the Hon'ble Apex Court in Kalicharan Mahapatra's case (1998 Cri LJ 4003) (supra) and State of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690 : (1999 Cri LJ 3696), submitted that as far as sanction under Section 19 of the P.C. Act is concerned, the position of law is clear that in case of a public servant, such sanction is not necessary, if the Court takes cognizance of the alleged offence after the retirement of the public servant. However, learned counsel submitted that in addition to the sanction as required under Section 19 of the P.C. Act, the prosecution has to obtain the sanction under Section 197 of the Code, even for the offences committed by the public servant under the P.C. Act and such sanction is mandatory even if the public servant has retired from service. In this regard, learned counsel relied upon the decision of the Hon'ble Supreme Court in R. Balakrishna Pillai v. State of Kerala, AIR 1996 SC 901. While developing his arguments, he further submitted that in that case, two questions were considered by the Hon'ble Apex Court i.e. (i) whether sanction under Section 197(1) of the Code was required for the prosecution under the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the old P.C. Act'), and (ii) whether sanction under Section 6 of the old P.C. Act was a pre-requisite for the prosecution of accused public servant under Section 5 thereof even when such public servant had ceased to be a public servant on the date of taking cognizance of the offence by the Special Judge ? Learned counsel submitted that while rejecting the view taken by the Kerala High Court, the Hon'ble Apex Court has held that sanction under Section 197(1) of the Code is mandatory even after the retirement of the accused public servant. Learned counsel for the petitioner submitted that the protection provided under Section 197 of the Code is general in nature and it is applicable for all the offences whether alleged to have been committed under the IPC or under the P. C. Act. He submitted that such protection is needed as much after retirement of the public servant as before retirement. The protection afforded by Section 197 of the Code would be rendered illusory if it was open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. Learned counsel further submitted that M. M. Manikantan Nair's case (2001 Cri LJ 2346) (supra) does not pertain to Section 197 of the Code. In that case, the question was : Whether the sanction to prosecute under sub-section (1) of Section 122 of the Kerala Panchayat Act is necessary, when the accused public servant ceased to hold the post under the Panchayat? In the light of the said provision, it was held by the Hon'ble Apex Court that in view of clear language of subsection (1) of Section 122 of the Kerala Panchayat Act, sanction is required under the said sub-section only if a person holds the office of President, Executive Authority or any member and not otherwise. In view of these submissions, learned counsel for the petitioner submitted that since no sanction under Section 197 of the Code has been obtained by the prosecution in the instant case, therefore, the proceedings against the petitioner are vitiated and liable to be dropped.