ABHIJIT SINHA Vs. S Z H ZAFARI

JUDGEMENT

(1.) This reference under Section 395 of the Code of Criminal Procedure has been made by the Special Judge, Vigilance, South Bihar, Patna, by order dated 5-2-1998 passed in Special Case No.90/90 arising out of Vigilance PS Case No.50/90 pending in his Court referring for decision of this Court, the following questions of law which arose before him during the hearing of the aforesaid case:-

(2.) Before entering into the discussion for expressing our opinion on the aforesaid questions of law formulated by the Special Judge, Vigilance, we would like to state the facts in brief giving rise to this reference.

(3.) An FIR was lodged on 8-11-1990 by S.P., Vigilance, Patna, against Sri Nabendu Das, the then Engineer-in-Chief- cum-Special Secretary, Sri Revachand Murzani, the then Assistant Project Officer and Sri S.Z.H. Zafari, the then Technical Secretary to Engineer-in-Chief, all of Public Health Engineering Department, under Section 5(2) read with Section 5(l)(d) of Prevention of Corruption Act, 1947 (in short PC Act, 1947) corresponding to Section 13(2) read with Section 13(1)(d)/15 of Prevention of Corruption Act, 1988 (in short P.C. Act, 1988) and Sections 120-B, 109, 201 and 511 of the Indian Penal Code on the allegations that the accused-persons conniving with each other placed orders for purchase of huge quantity of materials worth about Rs.11,37,000,00/- for the department without requirement of materials in such quantity, purchased sub-standard materials, the materials remained dumped in godowns and were damaged. After investigation charge-sheet was submitted under Section 5(2) read with Section 5(1)(d) of PC Act, 1947 corresponding to Section 13(2) read with Section 13(1)(d)/15 of PC Act, 1988 and Sections 109, 120-B, 201 and 511 of the Indian Penal Code against Sri S.Z.H. Zafari, Sri Navendu Das who both were named in the FIR and against Shri Braj Bhushan Sahay, the then Commissioner- cum-Secretary in Public Health Engineering Department, Patna. Shri Revachand Murzani who was named in the FIR was not sent up for trial. When the charge-sheet was submitted at that time, all the three accused-persons sent up for trial had retired from their respective posts. When the matter was placed before the Special Judge, Vigilance, South Bihar, Patna, for considering the question of cognizance, two of the accused-persons, namely, S.Z.H. Zafari and Braj Bhushan Sahay by filing separate petitions raised an objection that in absence of a sanction order from the appropriate authority under Section 197(1) of the Code of Criminal Procedure (in short, CrPC), the Court was debarred from taking cognizance against them notwithstanding the fact that they had ceased to be public servants. In support of their arguments, the opposite parties (Oppparties) places reliance on three decisions of the Apex Court in the cases of State of Maharashtra v. Dr. Budhikota Subbarao, reported in (1993) 3 SCC 339, R. Balakrishna Pillai v. State of Kerala, reported in AIR 1996 SC 901 = 1996 (1) East Cr.C 301 (SC) and State through CBI v. B.L Verma, reported in (1997) 10 SCC 772. The reply of prosecution to the point raised by the Opp. parties before the Court below was that once the Opp. Parties ceased to be public servant on the date of taking cognizance no sanction was required either under the provisions of PC Act, 1988 or under Section 197(1), Cr.PC for the prosecution of Opp. parties for offences committed by them under the PC Act, 1988 or under Indian Penal Code. According to the prosecution, Section 197(1), Cr.PC is not applicable to prosecution for offences under PC Act, 1988 before the Special Judge. The facts that the offences were allegedly committed during the period between 28-5-1985 and 20-5-1986, at that time Opp. parties were posted as Secretary- cum-Commissioner and Technical Secretary to Engineer-in-Chief in the Department of PHED, offences were committed in exercise of official duties by the Opp. parties and when the charge-sheet against the Opp. parties was submitted both the Opp. parties had superannuated, there is no (sic) Cr. Reference No. 1 of 1998 In the matter of reference made under Section 395 of sanction under Section 197(1), Cr.PC or under Section 19 of PC Act, 1988 are admitted facts and there is no dispute on it.