The Allahabad High Court on Monday held that no sanction for prosecution under the Prevention of Corruption Act, 1988, is necessary after the retirement of Public Servant.
Justice Dinesh Kumar Singh-I refused the arguments raised by the Petitioner, Shyam Bihari Tiwari, a retired Principal of a government inter college, that he was covered by the definition of public servant and hence prosecution sanction was necessary, and held as under:
"As per the provisions of Section 19 for taking cognizance of an offence under the Prevention of Corruption Act it is necessary for the public servant to remain in service and in the present matter on the date of taking cognizance the revisionist was not in service as he had retired, hence there was no need to seek prosecution sanction for the revisionist under Section 19 of the Prevention of Corruption Act."
The Petitioner had also argued that a sanction under Section 197 of CrPC was required since he had been chargesheeted under the provisions of IPC. Refusing this plea, the court said that in order to seek prosecution sanction,
"there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
Reliance was placed on Professor N.K. Ganguly v. C.B.I., New Delhi, (2016) 1 JIC 253 (SC), wherein the Delhi High Court had remarked that if the public office had been abused, it would not be treated that the accused had discharged his function in course of his official duty and in that event, there would be no requirement to seek prosecution sanction.
Similarly, in Amrik Singh v. State of Pepsu, AIR 1955 SC 309, the Apex Court had held that,
"it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 of the Cr.P.C.; nor even every act done by him while he is actually engaged in the performance of his official duties; but if act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary."
The Petitioner had been accused of forging documents to open a bogus school and a bank account for misappropriation of funds which were meant to be distributed by way of scholarship to the deserving students. During the course of his illegal activities, the Petitioner allegedly colluded with certain people, including a banker, and embezzled Rs. 3,48,000/-.
Accordingly, the Petitioner was framed under Sections 409, 201, 120 B and under Sections 13 (1) and 13 (2) of the Prevention of Corruption Act, 1988.
Notably, the Petitioner was a retired Principal of an Inter College at Varanasi and on this foot he sought prosecution sanction.
The Petitioner's plea was dismissed by the Trial Court on similar grounds as above and thus he had approached the High Court seeking revision of the order.
Dismissing his revision application, the court said,
"The said act would not fall in the category of having been done in discharge of official duty of the revisionist, therefore, on account of there being no prosecution sanction under Section 197 Cr.P.C., I do not see that there is any infirmity in the prosecution of the accused for the above mentioned offence under Sections 409,201, 120 IPC."
The Petitioner was represented by Advocate Saroj Kumar Dubey and the State by Government Advocate G.P. Singh.