17 Jun 2023 5:31 AM GMT
The Supreme Court has reiterated that sanction for prosecution as per Section 197(1) of the Code of Criminal Procedure is required even in cases where the official was acting in excess of his official duties.A bench comprising Justices V Ramasubramanian and Pankaj Mithal held so while acquitting a person, who was formerly an Executive Director of the Bharat Heavy Electricals Limited (BHEL), in...
The Supreme Court has reiterated that sanction for prosecution as per Section 197(1) of the Code of Criminal Procedure is required even in cases where the official was acting in excess of his official duties.
A bench comprising Justices V Ramasubramanian and Pankaj Mithal held so while acquitting a person, who was formerly an Executive Director of the Bharat Heavy Electricals Limited (BHEL), in a corruption case.
Referring to various precedents such as D. Devaraja vs. Owais Sabeer Hussain, the bench stated that "sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority".
"Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC", the judgment quoted from Devinder Singh vs. State of Punjab through CBI.
Besides this, the bench also rejected a contention that any act amounting to cheating cannot be considered to have a reasonable nexus with the official duties of a public servant, distinguishing the observations in the 2007 Supreme Court judgement in Parkash Singh Badal’s case.
The criminal appeals arose out of a common judgement of the Madras High Court (Madurai Bench). In brief, the controversy is over the decision of the first appellant, the then-executive director of BHEL, to opt for limited or restricted tenders with respect to the construction of a desalination plant without following the prescribed procedure of pre-qualification of prospective tenders before inviting limited tenders. The allegation was that four public servants (A-1, A-2, A-3, A-4), including the executive director (A-1) and the deputy general manager (A-2, later turned approver) colluded with the proprietor (A-5) of the firm that was ultimately awarded the contract, his father (A-6), and his brother (A-7) to confer and unfair and undue advantage and cheat the centrally owned public sector undertaking (PSU). During the pendency of the trial, the fifth and the sixth accused passed away, while the others – except for the manager-turned-approver – were found guilty under various provisions.
Notably, while the special court convicted the first accused under Section 120B read with Section 420 and other relevant provisions of the Indian Penal Code, 1860, as well as Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, the other two public servants were convicted only under provisions of the Indian Penal Code since the PSU did not grant sanction for prosecution against them under the Prevention of Corruption Act on the ground that it would go against the ‘commercial interest’ of the company as well as the ‘public interest’ of maintaining an ‘efficient, quick and disciplined working’ in a public sector undertaking. This distinction between the three employees was because the executive director had retired prior to the filing of the final report long before the 2018 amendment which would extend the protection granted under Section 19(1) of the Prevention of Corruption Act – of requiring a sanction before prosecuting a public servant – to former employees. Justice Ramasubramanian, who authored the judgement on behalf of the bench, remarked:
“It is by a quirk of fate or the unfortunate circumstances of having been born at a time (and consequently retiring at a particular time) that the benevolence derived by the [other two public servants] from their employer, was not available to the first accused. Had he continued in service, he could not have been prosecuted for the offences punishable under the PC Act, in view of the stand taken by BHEL”
Before the apex court, one of the hinges on which the case turned vis-à-vis the first accused was the pre-requisite of a sanction under a similar provision contained in Section 197(1) of the Code of Criminal Procedure. It was argued on his behalf that even though no sanction was required to prosecute him under the Prevention of Corruption Act (pre-amendment) at the time of the final report, a previous sanction was still necessary for the charges under the Indian Penal Code, owing to Section 197(1) of CrPC which insulated both current and former employees from prosecution for acts in the discharge of their official duties, even at the time when this alleged conspiracy was executed.
The respondent-State admitted that no previous sanction under Section 197(1) of the Code of Criminal Procedure was sought before prosecuting the former director for offences under the Indian Penal Code, but argued that such sanction was necessary only when the offence was allegedly committed while acting or purporting to act in the discharge of his official duty. In other words, the prosecution denied any reasonable connection between the alleged conspiracy and the official duties. This argument did not find favour with the bench.
“For the purpose of finding out whether the first appellant (former executive director of BHEL) acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. The existing policy shows that he at least had an arguable case, in defence of the decision he took to go in for restricted tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code of Criminal Procedure. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect.”
Bench rejects contention that act amounting to offence of cheating would not require previous sanction
The bench distinguished the judgement in Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, in which the Supreme Court had held that the offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B cannot be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. “In such cases, official status only provides an opportunity for commission of the offence,” the court had observed. On the basis of this observation, the respondent-State had argued that any act done by a public servant, which constitutes an offence of cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty.
Rejecting this contention as ‘far-fetched’, the bench observed:
“The observations contained in Parkash Singh Badal are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences under sections 420, 468, 471 and 120B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the Prevention of Corruption Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, [this] cannot be taken as carving out an exception judicially, to a statutory prescription. In fact, Parkash Singh Badal cites with approval the other decisions (authored by the very same judge) where this court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act.”
“No public servant is appointed with a mandate or authority to commit an offence,” the bench added, “Therefore, if the observations in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty.” This interpretation would make the requirement of a previous sanction redundant, the court held.
To further explain why previous sanction ought to have been obtained before prosecuting the first accused under various sections of the Indian Penal Code, the bench relied on the stand of the Management of BHEL with respect to the request for sanction for prosecuting the other two employees under the Prevention of Corruption Act, saying:
“The allegations against the first accused were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting [the other two public servants], twice, on the ground that the decisions taken were in the realm of commercial wisdom of the company. If according to the Management, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of the first accused, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code of Criminal Procedure.”
“In view of the above,” the court finally concluded, “We uphold the contention advanced on behalf of the first accused that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting him for offences under the Indian Penal Code.”
Also from the judgment - Approver Need Not Be Examined As Witness By Magistrate When Cognizance Is Taken By Special Court Under PC Act : Supreme Court
A Srinivasulu v. The State represented by the Inspector of Police | Criminal Appeal No. 2417 of 2010 and other connected matters
2023 LiveLaw (SC) 485
Discharge of Official Duties by Public Servants – Code of Criminal Procedure (Act 2 of 1974) – Section 197(1) – Previous sanction requirement – Determination of the existence of a reasonable nexus between an alleged offence by a public servant and their official duties – Held, a public servant would be considered to have acted to purported to have acted in the discharge of their official duty at the time of the commission of an alleged offence if the said government employee could take cover – rightly or wrongly – under any existing policy, and as such, would be granted protection under Section 197(1) of the Code of Criminal Procedure, 1973 – Appeal allowed.
Previous Sanction – Indian Penal Code (Act 45 of 1860) – Sections 120B, 420, 468, and 471 – Contended that any act done by a public servant, which constitutes an offence of cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty – Distinguishing Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, held, observations contained are too general in nature and cannot be regarded as the ratio flowing out of the said case or taken as judicially carving out an exception to a statutory prescription – Also held, no public servant is appointed with a mandate or authority to commit an offence and therefore, if the observations are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty – Appeal allowed.
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