(1) Cr.R.No.1821/2009
HIGH COURT OF MADHYA PRADESH: JABALPUR
(AFR)
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri M.A.Siddiqui
CRIMINAL REVISION NO.1821/2009
Special Police Establishment,
Through R.K.Shrivastava,
DSP, Special Police Establishment,
Divisional Lokayukt Office,,
Ujjain (M.P.)
.......Petitioner/Prosecution
-Versus-
Shri Vinod Chandra Semwal, I.A.S.,
S/o Shri M.R.Semwal,
The then Chairman,
Town Improvement Trust,
Ratlam (M.P.)
Inspector General Registration,
(Panjiyan Bhawan)
Opp. Old Vidhan Sabha Bhawan,
Bhopal.
.......Respondent/Alleged accused
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For the appellants: Shri Aditya Adhikari, learned Special
Public Prosecutor.
For the respondent: Shri Surendra Singh, learned Senior
Advocate with Shri Shobit Aditya,
Advocate.
-----------------------------------------------------------------------------------------------------
Date of hearing: 07/07/2011
Date of Order: 13/07/2011
**********
ORDER
Per: Rakesh Saksena,J.
Petitioner Special Police Establishment, Lokayukta has
filed this revision against the order dated 30.3.2007 passed by
Special Judge (Prevention of Corruption Act), Ratlam in Special
Case No.1/2007 whereby learned Special Judge declined to take
cognizance against the respondent of the offences punishable
under section 13(1)(d) read with section 13(2) of the Prevention of
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Corruption Act, 1988, for want of sanction of prosecution under
section 19 of the Prevention of Corruption Act and refusal of
sanction under section 197 of the Code of Criminal Procedure.
2. In nutshell, relevant facts of the case are that
respondent Vinod Chandra Semwal is the member of Indian
Administrative Services of Madhya Pradesh Cadre. On 4.7.1992,
he was posted as Collector, Ratlam. On 21.12.1992, in addition to
it, he was appointed by the State Government Chairman of the
Town Improvement Trust, Ratlam, a statutory body constituted
under section 4 of the Madhya Pradesh Town Improvement Trusts
Act, 1961 (for short ‘the Trust’). The allegation against the
respondent is that while holding the post of Chairman of the Trust,
abusing his position as a public servant, he transferred 30,000
square feet of Government land to an ineligible and unauthorized
person Shri Vinod Bhai Parekh without any consideration on
8.11.1993. He thereby caused loss of Rs.01,34,33,381/- (One
crore, thirty four lacs, thirty three thousand, three hundred eighty
one) to State Exchequer. On receipt of complaint by Shri Deepak
Tiwari, Lokayukta Bhopal conducted a preliminary inquiry and
found commission of offence punishable under section 13(1)(d)
read with section 13(2) of the Prevention of Corruption Act, 1988
(for short ‘the Act’) and section 120-B of the Indian Penal Code. A
case at Crime No.57/2001 was registered by Special Police
Establishment, Lokayukta. Despite repeated requests by the
prosecution, sanction under section 19 of the Act was not granted
and by order dated 23.1.2007 a sanction under section 197 of the
Code of Criminal Procedure was refused by Madhya Pradesh
Government.
3. On 24.1.2007, prosecution filed charge sheet against
the respondent and co-accused Vinod Bhai under section 120-B of
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the Indian Penal Code and section 13(1)(d) read with section 13(2)
of the Act without sanction, in the light of decision of the Apex
Court rendered in the case of Prakash Singh Badal and another
Versus State of Punjab and others – (2007) 1 SCC 1. Learned
Special Judge holding that the ratio of Prakash Singh Badal’s
case was not applicable in the facts and circumstances of the
case, held that in the absence of sanction under section 19 of the
Act cognizance against the respondent for the offence under
section 13(1)(d) read with section 13(2) of the Act was barred and
consequently refused to take cognizance. Aggrieved by the said
order, Special Police Establishment, Lokayukta has preferred this
revision.
4. Learned Special Public Prosecutor Shri Aditya
Adhikari submitted that Special Judge misconstrued the law laid
down by the Apex Court in the case of Prakash Singh Badal
(supra) and committed error in declining to take cognizance
against the respondent. According to him, respondent, at the
relevant time, was holding the office of Chairman of the Trust on
being appointed by the State Government whereas the charge
sheet against him was filed after his demitting the said office and
while holding the post of Inspector General Registration, Bhopal.
As such absence of sanction under section 19 of the Act was not
fatal to the prosecution. On the other hand, Shri Surendra Singh,
learned Senior Counsel submitted that respondent was the
member of Indian Administrative Services. Even at the time he
was holding the office of Chairman of the Trust he was also
holding the office of Collector, Ratlam. Since the State
Government appointed him Chairman of the Trust because of his
being Collector, Ratlam, despite demitting the office of Chairman
of the Trust, he continued to be the member of Indian
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Administrative Services, therefore, the sanction under section 19
of the Act was condition precedent for taking cognizance against
him for the alleged offences. He placed reliance on V.K.Sharma
Versus State (Delhi Administration)- (1975) 1 SCC 784 and
decision of this Court rendered in Criminal Revision
No.600/2010 (Bramha Swaroop Saini versus State of M.P.
Through Special Police Establishment, Lokayukt Office,
Division Bhopal).
5. It is not disputed that respondent, at the relevant time,
was Collector, Ratlam and at the same time had been holding the
office of Chairman of Town Improvement Trust, Ratlam. The said
Trust was constituted under section 4 of the Madhya Pradesh
Town Improvement Trusts Act, 1961. It has been provided in the
Act that the Trust shall be a body corporate and have perpetual
succession and a common seal. It is, thus, apparent that it is a
creature of statute. Section 5 of the Trust provided that the
Chairman of the Trust had to be appointed by the State
Government. As per provision of section 6, the term of office of
Chairman was four years, provided in the case where the
Chairman was an official, the State Government might at any time
determine the term earlier. From these provisions, it is abundantly
clear that respondent was appointed Chairman by the State
Government and the term of his office was four years, but being an
official, the State Government was empowered to determine his
term earlier.
6. It is true that at the time when respondent was holding
the office of Chairman of the Trust, simultaneously he was also
holding the office of Collector, Ratlam, but there appeared no
provision in the Trust to indicate that only a Collector or the
member of Indian Administrative Services could have been
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appointed Chairman of the Trust. Appointment and Removal of the
Chairman of the Trust was clearly within the empowerment of the
State Government. Merely because the Collector was appointed
Chairman of the Trust, it cannot be held that holding the office of
Collector and also the office of the Chairman of the Trust was one
and the same thing. Both the offices were altogether different
existing in different fields.
7. In the case of Balakrishnan Ravi Menon versus
Union of India – (2007) 1 SCC 45, Apex Court observed:-
“6. Further , under Section 19 of the PC Act, sanction is to
be given by the Government or the authority which would
have been competent to remove the public servant from his
office at the time when the offence was alleged to have been
committed. The question of obtaining sanction would arise in
a case where the offence has been committed by a public
servant who is holding the office and by misusing or abusing
the powers of the office, he has committed the offence. The
word “office” repeatedly used in Section 19 would mean the
“office” which the public servant misuses or abuses by
corrupt motive for which he is to be prosecuted. Sub-sections
(1) and (2) of Section 19 are as under:
“19. Previous sanction necessary for prosecution.-(1)
No court shall take cognizance of an offence punishable
under Sections 7,10,11,13 and 15 alleged to have been
committed by a public servant, except with the previous
sanction,-
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the sanction
of the Central Government, of that Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the sanction
of the State Government of that Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as
to whether the previous sanction as required under sub-
section (1) should be given by the Central Government or the
(6) Cr.R.No.1821/2009State Government or any other authority, such sanction shall
be given by that Government or authority which would have
been competent to remove the public servant from his office
at the time when the offence was alleged to have been
committed.” (emphasis supplied)
7. Clauses (a) and (b) of sub-section (1) specifically
provide that in case of a person who is employed and is not
removable from his office by the Central Government or the
State Government, as the case may be, sanction to prosecute
is required to be obtained either from the Central
Government or the State Government. The emphasis is on
the words “who is employed” in connection with the affairs
of the Union or the State Government. If he is not employed
then Section 19 nowhere provides for obtaining such
sanction. Further, under sub-section (2), the question of
obtaining sanction is relatable to the time of holding the
office when the offence was alleged to have been committed.
In case where the person is not holding the said office as he
might have retired, superannuated, be discharged or
dismissed then the question of removing would not arise.
Admittedly, when the alleged offence was committed, the
petitioner was appointed by the Central Government. He
demitted his office after completion of five years’ tenure.
Therefore, at the relevant time when the charge-sheet was
filed, the petitioner was not holding the office of the
Chairman of Goa Shipyard Ltd. Hence, there is no question
of obtaining any previous sanction of the Central
Government.”
8. In Prakash Singh Badal (supra), the Supreme Court
with approval quoted Habibulla Khan v. State of Orissa-(1995)
2 SCC 437 wherein the findings of the decision rendered by the
Apex Court in R.S.Nayak v. A.R.Antulay-(1984) 2 SCC 183
were approved. It was observed:
“We would however, like to make it abundantly clear
that if the two decisions purport to lay down that even if
a public servant has ceased to hold that office as public
servant which he is alleged to have abused or misused
for corrupt motives, but on the date of taking cognizance
of an offence alleged to have been committed by him as a
public servant which he ceased to be and holds an
(7) Cr.R.No.1821/2009entirely different public office which he is neither
alleged to have misused or abused for corrupt motives,
yet the sanction of authority competent to remove him
from such latter office would be necessary before taking
cognizance of the offence alleged to have been
committed by the public servant while holding an offence
which he is alleged to have abused or misused and which
he has ceased to hold, the decisions in our opinion, do
not lay down the correct law and cannot be accepted as
making a correct interpretation of Section 6.
Therefore, upon a true construction of Section 6, it
is implicit therein that sanction of that competent
authority alone would be necessary which is competent
to remove the public servant from the office which he is
alleged to have misused or abused for corrupt motive
and for which a prosecution is intended to be launched
against him.”
9. It was further observed in Prakash Singh Badal
(supra) that where the act performed under the colour of office is
for the benefit of the officer or for his own pleasure Section 19(1)
will come in. Therefore, Section 19(1) is time and offence related.
Apex Court turned down the plea that a public servant who
continues to remain on transfer has got to be protected as long as
he continues to hold his office. It was observed:-
“23. The main contention advanced by Shri Venugopal,
learned Senior Counsel appearing for the appellant is
that a public servant who continues to remain so (on
transfer) has got to be protected as long as he continues
to hold his office. According to the learned counsel, even
if the offending act is committed by a public servant in
his former capacity and even if such a public servant has
not abused his subsequent office still such a public
servant needs protection of Section 19(1) of the Act.
According to the learned counsel, the judgment of this
Court in R.S.Nayak case holding that the subsequent
position of the public servant to be unprotected was
erroneous. According to the learned counsel, the public
servant needs protection all throughout as long as he
continues to be in the employment.
(8) Cr.R.No.1821/2009
24. The plea is clearly untenable as Section 19(1) of
the Act is time and offence related.”
10. Placing reliance on the ratio of V.K.Sharma Vs. State
(Delhi Administration)- (1975) 1 SCC 784, learned Senior
Counsel for the respondent submitted that where the respondent
Government employee was working temporarily on another post,
the sanctioning authority i.e the competent authority to remove
him from his office was not only the authority who could have
removed him from a temporary office but was the authority who
could removed him from the Government service altogether. In the
case of V.K.Sharma (supra), appellant was quasi-permanent
L.D.C. Of the Central Secretariat Clerical Service and borne in the
cadre of Community Development and Cooperation. He, at the
time of accepting the bribe, was working as Inspector in the
Rationing Department. The sanction of the Deputy Secretary of the
Department of Community Development and Co-operation was
assailed to be improper. It was suggested that the Chief Controller
of Rationing was the proper authority. It was held by the Apex
Court that whether the appellant was a loanee to the Rationing
Department or appointed to a temporary post there, he had a lien
to his post in the Central Secretariat. The purport of taking the
sanction from the authority competent to remove a corrupt
government servant from his office was not only to remove him
from his temporary office but to remove him from government
service. The Chief Controller, Rationing would have been
competent to remove the appellant from his office as Rationing
Inspector but not from his office in the Central Secretariat. That
being so, the Deputy Secretary was the competent authority to
accord sanction.
(9) Cr.R.No.1821/2009
11. In our opinion, the fact-situation in the present case is
distinct. Here the respondent while holding the office of the
Chairman of the Trust was not a loanee. His appointment as
Chairman of the Trust was an independent appointment under the
Madhya Pradesh Town Improvement Trusts Act, 1961. As
discussed above, being a Collector or being a member of Indian
Administrative Services was not the condition precedent for the
appointment of Chairman of the Trust. Therefore, in view of the
law laid down by the Apex Court in the case of Prakash Singh
Badal (supra), sanction under section 19(1) for the prosecution
was required from the competent authority to remove him from
the office of Chairman and not from the authority competent to
remove him from the office held by him at the time of taking
cognizance.
12. It is true that respondent being a member of Indian
Administrative Services, power to remove him from service vested
in the Union Government, but the accusation against the
respondent being the abuse of the office of Chairman of the Trust
wherein his appointing authority was the State Government, the
sanction from the Union Government was not necessary. Since the
respondent had already demitted the office of Chairman of the
Trust when charge sheet was filed, in view of the guidelines given
by the Apex Court in case of Prakash Singh Badal (supra) there
was no need of sanction from the State Government also. The ratio
of the decision rendered by the Division Bench of this Court in
Bramha Swaroop Saini (supra) is not applicable in the present
case. In the said case, petitioner, who was working as Executive
Engineer in Division No.1 of the Madhya Pradesh Housing Board,
was charged for committing criminal misconduct by acquiring
assets disproportionate to his known source of income. When the
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charge sheet was filed, he was posted as Executive Engineer of
Division No.5 of the Board at Bhopal only. No sanction of the
competent authority was obtained before filing the charge sheet.
Accordingly, in the absence of requisite sanction cognizance was
refused by the Court. In these circumstances, this Court found
that the competent authority for granting sanction of the
prosecution, in both the cases, i.e. while the office was abused and
while the charge sheet was filed, was the same. Therefore, the
trial Court was justified in refusing cognizance of the offence
without previous sanction. In the present case, at the time when
the charge sheet was filed against the respondent, he had already
demitted the office of the Chairman of the Trust.
13. As far as sanction under section 197 of the Code of
Criminal Procedure is concerned, admittedly it was refused by the
Government just a day before the charge sheet was filed. Apex
Court in the case of Prakash Singh Badal (supra) observed that
the question relating to the need of sanction under section 197 of
the Code of Criminal Procedure 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. It has further
been observed that the offence of cheating under section 420 or
for that matter offences relatable to sections 467,468,471 and 120-
B can by no stretch of imagination by their very nature 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 offence.
(11) Cr.R.No.1821/2009
14. In the light of the above factual and legal scenario, we
are of the view that no previous sanction under section 19(1) of
the Prevention of Corruption Act and under section 197 of the
Code of Criminal Procedure was required for taking cognizance
against the respondent. As such the learned Special Judge
committed error of jurisdiction in holding that the cognizance
against the respondent was barred in the absence of previous
sanction under section 19(1) of the Prevention of Corruption Act
and section 197 of the Code of Criminal Procedure.
15. Accordingly, the impugned order dated 30.3.2007
passed by learned Special Judge is set aside. Learned Special
Judge is directed to take cognizance of the case against the
respondent and to proceed according to law.
16. Revision allowed.
(Rakesh Saksena) (M.A.Siddiqui)
Judge Judge
b