JUDGMENT
M.L. Visa, J.
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 5-2-98 passed in Special Case No. 90/90 arising out of Vigilance P.S. 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:
(i) Whether previous sanction under Section 197(1), Cr, P.C. was a pre-requisite for the prosecution of a public servant for commission of offences both under the Prevention of Corruption Act, 194 7 as also Penal Code if such person had ceased to be a public servant on the date of taking cognizance.
(ii) Whether previous sanction under Section 6 of the Prevention of Corruption Act, 1947 is a pre-requisite for the prosecution of an accused public servant who had ceased to be a public servant on the date of taking cognizance of offences under the Prevention of Corruption Act, 1947 and the Penal Code in view of the divergent views expressed in and .
(iii) Whether protection either under Section 6 of the Prevention of Corruption Act, 1947 or Section 197 (1), Cr. P.C. is available to a public servant on his retirement even if the offence is alleged to have been committed in discharge of his official duty as a public servant, regard being had to the term “is” employed in Section 6 of the Prevention of Corruption Act and the term ‘is or was’ employed in Section 197, Cr. P.C.
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 lodge 1 on 8-11-90 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 the Public Health Engineering Department, under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 (in short P.C. 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 substandard materials, the materials remained dumped in go downs and were damaged. After investigation, charge-sheet was submitted under Section 5(2) read with Section 5(1)(d) of P.C. Act, 1947 corresponding to Section 13(2) read with Section 13(1)(d)/15 of P.C. 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 F.I.R. and against Shri Braj Bhusan Sahay, the then Commissioner-cum-Secretary in Public-Health Engineering Department, Patna. Shri Revachand Murzani who was named in the F.I.R. 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, Cr. P.C.) the Court was debarred from taking cognizance against them notwithstanding the fact that they had ceased to be the public servants. In support of their arguments, the opposite parties (Opp. Parties) placed reliance on three decisions of the apex Court in the cases of State of Maharashtra v. Dr. Budhikota Subbarao , R. Balakrishna Pillai v. State of Kerala and State through CBI v. B. L. Verma . 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 P.C. Act, 1988 or under Section 197 (1), Cr. P.C. for the prosecution of Opp. Parties for offences committed by them under the P.C. Act, 1988 or under Indian Penal Code. According to the prosecution, Section 197(1), Cr. P.C. is not applicable to prosecution for offences under P.C. Act, 1988 before the Special Judge. The facts that the offences were allegedly committed during the period between 28-5-85 and 20-5-86, 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 sanction under Section 197(1), Cr. P.C. or under Section 19 of P.C. Act, 1988 are admitted facts and there is no dispute on it.
4. It is also a fact that the F.I.R. was lodged against the Opp. Parties and while investigation was going on, P.C. Act, 1988 came into force and charge-sheet, therefore, was submitted after coming into force of P.C. Act, 1988, which has not affected the lodging of FIR under the provisions of P.C. Act, 1947 because Section 30(2) of P.C. Act, 1988, which is a saving section, lays down that notwithstanding the repeal of P.C. Act, 1947 and Criminal Law Amendment Act, 1952 without prejudice to the application of Section 6 of General Clauses Act, 1897 anything done or any action taken or purported to have been done or taken in pursuance of the Acts so repealed shall insofar as it is not inconsistent with the provisions of P.C. Act, 1988, be deemed to have been done or taken in pursuance of the corresponding provision of P.C. Act, 1988.
5. The main objection raised by the Opp. Parties is that without sanction order from the appropriate authority under Section 197 (1), Cr. P.C., cognizance of offences against them cannot be taken. As stated above, charge-sheet against the Opp. Parties has been submitted under Section 13(2) read with Sections 13(1)(d) and 15 of P.C. Act, 1988 and under Sections 109, 120-B, 201 and 511 of the Penal Code. Now, it has to be seen whether sanction under Section 197(1), Cr. P.C. is required for the prosecution of Opp. Parties for the aforesaid offences.
6. Section 197 (1), Cr. P.C. reads as follows:
197. Prosecution of Judges and public servants.-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act, in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
7. Section 4 of Cr. P.C. provides that “all offences under Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions” of, Cr. P.C. and “all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” Section 5 of Cr. P.C. provides that “nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form or procedure prescribed, by any other law for the time being in force.” So for the offences under the Indian Penal Code, we find that provisions of Cr. P.C. are applicable but for offences under other laws, if any, special form or procedure has been provided in those laws, those will be applicable in absence of any specific provision to the contrary. P.C. Act, 1988, has been framed to consolidate and amend the law relating to Prevention of Corruption Act for matters connected therewith and is, therefore, a special enactment and on the point of sanction, it contains specific provision in Section 19(1) which reads as follows:
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) …
(b) …
(c) …
8. So, we find that according to the provisions of Section 5 of the Cr. P.C. in the matter of sanction, the provision of Section 19(1) of P.C. Act, 1988, will be applicable if the prosecution is sought for the offences punishable under Sections 7, 10, 11, 13 and 15 of the P.C. Act, 1988. The sanction under Section 19(1) of the P.C. Act is required for taking cognizance by a Court only when the accused at the time of taking cognizance is employed. If he is not employed and has ceased on account of superannuation or for any other reason from the employment at the time of taking cognizance the question of any sanction under Section 19 of the P.C. Act, 1988 does not arise.
9. It is true that under Section 197(1), Cr. P.C., sanction is required for prosecution of an accused who is or was a public servant which is clear from the bare reading of the provisions of Section 197 (1), Cr. P.C. the words “a person who is employed or as the case may be, was at the time of commission of alleged offence employed” are very clear and they leave no room for any doubt that the requirement of sanction under Section 197 (1), Cr. P.C. is applicable not only for those persons who at the time of taking cognizance are employed as public servants but in respect of those persons also who were public servants at the relevant time but at the time of taking cognizance have ceased to be so, Now, it has to be considered that for what type of offences, sanction as laid down under Section 197(1), Cr. P.C. is required. As stated earlier, sanction under Section 197 (1), Cr. P.C. is required for the offences punishable under the Indian Penal Code or under other laws if there is no special procedure prescribed in those laws for such offences. In the present case, as the prosecution of the Opp. Parties is being sought for the offences under P. C. Act, 1988 also besides certain offences under the Indian Penal Code and there is specific provision for sanction under Section 19 of P.C. Act. 1988, it will override the provisions of Section 197 (1), Cr. P.C. so far it relates to the offences under P.C. Act, 1988. As Section 19 of the P.C. Act, 1988 does not, like Section 197(1), Cr. P.C., lay down that in case of those persons also what at the time of taking cognizance have ceased to be public servant sanction is required. So, at the time of taking cognizance for the offences committed under P.C. Act, 1988, the question of sanction will not arise in respect of such persons. In holding this view, we are supported by the decision of the apex Court in the case of State of Kerala v. Padmanabhan Nair 1999 Cri. LJ 3696, which has been relied upon by the prosecution where it has been held that-
In S.A. Venkataraman v. State and in C.R. Bansi v. State of Maharashtra , this Court has held that:
There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a Court, could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed.
When the newly-worded section appeared in the Code (S. 197) with the words “when any person who is or was a public servant” (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa , that the legal position must be treated as changed even in regard to offences under the P.C. Act also. The said contention was, however, repelled by this Court in Kalicharan Mahapatra (cited supra) wherein a two-Judge Bench has held thus (para 14 of AIR & Cri LJ):
A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the Court takes cognizance of the offence. But, if he ceases to be a public servant by that time, the Court can take cognizance of the offence without any “such sanction.
The correct legal position, therefore, is that an accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction if he ceased to be a public servant on the date when the Court took cognizance of the said offences. So, the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the P.C. Act.
10. Learned Special Judge, Vigilance, South Bihar, Patna after going through the decisions of the apex Court in the cases of State of Maharashtra v. Dr. Budhikota Subbarao, R. Balakrishna Pillai v. State of Kerala and State through the C.B.I. v. B.L. Verma which have been relied upon by the Opp. Parlies and in the cases of S.A. Venkta Raman v. The State , C.R. Bansi v. State of Maharashtra , Nanhu Pd. Singh v. State of Bihar , K.S. Dharamadatan v. Central Government and A.R. Antulay v. R.S. Nayak , relied upon by prosecution has opined that there are divergent views expressed in these decisions. According to him, all the decisions relied upon by the prosecution are in respect of cases arising exclusively out of P.C, Act and the apex Court in all such cases has held that sanction under Section 6 of P.C. Act, 1947 was not applicable to a public servant if at the time of taking cognizance, he ceases to be so. About the three cases relied upon by the Opp. Parties, he has observed that decision in State of Maharashtra v. Dr. Budhikota Subbarao (1999) 3 SCC 339, is in respect of offences under the Official Secrets Act and Atomic Energy Act, the decision in R. Balkrishna Pillai v. State of Kerala , is in respect of offences under the Penal Code and the P.C. Act and the decision in State through C.B.I. v. B.L. Verma , is in respect of the case for the offences under Indian Penal Code and in all these three cases, the apex Court has held that for prosecution of a person who at the time of commission of offence was a public servant, sanction under Section 197(1), Cr. P.C. is required at the time of taking cognizance even if he has ceased to be a public servant at that time. According to the Court below, the opinion expressed in these three decisions, specially in the case of R. Balakrishna Pillai v. State of Kerala , is contrary to the decisions in the cases which have been relied upon by the prosecution and it appears that those cases were not placed before the apex Court at the time of deciding the case of R. Balakrishna Pillai. We are unable to agree with the aforesaid opinion of the Court below because we do not find any conflict in the decisions of the apex Court relied upon by both the parties. As stated above, all the cases relied upon by the prosecution are in respect of offences exclusively arising out of P.C. Act and the apex Court has held that in such type of cases, sanction is not required in respect of a person who at the time of taking cognizance has ceased to be a public servant. About the three decisions which have been relied upon by the Opp. Parties, the case of State through C.B.I. v. B.L. Verma , was in respect of a case in which offences were exclusively under the Indian Penal Code and the apex Court held that sanction under Section 197(1), Cr. P.C. was required even if on the date of taking cognizance, a public servant has ceased to be so. The decision in the case of State of Maharashtra v. Dr. Budhikota Subbarao , Was in respect of a case for the offences under the Indian Official Secrets Act, 1923 and Atomic Energy Act, 1962, Section 26 of the Atomic Energy Act, 1962 prescribes that all offences under this Act shall be cognizance under the Code of Criminal Procedure and there is no special provision in the Indian Official Secrets Act, 1923 in respect of sanction and in this view of the matter, the apex Court held that sanction under Section 197 (1), Cr. P.C, was require J for offences under these both Acts even in respect of a person who at the time of taking cognizance has ceased to be a public servant. The decision in the case of R. Balakrishna Pilli v. State of Kerala , was in respect of a case for the offences under Section 120-B of the Indian Penal Code and under Section 5(2) read with Section 5(1)(d) of P.C. Act, 1988. But, the apex Court decided the matter of sanction in respect of offences under Section 120-B of the Indian Penal Code only and held that sanction under Section 197(1), Cr. P.C. was required even if on the date of taking cognizance, a person has ceased to be a public servant. It did not, decide the case in respect of charges relating to offences punishable under the P. C. Act, 1988 which is clearly mentioned in the concluding para of the judgment where the apex Court stated that it was not disturbing the findings of the High Court in respect of charges under Section 5(2) read with Section 5(1)(d) of P.C. Act, 1988 and it allowed it to remain undisturbed. It appears that the learned Special Judge has failed to observe this and by misreading this judgment, he was confused that this decision has given protection of Section 197(1), Cr. P.C. in respect of the offences under P.C. Act, 1988 also to those persons who at the time of taking cognizance have ceased to be public servants. We, therefore, find that the decisions of the apex Court in the cases relied upon by the Opp. Party as well as by the prosecution are consistent and by these decisions, the apex Court has held that so far as offences under P.C, Act, 1988 are concerned, prior sanction is not required if on the date of taking cognizance, the person being prosecuted has ceased to be a public servant. But, sofaras offences under Indian Penal Code or in other law which does not prescribe any special procedure are concerned, sanction under Section 197( 1), Cr. P.C. will be required in those cases also where a public servant has ceased to be so at the time of taking cognizance. This legal position clarified by the apex Court in the decisions referred above gives the complete answer to this reference.
11. In the three points formulated by the Court below for our reference, we find that there is repetition of the same matter in all the points but since the Court below has formulated three separate points so we are answering those points in the following terms:
(i) For the prosecution of a person who was a public servant at the relevant time, for commission of offences under P.C. Act, 1947 (now P.C. Act, 1988) as also under Indian Penal Code if such person has ceased to be a public servant on the date of taking cognizance, no previous sanction under Section 197(1), Cr. P.C. will be required in respect of offences under P.C. Act, 1947 (now P.C. Act, 1988) but such sanction will be required for offences under Indian Penal Code.
(ii) Previous sanction under Section 6 of P.C. Act, 1947 corresponding to Section 19 of P.C. Act, 1988 will not be required for an accused public servant who has ceased to be a public servant on the date of taking cognizance. For offences under Indian Penal Code, the question of sanction under Section 6 of P.C. Act corresponding to Section 19 of P.C. Act, 1988 does not arise. Such offences, sofaras the matter of sanction is concerned, will be guided by the provisions of Section 197(1), Cr. P.C.
(iii) Protection under Section 6 of P.C. Act, 1947 corresponding to Section 19 of P.C. Act, 1988 is not available to a public servant if at the time of taking cognizance, he has retired from service, even if the offence is alleged to have been committed in discharge of his official duty as a public servant but it is available under Section 197(1), Cr. P.C. for the offences under Indian Penal Code or in any other law in absence of any special procedure for such matter in that law.
Shashank Kumar Singh, J.
12. I agree.