{"id":11969,"date":"2010-03-29T00:00:00","date_gmt":"2010-03-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mukesh-kacker-vs-special-police-establishment-on-29-march-2010"},"modified":"2015-11-15T03:56:54","modified_gmt":"2015-11-14T22:26:54","slug":"mukesh-kacker-vs-special-police-establishment-on-29-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mukesh-kacker-vs-special-police-establishment-on-29-march-2010","title":{"rendered":"Mukesh Kacker vs Special Police Establishment on 29 March, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Mukesh Kacker vs Special Police Establishment on 29 March, 2010<\/div>\n
                                                   1\n\n                                                                                                 AFR\n                           HIGH COURT OF MADHYA PRADESH,\n                             PRINCIPAL SEAT AT JABALPUR\n\n                                      (DIVISION BENCH)\n\n                                    M.Cr.C. No.9247\/2007\n\n                           Mukesh Kacker, aged about 49 years, s\/o\n                           Mr. B.M. Kacker, r\/o 5, Munirka Marg,\n                           Ground Floor, Vasant Vihar, New Delhi.\n                                              vs.\n                           1.     Special Police Establishment,\n                           Lokayukt Office, Bhopal Division, Bhopal.\n\n                           2.     State of M.P., through Chief\n                           Secretary, Mantralaya, Bhopal.\n\n\n\nFor the Petitioner:       Shri Ravindra Shrivastava, Senior Advocate,\n                          With Shri Ajay Gupta, Advovcate.\n\nFor the Respondents: Shri Aditya Adhikari, Advocate, with Shri Satish Chaturvedi,\n                     Advocate, for respondent No.1\/S.P.E. Lokayukta, Bhopal.\n\n                          Shri J.K. Jain, Dy. Advocate General,\n                          for the respondent No.2\/State.\n\n--------------------------------------------------------------------------------------------------------\n<\/pre>\n
Present:          HON'BLE SHRI JUSTICE RAKESH SAKSENA\n                  HON'BLE SMT.JUSTICE SUSHMA SHRIVASTAVA\n--------------------------------------------------------------------------------------------------------\nDate of hearing:           25.02.2010\nDate of Order:             29.03.2010\n\n                                            (O R D E R)\n\n\nPer: Rakesh Saksena.J.\n\n<\/pre>\n
        Petitioner, an IAS officer of M.P. Cadre, has filed this petition under Section<\/p>\n
482 of the Code of Criminal Procedure for quashing the criminal proceedings pending<\/p>\n
against him in Special Case No.2\/2005, before the Court of Special Judge (under<\/p>\n
Prevention of Corruption Act) Bhopal, for the offences punishable under Section 13(1)<\/p>\n
(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section<\/p>\n
120-B of the Indian Penal Code.\n<\/p>\n
2.      Special Police Establishment, Lokayukta, Bhopal, filed charge sheet on
\n                                          2<\/span><\/p>\n
18.1.2005 in the Court of learned Special Judge, Bhopal, in relation to offences<\/p>\n
registered at Crime No.35\/1998. As many as 14 accused persons were named in the<\/p>\n
charge sheet. However, the charge sheet was filed only against 10 persons. Since<\/p>\n
the sanction for prosecution was refused by the State Government as well as by the<\/p>\n
Government of India for the petitioner, he was not charge sheeted. Learned Special<\/p>\n
Judge on the basis of charge sheet took cognizance of the offences on 18.1.2005.<\/p>\n
3.     At the relevant time i.e. from 4.12.1995 to 2.11.1996 petitioner was posted as<\/p>\n
Managing Director of M.P. Urja Vikas Nigam. When charge sheet was filed by the<\/p>\n
Special Police Establishment, the petitioner was a member of Indian Administrative<\/p>\n
Service.\n<\/p>\n
4.     In the charge sheet filed on 18.1.2005 though petitioner was not arrayed as<\/p>\n
an accused, yet in various places references were made to him and in the last para of<\/p>\n
charge sheet it was mentioned that a supplementary charge sheet shall be filed<\/p>\n
against him on getting sanction for prosecution against him. Petitioner filed an<\/p>\n
application before the Court of learned Special Judge praying that all the references<\/p>\n
to Mukesh Kackar as accused mentioned in the charge sheet filed in the case be<\/p>\n
deleted since the appropriate Governments had refused the sanctions under Section<\/p>\n
197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption<\/p>\n
Act for the prosecution of petitioner. It was alleged that the State Government of<\/p>\n
Madhya Pradesh vide letter No.8\/95\/99\/21, ka (abhi) dated 22.6.2001 issued from<\/p>\n
the Department of Law and Legislative Affairs addressed to DIG, Special Police<\/p>\n
Establishment, Bhopal had conveyed the refusal of sanction against the petitioner.<\/p>\n
Similarly, letter No.107\/1\/2002-A.V.D.-1, dated 3.9.2003 was issued by the Director<\/p>\n
(Vigilance) addressed to Chief Secretary, Government of M.P., conveying the refusal<\/p>\n
of Government of India to give sanction for prosecution against petitioner. This fact<\/p>\n
was also communicated by Smt. Ranjana Choudhary, Principal Secretary (GAD),<\/p>\n
Government of M.P., vide letter dated 6.10.2003 to the Director General of Special<\/p>\n
Police Establishment, Bhopal. However, before the application filed by the petitioner
\n                                            3<\/span><\/p>\n
for deleting his name could be decided, petitioner took voluntary retirement on<\/p>\n
16.4.2007 and, subsequent to it, i.e. on 25.4.2007 Special Police Establishment filed a<\/p>\n
supplementary charge sheet against him.\n<\/p>\n
5.     The petitioner by filing an application on 25.4.2007 challenged the validity of<\/p>\n
filing supplementary charge sheet against him on the ground that sanction for<\/p>\n
prosecution has been refused by the competent authority when earlier charge sheet<\/p>\n
was filed, therefore, the respondent Special Police Establishment was not justified in<\/p>\n
filing the supplementary charge sheet merely because the petitioner had sought<\/p>\n
voluntary retirement and that there was no ground to file supplementary charge<\/p>\n
sheet in the absence of any further investigation.\n<\/p>\n
6.     After hearing the arguments of the petitioner, learned Special Judge, vide<\/p>\n
order dated 16.8.2007 rejected the objections raised by the petitioner. Aggrieved by<\/p>\n
the said order, petitioner has challenged his prosecution before this Court.<\/p>\n
7.     Shri Ravindra Shrivastava, learned senior counsel for the petitioner, submitted<\/p>\n
that the trial Court passed the impugned order mechanically without appreciating the<\/p>\n
facts and the law in the right earnest. He submitted that trial Court wrongly held that<\/p>\n
because the petitioner no longer occupied the office after his retirement when the<\/p>\n
supplementary charge sheet was filed, there was no requirement of sanction for<\/p>\n
prosecution in view of the decision of the Apex Court rendered in the case of<\/p>\n
Prakash Singh Badal v. State of Punjab-(2007) 1 SCC 1. According to him in<\/p>\n
the present case there was no change of the status of the public servant in a way<\/p>\n
that the authority competent to remove him from service at the time of taking<\/p>\n
cognizance by the Court had changed and was no longer the one who was competent<\/p>\n
to remove him from the office it was alleged to have been misused. The competent<\/p>\n
authority to grant sanction under Section 19 of the Prevention of Corruption Act, 1988<\/p>\n
and under Section 197 of the Code of Criminal Procedure had not been changed on<\/p>\n
18.1.2005, the date on which the learned trial Court had taken cognizance of the<\/p>\n
offence, when first charge sheet was filed. Learned trial Court did not discuss the
\n                                            4<\/span><\/p>\n
effect of refusal of sanction at earlier point of time in the same matter. Once the<\/p>\n
sanction was refused, the prosecuting agency could not be allowed to make it<\/p>\n
ineffective by filing a supplementary charge sheet after the retirement of the public<\/p>\n
servant saying that after retirement no sanction was required. In the instant case,<\/p>\n
the matter of grant or refusal to grant sanction was not pending at the level of<\/p>\n
Government and the competent authority. It was a clear case of refusal of sanction,<\/p>\n
which could not have been made ineffective by a malicious act of prosecuting agency<\/p>\n
by filing a supplementary charge sheet after the retirement of petitioner. Learned<\/p>\n
counsel argued that there was no occasion for the Special Police Establishment to file<\/p>\n
supplementary charge sheet in the absence of any further investigation or discovery<\/p>\n
of new fact, and it was already in their knowledge that sanction for prosecution has<\/p>\n
already been refused in respect of petitioner. Learned counsel for the petitioner relied<\/p>\n
on the judgments rendered by the Apex Court in R.S. Nayak v. A.R. Antulay<\/a><\/p>\n
(1984) 2 SCC 183, Dilawar Singh v. Parvinder Singh-<\/a>(2005) 12 SCC 709,<\/p>\n
State of H.P. vs. M.P. Gupta-<\/a>(2004) 2 SCC 349, Balakrishan Ravi Menon vs.<\/p>\n
UOI-(2007) 1 SCC 45, Paul Verghese vs. State of Kerala-<\/a>(2007) 14 SCC 783,<\/p>\n
State of Kerala vs. M.M. Manikantan Nair-<\/a>(2001) 4 SCC 752, State of Kerala<\/p>\n
vs. V. Padmanabhan Nair-<\/a>(1999) 5 SCC 690, Habibullah Khan vs. State-<\/p>\n
(1995) 2 SCC 437, Kalicharan Mahapatra vs. State of Orrissa-(1998) 6 SCC<\/p>\n
411, Prakash Singh Badal vs. State of Punjab-(2007) 1 SCC 1, CBI vs. A.<\/p>\n
Ravishankar-(2009) 6 SCC 351, Saroj Kumar Sahoo vs. State of Orrissa-<\/p>\n
(2005) 13 SCC 540 and State vs. Bhajanlal-<\/a>(1992) Supp-1 SCC 335.<\/p>\n
8.     Shri Aditya Adhikari, learned counsel for the respondent Special Police<\/p>\n
Establishment, on the other hand submitted that the learned trial Judge committed<\/p>\n
no error in rejecting the objections filed by the petitioner. Since at the time of filing<\/p>\n
the supplementary charge sheet against the petitioner he had already retired, no<\/p>\n
sanction was required for taking cognizance against him under Section 19 of the<\/p>\n
Prevention of Corruption Act, 1988. Since the offences under which the charge sheet
\n                                           5<\/span><\/p>\n
was filed were Section 13(1)(d)      read with Section 13(2) of the Prevention of<\/p>\n
Corruption Act and Section 120-B of the Indian Penal Code, no sanction was required<\/p>\n
under Section 197 of the Code of Criminal Procedure also after retirement of the<\/p>\n
petitioner. He contended that even if sanction was refused in respect of petitioner<\/p>\n
when earlier charge sheet was filed, the prosecution was not prevented to file<\/p>\n
supplementary charge sheet when a new fact about voluntary retirement of the<\/p>\n
petitioner was noticed. He further submitted that though for prosecution of a retired<\/p>\n
public servant, obtaining sanction is essential under Section 197 of the Code of<\/p>\n
Criminal Procedure, but where an accused is facing prosecution for the offences<\/p>\n
under Prevention of corruption Act, he cannot claim any immunity on the ground of<\/p>\n
want of sanction, if he ceased to be a public servant on the date when the Court took<\/p>\n
cognizance of the said offences. He justified the order dated 16.8.2007 passed by the<\/p>\n
learned Special Judge rejecting the objection filed by the petitioner for filing<\/p>\n
supplementary charge sheet against him. He too placed reliance on the decisions<\/p>\n
rendered by the Hon’ble Supreme Court in Dilawar Singh v. Parvinder Singh-<\/a><\/p>\n
(2005) 12 SCC 709, State of H.P. vs. M.P. Gupta-<\/a>(2004) 2 SCC 349,<\/p>\n
Balakrishan Rai Menon vs. UOI-(2007) 1 SCC 45, State of Kerala vs. V.<\/p>\n
Padmanabhan Nair-<\/a>(1999) 5 SCC 690, Kalicharan Mahapatra vs. State of<\/p>\n
Orrissa-(1998) 6 SCC 411, Prakash Singh Badal vs. State of Punjab-(2007)<\/p>\n
1 SCC 1 and Habibullah Khan vs. State-(1995) 2 SCC 437.\n<\/p>\n
9.     We have heard the learned counsel for the parties and perused the impugned<\/p>\n
order, charge sheet and the material on record.\n<\/p>\n
10.    Main questions before us are: (1) whether the sanction to prosecute once<\/p>\n
refused by the competent authority shall debar the Court to take cognizance against<\/p>\n
the accused under the provisions of Prevention of Corruption Act, 1988 even if he did<\/p>\n
not remain a public servant due to his retirement and (2) whether a supplementary<\/p>\n
charge sheet could be filed against the accused when already a charge-sheet against<\/p>\n
other co-accused persons had already been filed at an earlier occasion.
\n                                              6<\/span><\/p>\n
11.    In the decision rendered by the Apex Court in the case of State of H.P. v.<\/p>\n
M.P. Gupta<\/a> (supra), it has been held ” So far as public servants are concerned, the<\/p>\n
cognizance of any offence, by any Court, is barred by Section 197 CrPC unless<\/p>\n
sanction is obtained from the appropriate authority, if the offence, alleged to have<\/p>\n
been committed, was in discharge of official duty. The said section not only specifies<\/p>\n
the person to whom the protection is afforded but it also specifies the conditions and<\/p>\n
circumstances in which it shall be available and the effect in law if the conditions are<\/p>\n
satisfied. The mandatory character of the protection afforded to a public servant is<\/p>\n
brought out by the expression, “no court shall take cognizance of such offence except<\/p>\n
with the previous sanction”. Use of the words “no” and “shall” makes it abundantly<\/p>\n
clear that the bar on the exercise of power of the court to take cognizance of any<\/p>\n
offence is absolute and complete. The very cognizance is barred. That is, the<\/p>\n
complaint cannot be taken notice of. The word “cognizance” means “jurisdiction” or<\/p>\n
“the exercise of jurisdiction” or “power to try and determine causes”. In common<\/p>\n
parlance, it means taking notice of. A court, therefore, is precluded from entertaining<\/p>\n
a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public<\/p>\n
servant who is accused of an offence alleged to have been committed during<\/p>\n
discharge of his official duty. ……… The protection given under Section 197 is to<\/p>\n
protect responsible public servants against the institution of possibly vexatious<\/p>\n
criminal proceedings for offences alleged to have been committed by them while they<\/p>\n
are acting or purporting to act as public servants. The policy of the legislature is to<\/p>\n
afford adequate protection to public servants to ensure that they are not prosecuted<\/p>\n
for anything done by them in the discharge of their official duties without reasonable<\/p>\n
cause, and if sanction is granted, to confer on the Government, if they choose to<\/p>\n
exercise it, complete control of the prosecution. It has been clarified that the<\/p>\n
protection is available only when the alleged act done by the public servant is<\/p>\n
reasonably connected with the discharge of his official duty and is not merely a cloak<\/p>\n
for doing the objectionable act. Even if in doing his official duty, public servant acted
\n                                            7<\/span><\/p>\n
in excess of his duty, but there is a reasonable connection between the act and the<\/p>\n
performance of the official duty, the excess will not be a sufficient ground to deprive<\/p>\n
the public servant of the protection. There cannot be any universal rule to determine<\/p>\n
whether there is a reasonable connection between the act done and the official duty,<\/p>\n
nor it is possible to lay down any such rule”.                However, quoting S.A.<\/p>\n
Venkataraman vs. State-AIR 1958 SC 107 and C.R. Bansi v. State of<\/p>\n
Maharashtra-<\/a>(1970)3 SCC 537, the Apex Court observed that:\n<\/p>\n
          “There is nothing in the words used in Section 6(1) to even
\n          remotely suggest that previous sanction was necessary before a
\n          court could take cognizance of the offences mentioned therein in
\n          the case of a person who had ceased to be a public servant at the
\n          time the court was asked to take cognizance, although he had been
\n          such a person at the time of offence was committed.”<\/p><\/blockquote>\n
       Their Lordships of the Apex Court also considered the provisions of newly<\/p>\n
worded Section 197 and observed that: “When the newly worded section appeared in<\/p>\n
the Code (Section 197) with the words “when any person who is or was a public<\/p>\n
servant” ( as against the truncated expression in the corresponding provision of the<\/p>\n
old Code of Criminal Procedure, 1898), a contention was raised before this Court in<\/p>\n
Kalicharan Mahapatra v. State of Orissa<\/a> that the legal position must be treated as<\/p>\n
changed even in regard to offences under the old Act and the new Act also. The said<\/p>\n
contention was, however, repelled by this Court wherein a two-Judge Bench has held<\/p>\n
thus: (SCC p.416, para 14):\n<\/p>\n
          “A public servant who committed an offence mentioned in the Act,
\n          while he was a public servant, can be prosecuted with the sanction
\n          contemplated in Section 19 of the Act if he continues to be a public
\n          servant when the court takes cognizances of the offence. But if he
\n          ceases to be a public servant by that time, the court can take
\n          cognizance of the offence without any such sanction.”\n<\/p><\/blockquote>\n
The correct legal position, therefore, is that an accused facing prosecution for<\/p>\n
offences under the old Act or the new Act cannot claim any immunity on the ground<\/p>\n
of want of sanction, if he ceased to be a public servant on the date when the court<\/p>\n
took cognizance of the said offences. But the position is different in cases where
\n                                             8<\/span><\/p>\n
Section 197 of the Code has application.\n<\/p>\n
       Section 197(1) provides that when any person who is or was a public servant<\/p>\n
not removable from his office save by or with the sanction of the Government is<\/p>\n
accused of an offence alleged to have been committed by him while acting or<\/p>\n
purporting to act in the discharge of his official duty, no court shall take cognizance<\/p>\n
of such offence except with the previous sanction.\n<\/p>\n
       The Apex Court took note of the observation of the Law Commission’s 41st<\/p>\n
Report while dealing with Section 197: “It appears to us that protection under the<\/p>\n
section is needed as much after retirement of the public servant as before retirement.<\/p>\n
The protection afforded by the section would be rendered illusory if it were open to a<\/p>\n
private person harbouring a grievance to wait until the public servant ceased to hold<\/p>\n
his official position, and then to lodge a complaint. The ultimate jurisdiction for the<\/p>\n
protection conferred by Section 197 is the public interest in seeing that official acts do<\/p>\n
not lead to needless or vexatious prosecution. It should be left to the Government to<\/p>\n
determine from that point of view the question of the expediency of prosecuting any<\/p>\n
public servant.” It was in pursuance of this observation that the expression “was”<\/p>\n
came to be employed after the expression “is” to make the sanction applicable even<\/p>\n
in cases where a retired public servant is sought to be prosecuted”.<\/p>\n
       The Apex Court in case of M.P. Gupta (supra) held: “that apart, the<\/p>\n
contention of the respondent that for offences under Sections 406 and 409 read with<\/p>\n
Section 120-B IPC sanction under Section 197 of the Code is a condition precedent<\/p>\n
for launching the prosecution is equally fallacious. This court has stated the legal<\/p>\n
position in Shreekantiah Ramayya Munipalli -AIR 1955 SC 287 and also Amrik Singh-<\/p>\n
AIR 1955 SC 309 that it is not every offence committed by a public servant which<\/p>\n
requires sanction for prosecution under Section 197 of the Code, nor even every act<\/p>\n
done by him while he is actually engaged in performance of his official duties.<\/p>\n
Following the above legal position it was held in Hari Prasad v. State of Bihar-(1972)<\/p>\n
3 SCC 89 as follows:\n<\/p>\n
                                            9<\/span><\/p>\n
          “As far as the offence of criminal conspiracy punishable under
\n          Section 120-B, read with Section 409 of the Indian Penal Code is
\n          concerned and also Section 5(2) of the Prevention of Corruption Act
\n          are concerned, they cannot be said to be of the nature mentioned
\n          in Section 197 of the Code of Criminal Procedure. To put it shortly,
\n          it is no part of the duty of a public servant, while discharging his
\n          official duties, to enter into a criminal conspiracy or to indulge in
\n          criminal misconduct. Want of sanction under Section 197 of the
\n          Code of Criminal Procedure is, therefore, no bar.””\n<\/p><\/blockquote>\n
12.    From the above preposition, it is evident that though the bar imposed by<\/p>\n
Section 197 Cr.P.C. and also by Section 19 of the Prevention of Corruption Act for<\/p>\n
taking cognizance against the public servant is absolute and complete and the very<\/p>\n
cognizance is barred in the absence of requisite sanction, yet as far as the offence of<\/p>\n
criminal conspiracy punishable under Section 120-B of the Indian Penal Code read<\/p>\n
with Section 5(2) (Section 13(2) of the Prevention of Corruption Act, 1988) is<\/p>\n
concerned, it cannot be said to be of the nature mentioned in Section 197 of the<\/p>\n
Code of Criminal Procedure. Therefore, want of sanction under Section 197 of the<\/p>\n
Code of Criminal Procedure in respect of it is no bar.\n<\/p>\n
13.    In R.S. Nayak vs. A.R. Antuly<\/a> (supra) Supreme Court held: “the relevant<\/p>\n
date with reference to which a valid sanction is sine-qua-non for taking cognizance of<\/p>\n
an offence committed by public servant as required by Section 6 of the Prevention of<\/p>\n
Corruption Act, 1947 is the date on which the court is called upon to take cognizance<\/p>\n
of the offence of which he is accused. If, therefore, when the offence is alleged to<\/p>\n
have been committed, the accused was a public servant, but by the time the court is<\/p>\n
called upon to take cognizance of the offence committed by him as public servant, he<\/p>\n
has ceased to be a public servant, no sanction would be necessary for taking<\/p>\n
cognizance of the offence against him. This approach is in accord with the policy<\/p>\n
underlying Section 6. In that a public servant is not to be exposed to harassment of a<\/p>\n
frivolous or speculative prosecution. In the above case, on the date on which the<\/p>\n
cognizance was taken, the accused had ceased to hold the office of Chief Minister<\/p>\n
and then ceased to be a public servant and, therefore, no sanction under Section 6<\/p>\n
was found necessary before cognizance of the offence could be taken against him for
\n                                             10<\/span><\/p>\n
offences alleged to have been committed in his former capacity as a public servant.<\/p>\n
In R.S. Nayak’s (supra) it was held that the Prevention of Corruption Act was<\/p>\n
enacted to make more effective provision for the prevention of bribery and<\/p>\n
corruption. Therefore, the provisions of the Act must receive such construction as<\/p>\n
would advance the object and purpose underlying the Act and at any rate not<\/p>\n
defeated. It would be the duty of the court to adopt that construction, which would<\/p>\n
advance the object underlying the Act.\n<\/p>\n
14.    In the decision rendered in the case of Prakash Singh Badal (supra) the<\/p>\n
Supreme Court repelled the contention of the accused that even if the offending act<\/p>\n
was committed by a public servant in his former capacity and even if such a public<\/p>\n
servant had not abused his subsequent office, still such a public servant needed<\/p>\n
protection of Section 19(1) of the Prevention of Corruption Act throughout, as long as<\/p>\n
he continues to be in public employment, and that the judgment of Supreme Court in<\/p>\n
R.S. Nayak case (1984) 2 SCC 182 holding that the subsequent position of the<\/p>\n
public servant to be unprotected, was erroneous. This contention is clearly untenable<\/p>\n
as Section 19(1) of the Act is time and offence related. Protection of public servant<\/p>\n
under Section 19(1) had been confined to the time related criminal acts performed<\/p>\n
under the colour or authority of public servant’s own pleasure or benefit as<\/p>\n
categorized in Section 7,10,11,14 and 15.\n<\/p>\n
15.    In case of Habibulla Khan vs. State of Orissa-<\/a>(1995) 2 SCC 437, Apex<\/p>\n
Court relying on the decisions rendered by it in the cases of R.S. Nayak v. A.R.<\/p>\n
Antule<\/a> (supra), S.A. Venkataraman v. State-AIR 1958 SC 107 and<\/p>\n
K.Veeraswami v. Union of India-<\/a>(1991) 3 SCC 655, held that no sanction under<\/p>\n
Section 6 of the Act (1947 Act) was necessary for prosecution of the accused in the<\/p>\n
case since he had retired from the service on attaining the age of superannuation and<\/p>\n
was not a public servant on the date of filing the charge sheet. Similar view was<\/p>\n
taken by the Supreme Court in case of State of Kerela v. M.M. Manikantan Nair<\/p>\n
and Balakrishnan Ravi Menon<\/a> (supra).\n<\/p>\n
                                              11<\/span><\/p>\n
16.    In S.A. Venkataraman (supra) the Apex Court observed that “in construing<\/p>\n
the provisions of a statute it is essential for a court, in the first instance, to give effect<\/p>\n
to the natural meaning of the words used therein, if those words are clear enough. It<\/p>\n
is only in the case of any ambiguity that a court is entitled to ascertain the intention<\/p>\n
of the legislature. Where a general power to take cognizance of an offence is vested<\/p>\n
in a court, any prohibition to the exercise of that power, by any provision of law,<\/p>\n
must be confined to the terms of the prohibition. The words in Section 6(1) of the Act<\/p>\n
are clear enough and must be given effect to. The more important words in clause (c)<\/p>\n
of Section 6(1) are “of the authority competent to remove him from his office”. A<\/p>\n
public servant, who has ceased to be a public servant is not a person removable from<\/p>\n
any office by competent authority. The conclusion is inevitable that the time a court is<\/p>\n
asked to take cognizance not only offence must be committed by a public servant,<\/p>\n
but the person accused must still be a public servant removable from his offence by a<\/p>\n
competent authority before the provisions of Section 6 can apply.”<\/p>\n
17.    In Kalicharan mahapatra (supra) also the Supreme Court reiterated that a<\/p>\n
public servant is liable to be prosecuted under the Prevention of Corruption Act even<\/p>\n
if he is ceased to be a public servant at the time of trial or during pendency of the<\/p>\n
prosecution, however, no sanction is required if he is ceased to be a public servant at<\/p>\n
the time of taking cognizance.\n<\/p>\n
18.    In State of Kerala v. V. Padmanabhan Nair<\/a> (supra), Supreme Court held<\/p>\n
that for the offence of criminal conspiracy punishable under Section 120-B read with<\/p>\n
Section 409 Indian Penal Code and also for Section 5(2) of the Prevention of<\/p>\n
Corruption Act it cannot be said that they are the offences of the nature mentioned in<\/p>\n
Section 197 Cr.P.C.. It is no part of the duty of the public servant while discharging<\/p>\n
his official duty to enter into a criminal conspiracy or to indulge in criminal<\/p>\n
misconduct. Want of sanction under Section 197 Cr.P.C. is, therefore, no bar.<\/p>\n
19.    In Paul Verghese v. State of Kerala<\/a> (supra) the Apex Court held that<\/p>\n
requirement of Section 19(1) is a matter of procedure and does not go to the root of
\n                                            12<\/span><\/p>\n
the jurisdiction. Section 19(3)(c) reduces the rigor of the prohibition. Mere error,<\/p>\n
omission or irregularity in sanction is not considered fatal unless it has resulted in<\/p>\n
failure of justice or failure of justice has been occasioned thereby. Section 197 Cr.P.C.<\/p>\n
and Section 19 of the Prevention of Corruption Act, 1988 operate in conceptually<\/p>\n
different field. In cases covered under 1988 Act in respect of public servant the<\/p>\n
sanction is of automatic nature and thus factual aspects are of little or no<\/p>\n
consequences conversely in a case relatable to Section 197. The substratum and<\/p>\n
basic feature of the case have to be considered to find out whether the alleged act<\/p>\n
has any nexus to the discharge of the duty. Position is not so in case of Section 19 of<\/p>\n
the 1988 Act.\n<\/p>\n
20.    The Apex Court, in the above case, relying on the decision of Dilawar Singh<\/p>\n
(supra) held that the trial court was not justified in holding that Section 319 of the<\/p>\n
Code of Criminal Procedure has to get preference\/primacy over Section 19 of the Act<\/p>\n
and that matter stands concluded. It was held; in the absence of sanction court<\/p>\n
cannot take cognizance against a person in respect of whom the sanction is not<\/p>\n
accorded by the competent authority.\n<\/p>\n
21.    Learned counsel for the petitioner on the strength of above decisions argued<\/p>\n
that since the sanction was specifically refused by the appropriate Governments, no<\/p>\n
cognizance against the petitioner could be taken by the Special Court, even though<\/p>\n
the cognizance of case has been taken by the court against other accused persons in<\/p>\n
respect of whom the sanction was accorded. In our opinion, since the Prevention of<\/p>\n
Corruption Act 1988 is the special law, it has got overriding effect over the provisions<\/p>\n
of Code of Criminal Procedure. It is true that in generality the cognizance is taken of<\/p>\n
the case and not of the accused, but, in situations, like S. 319 Cr.P.C. a person can<\/p>\n
be summoned at a later stage of trial by the court if his participation appears in the<\/p>\n
commission of the offence from the evidence recorded during the trial. This would be<\/p>\n
permissible in respect to the offences under the provisions of Prevention of<\/p>\n
Corruption Act also, subject to fulfillment of the requirement of requisite sanction.
\n                                            13<\/span><\/p>\n
This clearly indicates that in some special eventualities cognizance against a particular<\/p>\n
accused can be taken by a court at some later stage. Similar would be the situation<\/p>\n
when a supplementary charge sheet is filed against an accused. Cognizance against<\/p>\n
him can be taken at a later stage, because such technicalities cannot frustrate the<\/p>\n
purpose or the object of the Act.\n<\/p>\n
22.    On the strength of law laid down in case of State v. Bhajanlal<\/a> (supra), CBI<\/p>\n
v. A. Ravishankar (supra) and Saroj Kumar Sahu (supra), learned counsel for the<\/p>\n
petitioner submitted that this court should exercise its inherent powers conferred on<\/p>\n
it under Section 482 of the Code of Criminal Procedure to quash the criminal<\/p>\n
proceedings against the petitioner because of the lack of sanction for prosecution<\/p>\n
against the petitioner and on the ground that the prosecution acted malafidely in<\/p>\n
filing the supplementary charge sheet under the provisions of Section 378(3) of the<\/p>\n
Code of Criminal Procedure without taking any further investigation. He submitted<\/p>\n
that it was in the knowledge of the prosecution when the original charge sheet was<\/p>\n
filed that sanction against the petitioner was refused, yet in the end of the charge<\/p>\n
sheet it was mentioned that after obtaining the sanction against him supplementary<\/p>\n
charge sheet would be filed.\n<\/p>\n
23.    In Ramlal Narang v. Delhi State (Admn)-AIR 1979 SC 1791, the Apex<\/p>\n
Court held that notwithstanding that a Magistrate had taken cognizance of the<\/p>\n
offence upon a police report submitted under Section 173 of the Code, the right of<\/p>\n
the police to further investigation is not exhausted and police can exercise such right<\/p>\n
as often as necessary when fresh information comes to light. There was no provision<\/p>\n
in the Code of Criminal Procedure which, expressly or by necessary implication bars<\/p>\n
the right of police to further investigation after cognizance of the case had been<\/p>\n
taken by the Magistrate. Neither S. 173 nor S. 190 lead to say that the power of the<\/p>\n
police to further investigate was exhausted by the Magistrate taking cognizance of<\/p>\n
the offence. Practice, convenience and preponderance of the authority permits<\/p>\n
repeated investigation on discovery of fresh fact. It is true that in the present case
\n                                          14<\/span><\/p>\n
there was no further investigation after filing the charge sheet against the other<\/p>\n
accused persons, yet it is apparent that a new fact was discovered by the prosecution<\/p>\n
that the petitioner had sought voluntary retirement, which led the prosecution to file<\/p>\n
supplementary charge sheet against him in view of the fact that the obstacle of<\/p>\n
obtaining sanction from the Government was removed. Even if accused could not be<\/p>\n
charge-sheeted earlier, there was no bar in the Code of Criminal Procedure to file a<\/p>\n
supplementary charge sheet in the case, if in the opinion of prosecution, accused<\/p>\n
deserved to be prosecuted on the basis of material and evidence available against<\/p>\n
him on record.\n<\/p>\n
24.    In In State of Orissa v. Saroj Kumar Sahu<\/a> (supra) it was observed by the<\/p>\n
Supreme Court that it is important to bear in mind the distinction between a case<\/p>\n
where there is no legal evidence or where there is evidence which is clearly<\/p>\n
inconsistent with the accusation made and a case where there is legal evidence,<\/p>\n
which, on appreciation, may or may not support the accusation. When exercising<\/p>\n
jurisdiction under Section 482 the High Court would not ordinarily embark upon an<\/p>\n
enquiry whether the evidence in question is reliable or not or whether on a<\/p>\n
reasonable appreciation of it, accusation would not be sustained. That is the function<\/p>\n
of the trial judge. Judicial process should not be an instrument of oppression, or,<\/p>\n
needless harassment. The court should be circumspect. At the same time the section<\/p>\n
is not an instrument handed over to an accused to short-circuit a prosecution and<\/p>\n
bring about it’s sudden death. In case of State of Haryana vs. Bhajanlal<\/a> (supra)<\/p>\n
a note of caution was, however, added that the power should be exercised sparingly<\/p>\n
and that too in the rarest of rare cases. In case of Saroj Kumar Sahoo (supra) it<\/p>\n
has been further observed that when an information is lodged at the police station<\/p>\n
and an offence is registered then the malafides of the informant would be of<\/p>\n
secondary importance.     It is the material collected during the investigation and<\/p>\n
evidence led in the court which decides the fate of the accused person. The<\/p>\n
allegations of malafide against the informant are of no consequence and cannot by
\n                                                    15<\/span><\/p>\n
         themselves be the basis for quashing the proceedings.\n<\/p>\n
         25.    It is true, as held in State of H.P. v. M.P. Gupta<\/a> (supra), that the protection<\/p>\n
         afforded to a public servant as brought out by the impression, “no court shall take<\/p>\n
         cognizance of such offence except with the prevision sanction” is of mandatory<\/p>\n
         character and use of the words “no” and “shall” makes it abundantly clear that bar on<\/p>\n
         the exercise of power of the court to take cognizance of any offence is absolute and<\/p>\n
         complete and the very cognizance is barred, but, at the same time, it has been<\/p>\n
         settled by the Apex Court that the question of obtaining sanction is relatable to the<\/p>\n
         offence at the time of holding office when the offence alleged to have been<\/p>\n
         committed. At the relevant time, when the charge sheet was filed, if the accused was<\/p>\n
         not holding the office by virtue of his retirement or otherwise in which he was alleged<\/p>\n
         to have committed the offence, there was no question of obtaining any sanction. In<\/p>\n
         this view of the matter, we are unable to hold that any right was accrued to the<\/p>\n
         petitioner by refusal of grant of sanction by the appropriate Governments to prevent<\/p>\n
         the prosecution to file a fresh supplementary charge sheet or to prevent the court<\/p>\n
         from taking cognizance against him.\n<\/p>\n
         26.    In this view of the matter, we find no substance in this petition and the same<\/p>\n
         is dismissed.\n<\/p>\n<\/p>\n
         (Rakesh Saksena)                                   (Smt. Sushma Shrivastava)\n               Judge                                                 Judge\n\n\nshukla\n                                      16<\/span>\n\n                  HIGH COURT OF MADHYA PRADESH\n                    PRINCIPAL SEAT AT JABALPUR\n\n                         M.Cr.C. No.9247\/2007\n\n                               Mukesh Kacker\n                                      vs.\n                        Special Police Establishment,\n                      Lokayukt Office, Bhopal Division,\n                             Bhopal & another\n\n\n\n\n                                 ORDER\n\n\n                                              For consideration\n\n\n\n                                              (Rakesh Saksena)\n                                                     JUDGE\n                                                   __\/03\/2010\n\n\n\n\nHon'ble Smt. Justice Sushma Shrivastava\n\n\n\n           JUDGE\n        __\/03\/2010\n\n\n\n                                              POST FOR    \/03\/2010\n\n\n\n\n                                                  (Rakesh Saksena)\n                                                       Judge\n                                                    ___\/03\/2010\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Mukesh Kacker vs Special Police Establishment on 29 March, 2010 1 AFR HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR (DIVISION BENCH) M.Cr.C. No.9247\/2007 Mukesh Kacker, aged about 49 years, s\/o Mr. B.M. Kacker, r\/o 5, Munirka Marg, Ground Floor, Vasant Vihar, New Delhi. vs. 1. Special Police Establishment, Lokayukt […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-11969","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nMukesh Kacker vs Special Police Establishment on 29 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mukesh-kacker-vs-special-police-establishment-on-29-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mukesh Kacker vs Special Police Establishment on 29 March, 2010 - 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