{"id":144832,"date":"2011-07-13T00:00:00","date_gmt":"2011-07-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/special-police-establishment-vs-shri-vinod-chandra-semwal-on-13-july-2011"},"modified":"2018-11-08T18:23:19","modified_gmt":"2018-11-08T12:53:19","slug":"special-police-establishment-vs-shri-vinod-chandra-semwal-on-13-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/special-police-establishment-vs-shri-vinod-chandra-semwal-on-13-july-2011","title":{"rendered":"Special Police Establishment vs Shri Vinod Chandra Semwal on 13 July, 2011"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Special Police Establishment vs Shri Vinod Chandra Semwal on 13 July, 2011<\/div>\n
                                             (1)                                 Cr.R.No.1821\/2009\n\n\n           HIGH COURT OF MADHYA PRADESH: JABALPUR\n                                               (AFR)\n\n       Division Bench: Hon'ble Justice Shri Rakesh Saksena\n                       Hon'ble Justice Shri M.A.Siddiqui\n\n\n                    CRIMINAL REVISION NO.1821\/2009\n\n\n                 Special Police Establishment,\n                 Through R.K.Shrivastava,\n                 DSP, Special Police Establishment,\n                 Divisional Lokayukt Office,,\n                 Ujjain (M.P.)\n\n                                                           .......Petitioner\/Prosecution\n                                   -Versus-\n                 Shri Vinod Chandra Semwal, I.A.S.,\n                 S\/o Shri M.R.Semwal,\n                 The then Chairman,\n                 Town Improvement Trust,\n                 Ratlam (M.P.)\n\n                 Inspector General Registration,\n                 (Panjiyan Bhawan)\n                 Opp. Old Vidhan Sabha Bhawan,\n                 Bhopal.\n\n                                                  .......Respondent\/Alleged accused\n-----------------------------------------------------------------------------------------------------\n     For the appellants:                    Shri Aditya Adhikari, learned Special\n                                            Public Prosecutor.\n     For the respondent:                    Shri Surendra Singh, learned Senior\n                                            Advocate with Shri Shobit Aditya,\n                                            Advocate.\n-----------------------------------------------------------------------------------------------------\n\nDate of hearing:                   07\/07\/2011\nDate of Order:                     13\/07\/2011\n\n                                          **********\n\n                                          ORDER\n<\/pre>\n
Per: Rakesh Saksena,J.\n<\/p>\n
                 Petitioner Special Police Establishment, Lokayukta has<\/p>\n
filed this revision against the order dated 30.3.2007 passed by<\/p>\n
Special Judge (Prevention of Corruption Act), Ratlam in Special<\/p>\n
Case No.1\/2007 whereby learned Special Judge declined to take<\/p>\n
cognizance against the respondent of the offences punishable<\/p>\n
under section 13(1)(d) read with section 13(2) of the Prevention of
\n                               (2)                      Cr.R.No.1821\/2009<\/p>\n
Corruption Act, 1988, for want of sanction of prosecution under<\/p>\n
section 19 of the Prevention of Corruption Act and refusal of<\/p>\n
sanction under section 197 of the Code of Criminal Procedure.<\/p>\n
2.         In nutshell, relevant facts of the case are that<\/p>\n
respondent Vinod Chandra Semwal is the member of Indian<\/p>\n
Administrative Services of Madhya Pradesh Cadre. On 4.7.1992,<\/p>\n
he was posted as Collector, Ratlam. On 21.12.1992, in addition to<\/p>\n
it, he was appointed by the State Government Chairman of the<\/p>\n
Town Improvement Trust, Ratlam, a statutory body constituted<\/p>\n
under section 4 of the Madhya Pradesh Town Improvement Trusts<\/p>\n
Act, 1961 (for short ‘the Trust’). The allegation against the<\/p>\n
respondent is that while holding the post of Chairman of the Trust,<\/p>\n
abusing his position as a public servant, he transferred 30,000<\/p>\n
square feet of Government land to an ineligible and unauthorized<\/p>\n
person Shri Vinod Bhai Parekh without any consideration on<\/p>\n
8.11.1993. He thereby caused loss of Rs.01,34,33,381\/- (One<\/p>\n
crore, thirty four lacs, thirty three thousand, three hundred eighty<\/p>\n
one) to State Exchequer. On receipt of complaint by Shri Deepak<\/p>\n
Tiwari, Lokayukta Bhopal conducted a preliminary inquiry and<\/p>\n
found commission of offence punishable under section 13(1)(d)<\/p>\n
read with section 13(2) of the Prevention of Corruption Act, 1988<\/p>\n
(for short ‘the Act’) and section 120-B of the Indian Penal Code. A<\/p>\n
case at   Crime No.57\/2001 was registered by Special Police<\/p>\n
Establishment, Lokayukta. Despite repeated requests by the<\/p>\n
prosecution, sanction under section 19 of the Act was not granted<\/p>\n
and by order dated 23.1.2007 a sanction under section 197 of the<\/p>\n
Code of Criminal Procedure was refused by Madhya Pradesh<\/p>\n
Government.\n<\/p>\n
3.         On 24.1.2007, prosecution filed charge sheet against<\/p>\n
the respondent and co-accused Vinod Bhai under section 120-B of
\n                                         (3)                           Cr.R.No.1821\/2009<\/p>\n
the Indian Penal Code and section 13(1)(d) read with section 13(2)<\/p>\n
of the Act without sanction, in the light of decision of the Apex<\/p>\n
Court rendered in the case of Prakash Singh Badal and another<\/p>\n
Versus State of Punjab and others – (2007) 1 SCC 1. Learned<\/p>\n
Special Judge holding that the ratio of Prakash Singh Badal’s<\/p>\n
case was not applicable in the facts and circumstances of the<\/p>\n
case, held that in the absence of sanction under section 19 of the<\/p>\n
Act   cognizance against the respondent for the offence under<\/p>\n
section 13(1)(d) read with section 13(2) of the Act was barred and<\/p>\n
consequently refused to take cognizance. Aggrieved by the said<\/p>\n
order, Special Police Establishment, Lokayukta has preferred this<\/p>\n
revision.\n<\/p>\n
4.            Learned         Special     Public    Prosecutor    Shri         Aditya<\/p>\n
Adhikari submitted that Special Judge misconstrued the law laid<\/p>\n
down by the Apex Court in the case of Prakash Singh Badal<\/p>\n
(supra) and committed error in declining to take cognizance<\/p>\n
against the respondent. According to him, respondent, at the<\/p>\n
relevant time, was holding the office of Chairman of the Trust on<\/p>\n
being appointed by the State Government whereas the charge<\/p>\n
sheet against him was filed after his demitting the said office and<\/p>\n
while holding the post of Inspector General Registration, Bhopal.<\/p>\n
As such absence of sanction under section 19 of the Act was not<\/p>\n
fatal to the prosecution. On the other hand, Shri Surendra Singh,<\/p>\n
learned Senior Counsel submitted that respondent was the<\/p>\n
member of Indian Administrative Services. Even at the time he<\/p>\n
was holding the office of Chairman of the Trust he was also<\/p>\n
holding     the      office   of   Collector,      Ratlam.    Since      the    State<\/p>\n
Government appointed him Chairman of the Trust because of his<\/p>\n
being Collector, Ratlam, despite demitting the office of Chairman<\/p>\n
of the      Trust,     he continued           to be the      member of Indian
\n                                (4)                     Cr.R.No.1821\/2009<\/p>\n
Administrative Services, therefore, the sanction under section 19<\/p>\n
of the Act was condition precedent for taking cognizance against<\/p>\n
him for the alleged offences. He placed reliance on V.K.Sharma<\/p>\n
Versus State (Delhi Administration)- (1975) 1 SCC 784 and<\/p>\n
decision   of   this   Court   rendered   in   Criminal    Revision<\/p>\n
No.600\/2010 (Bramha Swaroop Saini versus State of M.P.<\/p>\n
Through Special Police Establishment, Lokayukt Office,<\/p>\n
Division Bhopal).\n<\/p>\n
5.          It is not disputed that respondent, at the relevant time,<\/p>\n
was Collector, Ratlam and at the same time had been holding the<\/p>\n
office of Chairman of Town Improvement Trust, Ratlam. The said<\/p>\n
Trust was constituted under section 4 of the Madhya Pradesh<\/p>\n
Town Improvement Trusts Act, 1961. It has been provided in the<\/p>\n
Act that the Trust shall be a body corporate and have perpetual<\/p>\n
succession and a common seal. It is, thus, apparent that it is a<\/p>\n
creature of statute. Section 5 of the Trust provided that the<\/p>\n
Chairman of the Trust had to be appointed by the State<\/p>\n
Government. As per provision of section 6, the term of office of<\/p>\n
Chairman was four years, provided in the case where the<\/p>\n
Chairman was an official, the State Government might at any time<\/p>\n
determine the term earlier. From these provisions, it is abundantly<\/p>\n
clear that respondent was appointed Chairman by the State<\/p>\n
Government and the term of his office was four years, but being an<\/p>\n
official, the State Government was empowered to determine his<\/p>\n
term earlier.\n<\/p>\n
6.          It is true that at the time when respondent was holding<\/p>\n
the office of Chairman of the Trust, simultaneously he was also<\/p>\n
holding the office of Collector, Ratlam, but there appeared no<\/p>\n
provision in the Trust to indicate that only a Collector or the<\/p>\n
member of Indian Administrative Services could have been
\n                                 (5)                        Cr.R.No.1821\/2009<\/p>\n
appointed Chairman of the Trust. Appointment and Removal of the<\/p>\n
Chairman of the Trust was clearly within the empowerment of the<\/p>\n
State Government. Merely because the Collector was appointed<\/p>\n
Chairman of the Trust, it cannot be held that holding the office of<\/p>\n
Collector and also the office of the Chairman of the Trust was one<\/p>\n
and the same thing.      Both the offices were altogether different<\/p>\n
existing in different fields.\n<\/p>\n
7.          In the case of Balakrishnan Ravi Menon versus<\/p>\n
Union of India – (2007) 1 SCC 45, Apex Court observed:-<\/p>\n
      “6.   Further , under Section 19 of the PC Act, sanction is to
\n      be given by the Government or the authority which would
\n      have been competent to remove the public servant from his
\n      office at the time when the offence was alleged to have been
\n      committed. The question of obtaining sanction would arise in
\n      a case where the offence has been committed by a public
\n      servant who is holding the office and by misusing or abusing
\n      the powers of the office, he has committed the offence. The
\n      word “office” repeatedly used in Section 19 would mean the
\n      “office” which the public servant misuses or abuses by
\n      corrupt motive for which he is to be prosecuted. Sub-sections
\n      (1) and (2) of Section 19 are as under:\n<\/p><\/blockquote>\n
            “19. Previous sanction necessary for prosecution.-(1)
\n      No court shall take cognizance of an offence punishable
\n      under Sections 7,10,11,13 and 15 alleged to have been
\n      committed by a public servant, except with the previous
\n      sanction,-\n<\/p><\/blockquote>\n
            (a)    in the case of a person who is employed in
\n            connection with the affairs of the Union and is not
\n            removable from his office save by or with the sanction
\n            of the Central Government, of that Government;\n<\/p><\/blockquote>\n
            (b)    in the case of a person who is employed in\n            connection with the affairs of a      State and is not\n<\/pre>\n
            removable from his office save by or with the sanction
\n            of the State Government of that Government;\n<\/p><\/blockquote>\n
             (c)   in the case of any other person, of the authority
\n             competent to remove him from his office.\n<\/p><\/blockquote>\n
      (2)   Where for any reason whatsoever any doubt arises as
\n      to whether the previous sanction as required under sub-
\n      section (1) should be given by the Central Government or the
\n                                     (6)                              Cr.R.No.1821\/2009<\/p>\n
     State Government or any other authority, such sanction shall
\n     be given by that Government or authority which would have
\n     been competent to remove the public servant from his office
\n     at the time when the offence was alleged to have been
\n     committed.”                                     (emphasis supplied)\n<\/p><\/blockquote>\n
     7.      Clauses (a) and (b) of sub-section (1) specifically
\n     provide that in case of a person who is employed and is not
\n     removable from his office by the Central Government or the
\n     State Government, as the case may be, sanction to prosecute
\n     is   required    to   be    obtained   either     from    the    Central
\n     Government or the State Government. The emphasis is on
\n     the words “who is employed” in connection with the affairs
\n     of the Union or the State Government. If he is not employed
\n     then Section 19 nowhere provides for obtaining such
\n     sanction. Further, under sub-section (2), the question of
\n     obtaining sanction is relatable to the time of holding the
\n     office when the offence was alleged to have been committed.
\n     In case where the person is not holding the said office as he
\n     might    have    retired,    superannuated,       be    discharged      or
\n     dismissed then the question of removing would not arise.
\n     Admittedly, when the alleged offence was committed, the
\n     petitioner was appointed by the Central Government. He
\n     demitted his office after completion of five years’ tenure.
\n     Therefore, at the relevant time when the charge-sheet was
\n     filed, the petitioner was not holding the office of the
\n     Chairman of Goa Shipyard Ltd. Hence, there is no question
\n     of   obtaining    any       previous   sanction    of    the     Central
\n     Government.”\n<\/p><\/blockquote>\n
8.           In Prakash Singh Badal (supra), the Supreme Court<\/p>\n
with approval quoted Habibulla Khan v. State of Orissa-<\/a>(1995)<\/p>\n
2 SCC 437 wherein the findings of the decision rendered by the<\/p>\n
Apex Court in R.S.Nayak v. A.R.Antulay-<\/a>(1984) 2 SCC 183<\/p>\n
were approved. It was observed:\n<\/p>\n
     “We would however, like to make it abundantly clear
\n     that if the two decisions purport to lay down that even if
\n     a public servant has ceased to hold that office as public
\n     servant which he is alleged to have abused or misused
\n     for corrupt motives, but on the date of taking cognizance
\n     of an offence alleged to have been committed by him as a
\n     public servant which he ceased to be and holds an
\n                                    (7)                          Cr.R.No.1821\/2009<\/p>\n
      entirely different       public office which he is neither
\n      alleged to have misused or abused for corrupt motives,
\n      yet the sanction of authority competent to remove him
\n      from such latter office would be necessary before taking
\n      cognizance    of   the    offence   alleged   to   have   been
\n      committed by the public servant while holding an offence
\n      which he is alleged to have abused or misused and which
\n      he has ceased to hold, the decisions in our opinion, do
\n      not lay down the correct law and cannot be accepted as
\n      making a correct interpretation of Section 6.\n<\/p><\/blockquote>\n
             Therefore, upon a true construction of Section 6, it
\n      is implicit therein that sanction of that competent
\n      authority alone would be necessary which is competent
\n      to remove the public servant from the office which he is
\n      alleged to have misused or abused for corrupt motive
\n      and for which a prosecution is intended to be launched
\n      against him.”\n<\/p><\/blockquote>\n
9.           It was further observed in Prakash Singh Badal<\/p>\n
(supra) that where the act performed under the colour of office is<\/p>\n
for the benefit of the officer or for his own pleasure Section 19(1)<\/p>\n
will come in. Therefore, Section 19(1) is time and offence related.<\/p>\n
Apex Court turned down the plea that a public servant who<\/p>\n
continues to remain on transfer has got to be protected as long as<\/p>\n
he continues to hold his office. It was observed:-<\/p>\n
      “23.   The main contention advanced by Shri Venugopal,
\n      learned Senior Counsel appearing for the appellant is
\n      that a public servant who continues to remain so (on
\n      transfer) has got to be protected as long as he continues
\n      to hold his office. According to the learned counsel, even
\n      if the offending act is committed by a public servant in
\n      his former capacity and even if such a public servant has
\n      not abused his subsequent office still such a public
\n      servant needs protection of Section 19(1) of the Act.
\n      According to the learned counsel, the judgment of this
\n      Court in R.S.Nayak case holding that the subsequent
\n      position of the public servant to be unprotected was
\n      erroneous. According to the learned counsel, the public
\n      servant needs protection all throughout as long as he
\n      continues to be in the employment.\n<\/p><\/blockquote>\n
                                  (8)                        Cr.R.No.1821\/2009<\/p>\n<\/blockquote>\n
      24.    The plea is clearly untenable as Section 19(1) of
\n      the Act is time and offence related.”\n<\/p><\/blockquote>\n
10.          Placing reliance on the ratio of V.K.Sharma Vs. State<\/p>\n
(Delhi Administration)- (1975) 1 SCC 784, learned Senior<\/p>\n
Counsel for the respondent submitted that where the respondent<\/p>\n
Government employee was working temporarily on another post,<\/p>\n
the sanctioning authority i.e the competent authority to remove<\/p>\n
him from his office was not only the authority who could have<\/p>\n
removed him from a temporary office but was the authority who<\/p>\n
could removed him from the Government service altogether. In the<\/p>\n
case of V.K.Sharma (supra), appellant was quasi-permanent<\/p>\n
L.D.C. Of the Central Secretariat Clerical Service and borne in the<\/p>\n
cadre of Community Development and Cooperation. He, at the<\/p>\n
time of accepting the bribe, was working as Inspector in the<\/p>\n
Rationing Department. The sanction of the Deputy Secretary of the<\/p>\n
Department of Community Development and Co-operation was<\/p>\n
assailed to be improper. It was suggested that the Chief Controller<\/p>\n
of Rationing was the proper authority. It was held by the Apex<\/p>\n
Court that whether the appellant was a loanee to the Rationing<\/p>\n
Department or appointed to a temporary post there, he had a lien<\/p>\n
to his post in the Central Secretariat. The purport of taking the<\/p>\n
sanction from the authority competent to remove a corrupt<\/p>\n
government servant from his office was not only to remove him<\/p>\n
from his temporary office but to remove him from government<\/p>\n
service.    The   Chief   Controller,   Rationing   would    have      been<\/p>\n
competent to remove the appellant from his office as Rationing<\/p>\n
Inspector but not from his office in the Central Secretariat. That<\/p>\n
being so, the Deputy Secretary was the competent authority to<\/p>\n
accord sanction.\n<\/p>\n
                                 (9)                       Cr.R.No.1821\/2009<\/p>\n
11.           In our opinion, the fact-situation in the present case is<\/p>\n
distinct. Here the respondent while holding the office of the<\/p>\n
Chairman of the Trust was not a loanee. His appointment as<\/p>\n
Chairman of the Trust was an independent appointment under the<\/p>\n
Madhya   Pradesh      Town    Improvement     Trusts   Act,   1961.     As<\/p>\n
discussed above, being a Collector or being a member of Indian<\/p>\n
Administrative Services was not the condition precedent for the<\/p>\n
appointment of Chairman of the Trust. Therefore, in view of the<\/p>\n
law laid down by the Apex Court in the case of Prakash Singh<\/p>\n
Badal (supra), sanction under section 19(1) for the prosecution<\/p>\n
was required from the competent authority to remove him from<\/p>\n
the office of Chairman and not from the authority competent to<\/p>\n
remove him from the office held by him at the time of taking<\/p>\n
cognizance.\n<\/p>\n
12.           It is true that respondent being a member of Indian<\/p>\n
Administrative Services, power to remove him from service vested<\/p>\n
in the Union Government, but the accusation against the<\/p>\n
respondent being the abuse of the office of Chairman of the Trust<\/p>\n
wherein his appointing authority was the State Government, the<\/p>\n
sanction from the Union Government was not necessary. Since the<\/p>\n
respondent had already demitted the office of Chairman of the<\/p>\n
Trust when charge sheet was filed, in view of the guidelines given<\/p>\n
by the Apex Court in case of Prakash Singh Badal (supra) there<\/p>\n
was no need of sanction from the State Government also. The ratio<\/p>\n
of the decision rendered by the Division Bench of this Court in<\/p>\n
Bramha Swaroop Saini (supra) is not applicable in the present<\/p>\n
case. In the said case, petitioner, who was working as Executive<\/p>\n
Engineer in Division No.1 of the Madhya Pradesh Housing Board,<\/p>\n
was charged for committing criminal misconduct by acquiring<\/p>\n
assets disproportionate to his known source of income. When the
\n                               (10)                     Cr.R.No.1821\/2009<\/p>\n
charge sheet was filed, he was posted as Executive Engineer of<\/p>\n
Division No.5 of the Board at Bhopal only. No sanction of the<\/p>\n
competent authority was obtained before filing the charge sheet.<\/p>\n
Accordingly, in the absence of requisite sanction cognizance was<\/p>\n
refused by the Court. In these circumstances, this Court found<\/p>\n
that the competent authority for granting sanction of the<\/p>\n
prosecution, in both the cases, i.e. while the office was abused and<\/p>\n
while the charge sheet was filed, was the same. Therefore, the<\/p>\n
trial Court was justified in refusing cognizance of the offence<\/p>\n
without previous sanction. In the present case, at the time when<\/p>\n
the charge sheet was filed against the respondent, he had already<\/p>\n
demitted the office of the Chairman of the Trust.<\/p>\n
13.           As far as sanction under section 197 of the Code of<\/p>\n
Criminal Procedure is concerned, admittedly it was refused by the<\/p>\n
Government just a day before the charge sheet was filed. Apex<\/p>\n
Court in the case of Prakash Singh Badal (supra) observed that<\/p>\n
the question relating to the need of sanction under section 197 of<\/p>\n
the Code of Criminal Procedure is not necessarily to be considered<\/p>\n
as soon as the complaint is lodged and on the allegations<\/p>\n
contained therein. This question may arise at any stage of the<\/p>\n
proceeding. The question whether sanction is necessary or not<\/p>\n
may have to be determined from stage to stage. It has further<\/p>\n
been observed that the offence of cheating under section 420 or<\/p>\n
for that matter offences relatable to sections 467,468,471 and 120-<\/p>\n
B can by no stretch of imagination by their very nature be<\/p>\n
regarded as having been committed by any public servant while<\/p>\n
acting or purporting to act in discharge of official duty. In such<\/p>\n
cases, official status only provides an opportunity for commission<\/p>\n
of offence.\n<\/p>\n
                                     (11)                   Cr.R.No.1821\/2009<\/p>\n
    14.         In the light of the above factual and legal scenario, we<\/p>\n
    are of the view that no previous sanction under section 19(1) of<\/p>\n
    the Prevention of Corruption Act and under section 197 of the<\/p>\n
    Code of Criminal Procedure was required for taking cognizance<\/p>\n
    against the respondent. As such the learned Special Judge<\/p>\n
    committed error of jurisdiction in holding that the cognizance<\/p>\n
    against the respondent was barred in the absence of previous<\/p>\n
    sanction under section 19(1) of the Prevention of Corruption Act<\/p>\n
    and section 197 of the Code of Criminal Procedure.<\/p>\n
    15.         Accordingly, the impugned order dated 30.3.2007<\/p>\n
    passed by learned Special Judge is set aside. Learned Special<\/p>\n
    Judge is directed to take cognizance of the case against the<\/p>\n
    respondent and to proceed according to law.\n<\/p>\n
    16.         Revision allowed.\n<\/p>\n<\/p>\n
          (Rakesh Saksena)                          (M.A.Siddiqui)\n              Judge                                     Judge\nb\n  <\/pre>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Special Police Establishment vs Shri Vinod Chandra Semwal on 13 July, 2011 (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- […]<\/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-144832","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nSpecial Police Establishment vs Shri Vinod Chandra Semwal on 13 July, 2011 - 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