Judgment:
HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH PRESENT : HON'BLE SHRI JUSTICE N. K. GUPTA CRIMINAL REVISION NO.1318/2005 S. D. Mishra and another A.F.R. Vs. State of M.P. Judge ................................................................................................. Shri Manot Sharma, counsel for the applicant. Shri S. K. Kashyap, Public Prosecutor counsel for the respondent/State. .................................................................................................... ORDER
(Delivered on the 6th day of March, 2013) The applicants have challenged the order dated 9.8.2005 passed by the learned First Additional Sessions Judge, Damoh in Special Case No.1/2003 whereby the charges of offences punishable under Section 5 and 6 of Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982 (hereinafter it would be referred as the “Act”.) and Section 409 of I.P.C are framed against the applicants.
2. The prosecution's case in short is that, the applicants were working as Assistant Engineer and Sub Engineer in the jurisdiction of District Damoh and were responsible for work done to Hindoriya Bhilai road in the year 1985-86. It was found that they prepared false muster rolls 2 Criminal Revision No.1318/2005 and bogus work was shown to be done by them and therefore, they upsurped a huge sum and on enquiry the State Government thought the PWD Department had sent a letter dated 2.5.1986 to S.P Damoh to investigate the matter against the applicants and by that letter the Government gave a sanction under Section 39 of the Act. A case was registered on 9.5.1986 at Police Station, Hindoriya and investigation was initiated. After due investigation matter was referred to the State Government for sanction under Section 197 of Cr.P.C Vide order dated 1.9.1999 the Government of Madhya Pradesh through the Law Department gave the sanction of prosecution under Section 197 of Cr.P.C to prosecute the applicants for offence punishable under section 5 and 6 of the Act. Thereafter, a charge sheet was filed and the learned Additional Sessions Judge had framed the aforesaid charges by the impugned order.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the applicants has raised so many objections against the framing of the charges and such objections will be considered one by one in the present order. The first objection raised by the learned counsel for the applicants is that, according to the provisions of Section 39 of the Act, sanction could be given by the Commissioner or the higher authority on a report given by the Police Officer. Section 39 may be extracted herein as under :- 3 Criminal Revision No.1318/2005
“39. Cognizance of offences :- All offences under this Act shall be cognizable : (Provided that the Police Officer shall not investigate an offence under this act except on a direction of the prescribed authority not below the rank of Commissioner of Division on a report admitted by him to such authority.) (Provided further that the State Government may, at any time for the purpose of satisfying itself as to the propriety of any order passed by the Commissioner of the Division as prescribed authority either on its own motion or on reference made by the prescribed authority, shall call for and examine the record of any case pending before or disposed by such authority and may passed such order in reference thereto as it thinks fit.)”. In the present case, no report was given by the Police Officer when the sanction dated 2.5.1986 was granted. In this context the learned counsel for the applicants places his reliance upon the order passed by the single Bench of this Court in the cases of “Sultan Khan Vs. State of M.P”. [2000 CRLR (MP) 28]. and “Aslam Khan Vs. State of M.P.”
. [1997 (I) MPWN Note 192].. In the light of the aforesaid two orders passed by the single Bench of this Court in the case of Sultan Khan (supra) and Aslam Khan (supra), it is apparent that the Commissioner or higher authority is supposed to give a sanction on a report submitted by the Police Officer concerned. In the present case, there was no report submitted by the Police Officer and therefore, it appears that the State Government had granted sanction 4 Criminal Revision No.1318/2005 without the application of the concerned Police Officer and therefore, in the light of aforesaid judgments sanction should not be considered as a valid sanction but, looking to the facts of this case, situation is different. In the present case sanction is given by the State Government. If second proviso of section 39 of the Act is considered then the State Government has ample power that after grant of the sanction it can review the matter and the prosecution may be dropped. The second proviso of that section indicates that the power restricted in the first proviso is not restricted in relation to the powers of the State Government. In the case of Sultan Khan (supra) or Aslam Khan (supra) sanction was not granted by the State Government, it was granted by the Commissioner whereas, in the present case the sanction was granted by the State Government who, was given a huge power to give a sanction or to withdraw the sanction on its own motion and therefore, the aforesaid orders passed by the single Benches of this Court cannot be applied in the present case since the sanction order was granted by the State Government who has much more discretionary powers and therefore, there was no need of police report for grant of such sanction and therefore, by perusal of both the provisos simultaneously and looking to the huge powers of the State Government such a technical view cannot be taken that since the Police report was not submitted to the State Government, the sanction could not be given. Under such circumstances, the objection raised by the 5 Criminal Revision No.1318/2005 applicants cannot be accepted and sanction dated 2.5.1986 given by the State Government appears to be an appropriate sanction under Section 39 of the Act.
5. The second ground raised by the learned counsel for the applicants that the investigation was done in a delayed manner and the prosecution's sanction under Section 197 of the Cr.P.C given by the state Government was given where the case was barred by limitation. It is contended that three years punishment is prescribed for each of the offences punishable under Section 5 & 6 of the Act and therefore, the Court could take cognizance within three years as per provisions of the Section 468 of Cr.P.C. The offence was registered for the year 1985-86 and the sanction was granted by the Government in the year 1999 and therefore, apparently the case was barred by limitation. Counting of limitation should be considered from the date when the offence was committed and when the concerned Court takes cognizance in the matter. Prima facie when the case was submitted before the Magisterial Court, it appears that it was barred by limitation. The learned counsel for the applicants invited the attention of this Court to the provisions of Section 468(1) of Cr.P.C where three years limitation is prescribed for the offences which are punishable with imprisonment for a term not exceeding three years. However, in the present case the provisions of Section 468(3) of Cr.P.C should be applied in which it is mentioned that if some offences are tried together 6 Criminal Revision No.1318/2005 then the limitation shall be counted for that offence which is punishable with the more severe punishment. In the present case, the offence under Section 409 of I.P.C is an offence which is punishable by a more severe punishment and therefore, the limitation would be counted according to the punishment of offence punishable under Section 409 of I.P.C. For offence punishable under Section 409 of I.P.C there is no limitation. Hence the trial Court has taken the cognizance of the offence in an appropriate manner. It cannot be said that the committal Court took cognizance in the case which was barred by limitation.
6. The learned counsel for the applicants has also raised the objections that no offence under Section 409 of I.P.C was made out against the applicants and no sanction under Section 197 of Cr.P.C was given for offences punishable under Section 409 of I.P.C and therefore, the applicants can not be tried for offence punishable under Section 409 of I.P.C. On the other hand the learned Public Prosecutor has submitted that the applicants were Assistant Engineer and Sub Engineer appointed for a particular construction work and after getting the work done verified they were responsible for payment from a given budget and therefore, without their report the Executive Engineer could not direct for the payment. Under such circumstances, if the entire budget was given to the concerned department and the applicants were responsible for the expenditure of the budget then, it would 7 Criminal Revision No.1318/2005 be presumed that the entire money was entrusted to the applicants for expenditure and they misappropriated the entrusted sum and therefore, the offence under Section 409 of I.P.C is made out.
7. Prima facie it shall be presumed that the applicants were responsible for payment of the sum sanctioned to the department and the same was given to the entire department. Under such circumstances, prima facie it shall be presumed that the applicants were entrusted with the public money for construction of that particular road and therefore, it can be said prima facie that they misappropriated the entrusted sum to them. At this stage the defence of the applicants cannot be considered. It is for the applicants to prove before the trial Court that they were not entrusted with the money. Defence of the applicants cannot be considered at this stage because no appreciation of evidence is required to be done at the stage of framing of the charges and therefore, prima facie it appears that offence under Section 409 of I.P.C shall be constituted and charge of that offence was required to be framed. Hence, the learned Additional Sessions Judge did not commit any mistake in framing the charge of offence punishable under Section 409 of I.P.C.
8. The learned counsel for the applicants has raised the second part of the objection that no sanction under Section 197 of Cr.P.C was granted by the Government for prosecution of the applicants for the offence punishable under 8 Criminal Revision No.1318/2005 Section 409 of I.P.C and no opportunity was given to the applicants of hearing at the time of sanction. It is settled view that at the time of grant of sanction there is no opportunity of hearing to the concerned public servants. Hon'ble the Apex Court in the case of “State Vs. P.P. Sharma”. (AIR 199.SC 1260.has observed that grant of sanction is an administrative act and therefore, the question of giving an opportunity of hearing to the public servant at that stage does not arise. Therefore, if such opportunity was not given to the applicants, it makes no difference. Consequently, the Public Prosecutor has submitted that for offence punishable under section 409 of I.P.C, no sanction was required under section 197 of Cr.P.C. He has placed his reliance upon the judgment passed by Hon'ble the Apex Court in the case of “Rakesh Kumar Vs. State”. (AIR 200.SC 820.in which it is held that the act said to be committed by the public servant must have reasonable connection with the duty sought to be discharged by such public officer. If the act complained of has no nexus, reasonable connection or relevance to the official duty of such public servant and is otherwise illegally unlawful or in the nature of an offence, the public servant cannot get shelter under Section 197 of Cr.P.C. In the present case the Engineers were not expected to misappropriate the budget granted to them for doing some public work and therefore, their act was not at all connected with their public duty. On the contrary it was a crime and therefore, no sanction under 9 Criminal Revision No.1318/2005 Section 197 of Cr.P.C was required in the present case for offence punishable under section 409 of I.P.C. Hence if the learned Additional Sessions Judge has framed the charge of offence punishable under section 409 of I.P.C then no illegality or perversity has been committed by him.
9. On the basis of the aforesaid discussion, no illegality or perversity is visible in the order passed by the learned Additional Sessions Judge, Damoh in framing charges of offence punishable under section 409 of I.P.C and Section 5 & 6 of Madhya Pradesh Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982 and therefore, there is no basis by which any interference can be done in the impugned order by way of a revision. Hence the revision filed by the applicants has no basis by which it could be accepted. Consequently, it is hereby dismissed.
10. Copy of the order be sent to the trial Court for information and to proceed with the trial. If any interim stay was granted then it is hereby vacated. (N.K.Gupta) Judge 06.03.2013 bina