If Sanction For Prosecuting Public Servant Under PC Act Is Denied, Prosecuting Agency Can't File Challan Under Other Penal Laws On Same Facts: J&K&L HC

The bench comprising Justice Sanjay Dhar observed,

"The CBI cannot conveniently ignore the advice of the Central Vigilance Commission as accepted by the concerned department and prosecute the public servants by mischievously dropping the offences under the provisions of the PC Act, thereby circumventing the protection granted to a public servant under the said legislation. Such an approach would render the protection granted to a public servant against frivolous prosecutions in terms of Section 6 of the J&K PC Act, which is in pari materia with Section 19 of the PC Act of 1988, nugatory and redundant, which can never be the intention of the legislature."

The Court was hearing a petition filed under section 482 CrPC challenging the proceedings initiated by Chief Judicial Magistrate, Srinagar, in a challan arising out of an FIR for offences under Section 120-B read with 420 of IPC and Sections 4-H, 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act. In their plea the petitioners had also thrown challenge to orders passed by Chief Judicial Magistrate, Srinagar, in the challan emanating out of the aforesaid FIR.

Perusal of the record revealed that the petitioners were accused in an FIR and the investigating agency on the completion of investigation charged the accused petitioners with offences under Section 4-H, 5(1)(d) r/w 5(2) of J&K PC Act and Section 120-B r/w Section 420 RPC. Record further revealed that as mandated under section 6 of J&K Prevention of Corruption Act, the respondent approached the competent authority, which in turn had approached CVC for opinion for sanction of prosecution against the petitioner who are public servants but the same was denied.

After denial of sanction for prosecution, the respondent filed the challan against the petitioners and the co-accused to the extent of commission offences under Section 120-B, 420 RPC only and dropped the offence under J&K PC Act.

The Magistrate who was hearing the matter accepted the contention of Assistant Public Prosecutor, that the acts alleged to have been committed by the petitioners fall beyond the scope of their official duty and, as such, no previous sanction under Section 197 of Cr. P. C is required in the case.

Challenging the above order, the counsel for the petitioners argued that once sanction for prosecution in terms of Section 6 of the J&K PC Act was declined by the competent authority, it was not open to the respondent to file challan against the petitioners by dropping the offences under the provisions of the J&K PC Act and confining the challan only to offences under RPC.

Adjudicating upon the controversy the bench observed that the Section 8 of CVC Act is amply clear that the superintendence of CVC over the functioning of the Delhi Special Police Establishment Act relates to not only investigation of offences under PC Act but it also relates to any other offence which a public servant is alleged to have committed and for which he can be charged at the same trial along with the offences under the PC Act.

"Thus, it cannot be stated that opinion of Central Vigilance Commission where the case has been referred to in terms of Section 6 of the J&K PC Act, which is in pari materia with Section 19 of the PC Act of 1988, is confined only to the offences under the provisions of the PC Act", the court noted.

While finding merit in the arguments of the petitioners the court also found it worthwhile to record the observations of Supreme court in RadheshyamKejriwal vs. State of West Bengal, (2011) wherein it was observed that when the matter has been examined by the Central Vigilance Commission and its opinion has been accepted by the competent authority, chances of conviction in a criminal case involving the same facts appear to be bleak.

Declining the argument of the respondents that sanction under 197 CrPC was not necessary as the acts alleged to have been committed by the petitioners do not come within the purview of their official acts/functions, the bench placed reliance on Atchut Mucund Alornekar and others vs. Central Bureau of Investigation/Anti Corruption Bureau, Goa, 2012 wherein it had been observed that,

"For the purpose of attracting section 197 of Cr.P.C, it is not necessary that the public servants must act in their official capacity but even where the public servants purport to act in their official capacity, the same would attract the provisions of section 197. Therefore, prior sanction under section 197 of Cr.P.Cwas required to be obtained"

Deliberating on the subject the court further observed that the protection granted to a public servant against the prosecution under Section 6 of the J&K PC Act, which is in pari materia with Section 19 of the PC Act of 1988, has been provided under the statute in order to safeguard the public servants from frivolous complaints and un-necessary harassment, while they are discharging their official duties. This protection given to a public servant cannot be circumvented by defeating the provisions relating to grant of sanction as contained in the Prevention of Corruption Act by dropping the offences under the said Act and launching prosecution in respect of the offences under other statutes in a case where same set of facts gives rise to offences under different statutes, the court underscored.

Allowing the petition the court quashed the impugned proceedings as well as the orders passed by the learned Chief Judicial Magistrate Srinagar.

Case Title: SANJAY KUMAR SRIVASTAVA & ORS. Vs. CENTRAL BUREAU OF INVESTIGATION 

Citation: 2022 LiveLaw (JKL) 66 

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