CRL. REV. P/21/2003 of State Of Sikkim (cbi) Vs Sonam Wangdi on 19 December 2003

THE HIGH COURT OF SIKKIM : GANGTOKCRININAL REVISION NO. 210F ZOOS

In the matter of a revision/application under section397 read with 401 and 482 of the Code of CriminalProcedures Code, 1973.

Superintendent of Police,Central Bureau of Investigation,SPE/ACUoVI),New Delhi

.... Petitioner

VERSUS

Sonar Wangdi

.... Respondent

For the petitioner : Shri I.D. Veld, Advocate.F`orrespondent : ShriA. K. Upadhyaya, Advocate.

PRESENT: THE HONIBLE SHRI .USTICE R. K. PATRA, CHIEF JUSTICE.

Date of-judgment : 19th December, 2003.JUDGMENT

R. K. PATRA. C.I.

'The prosecution of the respondent for the offencepunishable under section 13(2) read with section 13(1)(e) of theFTevention of Corruption Act, 1988 basing on the sanction givenby the central government under section 19(1) of the said Act hasbbeen invalidated by the leaned Special Judge, Gangtok in hisorder dated 19th August, 2003 in Criminal Case (C.B.I.) No. 03 of2002 on the ground that it also needed sanction from the stategovernment (which is wanting) in view of the fact that he was •!®o®i&.,.

employed during the first part of the check period in connectionwith the affairs of the state. The validity of the said order is thesubject matter of the challenge in this revision filed on behalf ofthe Superintendent of Police, SPE/ CBI.

2. Charge sheet was filed against the respondent undersection 13(2) read with 13(1)(e) of the Prevention of CorruptionAct, 1988 (hereinafter referred to as the `Act) in the Court oflearned Special Judge on 2nd December, 2002 on the allegationthat he while working as public servant in different capacitiesunder the government of Sikkim during the period from lstSeptember, 1976 to 30th September, 1994 was found inpossession of total assets worth Rs.45,52,278.94 in his name andin the names of his family members as on 30th September, 1994as against his likely saving of Rs.24,22,140.15 only and thusacquired assets to the tune of Rs.21,30,138.79 which aredisproportionate to his known sources of income, which he couldnot satisfactorily explain. The learned Special Judge tookcognizance of the offence and when the case was fixed forarguments on framing of charge, the respondent filed anapplication challenging the sanction accorded by the centralgovernment under section 19(1) of the Act on the ground tha.tduring the first part of the check period i.e., between lstSeptember, 1976 fo 8th March, 1978 he was a state governmentemployee and sanction for prosecution ought to have been takenfrom it as he was not removable from his office except by thesanction of the state government and in absence of any such ®.

sanction he cannot be prosecuted under a sanction given by thecentral government. This plea of the respondent has beenaccepted by the learned Special Judge by the impugned orderwho has held that sanction ought to have been taken from thestate government g±§g.

3.

3. Shri I. D. Vaid, learned counsel for the prosecutioncontended that law does not contemplate plurality of sanctionsinasmttch for giving sanction what is relevant is when the offencewas alleged to have been committed and the competent authorityto remove the pubic servant from the office at the time ofcommission of offence is competent to give sanction for hisprosecution. According to the learned couhsel, the offence allegedis a continuing one and, therefore, "30th September, 1994" (theend of the check period) is the time of commission of offence andat that time the respondent being an IAS officer was removablefrom ofrice only with the sanction of the central government andthat is why sanction was sought from the central governmentwhich was rightly accorded by it. To buttress his argument, hereferred to the form of Model charge' under section 5(1)(e) of the1947 Act (corresponding to section 13(1)(e) of the Act) whereemphasis is laid on the da.y of commission of the offence.

«Change under Section 5(1)(e) :-"Thai you, beinga public servant employed as .................. at............................. during the period between.................... and ................. acquired assets whichwere disproportionate to your known sources ofincome and on or about the ................... dav of................... you had been in possession ofppecuniary resources or property in your name and inthe name of ......................... (names of persons to be given) to the extent of ....................... (ifnecessary, detailed particulars may be given here orin a separate statement) which were disproportionateto your known sources of income for which could notsatisfactorily account, and thereby committed anoffence under Section 5(1) (e) of the Prevention ofCorruption Act, 1947, punishable under Section 5(2)of the Act, and within my cognizance."

[emphasis laid on the underlined portion]

Shri Upadhayaya, learned counsel for the respondent on theother hand submitted that during the earlier part of the checkperiod, i.e., .from lst September, 1976 to 7th March, 1978 therespondent was admittedly the state government employee andthe competent authority to remove him from office during thatperiod was the state government and no sanction having beengiven by the state government, sanction accorded by the centralgovernment is of no avail. His submission is that object behindsanction is to protect public servants against frivolous orvexatious pro`secutions and sanction being not a formality, theconcerned authority is required to apply its mind and come to theconclusion that prosecution in the circumstances be sanctionedor not. By referring to sub-section (2) of section 19 of the Act ShriUpadhyaya submitted that competent authority to give sanctionis that authority which would have been competent to remove thepublic servant from office when the offence was alleged to havebeen committed and, therefore, for the period when therespondent was the state government employee, sanction for thestate government is, a `must' and the check period cannot besevered.

4. The following are the undisputed facts. The checkperiod is from lst September, 1976 to 30th September, 1994. Therespondent who is still in service was inducted to IAS cadre on 8thMarch, 1978 and was given the year of allotment of 1971. Duringthe period from lst September, 1976 to 7th March, 1978, i.e., theearlier part of the check period he was a state governmentemployee. Sanction for his prosecution has been accorded by thecentral government.

the period from lst September, 1976 to 7th March, 1978, i.e., the

5. To resolve the controversy raised in this revision, thescope and applica.bility of section 13(1)(e) and sub-sections(1)(a)(b) and (2) of section 19 of the Act are necessary to beexamined. Section 13(1)(e) of the Act so far as relevant isextracted hereunder :- "13. Criminal misconduct by a public servant

(1) A public servant is said to commit theoffence of criminal misconduct,- (a)...........................................................

(b) ...........................................................

(c) ...........................................................

(d) .............................................................

(e) if he or any person on his behalf, is inpossession or has, at any time during theperiod of his ofrice, been in possessionfor which the public servant cannotsatisfactorily account, of pecuniaryresources or property disproportionate tohis known sources of income.possession or has, at any time during theperiod of his ofrice, been in possessionfor which the public servant cannotsatisfactorily account, of pecuniaryresources or property disproportionate tohis known sources of income.

19. Previous sanction necessary for prosecution

(1) ` No court shall take cognizance of an offencepunishable under sections 7, 10, 11, 13 and 15alleged to have been committed by a public servant,except with the previous sanction,- punishable under sections 7, 10, 11, 13 and 15

(a) in the case of a person who is employedin connection with the affairs of thein connection with the affairs of the Union and is not removable from hisofrice save by or with the sanction of theCentral Government, of that government; (b) in the case of a person who is employedin connection with the afialrs of a Stateand is not removable from his offlce saveby or with sanction of the StateGovernment, of that government;in connection with the afialrs of a Stateand is not removable from his offlce saveby or with sanction of the StateGovernment, of that government;

(2) Where for any reason whatsoever any doubtarises as to whether the previous sanction asrequired under sub-section (1) should be given by theCentral Government or the State Government or anyother authority, such sanction shall be given by thatgovernment or authority which would have beencompetent to remove the public servant from hisoffice at the time when the offence wa.a alleged tohave been committed."

Section 13(1)(e) requires the following ingredients:

(i) The public servant (or any person on his behalf) is inpossession of pecuniary resources or propertydisproportionate to his known sources of income;possession of pecuniary resources or propertydisproportionate to his known sources of income; Or

(ii) he (or any person on his behalf) has been at any timeduring the period of his office in possession of pecuniaryresources or property disproportionate to his knownsources of income;during the period of his office in possession of pecuniaryresources or property disproportionate to his knownsources of income;

and

(iii) he cannot satisfactorily account for such possession.

The expression in the clause[«at an]time durineriod of hisoffice been in Possession" indicates that it covers past possessionof assets.

6. Section 19 of the Act lays down that for prosecutionof offences punishable under sections 7, 10, 11, 13 and 15alleged to have been committed by a public servant, valid •:te.i,?9^a sanction is the condition precedent to taking cognizance by theCourt. It rna.y be noted that the Court takes cognizance of theoffence and not of the offender. The phraseology "is notremovable from his office save by or with sanction of thecentral/state government" occurring in section 6 of the 1947 Act(corresponding to section 19 of the Act) came up for considerationbefore the Supreme Court in S. A. Venkataraman vs. State AIR1958 SC 107 wherein it was held as follows :- "In our opinion, in giving effect to the ordinarymeaning of the words used in Section 6 of the Act,the conclusion is inevitable that at the' time a. Courtis asked to take cognizance not only the offence musthave been committed by a public servant but theperson accused is still a public servant removablefrom his office by a competent authority before theprovisions of S. 6 can apply."

In Mohd. Iqbal Ahmed vs. State of Andhra Pradesh AIR 1979 SC677 the Supreme Court while considering the scope of section 6of 1947 Act observed as follows :- "A trial without a sanction renders theproceedings ab initio void. But the terminus a auofor a valid sanction is the time when the Court iscalled upon to take coeriizance of the offence. Iftherefore, when the offence is alleged to have beencommitted, the accused was a public servant but bythe time the Court is called upon to take cognizanceof the offence committed by him as public servant, hehas ceased to be a public servant, no sanction wouldbe necessary for taking cognizance of the offenceagainst him. 'This approach is in accord with thepolicy underlying section 6 in that a public servant isnot to be exposed to harassment of a frivolous orspecula.tive prosecution. If he ha.s ceased to be apublic servant in the meantime, this vitalcconsideration ceases to exist. As a necessarycorollary, if the accused has ceased to be a publicservant a.t the time when the Court is called upon tottake cognizance of the offence alleged to have been committed by him as public servant, section 6 is notattracted."

The Constitution Bench of the Supreme Court in R. S. Nayak vs.A. R. Antulay AIR 1984 SC 684, after considering earlier casesgoverning the field held as follows:- "It therefore appears well settled that therelevant date with reference to which a valid sanctionis sine qua non for taking cognizance of an offencecommitted by a public servant as required by S. 6 isthe date on which the Court is called upon to takecognizance of the offence of which he is accused."

At this stage, let me consider whether sub-section (2)of section 19 of the Act which lays down that for any reason if anydoubt arises as to whether the previous sanction as requiredunder sub-section (1) should be given by the central governmentor the state government such sanction shall be given by thatgovernment which would have been competent to remove thepublic servant from his office at the time when the offence wasalleged to have been committed would at all be applicable to thecase at hand.

As has been held by the Supreme Court in State ofMaharastra vs. Pollonji Darabshaw AIR 1988 SC 88 there can beno general rule or criterion, valid for all cases, in regard to thechoice of the period for which accounts are taken to establishcriminal misconduct under section 5(1)(e) of the 1947 Act(corresponding to section 13(1)(e) of the Act). The choice of theperiod must necessarily be determined by the allegations of facton which the prosecution is founded and rests.

The sum and substance of the charge sheet is as follows :- Period Office held 1.9.76 to 3.1.79 - District officer/DM/DC East sikkim 4.1.79 to 20.1.80 -|Joint Director, Survey settlement, Govt.of Sikkim.of Sikkim.

21.1.80 to 29.5.80 -Secretary, Food and civil Supplies, Govt.of Sikkim.of Sikkim.

30.5.80tol3.5.81 -Secretary, Information and PublicRelations Department and LabourDepartment.Relations Department and LabourDepartment.

14.5.81 to 2.2.86 -Secretary to the Governor ofsikkim.

3.2.86 to 5.9.86 - Secretary, Sikkim Legislative Assembly,Gangtok.Gangtok.

6.9.86 to 30.6.89 - Secretary, Industries with additionalcharge of Secretary, Labour w.e.f.20.10.87.charge of Secretary, Labour w.e.f.20.10.87.

1.7.89 to 20.5.90 -Secretary, SNT with additional charge oflabour.labour.

21.5.90 to 30.9.94 - Development Commissioner-cum-Secretary Planning, Government ofSikkim.Secretary Planning, Government ofSikkim.

During the check period, his assets, income and expenditure are found to be as under:-

A. Assets acquired

Rs. 45278.94

8. Income earned by him through Bankinterest, LIC etc.interest, LIC etc.

Rs. 29,69,689.87

C. Expenditure made by him

D. Likely savings made(a - C)(a - C)

E. The extent of disproportionate assetsacquired by him either in his nameor in the names of his family members(A - D)acquired by him either in his nameor in the names of his family members(A - D)

Rs. 5,47,549.72Rs. 24,22,140.15Rs. 24,22,140.15

Rs. 21138.79

|®e

::i,/-.h

From the above, it may be seen that it is not the case of theprosecution that during the period (from lst September, 1976 to8th March, 1978) when the respondent was a state governmentemployee he acquired assets which were disproportiona.te to hisknown sources of income for which he could not satisfactorilyaccount. The gravamen of the charge is that on 30th September,1994 (the end of the check period) he was found in possession ofassets disproportionate to his known sources of income for whichhe could not satisfactorily account. In other words, therespondent on 30th September, 1994 is alleged to have committedthe offence under section 13(1)(e) of the Act and he being still inservice is removable from his office only with the sanction of thecentral government and, therefore, that government (centralgovernment) is the competent authority to give sanction. Theall,egations on which the prosecution case is based are clear andunambiguous and in the facts and circumstances there being nodoubt as to the authority which is competent to sanctionprosecution, there is no need to take resort to sub-section (2) ofsection 19 of the Act. It has been held by the Supreme Court inMansukhlal Vithaldas Chauhan vs. State of Gujarat 1997CRI.L.J. 4059, tha.t sub-section (2) of Section 6 of the 1947 Act(corresponding to section 19(2) of the Act) is clarificatory innature inasmuch as it provides that if any doubt arises whetherthe sanction is to be given by the Central Government or theState Government or any other authority, it shall be given by theappropriate Government or the authority, which was competentto remove that person from the ofrice on the date on which the offence was committed. This rule is a departure from the normalrule under which the relevant date is the date of takingcoanizance. [emphasis laid]

8. In view of the fact that when the Court was calledupon to take cognizance of the offence, the respondent wasemployed in connection with the affairs of the Union and was notremovable from his office except by or by sanction of the centralgovernment, in my considered opinion the competent authority togrant sanction to prosecute him under section 13(1)(e) of the Actis the central government and that authority has rightly accordedsanction.

9. For the reasons aforesaid, the impugned order passedby the leaned Special Judge cannot be sustained in law which ishereby set aside.

]0. In the result, the revision is allowed.

A.H.frt#Chief Juiceig.12.aoo8