V.K. Agnihotri v. Special CBI: ACB, Chennai

(ii) A1, viz., Agnihotri, the revisionpetitioner herein filed Crl.M.P.No.72 of 2004 beforethe learned Principal Judge for CBI Cases underSection 239 of the Code of Criminal Procedure fordischarging him from the case. (iii) Objection was filed on the prosecutionside. (iv) After hearing both sides, the learnedJudge dismissed the said application holding thatthere are materials available for framing charges asagainst the petitioner/A1 for the offences referredto as against him in the charge sheet filed by thepolice.(v) Inveighing such order dated 27.12.2007,passed by the learned Judge, this revision is focussedon various grounds, the gist and kernel of them wouldrun thus:(a) No sanction for prosecution as contemplatedunder Section 197 of the Code of Criminal Procedurewas obtained by the police.(b) The lower court failed to note the role ofthe General Manager in the Railways regarding grantingof machinery advance as the General Manager (A1) isexpected only to scrutinize the reports andrecommendations of the Technical Committee/ TenderCommittee and pass orders.(c) Out of the 7 Reaches, Reach I, II and IIIwere awarded to A7 Palani on the basis of the lowesttenders offered by him. (d) The lower court failed to see that theseventh accused (A7) at the time of submitting histender had requested for sanction of machinery advanceof 10% of the contract value and the same was notrejected by the Tender Committee. (e) While conveying the acceptance, the tendercommittee informed the seventh accused (A7) Palanithat the machinery advance would be sanctioned, ifapproved by the competent authority. (f) A1, performed his work within hisjurisdiction and discretion and he had no role in thealleged conspiracy. https://hcservices.ecourts.gov.in/hcservices/ (g) Even though there was no material to framecharge as against the revision petitioner/A1, thelower court dismissed the Crl.M.P.3. Heard both sides.4. The points for consideration are as to:- (i) Whether the lower court without consideringthe materials on record and analysing the factsavailable in accordance with law, simply dismissed theCrl.M.P., even though there are no materials to framecharges as against the revision petitioner/A1?(ii) Whether the prosecution is bad for want ofsanction under Section 197 of the Code of CriminalProcedure ?5. At this juncture, I would like to point out that thelearned Special Public Prosecutor for CBI cases filed a memohighlighting that after the dismissal of the said Crl.M.P.,charges were framed as against A1 to A7 and that as against A1,the revision petitioner herein, charge of conspiracy was framedto the effect that A1 to A7 have committed the offence punishableunder sections 120-B r/w 420, 467, 468 IPC and one other chargealso was framed as against A1 to A4 and A6 to the effect thatthey have committed offence punishable under Sections 13(2) r/w13 (1) (d) of Prevention of Corruption Act, 1988; whereupon trialalso commenced and P.Ws.1 and 2 were examined and cross examinedby the some of the accused persons. However, A1 has not crossexamined the witnesses so far. As such, highlighting thedevelopment and progress in the case, the learned Special PublicProsecutor for CBI cases would submit that as per the wellestablished practice, once trial has commenced, the revisionfiled as against the order of dismissing the application underSection 239 of Code of Criminal Procedure has to be dismissed. 6. However, the learned Senior counsel appearing for therevision petitioner would submit that at the earliest point oftime, soon after the dismissal of the said Crl.MP, A1/therevision petitioner approached this court with this revision andinasmuch as there was no stay, for no fault of the revisionpetitioner, the trial commenced. It is also the contention ofthe learned senior counsel for the revision petitioner that hehas been ready all along but there was no fault on his part.7. Be that as it may, now then the learned senior counselappearing for the revision petitioner has expressed his desire toargue.8. I am of the considered opinion that this Court has tohear him and the Special Public Prosecutor for CBI cases passorders on merits. https://hcservices.ecourts.gov.in/hcservices/

9. The learned senior counsel for the revision petitionerhas argued thus:The revision petitioner, being the GeneralManager, acted within his jurisdiction and infact, the procedure in the Railways enabled him toact as he did in this case. Simply because, hereviewed his earlier decision, no mala fideintention could be imputed on him. Granting ofmachinery advance is well within the powers of theGeneral Manager and that too after, getting thereport from the technical committee he reviewedhis decision. Earlier there was no positiveresponse to the Tender Notification regardingReach IV is concerned and hence, limited tenderwas called for and in that A7 Palani, an approvedcontractor having no black mark earlier, appliedfor the same and his tender was accepted.Inasmuch as, he came forward to supply machinecrushed ballast instead of hand broken ballast,for the same rate, whereupon machinery advance wassanctioned and accordingly, it was granted.Absolutely, there is nothing wrong in theprocedure adopted by A1. Granting machineryadvance is within the scope of the procedurescontemplated under the Railways and in the publicinterest alone A1 exercised his discretion.10. Whereas the learned Special Public Prosecutor for CBIcases, by way of torpedoing and pulverising the argument as putforth on the side of the revision petitioner would set forth andput forth his argument that absolutely, there is no justificationfor interfering with the dismissal order of the lower court, asex facie and prima facie, it is clear that even though in thetender condition, there is no scope for giving machinery advance,the Railway administration granted machinery advance and therebyunambiguously the accused exposed their intention to cheat theRailways. 11. The learned Special Public Prosecutor also citedprecedents in order to buttress and fortify his stand that at thetime of framing charges, the question of acquittal or convictionshould not loom large in the mind of the court, but the courtbased on prima facie material should frame charges.12. The learned Special Public Prosecutor, would cite thefollowing decisions of the Hon'ble Apex Court. https://hcservices.ecourts.gov.in/hcservices/ (i) 2000 Supreme Court Cases (Cri) 311 (State of MadhyaPradesh vs. S.B.Johari and others). An excerpt from it would runthus:"6. In our view the aforesaid exercise ofappreciating the materials produced by the prosecutionat the stage of framing of the charge is whollyunjustified. The entire approach of the High Courtappears to be as if the Court was deciding the case asto whether the accused are guilty or not. It was donewithout considering the allegations of conspiracyrelating to the charge under Section 120-B. In mostof the cases, it is only from the availablecircumstantial evidence an inference of conspiracy isto be drawn. Further, the High Court failed toconsider that medicines are normally sold at a fixedprice and in any set of circumstances, it was for theprosecution to lead necessary evidence at the time oftrial to establish its case that purchase of medicinesfor the Cancer Hospital at Indore was at a much higherprice than the prevailing market rate. Further againnon-joining of the two remaining members to thePurchase Committee cannot be a ground for quashing thecharge. After framing the charge and recording theevidence, if the Court finds that other members of thePurchase Committee were also involved, it is open tothe Court to exercise its power under Section 319 ofthe Criminal Procedure Code. Not only that, the Courterroneously considered the alleged statement of themanufacturing company that quotations given byM/s.Allied Medicine Agency, Indore were genuinewithout there being any cross-examination. The HighCourt ignored the allegation that many of the itemshave not been purchased and the amount is paid onbogus vouchers. Hence, there was no justifiablereason for the High Court to quash the charge framedby the trial court."(ii) 2000 Supreme Court Cases (Cri) 1486 (State of Delhi vs.Gyan Devi and others). Certain excerpts from it would run thus:"10. In a recent decision in State of M.P. v.S.B. Johari this Court, adverting to the question ofquashing of charges in the light of the provisionscontained in Sections 227 and 288, 401 and 397 and 482CrPC did not favour the approach of the High Court inmeticulously examining the materials on record forcoming to the conclusion that the charge could nothave been framed for a particular offence. This Court,while quashing and setting aside the order passed bythe High Court, made the following observations: (SCCp.60, paras 3-4) https://hcservices.ecourts.gov.in/hcservices/ “After considering the material on record,learned Sessions Judge framed the charge asstated above. That charge is quashed by the HighCourt against the respondents by accepting thecontention raised and considering the details ofthe material produced on record. The same ischallenged by filing these appeals. In our view, it is apparent that the entireapproach of the High Court is illegal anderroneous. From the reasons recorded by the HighCourt, it appears that instead of consideringthe prima facie case, the High Court hasappreciated and weighed the materials on recordfor coming to the conclusion that charge againstthe respondents could not have been framed. Itis settled law that at the stage of framing thecharge, the court has to prima facie considerwhether there is sufficient ground forproceeding against the accused. The court is notrequired to appreciate the evidence and arriveat the conclusion that the materials producedare sufficient or not for convicting theaccused. If the court is satisfied that a primafacie case is made out for proceeding furtherthen a charge has to be framed. The charge canbe quashed if the evidence which the prosecutorproposes to adduce to prove the guilt of theaccused, even if fully accepted before it ischallenged by cross- examination or rebutted bydefence evidence, if any, cannot show that theaccused committed the particular offence. Insuch case, there would be no sufficient groundfor proceeding with the trial.”Judged in the light of the settled position of law asreiterated in the decisions noted above, the orderunder challenge in the present case does not standthe scrutiny. The High Court has erred in itsapproach to the case as if it was evaluating themedical evidence for the purpose of determining thequestion whether the charge under Sections 304/34 IPCframed against the accused-Respondents 1 and 2 waslikely to succeed or not. This question was to beconsidered by the trial Judge after recording theentire evidence in the case. It was not for the HighCourt to pre-judge the case at the stage when only afew witnesses (doctors) had been examined by theprosecution and that too under the direction of theHigh Court in the revision petition filed by theaccused. The High Court has not observed that theprosecution had closed the evidence from its side.There is also no discussion or observation in the https://hcservices.ecourts.gov.in/hcservices/ impugned order that the facts and circumstances ofthe case make it an exceptional case in whichimmediate interference of the High Court by invokingits inherent jurisdiction under Section 482 CrPC iswarranted in the interest of justice. Onconsideration of the matter we have no hesitation tohold that the order under challenge is vitiated onaccount of erroneous approach of the High Court andit is clearly unsustainable. 11. Accordingly, the appeal is allowed. Theorder under challenge is set aside. The trial courtis directed to proceed with hearing of the case inaccordance with law. "(iii) (2009) 1 SCC (Cri) 87 (Sanghi Brothers(Indore) Private Limited vs. Sanjay Choudhary andothers). An excerpt from it would run thus:"10. In State of Maharashtra v. Som Nath Thapa thisCourt observed as follows: (SCC p.671, paras 31-32)“31. Let us note the meaning of the word‘presume’. In Black’s Law Dictionary it has beendefined to mean ‘to believe or accept uponprobable evidence’. In Shorter Oxford EnglishDictionary it has been mentioned that in law‘presume’ means ‘to take as proved until evidenceto the contrary is forthcoming’. Stroud’s LegalDictionary has quoted in this context a certainjudgment according to which ‘a presumption is aprobable consequence drawn from facts (eithercertain, or proved by direct testimony) as to thetruth of a fact alleged’. In Law Lexicon by P.Ramanatha Aiyar the same quotation finds place atp.1007 of 1987 Edn.32. The aforesaid shows that if on the basisof materials on record, a court could come to theconclusion that commission of the offence is aprobable consequence, a case for framing of chargeexists. To put it differently, if the court wereto think that the accused might have committed theoffence it can frame the charge, though forconviction the conclusion is required to be thatthe accused has committed the offence. It isapparent that at the stage of framing of a charge,probative value of the materials on record cannotbe gone into; thematerials brought on record by the prosecution hasto be accepted as true at that stage.”(emphasis in original) https://hcservices.ecourts.gov.in/hcservices/

11. Sections 227, 239 and 245 deal with dischargefrom criminal charge. In State of Karnataka v. L.Muniswamy it was noted that at the stage of framing thecharge the court has to apply its mind to the questionwhether or not there is any ground for presuming thecommission of offence by the accused. (underlined foremphasis) The court has to see while considering thequestion of framing the charge as to whether the materialbrought on record could reasonably connect the accusedwith the trial. Nothing more is required to be inquiredinto. (See Stree Atyachar Virodhi Parishad v. DilipNathumal Chordia and State of W.B. v. Mohd. Khalid.)12. In R.S. Nayak v. A.R. Antulay this Court referredto Sections 227 and 228 so far as they are relatable totrial. Sections 239 and 240 are relatable to trial ofwarrant cases and Sections 245(1) and (2) are relatable tosummons cases.13. After analysing the terminology used in the threepairs of sections it was held (in Antulay case) thatdespite the differences there is no scope for doubt thatat the stage at which the court is required to considerthe question of framing of charge, the test of a primafacie case is to be applied."A plain reading of those decisions would highlight and spotlightthe fact that at the time of framing charges, the court is notenjoined to ponder over the point, whether the accused ultimatelywould be acquitted or convicted. But, it is the duty of the courtto see whether there is any prima facie case for framing charge.Having this in mind, it is a must to analyse the availablematerials on record to see whether there is any prima faciematerial to frame charges as against the accused A1.13. Tersely and briefly, pithily and precisely, the case ofthe prosecution as against A1 is that A1, while functioning as theGeneral Manager of Southern Railways during 1995 to 1997,conspired with other accused and caused loss to the Railways bysanctioning machinery advance to A7 even though A7 was not in anymanner entitled to avail such advance.14. It is also the case of the prosecution that at the firstinstance, the sanction was not granted for machinery advance.Subsequently, A7 submitted one other letter requesting forgranting sanction of machinery advance; whereupon A2 on 24.03.1996prepared a note requesting for sanction of machinery advance andapproached A1 personally with a view to get the earlier decisionreversed. Whereupon, A1 instructed A2 to get the tender committeeto make their recommendation after incorporating the financialelement involved in the machinery advance. Accordingly, thetender committee made recommendations. Whereupon, A1 accepted thesame. https://hcservices.ecourts.gov.in/hcservices/

15. Considering the pro et contra, it is just and necessaryto consider as to what are all the relevant terms and conditionsof the limited tender.16. In the typed set of papers, I could see the relevantclauses. I would extract here under the clauses 8 and 9:-8. The stone ballast required for the work shallbe collected from outside Railway limits and theContractor shall pay all the seigniorage and otherincidental charges that may be involved.9. The contractor should make his own arrangementsfor the required vehicles such as tractors, lorriesetc., and other tools and plants, etc., for theexpeditious progress of work and work the same at hisown cost with his men and consumable stores."(emphasis supplied)Admittedly, the case is that only hand broken ballast wasrequired to be used for the performance of Reach-IV, so to say, inlaying the railway line between Eachengadu and Ariyalur. It isnot, one of the requirements of the Railways that machine crushedballast should be used. 17. Further, it is the contention of the learned seniorcounsel for the revision petitioner that even while offering thetender by A7, he stated that he required machinery advance. 18. It is ex facie and prima facie clear that for supplyinghand broken ballast, machinery is not required and I am at a lossto understand as to why then, even at that initial stage itself,steps had not been taken either to modify and vary the terms andconditions of the tender or reject the offer of A7.19. It is a trite proposition of law of contract that whenconditional offer is made and conditional acceptance is made,there is no contract at all. There should be consensus id idem.However, in this case, peculiarly, even though A7 in response tothe invitation offered by the Railway, offered to perform thework involving only hand broken ballast. 20. Curiously, A7 without in any manner explicitly statingwhether he would supply machine crushed ballast or only handbroken ballast, simply asked for machinery advance so as to getsecured sufficient finance to prepare machine crushed ballast. 21. Now, it transpires from the argument submitted oneither side that after availing advance, A7 turned turtle and hadan volte face and he never performed the work and did not utilisedthe machinery advance for the purpose for which, he availed. https://hcservices.ecourts.gov.in/hcservices/

22. The learned senior counsel appearing for the revisionpetitioner would submit that A1, being the General Manager was notat all responsible for A7 having proved himself a scourge to theperformance of the work. A1 correctly at the first instancerecorded in the note put up by other accused for sanction ofmachinery advance as under:"If machinery advance was not part of tenderconditions, it will not be correct to give it at thisstage. Party can take loan from the banks etc.,"(emphasis supplied)As such, in fact, the case of the prosecution itself is only tothat effect, as strongly and correctly recorded supra by A1 so tosay, no machinery advance could be granted, if it is not part ofthe tender conditions. However, subsequently, based on A7'ssubsequent representation on 22.03.1996, the other accused personsprocessed the matter and once again approached the General ManagerA1 and at that time, on 25.03.1996 the notings would refer asunder: "Discussed with G.M. He desires that the tendercommittee may include financial element of this advanceand make their recommendations"(emphasis supplied)Thereafter, the minutes of the tender committee was prepared andit was submitted once again to A1, who recorded thus: "T.C's recommendation as above accepted"It is ex-facie and prima facie clear that to the knowledge of A1,A7's attempt to obtain machinery advance was not proper and it wasnot in accordance with the procedure.23. The learned senior counsel for the revision petitionertried to argue that even at the first instance itself A7 intendedto supply machine crushed ballast and that was why, he offeredmachinery advance.24. I cannot countenance such an argument and uphold it forthe reason that the same A7 Palani himself, in his letter dated8.2.1996, so to say, long after the emergence of the contractstated thus in his letter:"In this connection, we request the Railwayadministration to kindly arrange for 10% machineryadvance on contract value for purchase and installationof the machineries as mentioned above. As per theconditions of the contract, the Railway has agreed togrant this machinery advance if the same is sanctionedby GM for which recommendation will be forwarded by theRailways. https://hcservices.ecourts.gov.in/hcservices/ Initially, it was proposed to supply hand brokenstone ballast from various quarries in the area. Now,the Railways is urging us for accelerated ballastsupply and for this purpose, we propose to install theabove machinery to accelerate the supply".(emphasis supplied)A plain reading of it would demonstrate that at the time of makingoffer, A7 had no intention to supply machine crushed ballast andaccording to A7, because the railway administration pressed him tocomplete the work, he wanted to switch over to machine crushedballast and for that he wanted machinery advance. As such, it isclear that A7 exposed himself and exposed the other accused also. 25. The learned senior counsel invited the attention of thiscourt to the relevant portion of the Notification of the IndianRailways Code for the Engineering Department (Revised Edition)1989 at Page No.172 and developed his argument to the effect thatgranting machinery advance is well within the limit of A1 andpolice cannot find fault with the General Manager.26. It is therefore just and necessary to extract therelevant portion of the Railway Code."1264. Advances to Contractors: It will be theduty of Executive Engineers to abstain as far aspossible from making advances, and they shouldendeavour to maintain a system under which no paymentsare made except for work actually done. GeneralManagers are, however, empowered to sanction advancesto contractors in exceptional circumstances, noexceeding Rs.2 lakhs under the following conditions:(i) that a contractor does not receive advancesfor different works from different officers;(ii) that arrangements are made with the AccountsOfficer for proper accounts being kept with regard tothese advances;(iii) that all necessary precautions are taken tosecure Government from the possibility of loss and forpreventing the system becoming more general orcontinuing longer than that may be absolutely necessaryfor the proper progress of the work.1265. Variation of Contract Conditions: Thepower to vary the terms of a contract lies only withactual parties thereto. The contractor and hissureties, if any, must, therefore, be consentingparties to all variations which should be the subjectof a subsidiary agreement stating what is to be variedand what will remain unchanged in the original https://hcservices.ecourts.gov.in/hcservices/ contract. The drafting of this agreement should be thesubject of careful scrutiny to ensure that theconditions, specifications etc of the main contract areadequate for and applicable to the variation or thatthe latter is made self-sufficient in these respects.Such subsidiary agreement should be regarded as freshcontracts and entered into before effect is given tothe variation. The contract conditions may be variedby various authorities competent to do so to the extentshown below:-a) Variation of the conditions of contract:These may be varied with the sanction of the authoritythat approved the original contract acting inconsultation with his Financial Adviser and aftertaking legal advice, if necessary.b) Variation of the Rates or Items: Contracts inwhich a price variation clause is included, the ratesmay be varied by the authority which approved theoriginal contract with the concurrence of his FinancialAdviser. If the total value of the contract afterallowing for the variation is beyond the powers of theauthority which approved the original contract, asanction of the higher authority within whosecompetence as to amount it lies should be obtained."27. It is also just and necessary to extract one otherportion of the correct code, which reads as under:-"The existing para No.1264 should be deleted andsubstituted as under:-1264. ADVANCES TO CONTRACTORS:-It will be the dutyof Executives to abstain as far as possible from givingadvances, and they should endeavour to maintain a systemunder which no payments are made except for workactually done. General Managers may, however, sanctionadvances within their delegation of powers, as perlimits indicated here under for such of the works whichare capital intensive and of specialised nature,if theestimated value of the tender exceeds Rs.50 lakhs.Suitable provisions may be included in the specialconditions of the tender for grant of Mobilisationadvance aid advance against machinery and equipment, ifthe work warrants grant of such advances subject toconditions stated here under:-a) Mobilisation Advance:-This shall be limited to 10% of the contract Valueand payable in 2 stages as indicated below:- https://hcservices.ecourts.gov.in/hcservices/ Stage I:- 5% of the contract value on signing ofthe contract agreement.Stage II:- 5% on mobilisation of site-establishment, setting up offices, bringing in equipmentand actual commencement of work.The two stages of advances shall be payableimmediately after signing of contract documents and atthe time of mobilisation, respectively.b) Advance against Machinery and Equipment:-This advance shall be limited to a maximum of 10%of the contract value against the new machinery andequipment involving substantial outlay, brought to siteand essentially required for the work. The advanceshould not exceed 75% of the purchase price of suchequipment and will be payable when hypothecated toPresident of India by a suitable bond or hypothecated toa Nationalised bank or State Bank of India. The Plantand equipment should be insured for the full value andfor the entire period, they are required for the work.c) Advance for accelerating progress of the workduring course of execution of contract:-This advance is to be decided on the merits of eachcase for contracts lying within the powers of G.M. (Rs.5crores and less) and shall be restricted to a maximum of5% of contract value or Rs.5.00 lakhs whichever is less.This is to be granted by the G.M on the recommendationsof the Chief Engineer in charge in consultation with theAssociate Finance.d) Advances in exceptional cases:-G.Ms are further empowered to grant advances inexceptional cases upto a maximum of Rs.5.00 lakhs inrespect of even contracts of value of less than Rs.50.00lakhs if, considered absolutely essential, depending onthe merits of the each cases and circumstances in eachsituation, to be recommended by the Chief Engineer incharge and in consultation with the Associate Finance."A plain reading of it would demonstrate and display that, if thework warrants, granting of machinery advance the same would arise.Here, the tender condition remains unchanged to the effect thatonly hand broken ballast alone need be supplied and not machinecrushed ballast. However, it was granted by A1 also. Here thereis nothing plausible or sound reasons found set out for grant ofmachinery advance subsequent to the earlier correct order passed https://hcservices.ecourts.gov.in/hcservices/ by A1 in rejecting the request of A7. The subsequent notings aremore in the nature of showing extreme concern for A7's financialrequirement as to how much he would be incurring more interestthan the interest, which he might be liable to pay, if he availedmachinery advance from Railways, etc., throwing to winds thetender conditions. In fact, the tender condition extracted suprais an embargo for granting such advance. There are also variousother irregularities and only during trial all those factorsshould be looked into and decision to be taken.28. Certainly interpretation of the Railway code and alsoapplying the same relating to the act performed by A1 is involved.It is not a case wherein the prosecution is alleged to haveviolated certain statutory provisions warranting this court tointerfere and consequently discharge the accused by reversing theorder of the lower court, but the very case of the A1 is based oninterpretation of the Railway Code and the relevant notificationsand applying the same to the factual situation in this case.29. The very nature of the case is such that the accusedhimself committed in black and white on 11.03.1996 that grantingof machinery advance was not possible and subsequently, he grantedit. According to the learned senior counsel, the legalcircumstances warranted A1 to do so. However, the tendercondition is for supply of hand broken ballast, which requires nomachinery advance and for that matter no machinery advance wasrequired. However, in this case, machinery advance was given butthe tender condition remained the same and the fact also remainsthat the contractor after availing the advance simply failed toperform his work. Hence, necessarily under Section 105 of theIndian Evidence Act, A1 is in explainable position before thecriminal court. 30. When such is the factual scenario, the lower courtcannot be found fault with for having dismissed the Crl.M.P.Hence, I am of the considered opinion, that this revision is nottenable. 31. The learned senior counsel appearing for the revisionpetitioner also raised the point that no sanction has beenobtained by the police for prosecuting A1 as contemplated underSection 197 of the Code of Criminal Procedure. 32. At this juncture, my mind is reminiscent and redolent ofthe Hon'ble Apex Court's decision reported in (2007) 1 SCC (Cri)237 (Balakrishnan Ravi Menon vs. Union of India). Certainexcerpts from it would run thus:"6. Further, under Section 19 of the PC Act,sanction is to be given by the Government or theauthority which would have been competent to removethe public servant from his office at the time whenthe offence was alleged to have been committed. The https://hcservices.ecourts.gov.in/hcservices/ question of obtaining sanction would arise in a casewhere the offence has been committed by a publicservant who is holding the office and by misusing orabusing the powers of the office, he has committedthe offence. The word ‘office’ repeatedly used inSection 19 would mean the ‘office’ which the publicservant misuses or abuses by corrupt motive for whichhe is to be prosecuted. Sub-Section (1) and (2) ofSection 19 are as under:"19.Previous sanction necessary for prosecution-(1) No court shall take cognizance of anoffence alleged punishable under Sections 7, 10, 11,13 and 15 alleged to have been committed by a publicservant, except with the previous sanction, -a) in the case of a person who is employed inconnection with the affairs of the Union and is notremovable from his office save by or with thesanction of the Central Government, of thatGovernment;b) in the case of a person who is employed inconnection with the affairs of a State and is notremovable from his office save by or with thesanction of the State Government, of that Government;c) in the case of any other person, of theauthority competent to remove him from his office.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 was alleged tohave been committed."(emphasis supplied)7. Clauses (a) and (b) of sub-section (1)specifically provide that in case of a person who isemployed and is not removable from his office by theCentral Government or the State Government, as thecase may be, sanction to prosecute is required to be https://hcservices.ecourts.gov.in/hcservices/ obtained either from the Central Government or theState Government. The emphasis is on the words ‘whois employed’ in connection with the affairs of theUnion or the State Government. If he is not employedthen Section 19 nowhere provides for obtaining suchsanction. Further, under sub-section (2) the questionof obtaining sanction is relatable to the time ofholding the office when the offence was alleged tohave been committed. In case where the person is notholding the said office as he might have retired,superannuated, be discharged or dismissed then thequestion of removing would not arise. Admittedly,when the alleged offence was committed, thepetitioner was appointed by the Central Government.He demitted his office after completion of fiveyears' tenure. Therefore, at the relevant time whenthe charge-sheet was filed, the petitioner was notholding the office of the Chairman of Goa ShipyardLtd. Hence, there is no question of obtaining anyprevious sanction of the Central Government".The aforesaid decision of the Hon'ble Apex Court has beenfollowed in the subsequent judgments of the Hon'ble Apex Courtreported in (2007) 1 SCC 1 (Prakash Singh Badal vs. State ofPunjab) and (2007) 1 SCC (Cri) 241 (Lalu Prasad alias Lalu PrasadYadav vs. State of Bihar Through CBI (AHD) Patna).33. In this case, admittedly, A1 retired from service in theyear 1998. Whereas the cognizance of this offence has been takenonly in the year 2003. As such, as on that date, he was not apublic servant removable from office and the Hon'ble Apex Court inmatters of this nature, held unambiguously and unequivocallysanction is not required in such case.34. In the result, I could see no merit in this revision.Accordingly, the same is dismissed.Vj2Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Principal Special Judge for CBI Cases, Chennai 2.The Spl Public Prosecutor for CBI Cases, High Court, Madras.+ 2 ccs to Mr. S. Sudharsanasundar, Advocate SR No.35424KS(CO)SR/31.8.2009Crl.R.C.No.368 of 2008