The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.153 of 2020 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Sitikanta Sarangi ……. Petitioner -versus- State of Orissa (Vigilance) ……. Opposite Party For the Petitioner : Mr. G.M. Rath, Advocate For the Opp. Party : Mr. Sangram Das, Addl. Standing Counsel (Vigilance). CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 11.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. In this Criminal Revision Petition, the petitioner has challenged the order dated 11.07.2019 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.17 of 2019 arising out of Vigilance G.R. Case No.45 of 2010, whereby cognizance of offences punishable under Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and Sections 420/120-B of the IPC has been taken against the petitioner and the other co-accused persons. 2. An F.I.R. was lodged on 30.06.2010 by the Inspector of Vigilance, Cuttack and registered as Cuttack Vigilance P.S. Case No.45 dated 30.06.2010. In the F.I.R., it was alleged that the accused persons had illegally shown distribution of coal in favour of six fake MSME Units to derive pecuniary advantage for their personal benefit, violating the New Coal Distribution Policy. The Odisha Small Industries Corporation Ltd. (OSIC) and the District Industries Centers were required to distribute coal as per the guidelines, to different MSME in a realistic manner. It came to light during physical verification by the Vigilance Department on 19.05.2010 that linkage coal has been sold in favour of fake firms, as named in the F.I.R., though there was no existence of said firms. However, the distribution of coal to those firms has been shown on record. Further, certain irregularities in the sale price of coal as compared to the market rate, were also seen. The total amount of pecuniary advantage gained by the accused persons has been computed to the tune of Rs.22,38,609/- (Rupees Twenty Two Lakhs Thirty Eight Page 2 of 9 Thousand Six Hundred Nine) in the charge sheet and total 12 accused persons have been named therein, including the present petitioner. 3. After the completion of investigation, the Vigilance Department submitted charge sheet against 12 accused persons including the present petitioner. There were specific allegations made against the petitioner. On the basis of material available on record, the Vigilance Department applied for grant of sanction to prosecute the petitioner as required under Section 19 of the P.C. Act. The competent authority, vide Office Order dated 23.07.2018, declined to grant sanction to prosecute the petitioner. The Office Order dated 23.07.2018 reads as under: Government of Odisha General Administration & Public Grievance Department “Confidential No.GAD-SC-VG-0063-2016-20828/Gen, Bhubaneswar, dated 23 July, 2018 From Sri Pradeep Kumar Biswal, IAS, Additional Secretary to Government To The Deputy Secretary to Government G.A. (Vigilance) Department, Odisha, Cuttack Sub: Sanction of prosecution against Sri Sitikanta Sarangi, Ex-G.M., D.I.C., Jagatpur, at present Joint Director of Industries, Cuttack and 2) Sri Sailendra Narayan Nayak, the thenAsst. Manager (Project), D.I.C., Jagatpur, Cuttack in Cuttack Vigilance P.S. Case No.45 dt.30.6.2010. Page 3 of 9 Sir, I am directed to invite reference to your office letter NO.5373/Vig. Cell, dated 28.7.2015 on the subject mentioned above and to say that after careful consideration of the facts and circumstances of the case and material evidences on records, Government have been pleased to decline the proposal for according sanction of prosecution against Sri Sitikanta Sarangi, Ex-G.M., D.I.C., Jagatpur, at present Joint Director of Industries, Cuttack and 2) Sri Sailendra Narayan Nayak, the then Asst. Manager (Project), D.I.C., Jagatpur, Cuttack in Cuttack in Vigilance P.S. Case No.45, dt.30.6.2010. In view of the above, you are requested to take further follow up action accordingly in the matter under intimation to this Department. Yours faithfully, Additional Secretary to Government” 4. When the matter stood thus, the leaned trial Court vide, its impugned order dated 11.07.2019, took cognizance of offences as mentioned above. The learned trial court was alive to the fact that sanction sought by the prosecution from the Department for the purpose of prosecuting the present petitioner had been denied. Even then, the learned trial court went on to take cognizance of offences inter alia stating that “as the other accused persons, namely, Sitikanta Sarangi (petitioner), Sailendra Narayan Nayak and Nihar Ranjan Parida, have already been retired from their service and one of the accused, namely, Sarat Kumar Satapathy, who had been expired since 03.10.2014, the Page 4 of 9 order of sanction was not required against them.” The learned trial court was of the opinion that since on the date of taking cognizance, the petitioner had already been superannuated from the service, therefore, no sanction was required to prosecute him. 5. Heard Mr. Gouri Mohan Rath, learned counsel for the petitioner, and Mr. Sangram Das, learned Additional Standing Counsel, Vigilance. 6. Mr. Rath, learned counsel for the petitioner, submitted that one of the co-accused, namely, Sailendra Narayan Nayak, had also questioned the cognizance order by filing CRLREV No.883 of 2019. The Coordinate Bench of this Court, vide its judgment dated 30.07.2020, has been pleased to quash the cognizance order for the lack of sanction. Mr. Rath supplied emphasis on Paragraph-9 of the said judgment, which reads as under:-
Decision
“9. Despite the fact that the Government, which is the sanctioning authority has declined to accord sanction in respect of the petitioner by its letter No. 20828/GEN dated 23.08.2018 (as mentioned in the charge sheet), the learned Vigilance Judge has proceeded in taking cognizance by observing that this petitioner has since been retired from service, the order of sanction is not required against him. This particular observation of the learned Vigilance Judge in the impugned order is not found correct on facts since it is the undisputed case of the parties that the petitioner is Page 5 of 9 still serving as Deputy Secretary to the Government of Odisha in the Industries Department. Further, when the sanctioning authority in clear tone has refused to grant sanction for prosecution against the present petitioner, it is not proper on the part of the trial court to proceed against the petitioner for prosecution. Therefore, the order taking cognizance of the offences against the present petitioner is liable to be set aside. 7. Per contra, Mr. Das, learned Additional Standing Counsel (Vigilance) submitted that during the tenure from 10.06.2005 to 09.07.2010, the present petitioner was working as G.M., D.I.C., Jagatpur. The petitioner has already superannuated from his service on 02.07.2018. Mr. Das contended that the impugned order passed by the learned Court below was justified and the sanction in the present case, was not required. He tried to substantiate his argument by relying upon Paragraph-21 of the judgment of Hon’ble Supreme Court in the case of L. Narayana Swamy Vrs. State of Karnataka and others reported in (2016) 9 Supreme Court Cases 598, which reads as under:- “21. It clearly follows from the reading of the judgments in the cases of Abhay Singh Chautala and Prakash Singh Badal that if the public servant had abused entirely different office or offices than the one which he was holding on the date when cognizance was taken, there was no necessity of sanction under Section 19 of the P.C. Act. It is also made clear that where the public servant had abused the office which he held in the check up period, but had Page 6 of 9 ceased to hold 'that office' or was holding a different office, then sanction would not be necessary. Likewise, where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction. However, one discerning factor which is to be noted is that in both these cases the accused persons were public servants in the capacity of Member of Legislative Assembly / by virtue of political office. They were not public servants as government employees. However, detailed discussion contained in these judgments would indicate that the principle laid down therein would encompass and cover the cases of all public servants, including government employees who may otherwise be having constitutional protection under the provisions of Articles 309 and 311 of the Constitution.” 8. I have perused the impugned order, the Government Order by which the sanction had been denied to the prosecution to proceed against the present petitioner and the judgments cited at the Bar. It is no more res integra that in the absence of sanction to prosecute a Government servant, the Government servant enjoys immunity from prosecution, even though the act was committed during the tenure of his office and came under the colour of his duties. It is mandatory for the prosecution to obtain sanction under Section 19 of the P.C. Act, even if the prosecution is launched after his retirement. The Hon’ble Supreme Page 7 of 9 Court, in the case of Chittaranjan Das Vrs. State of Orissa reported in (2011) 7 Supreme Court Cases in Paragraph-14 has held as under: “14. We are of the opinion that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of Public Servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility.” 9. Since the legal position is abundantly clear that even if the prosecution is launched against the Government servant after retirement, the sanction is essential, the learned trial court has committed an error by taking cognizance of offence against the petitioner without a valid reason. Moreover, this Court, while allowing a similar prayer made by the co-accused, has quashed the cognizance order dated 11.07.2019 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.17 of 2019. 10. In view of the aforementioned, the impugned order dated 11.07.2019 passed by the learned Special Judge (Vigilance), Cuttack in Page 8 of 9 T.R. Case No.17 of 2019, in respect of the present petitioner, is also set aside. 11. The CRLREV is accordingly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Aug-2024 11:30:37 Page 9 of 9