TaxTMI 
TaxTMI 
2016 (8) TMI 501
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....ion, CBI, Ghaziabad. All the appeals are being disposed of by this common judgment. 3.As the facts in all the appeals are common, for the sake of convenience, we refer to the facts of Criminal Appeal No. 798 of 2015, in this judgment which are briefly stated hereunder: 4.The Indian Council of Medical Research (hereinafter referred to as "ICMR"), a registered society under the Societies Registration Act, 1860 is a premier research institute dealing with the formulation, coordination and promotion of bio-medical research. Its functional object is to initiate, aid develop and coordinate medical and scientific research in India and to promote and assist institutions for the study of diseases, their prevention, causation and remedy. It is fully funded by the Government of India through Department of Health Research, Ministry of Health and Family Welfare. The Institute of Cytology & Preventive Oncology (hereinafter referred to as "ICPO") is one of the institutes of ICMR, the main aim of which is to promote research in the field of cancer. 5. On 30.11.2010, a criminal case was registered under Section 120-B of the Indian Penal Code (hereinafter referred to as the "IPC") read with....
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....etary, Ministry of Health and Family Welfare, Government of India, S.C. Pabreja, the then Manager (Residential Plots), NOIDA and R.S. Yadav, OSD (Residential Plots), NOIDA, was revealed. 8. After completion of the investigation, a charge-sheet was filed against the appellants for the alleged offences committed by them on account of unauthorised and illegal transfer of the plot in question in favour of the ICPO-ICMR Housing Society. 9.The competent authority of ICMR granted sanction under Section 19 of the P.C. Act, 1988 for prosecuting A.K. Srivastava and Dr. Bela Shah. The charge-sheet was filed before the learned Special Judge, Anti Corruption, CBI (hereinafter referred to as the "Special Judge") against all the appellants, except R.S. Yadav, OSD, NOIDA, under Section 173(2) of CrPC for the offences punishable under Section 120-B of IPC read with Section 13(1)(d) and 13(2) of the P.C. Act, 1988. The requisite sanction for prosecution against R.S. Yadav was declined by the Competent Authority. After considering the charge-sheet and other materials available on record, the learned Special Judge came to the conclusion that a prima facie case appeared to have been made out by t....
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....iabad." Hence the present appeals. 11. We have heard Mr. P.P Khurana, Mr. Gopal Subramanium and Mr. R Basant, the learned senior counsel appearing on behalf of the appellants, and Mr. P.S Patwalia, the learned Additional Solicitor General and Ms. Kiran Suri, learned senior counsel appearing on behalf of the respondent. On the basis of the factual evidence on record produced before us, the circumstances of the case and also in the light of the rival legal contentions urged by the learned senior counsel for both the parties, we have broadly framed the following points that would arise for our consideration:- 1) Whether an offence under Section 120B IPC is made out against the appellants, and if so, whether previous sanction of the Central Government is required to prosecute them for the same? 2) Whether the order dated 08.11.2012 passed by the learned Special Judge taking cognizance of the offence against the appellants is legal and valid? 3) What order? Answer to Point Nos. 1 and 2: 12. As the point numbers 1 and 2 are inter-related, we answer them together by assigning the following reasons: The issue of prior sanction required to be obtain....
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....Mr. P.P Khurana and Mr. Gopal Subramanium and they have filed their written submissions in support of their contentions, which are also considered by this Court. 16. On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor General and Ms. Kiran Suri, learned senior counsel appearing on behalf of the respondent contended that the legal submissions advanced by the learned senior counsel appearing on behalf of the appellants are wholly untenable in law for the reason that the very act of the appellants constitute an offence under IPC, as they entered into a conspiracy to illegally transfer the plot in question in favour of the said society referred to Supra without obtaining the permission of the competent authority of NOIDA, with an ulterior motive to make unlawful gain for themselves. The appellants became members of the ICPO-ICMR Housing Society, even though they were not eligible to be enrolled as members of the society, and thereafter proceeded to transfer the plot at a value which was much lesser than the prevailing market rate at the time, thus making an unlawful gain for themselves, which is an offence under Section 13(1)(d) of the P.C. Act, 1988, punishable u....
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....tava, Executive Engineer vide letter dated 09.06.2006 to B.C. Das. On 12.06.2006, N.K. Ganguly recorded a note in the file stating that "the proposal was approved provided it was under the provisions of laws and land use for which it was acquired". The aforesaid allegations contained in the chargesheet suggest that a conspiracy was hatched by the appellants to commit an offence under Section 13(1)(d) of the P.C. Act, 1988. A perusal of the chargesheet reveals that there is sufficient material on record to indicate the existence of the alleged conspiracy. In view of the same, Section 197 of CrPC is squarely applicable to the facts of the present case. 18. At this stage, it is important to examine the concept of criminal conspiracy as defined in IPC. Section 120-A of the IPC reads as under: "When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to suc....
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....ead with Section 409 of IPC. While considering the contention advanced that the said acts could not be said to have been committed in discharge of official duty, Bose, J. placed reliance upon the observations made by the Federal Court in the case of Dr. Hori Ram Singh v. Emperor( AIR 1939 FC 43 ), wherein Vardachariar, J observed that in respect of a charge under Section 409 of IPC, the official capacity is relevant only for entrustment, and not necessarily in respect of misappropriation or conversion which may be the act complained of. It was held by this Court that the correct position of law was laid down in the case of Hori Ram Singh, which is as under:- "I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests." Bose, J., further held in Shreekantiah case referred to supra that there are cases and cases and each must be decided on its own facts. It was held as under: "Now it is obvious that if Section 197 of the Code ....
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.... c)Those which held it was necessary when the offence was committed while the accused was actually engaged in the performance of official duties." It was further held in the Amrik Singh case that: "The result of the authorities may thus be summed up: it is not every offence committed by a public servant that requires sanction for prosecution u/s 197 of the Cr.PC; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be invested at the trial and could not arise at the stage of grant of sanction, which must precede the institution of the prosecution." (emphasis laid by this Court) The position of law, as laid down in the case of Hori Ram Singh was also approved by the Privy Council in the case of H.H.B. Gill v. The King(AIR 1948 PC 128), wh....
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....ir very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under s.161 of IPC, is one of them and the offence of cheating or abetment thereof is another... where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences...... ...the Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." In the case of R.R. Chari referred to supra, while examining the scope of Section 197 of CrPC, this Court held as follows: "It is clear that the first pa....
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....1979) 4 SCC 177, the constitution bench of this Court observed that the question of sanction under Section 197 of CrPC could be raised and considered at any stage of the proceedings. On the issue of when the protection of Section 197 of CrPC is attracted, this Court held as under: "In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him." The learned senior counsel further placed reliance on the decision of a constitution bench of this Court in the case of R.S Nayak v. A.R Antulay (1984) 2 SCC 183, wherein certain observations were made with regard to Section 6 of P.C Act, 1988, as under: "Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been....
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....hat the acts constituting the offence were alleged to have been committed by the appellant in discharge of his official duty and that being the fact, it was not open to the Special Judge court to take cognizance of the offences without obtaining the previous sanction of the Central Government by the respondent. 24. The learned Additional Solicitor General, on the other hand, appearing on behalf of CBI placed strong reliance on the decision of this Court in the case of Prakash Singh Badal v. Union of India (2007) 1 SCC 1 to buttress his contention that no sanction was required to be taken in the instant case as the Appellants have entered into a criminal conspiracy, therefore, it cannot be said to be a part of their official duty as the public servants. The act of the appellants of transferring the plot in question in favour of the aforesaid society, allotted in favour of ICMR for the purpose of construction of the flats and allotting the same in favour of the employees of ICPO-ICMR society without obtaining the order from either CEO or Chairman of the NOIDA with a motive to make wrongful gain for themselves after entering into a conspiracy cannot be said to be an act that has be....
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....ure will be attracted." The learned senior counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under: "18. ....If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of ofcourse it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.... 19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established.... Now it is evident that the entrustment and/ or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity...." 25. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate ....