TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 501
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....e 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 Section 13(1)(d) and 13(2) of the Prevention....
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....ernment 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 the CBI against the appellants. Accordingly, the learn....
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....a, 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 obtained against the appellants in order to prosecute them for the offence said to have been committed by ....
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....r 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 under Section 13(2) of the Act. It is further contended that the CBI filed the charge-sheet against the appel....
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.... 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 such agreement in pursuance thereof." 19. In the instant case, it is alleged in the charge-sheet that the appellants entered into an ag....
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....harge 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 of Criminal Procedure is construed too narrowly it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can b....
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....se 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), wherein it was observed as under: "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty." 22. Re....
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....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 part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or....
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.... 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 held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government ....
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....dent. 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 been carried out in discharge of their official duty. The learned Additional Solicitor General placed reliance on the following paragraphs of the Prakash Singh Badal case (supra):- "49. Great emphasis has been led on certain decisions of this Court to show that even in relation to offences punishable under S....
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....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 government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate go....