C.K. JAFFER SHARIEFversusSTATE (THROUGH CBI)

                   [2012] 10 S.C.R. 1079


                   C.K. JAFFER SHARIEF                             A
                             v.
                  STATE (THROUGH CBI)
            (Criminal Appeal No. 1804 of 2012)
                   NOVEMBER 09, 2012
                                                                   B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

    PREVENTION OF CORRUPTION ACT, 1988:

    ss. 13 (1) (d) and 13 (2) - Criminal proceedings against       c
appellant on the a/legation that while he was holding the office
of Minister, he compelled approval of journey of four persons
to London in connection with his medical treatment - Held:
Record indicates that the four persons while in London had
assisted the appellant in performing certain tasks connected       0
with the discharge of his duties as a Minister - It was for the
Minister to decide on the number and identity of the officials
and supporting staff to accompany him to London if it was
anticipated that he would be required to perform his official
duties while in London - The action of the Minister cannot be      E
said to have been actuated by a dishonest intention to obtain
an undue pecuniary advantage - In the totality of facts, there
is no reason to allow the prosecution to continue against
appellant - Criminal proceedings quashed - Constitution of
India, 1950 - Art. 226 - Code of Cnininal Procedure, 1973 -
&~                                                                 F
     On the basis of an FIR filed by the Central Bureau of
Investigation (CBI), a case was registered against the
appellant, the then Railway Minister, for offences
punishable uls 13 (2) read with s. 13 (1) (d) of the               G
Prevention of Corruption Act, 1988, on the allegations that
he had dishonestly made the Managing Directors of Rail
India Technical & Economic Services Ltd (RITES) and
Indian Railway Construction Co. Ltd. (IRCON) to approve
                           1079                                    H
    1080   SUPREME COURT REPORTS             [2012] 10 S.C.R.


A the journeys of four persons (one Addi. P.S. to Railway
  Minister, two Stenographers and one domestic help), to
  London in connection with his medical treatment. The
  investigating agency submitted its report. The trial court
  took cognizance of the offences. The application filed by
B the accused seeking discharge was rejected by the trial
  court by its order dated 27.1.2010. He the moved the High
  Court under Art. 226 of the Constitution read with s. 482
  Cr.P.C. for setting aside the order dated 27.1.2010 and for
  quashing the criminal proceedings. The High Court
c declined to interfere.
       Allowing the appeal, the Court

        HELD: 1.1. It cannot be said that the only issue raised
  by the appellant before the High Court was with regard
D to the absence of sanction for the impugned prosecution.
  Before the High Court two reliefs had been prayed for by
  the appellant, namely, interference with the order of the
  trial court passed on 27.01.2010 as well as for quashing
  of the criminal proceeding. Therefore, this Court is of the
E view that the appellant having raised issues concerning
  the validity of the proceeding as a whole on the ground
  that ex facie no offence is disclosed, it is open for the
  appellant to raise the said question in the instant appeal.
  [Para 12] [1086-C-D-E-F]
F      1.2. A bare reading of the provisions of s.13(i)(d) the
  Prevention of Corruption Act, 1988 would go to show that
  the offence contemplated therein is committed, if a public
  servant obtains for himself or any other person any
  valuable thing or pecuniary advantage by corrupt or
G illegal means; by abusing his position as public servant
  or without any public interest. In the instant case, the
  appellant besides working as the Minister of Railways
  was the Head of the two PSUs in question at the relevant
  time. The record indicates that the four persons while in
H London had performed certain tasks to assist the Minister
  C.K. JAFFER SHARIEF v. STATE (THROUGH CBI} 1081


in the discharge of his public duties. Therefore, the             A
appellant cannot be construed to have adopted corrupt
or illegal means or to have abused his position as a
public servant to obtain any valuable thing or pecuniary
advantage either for himself or for any of the said four
persons. As a Minister, it was for the appellant to decide        B
on the number and identity of the officials and supporting
staff who should accompany him to London if it was
anticipated that he would be required to perform his
official duties while in London. The said decision cannot
be said to be actuated by a dishonest intention to obtain         c
an undue pecuniary advantage. That dishonest intention
is the gist of the offence u/s. 13(1 )(d) is implicit in the
words used i.e. corrupt or illegal means and abuse of
position as a public servant. [Para 14 and 17] [1087-E-F;
1088-F-G; 1089-8-C-D-E]                                           D
     M. Narayanan Nambiar vs. State of Kera/a (1963) Supp.
(2) SCR 724 - relied on
    1.3. In the totality of the materials on record, there is
no reason to allow the prosecution to continue against            E
the appellant. Such continuance would be an abuse of
the process of court and, therefore, it will be the plain
duty of the court to interdict the same. Therefore, the
proceedings registered against the appellant are
quashed. [Para 17-18] [1089-E-G]                                  F
                     Case Law Reference:
    (1963) Supp. (2) SCR 724 relied on                Para 17
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal              G
No. 1804 of 2012.

     From the Judgment & Order dated 11.4.2012 of the High
Court of Delhi at New Delhi in Writ Petition (Criminal) No. 262
of 2010.
                                                                  H
    1082     SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A        P.P. Rao, Rajiv Datta, Gopal Singh for the Appellant.

         Mohan Jain, ASG, D.K. Thakur, M. Tatia, B.V.B. Das,
    Arvind Kumar Sharma for the Respondent.

        The Judgment of the Court was delivered by
B
         RANJAN GOGOi, J. Leave granted.
        2. The judgment and order of High Court of Delhi dated
  1 , .4.2012 affirming the order of the learned trial court rejecting
C the application filed by the appellant for discharge in the criminal
  prosecution initiated against him has been challenged in the
  present appeal.

        3. The above order of the High Court challenged in the
    present proceeding came to be passed in the following facts :
D
       An FIR dated 03.06.1998 was filed by the Superintendent
  of Police, CBl/ACU.XX/New Delhi alleging commission of the
  offence under Section 13(2) read with 13(1 )(d) of the
  Prevention of Corruption Act, 1988 (hereinafter referred to as
E 'the Act') by the appellant during his tenure as the Union Railway
  Minister from 21.06.1991 to 13.10.1995. Commission of the
  offence under the aforesaid provision of the Act was alleged
  on the basis that the appellant had dishonestly made the
  Managing Directors of RITES (Rail India Technical &
F Economics Services Ltd.) and IRCON (Indian Railway
  Construction Co. Ltd.) to approve the journeys of S/Shri B.N.
  Nagesh, the then Additional PS to Railway Minister, S.M.
  Mastan and Murlidharan, Stenographers in the railway cell and
  one Shri Samaullah (domestic help of the appellant) to London
  in connection with the medical treatment of the appellant. It was
G alleged in the FIR that the two Public Sector Undertakings did
  not have any pending business in London at the relevant point
  of time and the journeys undertaken by the aforesaid four
  persons were solely at the behest of the appellant who had
  compelled the services of the concerned employees to be
H placed in the two undertakings in question. Pecuniary loss to
  C.K. JAFFER SHARIEF v. STATE (THROUGH CBI) 1083
               [RANJAN GOGOi, J.]

the Public Sector Undertakings was, therefore, caused by the           A
wrongful acts of the appellant.

     4. On the basis of the aforesaid FIR, Case no. RC.2(A)/
98-ACU.IX was registered and investigated upon. Final report
of such investigation was submitted in the court of learned
                                                                       8
Special Judge, Patiala House, New Delhi on 22.10.2005. In the
said final report it was, inter-alia, stated that there was "ample
documentary and oral evidence to prove the facts and
circumstances of the case, as stated above, which constitute
offences punishable under Section 13(2) read with 13(1) (d) of         C
the Prevention of Corruption Act, 1988". Sanction for
prosecution, under Section 19 of the Act was however refused
by the competent authority. Accordingly, in the final report it was
mentioned that the proceedings against the accused appellant
be dropped.
                                                                       D
     5. The learned trial court by its order dated 25.08.2006
declined to accept the closure report filed by the investigating
agency and observed that there appears to be prima facie
evidence with regard to commission of offence under Section
13(2) read with 13 (1 )(d) of the Act and, possibly, the entire        E
material collected in the course of investigation had not been
placed before the sanctioning authority.

      6. Pursuant to the order of the learned trial court the matter
was once again looked into by the investigating agency who             F
submitted another report dated 01.08.2007 stating that all
materials collected during investigation had been placed before
the authority competent to grant sanction including such
clarifications as were sought from time to time.

     7. On receipt of the aforesaid report dated 01.08.2007, the       G
learned trial court by its order dated 26.07.2008 took
cognizance of the offence punishable under Section 13 (2) read
with Section 13(1 )(d) of the Act.

     8. Thereafter, the accused appeared before the learned            H
    1084    SUPREME COURT REPORTS                [2012] 10 S.C.R.


A trial court and filed an application seeking discharge which
  being refused by the order of the trial court dated 27 .01.2010,
  the appellant moved the High Court of Delhi under Article 226
  of the Constitution read with Section 482 of the Code of
  Criminal Procedure for setting aside the order dated
B 27.01.2010 passed by the learned Special Judge, CBI, Rohini,
  New Delhi and for quashing of the criminal proceeding pending
  before the said court. The aforesaid application having been
  dismissed by the impugned judgment and order dated
  11.04.2012 of the High Court of Delhi the present appeal has
C been filed.

         9. We have heard Shri P.P. Rao, learned senior counsel
    for the appellant and Shri Mohan Jain, learned ASG for the
    State.

D      10. Shri Rao, learned senior counsel for the appellant has
  submitted that he would not assail the impugned order of the
  High Court on the ground of absence of requisite sanction either
  under the provisions of the Act or under the provisions of the
  Cr.P.C. Shri Rao has submitted that the aforesaid issue need
E not be gone into in the present appeal in as much as the
  allegations made in the FIR and facts appearing from the
  reports of the investigating agency, ex facie, do not make'out
  the commission of any offence by accused-appellant under
  Section 13(1 )(d) of the Act so as to warrant the continuance of
F the prosecution against him. Drawing the attention of the court
  to the consideration of the statements of the witnesses,
  examined in the course of investigation, by the High Court,
  particularly, Shri B.N. Nagesh (PW 33), Shri Murlidharan (PW
  34) and Shri S.M. Mastan it is contended that from the
G statements of the aforesaid persons it is crystal clear that while
  in London the persons accompanying the appellant had
  performed various official duties. It is submitted that the
  accused-appellant, while undergoing medical treatment in
  London, did not cease to be the Railway Minister and during
  the period of his treatment the appellant had attended to the
H
  C.K. JAFFER SHARIEF v. STATE (THROUGH CBI) 1085
               [RANJAN GOGOi, J.]

work and duties connected with the Ministry as well as the            A
RITES and IRCON of which bodies, as the Railway Minister,
the appellant was the Head. The persons who accompanied
the appellant to London thereby causing alleged pecuniary loss
to the Public Sector Undertakings had actually assisted the
Minister in due discharge of his duties while abroad. The said        B
fact having appeared from the statements of the persons
recorded by the investigating authority under Section 161
Cr.P.C., according to Shri Rao, ex facie, the ingredients
necessary to constitute the offence under Sectior. 13(1)(d) are
not present. It is therefore contended that the High Court has        c
grossly erred in not quashing the criminal proceeding against
the appellant and in permitting the same to continue.

      11. Opposing the contentions advanced on behalf of the
 accused-appellant, Shri Jain, learned ASG has urged that the
sole issue agitated by the accused-appellant before the learned       D
trial court was with regard to the inherent lack of jurisdiction to
 continue with the prosecution in the absence of sanction either
 under the provisions of the Act or under the provisions of the
Cr.P.C. Before the High Court the validity of the order dated
27.1.2010 of the learned trial court refusing to discharge the        E
accused was the only issue raised. It is, therefore not open to
the appellant to widen the ambit of the challenge to the validity
of the impugned criminal proceeding as a whole. In this regard
the learned ASG has placed before us the application filed by
the accused-appellant for discharge; the trial court's order dated    F
27.01.2010 as well as the relevant part of the order dated
11.04.2012 of the High Court. Shri Jain has further submitted
that in the present case the requirement of obtaining sanction
under Section 197 Cr.P.C. does not arise in view of the specific
allegations in the FIR which pertain to commission of the             G
offence under section 13(2) read with section 13(1 )(d) of the
Act. Admittedly, the accused-appellant having ceased to be a
Minister as well as a Member of Parliament w.e.f. 10.11.2000
no question of obtaining sanction under Section 19 can arise
in the present case, it is argued. Shri Jain has also submitted       H
    1086    SUPREME COURT REPORTS               [2012] 10 S.C.R.


A that in any case, the materials brought on record, at this stage,
  cannot conclusively prove that the offence as alleged has not
  been committed by the accused-appellant. The matter has to
  be determined in the course of the trial which may be permitted
  to commence and be brought to its logical conclusion.
B
        12. At the very outset we wish to make it clear that we do
  not agree with the contention advanced by the learned ASG to
  the effect that the only issue raised by the appellant before the
  High Court was with regard to the absence of sanction for the
  impugned prosecution. While the above may have the
C complexion of the proceeding before the learned trial court, in
  the application filed by the accused-appellant before the High
  Court the validity of the continuance of the criminal proceeding
  as a whole was called into question, inter-alia, on the ground
  that ex-facie the ingredients of the offence under Section 13
D (1)(d) are not made out on the allegations levelled. We have
  already noticed that before the High Court two reliefs had been
  prayed for by the appellant, namely, interference with the order
  of the learned trial court dated 27.01.2010 as well as for
  quashing of the criminal proceeding. In view of the aforesaid
E position demonstrated by the relevant records we do not find
  any reason to confine the scope of the present appeal to the
  issue of sanction and test the legal validity of the order of the
  learned trial court dated 27.1.201 O and the impugned order of
  the High Court dated 11.04.2012 only on that basis. Rather we
F are of the view that the accused-appellant having raised issues
  concerning the validity of the proceeding as a whole on the
  ground that, ex facie no offence is disclosed, it is open for the
  appellant to raise the said question in the present appeal.

G       13. Section 13(1 )(d) of the Act may now be extracted
    below:
        "Section 13 : Criminal misconduct by a public seNant -
        (1) a public seNant is said to commit the offence of
        criminal misconduct, -
H
  C.K. JAFFER SHARIEF v. STATE (THROUGH CBI) 1087
               [RANJAN GOGOi, J.]

      (a) ..... .                                                    A

      (b) ..... .

     (c) .... .

      (d) if he,-                                                    B

     (i) by corrupt or illegal means, obtains for himself or for
     any other person any valuable thing or pecuniary
     advantage; or
     (ii) by abusing his position as a public servant, obtains       C
     for himself or for any other person any valuable thing or
     pecuniary advantage; or
     (iii) while holding office as a public servant, obtains for
     any persons any valuable thing or pecuniary advantage
                                                                     0
     without any public interest. Or
      (e) ........ "

      14: A bare reading of the aforesaid provision of the Act
would go to show that the offence contemplated therein is            E
committed if a public servant obtains for himself or any other
person any valuable thing or pecuniary advantage by corrupt
or illegal means; by abusing his position as public servant or
without any public interest. The aforesaid provision of the Act,
i.e, Section 13(1 )(d) are some what similar to the offence under    F
Section 5(1 )(d) of the Prevention of Corruption Act, 1947.
     15. Adverting to the facts of the present case it has already
been noticed that the only allegation against the appellant is
that he had prevailed upon RITES and IRCON to take the four
employees in question on "deputation" for the sole purpose of        G
sending them to London in connection with the medical
treatment of the appellant. It is also alleged that neither RITES
nor IRCON had any pending business in London and that none
of the four persons had not performed any duty pertaining to
RITES or IRCON while they were in London; yet the to and fro         H
    1088    SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A air fare of all the four persons was paid by the above two Public
  Sector Undertakings. On the said basis it has been alleged that
  the accused appellant had abused his office and caused
  pecuniary loss to the two Public Sector Undertakings by
  arranging the visits of the four persons in question to London
B without any public interest. This, in essence, is the case against
  the accused-appellant.

       16. A fundamental principle of criminal jurisprudence with
  regard to the liability of an accused which may have application
  to the present case. is to be found in the work "Criminal Law"
C by K.D. Gaur. The relevant passage from the above work may
  be extracted below:

        "Criminal guilt would attach to a man for violations of
        criminal law. However, the rule is not absolute and is
D       subject to limitations indicated in the Latin maxim, actus
        non facit reum, nisi mens sit rea. It signifies that their can
        be no crime without a guilty mind. To make a person
        criminally accountable it must be proved that an act, which
        is forbidden by law, has been caused by his conduct, and
E       that the conduct was accompanied by a legally
        blameworthy attitude of mind. Thus, there are two
        components of every crime, a physical element and a
        mental element, usually called actus reus and mens rea
        respectively."
F      17. It has already been noticed that the appellant besides
  working as the Minister of Railways was the Head of the two
  Public Sector Undertakings in question at the relevant time. It
  also appears from the materials on record that the four persons
  while in London had assisted the appellant in performing
G certain tasks connected with the discharge of duties as a
  Minister. It is difficult to visualise as to how in the light of the
  above facts, demonstrated by the materials revealed in the
  course of investigation, the appellant can be construed to have
  adopted corrupt or illegal means or to have abused his position
H as a public servant to obtain any valuable thing or pecuniary
  C.K. JAFFER SHARIEF v. STATE (THROUGH CBI) 1089
               [RANJAN GOGOi, J.]

advantage either for himself or for any of the aforesaid four          A
persons. If the statements of the witnesses examined under
Section 161 show that the aforesaid four persons had
performed certain tasks to assist the Minister in the discharge
of his public duties, however insignificant such tasks may have
been, no question of obtaining any pecuniary advantage by any          B
corrupt or illegal means or by abuse of the position of the
appellant as a public servant can arise. As a Minister it was
for the appellant to decide on the number and identity of the
officials and supporting staff who should accompany him to
London if it was anticipated that he would be required to              c
perform his official duties while in London. If in the process, the
Rules or Norms applicable were violated or the decision taken
shows an extravagant display of redundance it is the conduct
and action of the appellant which may have been improper or
contrary to departmental norms. But to say that the same was           0
actuated by a dishonest intention to obtain an undue pecuniary
advantage will not be correct. That dishonest intention is the
gist of the offence under section 13(1 )(d) is implicit in the words
used i.e. corrupt or illegal means and abuse of position as a
public servant. A similar view has also been expressed by this
                                                                       E
Court in M. Narayanan Nambiar vs. State of Kera/a 1 while
considering the provisions of section 5 of Act of 1947. If the
totality of the materials on record indicate the above position,
we do not find any reason to allow the prosecution to continue
against the appellant. Such continuance, in our view, would be
an abuse of the .process of court and therefore it will be the plain   F
duty of the court to interdict the same.

     18. For the aforesaid reasons we allow this appeal, set
aside the judgment and order dated 11.04.2012 of the High
Court and the order dated 27.01.2010 of the learned trial court        G
and quash the proceedings registered against the accused-
appellant.

R.P.                                             Appeal allowed.
1 (1963) Supp. (2) SCR 724                                             H