CHITIARANJAN DASversusSTATE OF ORISSA

                         [2011) 7 S.C.R. 836


A                       CHITIARANJAN DAS
                                   v.
                        STATE OF ORISSA
                 (Criminal Appeal No. 820 of 2007)
                           JULY 04, 2011
B
              [G.S. SINGHVI AND CHANDRAMAULI
                       KR. PRASAD, JJ.]

         Prevention of Corruption Act, 1947 - s. 19 - Previous
C   sanction necessary for prosecution - FIR lodged against a
    public servant for possessing assets disproportionate to known
    sources of income - Vigilance Department seeking sanction
    for prosecution of the public servant - Refusal by State
    Government to grant sanction for prosecution -
D   Superannuation of the public servant - Thereafter, despite
    request by Vigilance Department the State Government
    declined to reconsider the decision - Subsequently, charge
    sheet filed uls. 5(2) rw s. 5(1)(e) of the Act against the public
    servant - Special Judge taking cognizance of the offence and
E   issued process - Challenge to - Held: 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
F   necessary after the retirement of Public Servant - Any other
    view will render the protection illusory - Thus, impugned order
    is set aside and the prosecution of the public servant pending
    in the court of Special Judge is quashed.

       Appellant, public servant was found in possession
G of disproportionate assets to the tune of Rs.5.5 lakhs. The
  Vigilance Department sought sanction for prosecution of
  the appellant but the State Government declined to grant
  sanction. Thereafter, the appellant superannuated from
  service. The Vigilance Department requested the State
H                            836
      CHITIARANJAN DAS v. STATE OF ORISSA                  837


   Government for reconsideration of the earlier order            A
   refusing the sanction for prosecution of the appellant.
   The State Government declined to grant sanction for
    prosecution as no prima facie case of disproportionate
   assets was made out against the appellant. Thereafter,
   the Vigilance Department filed charge~sheet against the        B
   appellant under Section 5(2) read with Section 5(1)(e) of
   the Prevention of Corruption Act, 1947 alleging
   acquisition of disproportionate assets to the tune of
    Rs.1.4 lakhs. The Special Judge took cognizance of the
   said offence and issued non-bailable warrant against the       C
    appellant. Aggrieved, the appellant filed a petition under
    Section 482 of the Code of Criminal Procedure seeking
    quashing of the said order but the High Court disposed
    of the same. The trial court also dismissed the application
   ·tor discharge filed by the appellant. The appellant then      D
    challenged the said order and the High Court dismissed
·· the same. Therefore, the appellant filed the instant appeal.
      Allowing the appeal, the Court
      HELD: 1.1. Sanction is -a devise provided by law to E
  safeguard public servants from vexatious and frivolous
  prosecution. It is to give them freedom and liberty to
  perform their duty without fear or favou.r and not
  succumb to the pressure of unscrupulous elements. It is
  a weapon at the hands of the sanctioning authority to F
  protect the innocent public servants from uncalled
  prosecution but not intended to shield the guilty. In the
. instant case, while the appellant was in service, sanction
  sought for his prosecution was declined by the State
  Government. The Vigil~nce Department did not challenge G
  the same and allowed the appellant to retire from service.
  After the retirement, Vigilance Department requested the
  State Government to reconsider its decision, which was
  not only refused but the State Government while doing
  so clearly observed that no prima-facie case of H
   838     SUPREME COURT REPORTS              [2011] 7 S.C.R.


A. disproportionate assets against the appellant is made out.
    NotWithstanding that Vigilance Department chose to file
    charge-sheet after the retirement of the appellant and on
    that Special Judge had taken cognizance and issued
    process. In a case in which sanction sought is refused
B 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
c 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. The submission that
0 refusal to grant sanction under Section 19 of the
  · Prevention of Corruption Act, 1947 while the appellant
    was in service is of no consequence as undisputedly
    charge~sheet against the appellant was filed and further
    the Court had taken cognizance of the offence and issued
E process after his retirement, cannot be accepted. [Paras
    7 and 8) (842-E-G; 843-A-F]                        .

       1.2. On facts, the prosecution of the appellant shall
  be an abuse of the process of the Court. According to the
  First Information Report, app·ellant possessed
F disproportionate assets worth Rs.5.5 lakhs. However,
  according to the charge-sheet, the disproportionate
  assets were to the extent of Rs.1.44 lakhs only. The State .
  Government while declining to grant sanction for
  prosecution observed that assets possessed by the
G appellant are not disproportionate to his known source
  of income. Further, no disputed question being involved,
  the High Court instead of making observation as to
  "whether in instant case sanction order is necessary and
  whether that was refused by the State Government and
H what would be the consequence thereof' to be decided
     CHITTARANJAN DAS v. STATE OF ORISSA                    . 839


by the trial court, ought to have decided the issues itself. . A
The facts being not in dispute the High Court erred ih not
deciding these issues~ The order of the High Court is set
aside and the appellant's prosecution in pending in the
Court of Special Judge is quashed. [Para 10, 11 and 12]
[844-G-H; 845-A-D]                                             B

    N. Bharg'avan Pillai (dead) by LRs. & Anr. vs. State of
Kera/a AIR 2004 SC 2317 - distinguished.

                      Case Law Reference:
                                                                     c
    AIR 2004 SC 2317 ·            distinguished.        Para 8

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 820 of 2007.

    From the Judgment & Order dated 11.7.2006 of the High            D
Court of Orissa in Criminal Misc. Case No. 1499 of 2004.

    Vinod Bhagat for the Appellant.

    Suresh Chandra Tripathy for the Respondent.
                                                                     E
    The Judgment of the Court was delivered by
     CHANDRAMAULI KR. PRASAD, J. 1. Bereft of
unnecessary details the facts giving rise to the present appeal
are that the appellant, a member of the Orissa Administrative
Service, at the relevant time was serving as a Deputy Secretary      F
to the Government of Orissa in the Irrigation Department. The
officers of the Vigilance Department searched his house after
obtaining a search warrant·from the Court, on 17th March,
1992. It led to registration of a first information report against
the appellant. During the investigation, it was found that the       G
appellant . possessed disproportionate assets of
Rs.5,58, 752.40. As the appellant was removable from service
by the State Government, the Vigilance Department sought its
sanction for prosecution of the appellant. The State
Government by its letter dated 13th May, 1997, declined to grant     H
    840      SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A sanction and advised that the proposal for prosecuting the
    appellant be dropped. The appellant superannuated from
    service on 30th June, 1997. It seems that even after the
    retirement of the appellant, the Vigilance Department wrote on
    25th of March, 1998 for reconsideration of the earlier order
B refusing the sanction for prosecution of the appellant. The State
    Government by its letter dated 31st July, 1998 wrote back to
    the Vigilance Department and declined to grant sanction for
    prosecution, as in>its opinion there was no prima facie case
    against the appellant and the assets held by him were not
c _disproportionate to the known sources of his income.
    Accordingly, the State Government reiterated that there is "no
    justification for reconsideration of the earlier orders refusing the
    sanction of prosecution" of the appellant. Notwithstanding the
    aforesaid refusal of the Government, the Vigilance Department
    on 10th September, 1998 filed charge-sheet against the
0
    appellant under Section 5(2) read with Section 5(1)(e) of the
    Prevention of Corruption Act, 1947 alleging acquisition of
    disproportionate assets of Rs.1.44.234. 78 between 1st.
    January, 1980 and 31st December, 1985. The charge-sheet
E was laid before the Special Judge (Vig.). Bhubneshwar who
    by its order dated 2nd August, 1999 took cognizance of the
  · aforesaid offence and issued non-bailable warrant against the
    appellant.
        2. Appellant, aggrieved by the above order taking
F Cognizance of offence and issuance of the non-bailable warrant
   of arrest,· filed petition under Section 482 of the Code of
   Criminal Procedure seeking quashing of the aforesaid order
   inter alia on the ground that his prosecution without sanction of
  ·the State Government is bad in law but the High Court by its
G Order· dated 22nd September, 2003 disposed of the
   application with liberty to the appellant to raise this contention
   before Special Judge (Vig.) at the time of the framing of the
   charge.              · ·      ··       ·         ·      ·

          3. Appellant, thereafter filed an application for discharge
H before the trial court which dismissed the same by order dated ·
      CHITTARANJAN DAS v. STATE OF ORISSA                      841
         [CHANDRAMAULI KR. PRASAD, J.]

9th June, 2004 iriter alia on the ground that the appellant having     A
retired from service, prior sanction is not necessary. Appellant
challenged the aforesaid order before the High Court which by
the impugned.order rejected the challenge and while doing so
observed as follows:
                                                                       B
      "6. On a conspectus of the· facts and circumstances
      involved in the case and the position of law in the matter
      of sanction vis-a-vis the impugned order, this Court does
      not find any illegality in· that order so as to invoke the
      inherent power with a view to quash the impugned order.          C
      Be that is it1may, it is made clear that the disputed question
      as to· whether in the present case a sanction order is
      necessary and whether that was refused by the State
      Government and what is the consequence thereof, may be
      gone into at the time of trial if raised by the accused-
    . petitioner notwithstanding rejection of his application by the   D
      impugned order inasmuch as the foregoing discussion by
      this Court in any manner does not interfere with that right
      of the accused to be pursued; if so legally advised at the
      time of trial."
                                                                       E
     4. Mr. Vinoo Bhagat appearing on behalf of the appellant
submits that the State Government having refused to grant
sanction for prosecution and thereafter declined to reconsider
this decision and further having declined to grant sanction for
the prosecution of ·the appellant his prosecution is illegal and       F
an abuse of the process of the Court.

        5. M.r. S.C. Tripathy, however, appearing on beha.lf of the
  respondents submits that the charge-sheet was filed after the
  retirement of the appellant and in fact on that basis cognizance
  of the offence was taken and· process issued thereafter and          G
  hence, the appellant cannot challenge his prosecution·on the
.·ground of want of sanction. According to him, as the appellant
  ceased to be a public servant on the date when the Court took
  cognizance of the offence and issued process, sanction for his
  prosecution is not necessary at all.                                 H
    842       SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A      6. We do not have the slightest hesitation in accepting the
  broad submission of Mr. Tripathi that once the public servant
  ceases to be so on the date when the Court takes cognizance
  of the offence, there is no requirement of sanction under the
  Prevention of Corruption Act. However, the position is different
B in a case where Section 197 of the Code of Criminal
  Procedure has application. In fact, the submission advanced
  finds support from the judgment of this Court in the case of N.
  Bhargavan Pillai {dead) by LRs. & Anr. vs. State of Kera/a
  AIR 2004 SC 2317 where it has been held as follows:
c         "8. The correct legal position, therefore, is that an accused
          facing prosecution for offences under the Old Act or New
          Act cannot claim any immunity on the ground of want of
          sanction, if he ceased to be a public servant on the date
          when the Court took cognizance of the said offences. But
D         the position is different in cases where Section 197 of the
          Code has application."

        7. However, in the present case, we are faced with the
  situation in which Vigilance Department asked the State
E Government to grant sanction while the appellant herein was
  in service which it refused. Not only that Vigilance Department
  sought for reconsideration of the decision by the State
  Government which prayer was also rejected. In fact the State
  Government reiterated that there is no prima facie case against
F the appellant and the assets held by him were not
  disproportionate to the known sources of his income. Mr.
  Tripathy points out that refusal to grant sanction under Section
  19 of the Prevention of corruption Act, 1947while the appellant
  was in service is of no consequence as undisputedly charge-
G sheet against the appellant was filed and further the Court had
  taken cognizance of the offence and issued process after his
  retirement. He points out in the case of N. Bhargavan Pillai
  {Supra) sanction soughtfor was refused but this Court did not
  find any illegality in that.

H         8. We do not find any substance in the submission of Mr.
       CHITTARANJAN DAS v. STATE OF ORISSA                       843
          [CHANDRAMAULI KR. PRASAD, J.]

    Tripathy and the decil)ion relied on is clearly distinguishable.     A
    Sanction is a devise provided by law to safeguard public
    servants from vexatious and frivolous prosecution. It is to give
    them freedom and liberty to perform their duty without fear or
    favour and not succumb to the pressure of unscrupulous
    elements. It is a weapon at the hands of the sanctioning             s
    authority to protect the innocent public servants from uncalled
    for prosecution but not intended t9 shield the guilty. Here in the
    present case while the appellant was in service sanction sought
    for his prosecution was· declined by the State Government.
· . Vigilance Department did not challenge the same and allowed          c
 .·the appellant to ·retire from service. After the retirement,
   Vigilance Department requested the State Government to
    reconsider its decision, which was not only refused but the State
    Government while doing so clearly observed that no prima-
. f~cie case of disproportionate assets against the appellant is
                                                                         0
   made out. Notwithstanding that Vigilance Department chose to
   file charge-sheet after th.e retirement of the appellant and on
   that Special Judge had taken cognizance and issued process.
   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,        E
    notwithstan~ing 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       F
    public servant as in that case sanction is not at all necessary
    and any exercise in this regard would be action in futility.

      9. Now we revert to the decision of this Court in the case
 of N. Bhargavan Pillai (Supra) relied on by the respondents.            G
 True, it is that in paragraph 5 of the said judgment, it has been
 observed that"it is a case where the sanction which was sought
 for was refused" but from this paragraph, it is not clear whether
 it was sought before or after the retirement of the public servant.
 However, while reading the judgment as a whole, it is apparent          H
    844       SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A . that in this case Charge-sheet against the public servant was .
    filed after retirement. Further, sanction for his prosecution was
    sought and refused thereafter. This would be evident from the
    following narration of facts in the said judgment:

          "3 ............ The managing Director of the Corporation
8
          wrote to the Director of Vigilance (Investigation) along with
          a copy of Ext.P-1 report. The Director of Vigilance
          (Investigation) sanctioned registration of a case. On the
          basis of the direction the then Deputy Superintendent of
          Police, Vigilance, Kollam (PW-10) registered a case as
c         per Ext. P-39. He entrusted the investigation to Inspector
          of the Kollam Vigilance Unit-I (PW-11), who conducted the
          investigation and sent a report to his higher authorities. In
          the meantime, the accused retired from service on 28-
          2-1992. Since he had retired from service sanction. for
D         prosecution became unnecessary. The case was
          transferred to the newly established Pathanamthitta
          Vigilance Unit. PW-12, the Deputy Superintendent of
          Police, Vigilance, Pathanamthitta Unit who was put in
          charge of this case also verified the records and filed the
E         charge sheet."

                                                    (underlining ours)

         Thus in the case relied on, the sanction for prosecution
    was not necessary and therefore its refusal had no bearing on
F   the Trial of the public servant. However, in the present case
    sanction was sought and refused while the appellant was in
    service. Hence, this judgment does not lend any support to the
    contention of the respondents and is clearly distinguishable.

G      10. Otherwise also, the facts of the case are so telling.that
  we are of the opinion that the prosecution of the appellant shall
  be an abuse of the process of the Court. According to the First
  Information Report, appellant possessed disproportionate
  assets worth Rs.5.58 lakhs. However, according to the charge-
H sheet, the disproportionate assets were to the extent of Rs.1.44
       CHITTARANJAN DAS v. STATE OF ORISSA                      845
          [CHANDRAMAULI KR. PRASAD, J:]

 lakhs only. State Government while declining to grant sanction        A
 for prosecution observed that assets possessed by the
 appellant are not disproportionate to his known source of
 income.

      11. We are further of the opinion that no disputed question
                                                                       B
 being involved, the High Court instead of making observation
 as to "whether in present case sanction order is necessary and
 whether that was refused by the State Government and what
 would·be the consequence thereof' to be d~cided by the trial
 court, ought to have decided the issues itself. The facts being
 not in dispute the High Court erred in not deciding these issues.     C

        12. In the result, we allow this appeal, set aside the order
 · of the High Court. and quash· the appellant's prosecution in. TR
  ·No. 113:of.1999, pending in the C:ourt of Special Judge (Vig.)
·. Bhubaneshwar. .                         ·            ··             D

                                               . · Appeal allowed.