STATE OF PUNJABversusLABH SINGH

A
                       (2014] 11 S.C.R. 312

                       STATE OF PUNJAB
                                v.
                                                                  •
                           LABH SINGH
              . (Criminal Appeal No. 2168 of 2010)
                      DECEMBER 17. 2014
B
         [DIPAK MISRA AND UDAY UMESH LALIT, JJ.]

        Prevention of Corruption Act, 1988: s. 13(1 )(c) rlw
  s.13(1)(2); Penal Code, 1860 - ss.2181409146514671120-8 -
C Sanction for prosecution of retired employees - Held:
  Sanction to prosecute public servant for the offences under
  POC Act is not required if the public servant had already
  retired on the date of cognizance by the Court - However
  prosecution u/s.197 Cr.P.C is available to the concerned
  public servant even after retirement - Code of Criminal
0
  Procedure, 193 - s.197.

        Partly allowing the appeal, the court

         HELD: In the present case the public servants in
E   question had retired on 13.12.1999 and 30.04.2000. The
    sanction to prosecute them was rejected subsequent to
    their retirement. The public servants having retired from
    service there was no occasion to consider grant of
    sanction under section 19 of the POC Act. The law on the
F   point is quite clear that sanction to prosecute the public
    servant for the offences under the POC Act is not
    required if the public servant had already retired on the
    date of cognizance by the court. The High Court was
    therefore, not, justified in setting aside the order passed
    by the Special Judge insofar as charge under the POC
G   Act was concerned. However, as regards charges for the
    offences punishable under the IPC, the High Court was
    absolutely right in setting aside the order of the Special
    Judge. Unlike section 19 of the POC Act, the protection
    under section 197 of Cr.P.C. is available to the concerned
H                                 312
•        STATE OF PUNJAB v. LABH SINGH


public servant even after retirement. Therefore, if the
matter was considered by the sanctioning authority and
                                                         313

                                                                A

the sanction to prosecute was rejected first on 13.09.2000
and secondly on 24.09.2003, the court could not have
taken cognizance insofar as the offences punishable
under the Indian Penal Code are concerned. The                  B
recourse in such cases is either to challenge the order
of the Sanctioning Authority or to approach it again if
there is any fresh material. The prosecution cannot keep
waiting till a public servant retires and then choose to file
charge-sheet against him after his retirement, thereby          C
setting at naught the protection available to him under
Section 19 of the POC Act. [Paras 7, 8] [317-C-E, G; 318-
A-D, F]
     S. A. Venkataraman v. State 1958 SCR 1040; C.R.
Bansi v. State of Maharashtra (1970) 3 SCC 537; 1971 (3) D
 SCR 236; Kalicharan Mahapatra v. State of Orissa (1998)
6 SCC 411: 1998 (3) SCR 961; K. Veeraswamy v. Union of
India (1977) 3 SCC 440: 1977 (3) SCR 758; State of
Himachal Pradesh v. Nishant Sareen (2010) 14 SCC 527:
2010 (13) SCR 1200 - relied on.                          E
                     Case Law Reference:
    1958 SCR 1040            Relied on            Para 7
    1971 (3) SCR 236         Relied on            Para 7
                                                                F
    1998 (3) SCR 961         Relied on            Para 7
    1977 (3) SCR 758         Relied on            Para 7
    2010 (13) SCR 1200       Relied on            Para 8
                                                                G
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2168 of 2010.

    From the Judgment & Order dated 17 .01.2006 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Revision
No. 1743 of 2005.                                               H
    314      SUPREME COURT REPORTS               [2014] 11 S.C.R. •


A         Sanchar Anand, Kuldip Singh for the Appellant.

        Jaspreet Gogia, Vipin Gogia, Brijendra Singh for the
    Respondent.

          The Judgment of the Court was delivered by
B
       UDAY UMESH LAUT, J.1. This appeal by special leave
  challenges the judgment and order dated 17.01.2006 passed
  by the High Court of Punjab and Haryana in Criminal Revision
  No.17 43 of 2005 whereby it set aside the order of the Special
C Judge, Patiala dated 07.06.2005 framing charges against one
  Sikandar Singh and the present respondent.

       2. FIR No.57 was lodged with Police Station, Vigilance
  Bureau, Patiala Range, Patiala on 13.08.1997. It was alleged
0 that semi-Government letter dated 04.03.1994 had stated that
  pursuant to certain raids conducted at the site for checking the
  earth work done on Bhakra main line, it was found that as ,
  regards four projects cross sections/estimates were not
  prepared before doing any work and that it appeared that the
E estimates were actually prepared by the concerned
  Government servants after completion of work thereby violating
  provisions of PWD code and causing loss to the tune of
  Rs.3,69,603 to the exchequer. Pursuant to said FIR crime was
  registered and investigation was undertaken by the Vigilance
F Bureau.

        3. When request was made for grant of sanction to
  prosecute the Government servants in question, it was refused
  by the department on 13.09.2000. Yet another attempt was
  made in the year 2003 requesting sanction to prosecute but
G such request was again rejected by the department on
  24.09.2003. Despite such refusal for issuance of sanction,
  challan under section 173 of Criminal Procedure Code was
  filed on 09.11.2004 in the court of Additional Sessions Judge/
  Special Judge, Patiala. The allegations in the challan dated
H 09.11.2004 were to the following effect:
••            STATE OF PUNJAB v. LABH SINGH
                   [UDAY UMESH LAUT, J.]
                                                                   315


         "During the checking of the aforesaid works, it was found         A
         that regarding the work done on the above mentioned 4
         works, cross sections/estimates etc. have not been
         prepared, which is mandatory before doing any work. From
         this, it appears that after completing the work, this was
         done to prepare cross sections estimates according to             B
         their own wish by the suspected officers. Checking memo
         was prepared at the spot, upon which signatures of
         concerned J.E and Sub Divisional Engineer were
         obtained, who admitted that before doing the aforesaid
         works, they did not prepare any cross section or estimates.       c
         From this, it is clearly established that the suspected officer
         did not get prepared the cross sections and estimates for
         embezzling the government treasury at a large scale. In the
         aforesaid works, for starting/finishing the repair works
         without preparing estimates, the following officers are           D
         responsible.·

         The challan so presented had arrayed two public servants
     namely Shri Sikandar Singh, SDO and Shri Labh Singh, Junior
     Engineer in addition to five private individuals. Shri Sikandar
     Singh and Shri Labh Singh had retired on 13.12.1999 and               E
     30.04.2000 respectively, i.e., even before the request for
     issuance of sanction was rejected on the first occasion. The
     aspect regarding their retirement and refusal to grant sanction
     was dealt with in the challan in following terms:
                                                                           F
         "In view of the refusal of granting sanction for prosecution
         by the department, it is impossible to present challan
         against the employees who are in service, but the
         employees who have retired, challan can be presented
         against them in the court."                                       G
          4. The Special Judge framed charges on 07.06.2005
     against all seven accused for the offences under sections 218/
     409/465/467/1208 IPC and under section 13(1)(C) read with
     section 13( 1)(2) of the Prevention of Corruption Act, 1988
     ('POC' Act, for short). Out of six charges framed, one pertained      H
    316      SUPREME COURT REPORTS                 (2014) 11 S.C.R.      •   .


A   to the offence under section 13(1)(C) read with section 13(1)(2)
    of the POC Act while other five related to offences under the
    Indian Penal Code.

        5. The public servants namely Sikandar Singh and Labh
B Singh challenged the aforesaid order dated 07.06.2005 by
  filing Criminal Revision No.1743 of 2005 in the. High Court of
  Punjab and Haryana. The High Court took the view that the
  department had refused sanction to prosecute public servants '
  and yet a challan was presented on the premise that no
c sanction was required after retirement of those public servants.
  The High Court observed;

          "These petitioners and others have been charged for
          offence under the Prevention of Corruption Act and also
          for offences under the Indian Penal Code. Section 197
D         Cr.P.C. bars cognizance by the Court of an offence by a
          public servant even after retirement. Even otherwise, it is
          discriminatory for the petitioners when other co-accused
          who are still in service, cannot be prosecuted for want of
          sanction and present petitioners are being prosecuted only
E         because they have retired."                                ·

        The High Court allowed the petition and set aside the order
    dated 07.06.2005 passed by the Special Judge, Patiala.

        6. This appeal by State of Punjab takes exception to the
F order of the High Court. During the pendency of this appeal the
  first respondent Sikandar Singh expired and his name was
  deleted from the array of parties vide order dated 20.09.201 O
  passed by this Court, leaving Labh Singh as the only
  respondent before the Court. The stand taken in the petition of
G appeal on behalf of the appellant is as under:

          "It is humbly submitted that order passed by Hon'ble High
          Court is erroneous in law as u/s 197 Cr.P.C. respondents
          can be convicted and no previous sanction is required as
H         the respondents are no longer in service and have been.
•               STATE OF PUNJAB v. LABH SINGH
                     [UDAY UMESH LAUT, J.]
                                                             317


          retired in the years 1999/2000. Secondly, there was no A
          discrimination as the other persons were in service and
          since respondents have been retired no previous sanction
          is required. It was also submitted that other persons will
          also be prosecuted as and when they are retired."
                                                                     B
          Appearing for the State Mr. Sanchar Anand, learned
    advocate submitted that sanction to prosecute was not required
    at all. Ms. Jaspreet Gogia, learned advocate appearing for the
    respondent supported the view taken by the High Court.

          7. In the present case the public servants in question had C
    retired on 13.12.1999 and 30.04.2000. The sanction to
    prosecute them was rejected subsequent to their retirement i.e.
    first on 13.09.2000 and later on 24.09.2003. The public servants
    having retired from service there was no occasion to consider
    grant of sanction under section 19 of the POC Act. The law on D
    the point is quite clear that sanction to prosecute the public
    servant for the offences under the POC Act is not required if
    the public servant had already retired on the date of cognizance
    by the court. In S.A. Venkataraman v. State' while construing
    section 6(1) of the Prevention of Corruption Act, 1947 which E
    provision is in pari materia with section 19(1) of the POC Act,
    this court held that no sanction was necessary in the case of a
    person who had ceased to be the public servant at the time the
    court was asked to take cognizance. The view taken in S. A.
    Venkataraman (supra) was adopted by this court in C.R. F
    Bansi v. State of Maharashtra2 and in Kalicharan Mahapatra
    v. State of Orissa3 and by the Constitution Bench of this court
    in K. Veeraswamy v. Union of lndia. 4 The High Court was
    not therefore justified in setting aside the order passed by the
                                                                     G
    1.   1958 SCR 1040.
    2.   (1970) 3 sec 537.
    3.   (1998) a sec 411.
    4.   (1977) 3   sec 440.                                         H
    318       SUPREME COURT REPORTS                 [2014] 11 S.C.R         •

A   Special Judge insofar as charge under the POC Act was ·
    concerned.

          8. However as regards charges for the offences punishable
    under the IPC concerned the High Court was absolutely right in
8   setting aside the order of the Special Judge. Unlike section 19
    of the POC Act, the protection under section 197 of Cr.P.C. is
    available to the concerned public servant even after retirement.
    Therefore, if the matter was considered by the sanctioning
    authority and the sanction to prosecute was rejected first on
c   13.09.2000 and secondly on 24.09.2003, the court could not
    have taken cognizance insofar as the offences punishable under
    the Indian Penal Code are concerned. As laid down by this
    Court in State of Himachal Pradesh v. Nishant Sareen, the
    recourse in such cases is either to challenge the order of the
    Sanctioning Authority or to approach it again if there is any fresh
0
    material.

        9. In the circumstances, in our view the order under appeal
    passed by the High Court is correct insofar as charges under
    IPC are concerned but must be set aside as regards charge
E   under POC Act is concerned.

          10. Before we part, we must record that we do not approve
    the stand taken by the appellant in the petition. The prosecution
    cannot keep waiting till a public servant retires and then choose
F to file charge-sheet against him after his retirement, thereby
    setting at naught the protection available to him under Section
  · 19-of the poc Act. The appeal thus stands allowed partly. No
    order as to costs.

G   Devika Gujral                                  Appeal partly allowed.