2009 Supreme(SC) 1404

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE MR. JUSTICE CYRIAC JOSEPH
State of Madhya Pradesh
Versus
Sheetla Sahai & Others
CRIMINAL APPEAL NO. OF 2009 [Arising out of SLP (Crl.) No. 4130 of 2006]
Decided on : 04-08-2009

IMPORTANT POINTS
Section 13(1)(d)(ii-iii) and section 13(2) of the PC Act, 1988 is attracted when a decision is made for wrongful gain to somebody or causing wrongful loss to the State.
Ingredients of conspiracy u/s 120B, IPC are pecuniary advantage for self or anybody else by abusing official position as public servant. Absence of public interest is the sine qua non.
Tests for framing of charge are different from that for recording a judgment of conviction.
Section 197 CrPC applies when a public servant acts in performance of his official duty.

Headnote:(a) Prevention of Corruption Act, 1988 – Section 13(1)(d)(ii-iii) and section 13(2) – World Bank and the State having divergent opinions – A fresh decision was taken in the exigencies of the situation – All authorities ad idem in the decision – The decision was collective – Even an independent authority like Financial Advisor recommending in favour of contractors – May be an error of judgment – Nothing on record to show that the decision was made for wrongful gain to somebody or causing wrongful loss to the State – Section 13(1)(d)(ii-iii) and section 13(2) not attracted. (Para 46, 47, 48)

       (b) Indian Penal Code, 1860 – Section 120B – Conspiracy – Ingredients – Pecuniary advantage for self or anybody else – Abusing official position as public servant – Absence of public interest is sine qua non – Instantly nothing to show that respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without any public interest – Further, prosecution proceeding against officials in pick and chose manner leaving some who were connected with construction of the dam and proceeding against those who had retired long before. (Para 54, 56)

       (1988) 3 SCC 609; (2005) 11 SCC 600; (2003) 3 SCC 641; (2008) 6 SCALE 469; 2007 AIR SCW 2532 – Relied upon on

       (c) Code of Criminal Procedure, 1973 – Sections 173(5) – Tests for framing of charge different from that for recording a judgment of conviction – Charge can be framed on strong suspicion, but conviction cannot be recorded unless charge is proved beyond reasonable doubt – Even for framing charges probative value of materials on record, for and against the accused have to be examined – If on such considerations court prima facie determines that the accused might have committed the crime, charges shall be framed – Instantly, court has not gone into the probative value of the materials on record. (Para 58, 59)

       (1996) 4 SCC 659 – Relied upon

       (2007) 5 SCC 403; (2006) 12 SCALE 654 – Referred

       (d) Prevention of Corruption Act, 1988 – Section 19 and section 197, Code of Criminal Procedure, 1973 – Sanction for prosecution – Distinction – Section 19 does not require sanction in respect of those who had ceased to be a public servant – Section 197 on the other hand, does not differentiate between current and ex- public servants – It requires sanction for both – Section 197 comes into play when the omission or commission by the public servant had reasonable connection with his official duty – Instantly respondents 1 to 7 were acting in the matter in performance of their official duty – Therefore section 197 became applicable and sanction was required for prosecuting respondents 1-7. (Para 60, 62, 66)

       (2006) 4 SCC 584; AIR 1956 SC 44 : (1955) 2 SCR 925; (1979) 4 SCC 177; (1996) 1 SCC 478; (2006) 1 SCC 557; (2007) 1 SCC 1; (2007) 11 SCC 273 – Relied upon

       (2005) 8 SCC 202 – Referred

       Facts of the case:

       Respondent No. 1 Sheetla Sahai was Minister for Water Resources of the State of Madhya Pradesh. Respondent No. 2 D.V.S.R. Sarma and the respondent No. 7 S.W. Mohgoankar were the Secretary to the Government of Madhya Pradesh. Respondent No. 3 P.V. Srinivasaiyah was the Engineer-in-Chief and the respondent No. 4 A.S. Laxminarsimhaiya was the Deputy Secretary in the Government of Madhya Pradesh. Respondent No. 5 V.R.B. Gopal and the respondent No. 6 M.N. Nadkarni were the Chief Engineers, Hasdeo Bango Project. Respondent No. 11 R.P. Khare was the Secretary, Control Board for Major Projects.

       Appellant under the aegies of the World Bank undertook construction of the Hasdeo Bango Masonry dam project. For the aforementioned purpose, the respondent Nos. 8, 9 and 10 herein, viz., M/s Progressive Constructions Pvt. Ltd., M/s Prasad & Company, M/s SEW Construction Co. (hereinafter referred to as "the contractors") were awarded contracts in terms whereof they were required to excavate stones etc. from Therma Pahar Quarry, which was situate at only 12 kms. away from the site, for use of the stone to be extracted therefrom for construction of masonry spillway.

       However when the work underwent execution, it was found that the said Therma Pahar Quarry did not contain enough construction material which was now required to be brought from another quarry from an average distance of 22 km.

       The authorities considering the change in lead requiring addition haulage of 10 km proposed additional payment therefor to the contractors. The World Bank, financing the project, opined that the additional payment should be within the contractual framework.

       This involved payment of Rs. 102 crores. The AG objected to the same and a criminal case under Prevention of Corruption Act, 1988 was registered.

       The Special Court took cognizance and framed the charges.

       The High Court allowed the revision petition.

       Finding of the Court:

       There is no merit in the appeal.

       Result:

       Appeal dismissed.