IMPORTANT POINTS
A public servant cannot be prosecuted either under IPC or PC Act in absence of sanction by Government.
Protection under section 19(1) PC Act ceases after retirement of the public servant. Thereafter sanction is not required.
However, protection of section 197, CrPC continues even after retirement. Therefore a public servant cannot be prosecuted for offences punishable under IPC unless sanction from Government is obtained.

JUDGMENT

Uday Umesh Lalit, 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.1743 of 2005 whereby it set aside the order of the Special 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 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 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 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 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 09.11.2004 were to the following effect:

“During the checking of the aforesaid works, it was found 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 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. 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 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 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:

“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.”

4. The Special Judge framed charges on 07.06.2005 against all seven accused for the offences under sections 218/409/465/467/120B 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 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 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 prese