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SUPREME COURT OF INDIA
V. GOPALA GOWDA, AMITAVA ROY, JJ.
PROF. N.K. GANGULY - APPELLANT
Vs.
CBI NEW DELHI - RESPONDENT
Criminal Appeal Nos. 798, 799, 800, 801, 930, 1537 of 2015 (Arising Out of SLP (Crl) No.9838 of 2015 @ SLP (Crl) …… Crl. M.P. No. 9612 of 2015)
Decided on : 19-11-2015
AIR 1951 SC 207; AIR 1955 SC 287; AIR 1939 FC 43; AIR 1955 SC 309; AIR 1948 PC 128; AIR 1956 SC 44; AIR 1960 SC 266; AIR 1966 SC 220; (1979) 4 SCC 177; (1984) 2 SCC 183; (1996) 1 SCC 478; (2000) 8 SCC 500; (2006) 4 SCC 584; (2009)8 SCC 617 – Relied upon
AIR 1950 Cal 437; (2007) 1 SCC 1 – Referred
Facts of the case:
On 30.11.2010, a criminal case was registered under Section 120-B of the Indian Penal Code read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 on the basis of written complaint filed by M.R. Atrey, Sub-Inspector of Police, CBI, EOU, VII, New Delhi against the appellants herein namely N.K. Ganguly, the then Director General, Mohinder Singh, the then Sr.Dy. Director General-Admin, P.D. Seth, the then Financial Advisor, A.K. Srivastava, Executive Engineer, all from ICMR, New Delhi and B.C. Das, the then Director ICPO, NOIDA and other unknown persons in the matter relating to the alleged unauthorized and illegal transfer of plot no.119, Sector 35, NOIDA, measuring 9712.62 sq. meters from ICPO, NOIDA to ICPO-ICMR Cooperative Group Housing Society Ltd. NOIDA.
During the course of investigation by CBI, apart from the aforesaid named accused persons in the FIR, the fact of the involvement of other officials namely, L.D. Pushp, the then Administrative Officer, ICPO, Jatinder Singh, the then Senior Accounts Officer, ICMR, Dr. S.K. Bhattacharya, the then Additional Director General, ICMR, Dr. Bela Shah, Head of NCD Division, ICMR, Smt. Bhawani Thiagarajan, the then Joint Secretary, Ministry of Health and Family Welfare, Government of India, S.C. Pabreja, the then Manager (Residential Plots), NOIDA and R.S. Yadav, OSD (Residential Plots), NOIDA, was revealed.
A charge-sheet was filed against the appellants for the alleged offences committed by them on account of unauthorized and illegal transfer of the plot in question in favour of the ICPO-ICMR Housing Society.
The competent authority of NOIDA declined to grant sanction under Section 19 of the P.C. Act, 1988 for prosecuting A.K. Srivastava and Dr. Bela Shah. The charge-sheet was filed before the learned Special Judge, Anti Corruption, CBI against all the appellants, except R.S. Yadav, OSD, NOIDA, under Section 173(2) of CrPC for the offences punishable under Section 120-B of IPC read with Section 13(1)(d) and 13(2) of the P.C. Act, 1988. The requisite sanction for prosecution against R.S. Yadav was declined by the Competent Authority.
The Special Judge vide his order dated 08.11.2012 has taken cognizance and summons were issued against the appellants to face the trial for the said offences.
The appellants filed applications before the High Court under Section 482 of CrPC praying that the entire proceedings on the file of the learned Special Judge in the case No. 18 of 2012 be quashed. The High Court refused to interfere with the order of the learned Special Judge dated 08.11.2012 and dismissed the same.
Finding of the Court:
Impugned judgment is not sustainable.
Result: Appeals allowed.
Key Points: - The judgment considers whether prior sanction under Section 197 CrPC is required before taking cognizance for offences allegedly committed in discharge of official duty. (!) (!) (!) - It discusses the legality and validity of cognizance taken without such sanction and quashing proceedings if sanction is mandatory and absent. (!) (!) (!) - It analyzes the scope of Section 197(1) CrPC, the concept of official duty, and how the act must relate to official functions to attract sanction protection. (!) (!) (!) (!)
Judgment
V. Gopala Gowda, J.
Delay condoned. Leave granted in Special Leave Petition (Crl) ……… Crl. M.P. No. 9612 of 2015.
2. These appeals arise out of the common judgment and order dated 27.05.2013 passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of 2012 and judgment and order by the High Court of Judicature at Allahabad dated and order 07.10.2014 passed in Application No. 277KH of 2014 in Special Case No. 18 of 2012 by the learned Special Judge, whereby the High Court dismissed the applications filed by the appellants herein under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the CrPC”) to quash the criminal proceedings of Special Case No. 18 of 2012 as well as the summoning order dated 08.11.2012 passed by the learned Special Judge, Anti Corruption, CBI, Ghaziabad. All the appeals are being disposed of by this common judgment.
3. As the facts in all the appeals are common, for the sake of convenience, we refer to the facts of Criminal Appeal No. 798 of 2015, in this judgment which are briefly stated hereunder:
4. The Indian Council of Medical Research (hereinafter referred to as “ICMR”), a registered society under the Societies Registration Act, 1860 is a premier research institute dealing with the formulation, coordination and promotion of bio-medical research. Its functional object is to initiate, aid develop and coordinate medical and scientific research in India and to promote and assist institutions for the study of diseases, their prevention, causation and remedy. It is fully funded by the Government of India through Department of Health Research, Ministry of Health and Family Welfare. The Institute of Cytology & Preventive Oncology (hereinafter referred to as “ICPO”) is one of the institutes of ICMR, the main aim of which is to promote research in the field of cancer.
5. On 30.11.2010, a criminal case was registered under Section 120-B of the Indian Penal Code (hereinafter referred to as the “IPC”) read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “P.C. Act, 1988”) on the basis of written complaint filed by M.R. Atrey, Sub-Inspector of Police, CBI, EOU, VII, New Delhi against the appellants herein namely N.K. Ganguly, the then Director General, Mohinder Singh, the then Sr.Dy. Director General-Admin, P.D. Seth, the then Financial Advisor, A.K. Srivastava, Executive Engineer, all from ICMR, New Delhi and B.C. Das, the then Director ICPO, NOIDA and other unknown persons in the matter relating to the alleged unauthorized and illegal transfer of plot no.119, Sector 35, NOIDA, measuring 9712.62 sq. meters from ICPO, NOIDA to ICPO-ICMR Cooperative Group Housing Society Ltd. NOIDA (hereinafter referred to as the “ICPO-ICMR Housing Society”).
6. In the preliminary inquiry in the matter, it was found that the aforesaid officials and the other unknown persons had entered into a criminal conspiracy by abusing their official position as public servants and had unauthorisedly and illegally transferred the aforesaid plot from ICPO to ICPO-ICMR Housing Society at a consideration of Rs.4,33,90,337/- which was much lower than the then prevailing sector rate of Rs.18,000/- per sq.mtrs. of NOIDA, thereby, giving themselves and other members of the ICPO-ICMR Housing Society an undue pecuniary advantage. It was also revealed in the enquiry that the membership of the ICPO-ICMR Housing Society was granted to such persons who were otherwise not eligible for getting membership as per the bye-laws of the society and terms and conditions stipulated and approved by ICMR for membership in the said society. It was further revealed that the officers of New Okhla Industrial Development Authority (hereinafter referred to as “NOIDA”) allowed the transfer of the said plot unauthorisedly and illegally from ICPO to ICPO-ICMR Housing Society, despite the fact that they were not competent to pass such order of transfer.
7. During the course of inve
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