2022 Supreme(Pat) 285

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, J.
Rajendra Prasad @ Dr. Rajendra Prasad Son of Late Rammurti Yadav – Appellant
Versus
The State of Bihar through the Chief Secretary, Bihar, Patna. Bihar – Respondent
Criminal Writ Jurisdiction Case No.240 of 2022, Criminal Miscellaneous No.8186 of 2022
Decided on : 24-05-2022

Headnote:

Prevention of Corruption Act, 1988 – Section 17-A – Necessity of prior sanction of Chancellor to launch any investigation – Law does not classify offenders differently for treatment thereunder, including investigation and prosecution for offences according to their status in life – Every person accused of committing same offence is to be dealt with in same manner in accordance with law, which is equal in its application to everyone – Purpose behind enactment of Section 17(A) of Act was to give protection to public servants from threat and ignominy of malicious and vexatious inquiry/investigation and likelihood of them being put to trouble for taking honest decisions – What has been protected is action of a public servant which is relatable to any recommendation made by him or decision taken by such public servant in discharge of his official duties and not every action which prima facie is criminal in nature – Such public servants who responsibility to take major decisions must act fairly, fearlessly and impartially – Only to prevent any vexatious criminal action against them, without there being any foundational fact for the same, is what is sought to be prohibited by providing this protective insulation under Section 17(A), in the form of a pre-requisite of prior sanction before launching any investigation or lodging FIR – Legislature and Judiciary have all along been grappling with menace of corruption which has grown diametrically and which is having a continuous deleterious effect on entire economy of nation and confidence of general public about Government being run within constitutional framework – For accusation of corruption which is more often than not based on direct evidence, there would be no rationale for classifying them differently – Investigation of such offences would not be dependent on any inference by departmental head as to whether investigation should be undertaken – Any deviation from path of rectitude by such holders of public office would amount to breach of trust and that it must be severely dealt with. (Paras 37, 38, 41, 44, 46 and 60)

Prevention of Corruption Act, 1988 – Section 17-A – Necessity of prior sanction of Chancellor to launch any investigation – Many a times, decision taken under public law can be less advantageous or harmful for some persons, specially when a policy decision is taken at a higher level – In order to provide a protective, safe and congenial atmosphere for a public servant to undertake such decisions, a measure like Section 17(A) has been enacted – Classificatory protection which is a shield against unnecessary prosecution of honest officers, cannot be used as a sword to stifle prosecution for per-se criminal offences which can never be in discharge of official duty or in connection with any recommendation made by a high position holder of public office – Protective cover is in nature of a permitted exception to equality provision of Constitution – Any unnecessary and broad interpretation of section would defeat very purpose of such protective discrimination in favour of honest and dutiful officers – A public servant cannot act fearlessly if he is not insulated from frivolous and unnecessary complaints – Every decision made by him ought not to be looked at with suspicion or else no honest official would take any lead in taking any decision which might raise eyebrows of some section of society. (Paras 84, 88 and 89)

Delhi Special Police Establishment Act, 1946 – Section 6(A) – Approval of Central Government to conduct inquiry or investigation – Classification in Section 6(A) on the basis of status in Government service, is impermissible under Article 14 as it defeated very purpose of finding prima facie truth into allegation of graft which amounts to an offence under Prevention of Corruption Act, 1988 – Essence of police investigation is skilful inquiry and collection of material and evidence in a manner by which potential culpable individuals are not forewarned – Previous approval of Government would result in indirectly putting to notice officers to be investigated before commencement of investigation. (Paras 54 and 55)

Criminal Procedure Code, 1973 – Section 197 – Sanction for prosecution of public servant – If act complained has no nexus or reasonable connection or relevance to official act or duty and act is otherwise illegal, unlawful or in nature of an offence, shelter of Section 197 Cr.P.C. is not available, which protection is qualified and conditional – Protective shield is for an honest public servant and not for a corrupt one – Not every offence committed by a public servant that requires sanction under 197(1) of Cr.P.C. nor every act done by him while he is actually engaged in performance of his official duties, so that, if questioned, it could be claimed to have been done by virtue of office – It is only when act complained of is directly connected with official duties that sanction is necessary – It is required to be found out whether act complained against and official duty are so interrelated that one can postulate reasonably that it was done by accused in performance of official duty, though possibly in excess of needs and requirements of situation – Requirement of such sanction would have to be determined from stage to stage of case. (Paras 71, 74, 75, 81 and 82)

Criminal Procedure Code, 1973 – Sections 438 and 482 – Prevention of Corruption Act, 1988 – Section 17-A – Anticipatory bail petition – Allegation of indulging in corruption while working as Vice-Chancellor of University – Grant of bail is rule and refusal an exception so as to ensure that accused has opportunity of securing fair trial – However, while considering the same, gravity of offence is an aspect which is required to be kept in mind by court – Act of petitioner does not at all appear to be in discharge of his official duty or in connection with any recommendation made, entitling protection under Section 17(A) of Act – Petitioner in his capacity as Vice Chancellor, has not recommended that rules of procedure be put on hold because of some supervening circumstance/urgency of situation, but has stealthily procured items at high cost from private firms against specific advice – Petitioner has shown scant regard in standards of public life – For reason of gravity of offence committed by petitioner while holding high office of Vice Chancellor, his making attempts at influencing witnesses and tampering with evidence and not cooperating with investigation, respondent SVU has made out a case for custodial interrogation of petitioner – Petitions rejected. (Paras 103, 105, 106, 118, 122, 123, 129, 130 and 131)