NEERA YADAV vs C. B. I. (BHARAT SANGH)

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(All) 255

[2006(2) ADJ 4 (All)(FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : SYED RAFAT ALAM, SUNIL AMBWANI AND SUDHIR AGARWAL, JJ.
Smt. NEERA YADAV ....Revisionists
Versus
C.B.I. (BHARAT SANGH) ....Respondent
(Criminal Revision Nos. 2282, 2283, 2284, 2300 of 2004 and Criminal Misc. Application No. 11017, 11018, 11019, 11187, 11227 of 2002 decided on 25th January, 2006)
And
DR. MAHESH SHARMA
versus
STATE OF U.P. AND ANOTHER
(Criminal Revision No. 2161, 1859 of 2004)
ASHOK CHATURVEDI
versus
CENTRAL BUREAU OF INVESTIGATION
(Criminal revision No. 2191, 1892 of 2004)
And
RAJIV KUMAR
Versus
CENTRAL BUREAU OF INVESTIGATION
(Criminal Revision No. 3216 of 2004 and 10978 of 2002)

Advocates:
Counsel :
D.S. Misra, Sushil Kumar, U.N. Sharma and V.P. Srivastava for the Applicants; G.S. Hajela for C.B.I.

Headnote:[Arising out of Division Bench Judgment delivered by Chief Justice A.N. Ray and Ashok Bhushan, J. on 28-11-2005 Reported in 2005 ADJ 430]*
       (A) Allotment and conversion of plots—Grant of sanction, against accused-appellants (I.A.S. Officers and Public Servant of Central Government) under Section 19 (1)(c) of P.C. Act of 1988, by Central Government—But no sanction granted under Section 197, Cr. P.C., 1973—No requirement of further sanction under Section 197, as held by Full Bench—Two different opinions, on question of requirement of sanction under Section 197—Question referred to Full Bench for its Answers that, inspite of grant of sanction, under Section 19(1)(c) of P.C. Act of 1988, by Central Government, whether a further sanction under Section 197, would be necessary—And, if so, effect of absence thereof—Held—(i) Section 197, nowhere suggests that sanction therein, was over and above, and in addition to a sanction, already provided under Special Act; (ii) argument that where act was in discharge of official duties, for prosecution, under provisions of P.C. Act of 1988, sanction under Section 197, would be required, was clearly fallacious; (iii) in Act of 1988, specific provision has been made, for sanction—So, neither correct, nor permissible to import provision of Cr. P.C., 1973, unless it was specifically provided under Act of 1988, i.e., special enactment; (iv) since provision, pertaining to sanction, were in public interest, and that stand satisfied, any objection, with respect to sanction, would not vitiate trial; (v) two petitioners were not covered by either sub-section (1)(a) or (b) of Section 197, (against whom three charge-sheets, contains offence under Section 13(1)(d) and (2) of P.C. Act of 1988, read with Section 120-B of I.P.C. and one charge, under Section 13(1)(d) and (2) of Act of 1988, work undertaken and performed by them in NOIDA, in connection with affairs of State Government, but during cognizance by special Judge were acting in Delhi in relation to affairs of Union); (vi) therefore, it cannot be said that sanction under both Acts, i.e., Act of 1988, and Cr. P.C., 1973, was necessary; (vii) offence of criminal conspiracy, under Section 120-B, I.P.C. would also not be within term “in discharge of official duty”—And, therefore, Section 197, has no application at all—Therefore, for prosecution, under P.C. Act of 1988, once sanction, under Section 19 of said Act, was granted, there was no necessity, for obtaining further sanction, under Section 197, from State Government, or any other authority, merely because public servant was charged under Section 120-B of I.P.C.—Moreover, offences under P.C. Act of 1988, as well charge of criminal conspiracy, cannot be said to constitute “acts in discharge of official duty”—Therefore, Full Bench, directed to place all records of case before Division Bench, for necessary orders. [Prevention of Corruption Act, 1988—Section 19(1)(c)—Criminal Procedure Code, 1973—Sections 197 and 482] [Paras 52, 107, 129, 148 to 153]
       (B) Prevention of Corruption Act, 1988—Preamble—Prevention of Corruption Act, 1947—Preamble—Their Objectives, ambit, scope and purpose. [Paras 70, 71 and 72]
       (C) Sanction—For criminal prosecution—Its purpose and objectives. [Paras 80 and 93]
       (D) Sanction—For criminal prosecution—Cadre Controlling Authority—Whether Government of India, or State of Uttar Pradesh. [Paras 94 to 99]

JUDGMENT

By the Court—The Division Bench after hearing the aforesaid matter, delivered two different opinions on the question of requirement of sanction under Section 197 of Criminal Procedure Code, 1973 (in short the Cr.P.C), and has referred the questions to be answered by the Full Bench. The basic issue relates to the requirement of sanction by the State Government under Section 197, Cr.P.C. for prosecuting a serving public servant under the provisions of Prevention of Corruption Act, 1988 (in short ‘the Act of 1988’) as well as the Indian Penal Code, when sanction under Section 19 of the Act of 1988 has been granted by the Central Government. Whether in such case, a further sanction under Section 197, Cr.P.C. will also be necessary, and if so, the effect of the absence thereof.

2. In order to appreciate the issues arising in the case, it is necessary to examine the facts of the case upon which the issues have arisen.

3. The petitioners, Smt. Neera Yadav and Shri Rajiv Kumar are members of the Indian Administrative Service of U.P. cadre. Smt. Neera Yadav was posted as Chairman and Chief Executive Officer, New Okhla Industrial Development Authority (in short NOIDA) vide order dated 7.3.94 (Annex. S.R.A.5 (Cha) in Special Appeal No. 2300/2004) in pursuance thereto she joined on 10.1.94 and worked till 8.11.1995. Sri Rajeev Kumar was posted as Deputy Chief Executive Officer, NOIDA during the relevant time.

4. Alleging that in aforesaid capacity lots of irregularities and illegalities were committed by them along with others, a writ petition (C) No. 150/97 was filed before the Apex Court under Article 32 of the Constitution of India as a Public Interest Litigation by NOIDA Entrepreneurs Association, wherein the Hon’ble Apex Court passed an order dated 20.1.98 directing the Central Bureau of Investigation (in short ‘CBI’) to investigate into the allotment of plots of NOIDA and to launch prosecution and departmental inquiries on the basis of investigation, if the same is called for.

5. For brevity the order of the Hon’ble Supreme Court is quoted as under :

“In pursuance to the order dated January 6, 1998, an affidavit of Shri Sudhir Kumar, Secretary (Appointment), Government of U.P. has been filed on behalf of the State of U.P. wherein the course of the action which the State Govt. proposes to adopt with regard to the report of the Inquiry Commission has been indicated. It has been stated that the State Govt. proposes to initiate disciplinary proceedings against respondent No. 7 and to have the charges about which the Commission has expressed its inability to give specific recommendation for want of further investigation to be inquired into by the Vigilance Department of the State. Having regard to the seriousness of the allegations that have been made in the matter of irregularities in the matter of allotment as well as conversion of plots in NOIDA we are of the opinion that it would be appropriate that the matter is investigated by the Central Bureau of Investigation (CBI) and if such investigation discloses commission of a criminal offence the persons found responsible should be prosecuted in a criminal Court. For the time being, we are directing the CBI to conduct an investigation in respect of the irregularities in the matter of allotments and conversions of the plots to which reference has been made in the letters of the Director (CBI) dated December 6, 1995 and December 16, 1996 (at pages 115 and 116 of the paper book) and the self-contained note appended to the letter dated December 16, 1996.

Shri G.L. Sanghi, the learned senior counsel appearing for respondent No. 7 states that though the respondent No. 7 does not admit that she has committed any irregularity in the matter of allotment or conversion of plots in NOIDA but according to respondent No. 7 there are other persons who might have committed such irregularity and he seeks leave to file an affidavit in this regard. He may file an affidavit giving particulars of s

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2006 Supreme(All) 255

Cases Referred (50)