The Lucknow Bench of the Allahabad High Court has rejected an application observing that where the investigation of an offence has been entrusted to the CBI pursuant to an order passed by the Constitutional Court and role of a public servant comes as an accused for committing such an offence, no prior sanction under Section 19 PC Act would be required for prosecuting such a public servant.
A Single Bench of Justice Dinesh Kumar Singh passed this order while hearing an application filed by Dr Syed Fareed Haider Rizvi @ Dr S.F.H Rizvi.
The application under Section 482 of The Code of Criminal Procedure, 1973 has been filed, impugning the order dated 13.12.2018, issuing non-bailable warrants of arrest against the applicant in connection with Criminal Case under Sections 120-B read with Sections 420 and 409 Indian Penal Code, 1860 and Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988, pending in the Court of the Special Judge, CBI, Lucknow, arising out of Crime lodged at Police Station CBI/ACB, Lucknow.
In this matter, the applicant was a public servant, employed/posted as District Development Officer, Balrampur during the years 2007 to 2009; at the relevant time, large scale of financial bungling, gross irregularities and misappropriation of public funds allocated under the National Rural Employment Guarantee Scheme (NREGS) was reported to have been done by the then government officers/officials in criminal conspiracy and connivance with the private suppliers in purchase of stationery and other materials.
Public Interest Litigation Petition came to be filed by Sachchidanand Gupta before this Court regarding large scale corruption, bungling and misappropriation of NREGS funds by the Block Development Officers and other government officers/officials in connivance with the private suppliers in the centralized purchase of stationery and other items worth Rs 1,81,18,602/- on exorbitant price by the then Chief Development Officer, Project Director, DRDA and other officers of District Balrampur. These government officers/officials and private persons had allegedly caused huge losses to the government exchequer and made corresponding gains to themselves. A prayer was made for registration of the FIR and investigation by the Central Bureau of Investigation.
The Court order dated 31.01.2014 passed Public Interest Litigation Petition, issued a Mandamus directing the CBI to investigate the abuse and misappropriation of funds allocated under the NREGS with regard to seven districts of State of Uttar Pradesh, namely, Balrampur, Gonda, Mahoba, Sonbhadra, Sant Kabir Nagar, Mirzapur and Kushinagar during the years 2007 to 2010 and take appropriate action and prosecute the persons involved, in accordance with law.
The Court noted that,
Pursuant to the said order, reports of State Quality Monitor (SQM) in respect of seven districts, mentioned above, for the relevant period, were examined by the CBI. It was revealed that in District Balrampur during the period 2007- 2008 and 2008-2009 large scale financial bungling, gross irregularities and misappropriation of NREGS funds had been found to have been done by the Block Development Officer and other government officers/officials in connivance with private suppliers in the central purchase of stationery and other items worth Rs 1,81,18,602/- on exorbitant price by the then Chief Development Officer, Project Director, DRDA and other officers of District Balrampur in connivance with the private suppliers and thereby they had caused a huge loss to the government exchequer and made corresponding gains to themselves.
The CBI after conducting a thorough investigation, lodged the FIR on 21.02.2014 and filed charge-sheet under Section 173(2) CrPC dated 15.11.2018 under Section 120-B read with Sections 420 and 409 IPC and Sections 13(2) read with Sections 13(1)(d) of the PC Act and substantive offences thereof.
The CBI found the applicant as one of the architects of the crime, who was posted at the relevant time as District Development Officer, Balrampur. However, he retired from service when the chargesheet came to be filed.
The trial Court took cognizance on 23.11.2018 and issued summons for the appearance of the applicant and co-accused on 30.11.2018.
The applicant did not appear on 30.11.2018 and thereafter non bailable warrants of arrest were issued.
The only ground, which has been urged by Nandit Kumar Srivastava, Senior Counsel, appearing for the applicant, is that without seeking sanction from the competent authority, the order, taking cognizance on charge-sheet and further proceedings, including issuance of non-bailable warrants of arrest, are nullity.
The Senior Counsel has submitted that in view of amendment in PC Act the sanction for prosecution of a person, who was a public servant at the time of commission of the offence, is must.
The Senior Counsel has further submitted that the cognizance was taken on 23.11.2018 and the amendment in Section 19 PC Act received President’s assent on 26.07.2018 and published in the official gazette on the same day, and it came into force with effect from 26.07.2018 itself. Since the order of cognizance has been passed after the amendment in Section 19 PC Act came into effect with effect from 26.7.2018, the same is bad in law, and the entire subsequent proceedings after cognizance are nullity.
On the other hand, Anurag Kumar Singh, counsel for the respondent – CBI has submitted that the amendment in Section 19 PC Act has no application in respect of the applicant inasmuch as the alleged offence was committed by the applicant and co-accused during the years 2008 to 2010. The Amending Act will have prospective effect and would be applicable in respect of the offences which were/are committed after the amendment came into force in Section 19 PC Act. It will have no effect on a government servant who got retired before the Amendment came into force.
In the case, the applicant allegedly committed the offence before 26.07.2018. The counsel has, therefore, submitted that the application has no merit and substance and the same is liable to be rejected.
The Court said that,
It is well settled that the CBI cannot take any investigation in respect of an offence without the consent of the State Government concerned, as mandated under Section 6 of The Delhi Special Police Establishment Act, 1946. The powers of the Constitutional Courts are not fettered by statutory restrictions of the DSPE Act. Under the constitutional scheme and division of powers between the Centre and the States, the State Police is under Schedule-VII, List-2 of the Constitution. Normally, investigation of a crime is to be undertaken by the police of the concerned State where the case is registered. In some cases, where the nature of crime is such and to maintain confidence of the people in fair and impartial investigation, the investigation may be entrusted to the CBI, either with the consent of the State Government concerned or on orders of the Constitutional Court. The mandate of Section 6 DSPE Act is done away with when the Court entrusts investigation to the CBI. If after investigation the role of a public servant is found as an accused in commission of the offence.
In the recent past, several States have withdrawn general consent under Section 6 DSPE Act for investigation of an offence by the CBI, but the Constitutional Courts still have entrusted the investigation for offence(s) in such States where the impartial and fair investigation had been doubted in the hands of the State Police. If the sanction for prosecution of a public servant is mandated where the investigation of the crime has been handed over to the CBI on the order of the Constitutional Court, it may result in a futile exercise as such a State Government which has withdrawn the consent under Section 6 of DSPE Act may not accord sanction for prosecution of a public servant.
‘In view of the aforesaid, I am of the considered view that where the investigation of an offence has been entrusted to the CBI pursuant to the order passed by the Constitutional Court and role of a public servant comes as an accused for committing such an offence, no prior sanction under Section 19 PC Act would be required for prosecuting such a public servant.
The relevant date for applicability of law in respect of a crime would be the date of commission of the crime. Subsequent amendments in the statute would not govern the investigation and prosecution of an accused for an offence which was committed before the Amendment in the statute came into force’, the Court observed while rejecting the application.