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Monday, March 18, 2013

absence of valid sanction from the competent authority,= Accordingly, the High Court quashed the prosecution of the accused being without valid sanction and, while doing so, observed that the State Government of Uttarakhand shall be at liberty to prosecute the accused after obtaining valid sanction from the State Government of Uttar Pradesh.- It was contended before the High Court that the accused being an employee of an undertaking of the State Government of Uttar Pradesh, the State Government of Uttarakhand is not competent to grant sanction. This submission found favour with the High Court. The High Court held that the accused being an employee of an undertaking of the State Government of Uttar Pradesh and having been repatriated to his parent department, it is the State Government of the Uttar Pradesh which is competent to remove him and to grant necessary sanction. “19. Previous sanction necessary for prosecution. (1) No court shall take cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-……….. (a) xxx xxx xxx (b) xxx xxx xxx (c)in the case of any other person, of the authority competent to remove him from his office.” We are told by Ms. Srivastava that the request of the State Government of Uttarakhand for sanction of prosecution of the accused is still pending before the State Government of Uttar Pradesh. Hence, we deem it expedient that the latter takes decision on the request so made, if already not taken, within 8 weeks from the date of communication of this order. It is made clear that we are not expressing any opinion in regard to the merit of the request made by the State Government of Uttarakhand and it shall be decided by the State Government of Uttar Pradesh on its own merit in accordance with law. Let a copy of this order be forwarded to the Chief Secretary of the State Government of Uttar Pradesh for appropriate action forthwith. In the result, we do not find any merit in this appeal and it is dismissed accordingly with the aforesaid observation.


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 459 OF 2013
(@SPECIAL LEAVE PETITION (CRIMINAL) No. 1593 of 2007)
STATE OF UTTARAKHAND … APPELLANT
VERSUS
YOGENDRA NATH ARORA …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
 Yogendra Nath Arora (hereinafter referred to as
“the Accused”) was earlier employed as Deputy General
Manager in U.P. Industrial Consultants, an
undertaking of the State of Uttar Pradesh.
Consequent upon reorganization of the State of Uttar
Pradesh, he was taken on deputation on 23rd January,
2003 and posted as Deputy General Manager of the
State Industrial Development Corporation,
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(hereinafter referred to as “SIDCUL”), a Government
undertaking of the State of Uttarakhand. While
working as the Deputy General Manager of SIDCUL, a
trap was laid on 30th of June, 2004 and he was
arrested while accepting an illegal gratification of
Rs.30,000/-.
This led to lodging of Criminal Case
No. 168 of 2004 at Police Station Dalanwala, District
Dehradun under Section 7 read with Section 13(1)(d)
and 13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as “the Act”).
The accused
was repatriated on the same day to his parent
organization by the State Government of Uttarakhand.
It also granted sanction for his prosecution on 23rd
of August, 2004 and the charge sheet was submitted on
25th of August, 2004 in the Court of Special Judge,
Anti-Corruption-II, Nainital.
  Accused prayed for
discharge, inter alia contending that the materials
on record are not sufficient for framing of the
charge and further, in the absence of valid sanction
from the competent authority, as required under
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Section 19(1)(c) of the Act, the trial can not
legally proceed. The Special Judge, by his order
dated 18th of August, 2005 rejected his contention,
inter alia, observing that there is sufficient
material on record for framing of the charge. As
regard the plea of absence of sanction, the learned
Judge observed as follows: 
“…the question of sanction being
merely an incident to the trial of the
case is not to be considered at this
stage. It is undoubtedly true, that the
accused was an employee of the State of
Uttar Pradesh and was on deputation to
the State of Uttaranchal and under the
subordination and administrative control
of the State of Uttaranchal. Thus, the
question of sanction being incident to
the trial of the case and on perusal of
the record, there is a sufficient
material on record to charge the accused,
the accused shall be charged under
Section 7 read with Section 13(a)(d) and
13(2) of the Prevention of Corruption
Act, 1988.”
Accordingly, the Special Judge rejected the
prayer of the accused. 
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Aggrieved by the same, the accused preferred
an application under Section 482 of the Criminal
Procedure Code before the High Court challenging
the aforesaid order.
It was contended before the
High Court that the accused being an employee of
an undertaking of the State Government of Uttar
Pradesh, the State Government of Uttarakhand is
not competent to grant sanction. This submission
found favour with the High Court. The High Court
held that the accused being an employee of an
undertaking of the State Government of Uttar
Pradesh and having been repatriated to his parent
department, it is the State Government of the
Uttar Pradesh which is competent to remove him and
to grant necessary sanction. Accordingly, the
High Court quashed the prosecution of the accused
being without valid sanction and, while doing so,
observed that the State Government of Uttarakhand
shall be at liberty to prosecute the accused after
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obtaining valid sanction from the State Government
of Uttar Pradesh.
Aggrieved by the aforesaid order, the State of
Uttarakhand has filed the present special leave
petition.
Leave granted.
It is common ground that without prejudice to
the contention raised in the present appeal, the
State Government of Uttarakhand has written to the
State Government of Uttar Pradesh for granting
sanction. But, till date no decision has been
communicated.
Ms. Rachana Srivastava, learned counsel
representing the State of Uttarakhand concedes
that sanction by the competent State Government is
necessary for prosecution of an accused for an
offence punishable under Section 7 and 13 of the
Act. She points out that the accused being on
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deputation to an undertaking of the State
Government of Uttarakhand, it had the power to
repatriate him which would mean the power of
removal from office by the State Government of
Uttarakhand. According to her, dislodging an
accused from an office and repatriating him would
mean removal from his office. Removal from office,
according to her, would not mean the removal from
service. She emphasizes that the expression used
in Section 19(1)(c) is ‘removal from his office’
and not ‘removal from service’. Section 19(1)(c)
of the Act which is relevant for the purpose reads
as follows:
“19. Previous sanction necessary for
prosecution.
(1) No court shall take
cognizance of an offence punishable
under Sections 7,10,11,13 and 15
alleged to have been committed by a
public servant, except with the
previous sanction,-………..
(a) xxx xxx xxx
(b) xxx xxx xxx
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(c)in the case of any other person,
of the authority competent to
remove him from his office.”
In support of the submission reliance has been
placed to a Constitution Bench judgment of this
Court in the case of R.S. Nayak v. A.R. Antulay,
(1984) 2 SCC 183 and our attention has been drawn
to the following passage from paragraph 23 of the
judgment which reads as follows:
“…Each of the three clauses of subsection(1) of Section 6 uses the
expression ‘office’ and the power to grant
sanction is conferred on the authority
competent to remove the public servant
from his office and Section 6 requires a
sanction before taking cognizance of
offences committed by public servant. The
offence would be committed by the public
servant by misusing or abusing the power
of office and it is from that office, the
authority must be competent to remove him
so as to be entitled to grant sanction.
The removal would bring about cessation of
interrelation between the office and abuse
by the holder of the office. The link
between power with opportunity to abuse
and the holder of office would be severed
by removal from office. Therefore, when a
public servant is accused of an offence of
taking gratification other than legal
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remuneration for doing or forbearing to do
an official act (Section 161 IPC) or as a
public servant abets offences punishable
under Sections 161 and 163 (Section 164
IPC) or as public servant obtains a
valuable thing without consideration from
person concerned in any proceeding or
business transacted by such public servant
(Section 165 IPC) or commits criminal
misconduct as defined in Section 5 of the
1947 Act, it is implicit in the various
offences that the public servant has
misused or abused the power of office held
by him as public servant. The expression
‘office’ in the three sub-clauses of
Section 6(1) would clearly denote that
office which the public servant misused or
abused for corrupt motives for which he is
to be prosecuted and in respect of which a
sanction to prosecute him is necessary by
the competent authority entitled to remove
him from that office which he has abused.
This interrelation between the office and
its abuse if severed would render Section
6 devoid of any meaning. And this
interrelation clearly provides a clue to
the understanding of the provision in
Section 6 providing for sanction by a
competent authority who would be able to
judge the action of the public servant
before removing the bar, by granting
sanction, to the taking of the cognizance
of offences by the court against the
public servant. Therefore, it
unquestionably follows that the sanction
to prosecute can be given by an authority
competent to remove the public servant
from the office which he has misused or
abused because that authority alone would
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be able to know whether there has been a
misuse or abuse of the office by the
public servant and not some rank
outsider.”
In fairness to her, she concedes that power
to remove the accused from service is with the
State Government of Uttar Pradesh and if her
contention that power to repatriate would mean the
power to remove from service does not find favour,
it shall be the State Government of Uttar Pradesh
which would be competent to grant sanction.
Mr. R.G. Srivastava, learned counsel
representing the accused, however, contends that
the expression removal from office would mean
termination from service and undisputably in the
facts of the present case it was the State
Government of Uttar Pradesh which was competent to
terminate the service of the accused. According
to him, removal from office would mean removal
from permanent employment.
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In view of the rival submissions, the
question which falls for determination is as to
whether the expression removal from his office
would mean dislodging him from holding that office
and shifting him to another office. In other
words, the power of the State Government of
Uttarakhand to repatriate the accused would mean
that it has power to remove. In our opinion,
office means a position which requires the person
holding it to perform certain duties and discharge
certain obligations and removal from his office
would mean to snap that permanently. By
repatriation, the person holding the office on
deputation may not be required to perform that
duty and discharge the obligation of that office,
but nonetheless he continues to hold office and by
virtue thereof performs certain other duties and
discharge certain other obligations. Therefore the
power to repatriate does not embrace within itself
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the power of removal from office as envisaged
under Section 19(1)(c) of the Act. The term
removal means the act of removing from office or
putting an end to an employment. The distinction
between dismissal and removal from service is that
former ordinarily disqualifies from future
employment but the latter does not. Hence, we
reject this submission of Ms. Srivastava.
The view which we have taken finds support
from the decision of this Court in the case of
V.K. Sharma v. State (Delhi Admn.), 1975 (1) SCC
784
in which it has been held as follows:
“…..The purport of taking the
sanction from the authority competent
to remove a corrupt government
servant from his office is not only
to remove him from his temporary
office but to remove him from
government service.”
We are told by Ms. Srivastava that the
request of the State Government of Uttarakhand for
sanction of prosecution of the accused is still
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pending before the State Government of Uttar
Pradesh. Hence, we deem it expedient that the
latter takes decision on the request so made, if
already not taken, within 8 weeks from the date of
communication of this order. It is made clear that
we are not expressing any opinion in regard to the
merit of the request made by the State Government
of Uttarakhand and it shall be decided by the
State Government of Uttar Pradesh on its own merit
in accordance with law.
Let a copy of this order be forwarded to the
Chief Secretary of the State Government of Uttar
Pradesh for appropriate action forthwith. 
In the result, we do not find any merit in
this appeal and it is dismissed accordingly with
the aforesaid observation.
 …………………………………………………………J.
(CHANDRAMAULI KR. PRASAD)Page 13
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…………….………………………………………J.
(V. GOPALA GOWDA)
NEW DELHI,
MARCH 18,2013 Page 14
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