|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE JURISDICTION
CRIMINAL APPEAL No. 1804 of 2012
(Arising out of SLP (Crl.) No.3841 of 2012)
C.K. Jaffer Sharief … Appellant
Versus
STATE (Through CBI) …Respondent
J U D G M E N T
RANJAN GOGOI, J
Leave granted.
2. The judgment and order of High Court of Delhi dated 11.4.2012
affirming the order of the learned trial court rejecting the
application filed by the appellant for discharge in the criminal
prosecution initiated against him has been challenged in the present
appeal.
3. The above order of the High Court challenged in the present
proceeding came to be passed in the following facts :
An FIR dated 03.06.1998 was filed by the Superintendent of
Police, CBI/ACU.XX/New Delhi alleging commission of the offence under
Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act,
1988 (hereinafter referred to as ‘the Act’) by the appellant during
his tenure as the Union Railway Minister from 21.06.1991 to
13.10.1995. Commission of the offence under the aforesaid provision
of the Act was alleged on the basis that the appellant had dishonestly
made the Managing Directors of RITES (Rail India Technical & Economics
Services Ltd.) and IRCON (Indian Railway Construction Co. Ltd.) to
approve the journeys of S/Shri B.N. Nagesh, the then Additional PS to
Railway Minister, S.M. Mastan and Murlidharan, Stenographers in the
railway cell and one Shri Samaullah (domestic help of the appellant)
to London in connection with the medical treatment of the appellant.
It was alleged in the FIR that the two Public Sector Undertakings did
not have any pending business in London at the relevant point of time
and the journeys undertaken by the aforesaid four persons were solely
at the behest of the appellant who had compelled the services of the
concerned employees to be placed in the two undertakings in question.
Pecuniary loss to the Public Sector Undertakings was, therefore,
caused by the wrongful acts of the appellant.
4. On the basis of the aforesaid FIR, Case no. RC.2(A)/98-ACU.IX
was registered and investigated upon. Final report of such
investigation was submitted in the court of learned Special Judge,
Patiala House, New Delhi on 22.10.2005. In the said final report it
was, inter-alia, stated that there was “ample documentary and oral
evidence to prove the facts and circumstances of the case, as stated
above, which constitute offences punishable under Section 13(2) read
with 13(1) (d) of the Prevention of Corruption Act, 1988”. Sanction
for prosecution, under Section 19 of the Act was however refused by
the competent authority. Accordingly, in the final report it was
mentioned that the proceedings against the accused appellant be
dropped.
5. The learned trial court by its order dated 25.08.2006 declined
to accept the closure report filed by the investigating agency and
observed that there appears to be prima facie evidence with regard to
commission of offence under Section 13(2) read with 13 (1)(d) of the
Act and, possibly, the entire material collected in the course of
investigation had not been placed before the sanctioning authority.
6. Pursuant to the order of the learned trial court the matter was
once again looked into by the investigating agency who submitted
another report dated 01.08.2007 stating that all materials collected
during investigation had been placed before the authority competent to
grant sanction including such clarifications as were sought from time
to time.
7. On receipt of the aforesaid report dated 01.08.2007, the learned
trial court by its order dated 26.07.2008 took cognizance of the
offence punishable under Section 13 (2) read with Section 13(1)(d) of
the Act.
8. Thereafter, the accused appeared before the learned trial court
and filed an application seeking discharge which being refused by the
order of the trial court dated 27.01.2010, the appellant moved the
High Court of Delhi under Article 226 of the Constitution read with
Section 482 of the Code of Criminal Procedure for setting aside the
order dated 27.01.2010 passed by the learned Special Judge, CBI,
Rohini, New Delhi and for quashing of the criminal proceeding pending
before the said court. The aforesaid application having been dismissed
by the impugned judgment and order dated 11.04.2012 of the High Court
of Delhi the present appeal has been filed.
9. We have heard Shri P.P. Rao, learned senior counsel for the
appellant and Shri Mohan Jain, learned ASG for the State.
10. Shri Rao, learned senior counsel for the appellant has submitted
that he would not assail the impugned order of the High Court on the
ground of absence of requisite sanction either under the provisions of
the Act or under the provisions of the Cr.P.C. Shri Rao has submitted
that the aforesaid issue need not be gone into in the present appeal
in as much as the allegations made in the FIR and facts appearing from
the reports of the investigating agency, ex facie, do not make out the
commission of any offence by accused-appellant under Section 13(1)(d)
of the Act so as to warrant the continuance of the prosecution against
him. Drawing the attention of the court to the consideration of the
statements of the witnesses, examined in the course of investigation,
by the High Court, particularly, Shri B.N. Nagesh (PW 33), Shri
Murlidharan (PW 34) and Shri S.M. Mastan it is contended that from the
statements of the aforesaid persons it is crystal clear that while in
London the persons accompanying the appellant had performed various
official duties. It is submitted that the accused-appellant, while
undergoing medical treatment in London, did not cease to be the
Railway Minister and during the period of his treatment the appellant
had attended to the work and duties connected with the Ministry as
well as the RITES and IRCON of which bodies, as the Railway Minister,
the appellant was the Head. The persons who accompanied the appellant
to London thereby causing alleged pecuniary loss to the Public Sector
Undertakings had actually assisted the Minister in due discharge of
his duties while abroad. The said fact having appeared from the
statements of the persons recorded by the investigating authority
under Section 161 Cr.P.C., according to Shri Rao, ex facie, the
ingredients necessary to constitute the offence under Section 13(1)(d)
are not present. It is therefore contended that the High Court has
grossly erred in not quashing the criminal proceeding against the
appellant and in permitting the same to continue.
11. Opposing the contentions advanced on behalf of the accused-
appellant, Shri Jain, learned ASG has urged that the sole issue
agitated by the accused-appellant before the learned trial court was
with regard to the inherent lack of jurisdiction to continue with the
prosecution in the absence of sanction either under the provisions of
the Act or under the provisions of the Cr.P.C. Before the High Court
the validity of the order dated 27.1.2010 of the learned trial court
refusing to discharge the accused was the only issue raised. It is,
therefore not open to the appellant to widen the ambit of the
challenge to the validity of the impugned criminal proceeding as a
whole. In this regard the learned ASG has placed before us the
application filed by the accused-appellant for discharge; the trial
court’s order dated 27.01.2010 as well as the relevant part of the
order dated 11.04.2012 of the High Court. Shri Jain has further
submitted that in the present case the requirement of obtaining
sanction under Section 197 Cr.P.C. does not arise in view of the
specific allegations in the FIR which pertain to commission of the
offence under section 13(2) read with section 13(1)(d) of the Act.
Admittedly, the accused-appellant having ceased to be a Minister as
well as a Member of Parliament w.e.f. 10.11.2000 no question of
obtaining sanction under Section 19 can arise in the present case, it
is argued. Shri Jain has also submitted that in any case, the
materials brought on record, at this stage, cannot conclusively prove
that the offence as alleged has not been committed by the accused-
appellant. The matter has to be determined in the course of the trial
which may be permitted to commence and be brought to its logical
conclusion.
12. At the very outset we wish to make it clear that we do not agree
with the contention advanced by the learned ASG to the effect that the
only issue raised by the appellant before the High Court was with
regard to the absence of sanction for the impugned prosecution. While
the above may have the complexion of the proceeding before the learned
trial court, in the application filed by the accused-appellant before
the High Court the validity of the continuance of the criminal
proceeding as a whole was called into question, inter-alia, on the
ground that ex-facie the ingredients of the offence under Section 13
(1)(d) are not made out on the allegations levelled. We have already
noticed that before the High Court two reliefs had been prayed for by
the appellant, namely, interference with the order of the learned
trial court dated 27.01.2010 as well as for quashing of the criminal
proceeding. In view of the aforesaid position demonstrated by the
relevant records we do not find any reason to confine the scope of the
present appeal to the issue of sanction and test the legal validity
of the order of the learned trial court dated 27.1.2010 and the
impugned order of the High Court dated 11.04.2012 only on that basis.
Rather we are of the view that the accused-appellant having raised
issues concerning the validity of the proceeding as a whole on the
ground that, ex facie no offence is disclosed, it is open for the
appellant to raise the said question in the present appeal.
13. Section 13(1)(d) of the Act may now be extracted below :
“Section 13 : Criminal misconduct by a public servant – (1) a
public servant is said to commit the offence of criminal
misconduct,-
(a)……
(b)……
(c ) ..…
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any
other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or pecuniary
advantage; or
(iii) while holding office as a public servant, obtains for any
persons any valuable thing or pecuniary advantage without any
public interest. Or
(e)……..”
14. A bare reading of the aforesaid provision of the Act would go to
show that the offence contemplated therein is committed if a public
servant obtains for himself or any other person any valuable thing or
pecuniary advantage by corrupt or illegal means; by abusing his
position as public servant or without any public interest. The
aforesaid provision of the Act, i.e, Section 13(1)(d) are some what
similar to the offence under Section 5(1)(d) of the Prevention of
Corruption Act, 1947.
15. Adverting to the facts of the present case it has already been
noticed that the only allegation against the appellant is that he had
prevailed upon RITES and IRCON to take the four employees in question
on “deputation” for the sole purpose of sending them to London in
connection with the medical treatment of the appellant. It is also
alleged that neither RITES nor IRCON had any pending business in
London and that none of the four persons had not performed any duty
pertaining to RITES or IRCON while they were in London; yet the to
and fro air fare of all the four persons was paid by the above two
Public Sector Undertakings. On the said basis it has been alleged
that the accused appellant had abused his office and caused pecuniary
loss to the two Public Sector Undertakings by arranging the visits of
the four persons in question to London without any public interest.
This, in essence, is the case against the accused-appellant.
16. A fundamental principle of criminal jurisprudence with regard to
the liability of an accused which may have application to the present
case is to be found in the work “Criminal Law” by K.D. Gaur. The
relevant passage from the above work may be extracted below:
“Criminal guilt would attach to a man for violations of criminal law.
However, the rule is not absolute and is subject to limitations
indicated in the Latin maxim, actus non facit reum, nisi mens sit rea.
It signifies that their can be no crime without a guilty mind. To
make a person criminally accountable it must be proved that an act,
which is forbidden by law, has been caused by his conduct, and that
the conduct was accompanied by a legally blameworthy attitude of mind.
Thus, there are two components of every crime, a physical element and
a mental element, usually called actus reus and mens rea
respectively.”
17. It has already been noticed that the appellant besides working
as the Minister of Railways was the Head of the two Public Sector
Undertakings in question at the relevant time. It also appears from
the materials on record that the four persons while in London had
assisted the appellant in performing certain tasks connected with
the discharge of duties as a Minister. It is difficult to visualise
as to how in the light of the above facts, demonstrated by the
materials revealed in the course of investigation, the appellant can
be construed to have adopted corrupt or illegal means or to have
abused his position as a public servant to obtain any valuable thing
or pecuniary advantage either for himself or for any of the aforesaid
four persons. If the statements of the witnesses examined under
Section 161 show that the aforesaid four persons had performed certain
tasks to assist the Minister in the discharge of his public duties,
however insignificant such tasks may have been, no question of
obtaining any pecuniary advantage by any corrupt or illegal means or
by abuse of the position of the appellant as a public servant can
arise. As a Minister it was for the appellant to decide on the number
and identity of the officials and supporting staff who should
accompany him to London if it was anticipated that he would be
required to perform his official duties while in London. If in the
process, the Rules or Norms applicable were violated or the decision
taken shows an extravagant display of redundance it is the conduct and
action of the appellant which may have been improper or contrary to
departmental norms. But to say that the same was actuated by a
dishonest intention to obtain an undue pecuniary advantage will not be
correct. That dishonest intention is the gist of the offence under
section 13(1)(d) is implicit in the words used i.e. corrupt or illegal
means and abuse of position as a public servant. A similar view has
also been expressed by this Court in M. Narayanan Nambiar vs. State of
Kerala[1] while considering the provisions of section 5 of Act of
1947. If the totality of the materials on record indicate the above
position, we do not find any reason to allow the prosecution to
continue against the appellant. Such continuance, in our view, would
be an abuse of the process of court and therefore it will be the plain
duty of the court to interdict the same.
18. For the aforesaid reasons we allow this appeal, set aside the
judgment and order dated 11.04.2012 of the High Court and the order
dated 27.01.2010 of the learned trial court and quash the proceedings
registered against the accused-appellant.
................J.
[P. SATHASIVAM]
................J.
[RANJAN GOGOI]
New Delhi,
09th November, 2012.
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[1] (1963) Supp. (2) SCR 724
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