The Supreme Court has reaffirmed that sanction for prosecution under Section 197(1) of the Code of Criminal Procedure is required despite the fact that the official was acting outside the scope of his official responsibilities. In acquitting a former Executive Director of Bharat Heavy Electricals Limited (BHEL) in a corruption case, a bench of Justices V Ramasubramanian and Pankaj Mithal reached this conclusion.
In D. Devaraja vs. Owais Sabeer Hussain, the bench stated that “sanction is required not only for acts done in the discharge of official duty, but also for any act purportedly done in the discharge of official duty and/or act done under colour of law or in excess of such duty or authority.”
In Devinder Singh vs. State of Punjab through CBI, the court stated, “Even in cases where a public servant has exceeded his duty, if there is a reasonable connection, it will not deprive him of protection under Section 197 CrPC.” Aside from that, the bench disregarded the argument that any act equating to cheating cannot be viewed as having a legitimate relationship with the official responsibilities of a public servant, citing the Supreme Court’s 2007 decision in the case of Parkash Singh Badal.
BACKGROUND FACTS
The criminal appeals arose from a common judgement by the Madras High Court (Madurai Bench).In summation, the dispute involves the first appellant’s decision, as the then-executive director of BHEL, to opt for limited or restricted tenders for the construction of a desalination plant without following the prescribed procedure of prequalifying prospective bidders prior to inviting limited bids. It was alleged that four public servants (A-1, A-2, A-3, and A-4) conspired with the proprietor (A-5) of the company that was ultimately awarded the contract, his father (A-6) and his brother (A-7) to confer an unjust and undue advantage and defraud the centrally owned public sector enterprise (PSU). During the trial, the fifth and sixth defendants passed away, while the remaining defendants – with the exception of the manager-turned-approver – were found culpable under various rules.
And other relevant provisions of the Indian Penal Code, 1860, as well as Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, the other two public servants were only convicted under provisions of the Indian Penal Code because the PSU refused to grant sanction for prosecution against them under the Prevention of Corruption Act on the grounds that it would go against the ‘commercial interest of the company as well as the ‘public interest of maintaining an honest administration. This distinction was made because the executive director retired prior to the filing of the final report, well before the 2018 amendment that would have extended to former employees the protection granted under Section 19(1) of the Prevention of Corruption Act, which requires a sanction before prosecuting a public servant.
Justice Ramasubramanian wrote on behalf of the bench, “It is a quirk of fate or unfortunate circumstances of being born at a time (and thus retiring at a particular time) that the benevolence derived by the other two public servants from their employer was not available to the first defendant.” Given BHEL’s position, he could not have been disciplined for the PC Act violations had he remained in service.”
The requirement of a penalty under a similar provision in Section 197(1) of the Code of Criminal Procedure was one of the fundamental issues before the Supreme Court in relation to the first defendant. On his behalf, it was argued that, while no sanction was required to prosecute him under the Prevention of Corruption Act (pre-amendment) at the time of the final report, a previous sanction was still required for the charges under the Indian Penal Code due to Section 197(1) of the CrPC, which shielded both current and former employees from prosecution for acts committed in the course of their official duties, even at the time of the alleged conspiracy.
The respondent-State acknowledged that no prior sanction was sought under Section 197(1) of the Code of Criminal Procedure prior to prosecuting the former director for offences under the Indian Penal Code, but argued that such a sanction was only required when the alleged offence was committed while acting or purporting to act in the performance of his official duties. In other words, the prosecution argued that no plausible connection existed between the alleged conspiracy and the official obligations. The judge disagreed with this line of reasoning.
“It is sufficient for us to determine whether the first appellant (former executive director of BHEL) acted or pretended to act in the performance of his official duties by determining whether he could take cover, correctly or incorrectly, under any existing policy.” The current policy demonstrates that he had a plausible justification for proceeding with restricted tender. Once this is established, his act, even if alleged to be fraudulent or in furtherance of a conspiracy, would be deemed an act in the course and scope of his official duties, bringing the matter under Section 197(1) of the Code of Criminal Procedure. The prosecution should have therefore requested prior sanction.”Neither the Special Court nor the Supreme Court considered this factor.“
The court rejects the argument that an act constituting a deceptive offence would not require a prior punishment. The bench distinguished the decision in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1, in which the Supreme Court held that the offence of cheating under Section 420, as well as offences related to Sections 467, 468, 471 and 120-B, could not be considered committed by any public servant acting or purporting to act in the performance of official duty. “In such cases, official status merely facilitates the commission of the crime,” the court stated. The respondent-State argued, based on this remark, that any conduct undertaken by a public employee that constitutes a cheating violation cannot be deemed to have been committed while acting or feigning to act in the performance of official duties.
“The observations in Parkash Singh Badal are too general in nature and cannot be regarded as the ratio deriving from that case,” the bench remarked, discounting this notion as “fantastic.” If, by definition, violations of sections 420, 468, 471 and 120B cannot be considered to have been committed by a public servant while acting or purporting to act in the performance of official duties, then the same reasoning would apply with much greater force to violations of the Prevention of Corruption Act. Section 197 of the Code does not differentiate between various categories of violations. Therefore, [this] cannot be viewed as a judicial exemption to a legislative requirement. In fact, Parkash Singh Badal cites with approbation the other decisions (written by the same judge) in which this court distinguished between an act that was reasonably connected to the performance of official duty and an act that was merely a guise for committing an objectionable act.“
The court observed that no public employee is appointed with the mandate or authority to commit an offence. “As a result, if the findings in Parkash Singh Badal are applied, any act constituting an offence under any statute will be excluded from the definition of an act in the performance of official duties.” According to the court, this perspective would eliminate the need for a prior sanction.
To explain why prior authorization should have been obtained before prosecuting the first accused under various sections of the Indian Penal Code, the bench cited the BHEL Management’s position on the request for authorization to prosecute the other two employees under the Prevention of Corruption Act, stating:
“The first defendant was accused of participating in a criminal conspiracy with the others to commit these crimes.” However, BHEL’s Management repeatedly denied permission to prosecute [the other two public employees] on the premises that the decisions made were consistent with the company’s business acumen. If, according to the Management, the same act of the co-conspirators fell within the realm of commercial wisdom, it is inconceivable that the act of the first accused, as part of the criminal conspiracy, fell outside the discharge of his public duty so as to disqualify him from protection under Section 197(1) of the Code of Criminal Procedure.“
“In light of the foregoing,” the court ruled, “we uphold the first defendant’s contention that the prosecution should have obtained prior authorization under Section 197(1) of the Code before prosecuting him for violations of the Indian Penal Code.” The State, represented by the Inspector of Police | Criminal Appeal No. 2417 of 2010 and other related matters.
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