Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1837 OF 2019

(Arising out of Special Leave Petition (Crl.) No.6106 of 2019)

STATION HOUSE OFFICER, CBI/ACB/BANGALORE …Appellant

VERSUS

B.A. SRINIVASAN AND ANR. …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This Appeal challenges the judgment and order dated 08.08.2018

passed by the High Court

1

allowing Criminal Revision Petition No.834 of

2015 preferred by the Respondent No. 1; and thereby discharging the

Respondent No.1 of the offences punishable under Sections 419, 420, 467,

468, 471 read with Section 120B of the Indian Penal Code, 1860 (‘IPC’, for

1 The High Court of Karnataka at Bangalore

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act,

1988 (‘the Act’, for short).

3. The Respondent No. 1 retired on 31.10.2012 as Assistant General

Manager, Vijaya Bank. On 28.10.2013, FIR being RC 12(A)/2013 was

registered pursuant to complaint given by the General Manager, Vijaya

Bank, Head Office, Bangalore against the Respondent No.1 in respect of

the offences mentioned hereinabove. After completion of investigation,

charge-sheet was filed on 31.10.2014 against the Respondent No.1 and

other accused in respect of said offences. It was alleged inter alia :-

“3.That Shri B.A. Srinivasan (A-1) while working as

Assistant General Manager (AGM) and Branch Head,

Vijaya Bank, Mayo Hall Branch, Bangalore during

the period from 11.01.2010 to 20.10.2012 entered into

a criminal conspiracy with Shri B.Lakshman (A-3),

Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5)

to cheat and defraud Vijaya Bank, Mayohall Branch,

Bangalore and to extend undue financial

accommodation to M/s. Nikhara Electronics and

Allied Technics (A-2) on the basis of fake and

fabricated documents and in furtherance of the said

criminal conspiracy, Shri B.A. Srinivasan (A-1)

sanctioned and disbursed Rs.200 lakhs of Term Loan

and Rs.100 lakhs of Cash Credit Hypothecation

(Working Capital) in favour of M/s. Nikhara

Electronics and Allied Technics (A-2) without proper

due diligence and in gross violation of all extant rules

and regulations of Vijaya Bank, and hence, facilitated

A-3 and A-4 to divert the loan-funds against the terms

and conditions, thereby causing wrongful loss to

Vijaya Bank and corresponding gains to others.

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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…… …

8.That Shri B. Lakshnian (A-3) and his wife Smt.

Shanta Gowda (A-4) fraudulently created an

agreement dated 10.06.2011 on the photocopy of e-

stamp paper having franking No.57724 dated

08.06.2011 and submitted a copy of the same to

Vijaya Bank to support their dishonest claim of taking

over M/s. Nikhara Electronics & Allied Technics,

proprietary concern by making a payment of Rs.1.00

Crore as goodwill to Shri Venkataramana Bhat (A-6).

Shri B.A. Srinivasan (A-1) dishonestly accepted the

photocopy of the agreement intentionally omitting to

ascertain its genuineness or authenticity. It is revealed

that the above agreement was fraudulently created on

the photocopy of e-stamp paper franked vide 57724

dated 08.06.2011 and the original stamp paper

remained blank was seized from the office premises

of Shri S.V. Isloor (A-5). It is thus established the

fraudulent intentions of all the accused persons to

create forged documents as and when required and to

misrepresent that the proprietary unit was taken over

by A-3 and A-4 from A-6.

… ……

16.That Shri B.A. Srinivasan (A-1) in furtherance of

criminal conspiracy with the other accused

dishonestly, by abusing his official position as AGM

& Branch Head of Vijaya Bank, Mayohall Branch

fraudulently considered the loan application,

processed loan proposals in gross violation of the

rules and regulations of Vijaya Bank in this regard in

order to favour the accused persons. He intentionally

accepted the inflated financial statements submitted

by A-3 and A-4 even though they were not audited

and considered them for working out the credit

assessment of the borrower firm i.e., M/s. Nikhara

Electronics and Allied Technics (A-2). He purposely

did not exercise due diligence to analyse the financial

statements submitted by the borrower firm which

contained several inconsistencies. He also did not

conduct the mandatory pre-sanction verification at the

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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address of the borrower firm to ascertain whether any

business activities such as manufacturing of electric

equipment etc., were going on as claimed in the loan

application. The criminal acts of Shri B.A. Srinivasan

(A-1) facilitated the accused private persons to

misrepresent the existence of M/s. Nikhara

Electronics and Allied Technics (A-2), which actually

existed only on the forged partnership deed dated

10.06.2011, created by A-3 and A-4.

17.That Shri B.A. Srinivasan (A-1) prepared the

Credit Process Note himself and obtained the

signatures of Shri Jyoti Prakash Shetty, the then Asst.

Manager in the column of appraising official. Shri

Nabeel Ahmed, the then Probationary Manager was

also made to put his initials in the process note,

merely as a token of his training. It is revealed that A-

1 prepared the proposals for an aggregate amount of

Rs.300 lakh (term loan of Rs.200 lakhs and cash

credit of Rs.100 lakhs) as against the request for

Rs.350 lakhs (term Loan of Rs.200 lakhs; working

capital of Rs.130 lakhs and Bank Guarantee of Rs.20

lakhs) without there being any

clarification/justification for such reduction in the

requirements of the applicant.

18.That Shri B. Lakshman (A-3) fraudulently

submitted a forged Letter No. REFREF: SP: QT: 155:

2011 dated 10.08.2011 purportedly signed as JAK,

Partners, M/s. V-Tech Engineering Enterprises along

with Quotations/Proforma Invoices for an aggregate

amount of Rs.2,69,60,496/- which were purportedly

issued by M/s.V-Tech Engineering Enterprises.

…… …

33.That Shri B.A. Srinivasan (A-1) was also fully

aware that property offered as collateral security was

in occupation of third parties (tenants). However, A-1

dishonestly and fraudulently chose to ignore this

important fact, in spite of his field inspection and also

the observations made by the valuer in his Valuation

Report. Concurrent Auditor of the Bank also pointed

out this fact in her report adding that the tenants in

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Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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occupation of collateral security would adversely

affect the interests of the bank, in the event of

necessity, to enforce sale of the property to recover its

dues. It is also revealed that tenants were paying rents

to Shri Nagesh s/o late Krishnappa, who sold the

property to Shri Nilakanth Sanikop, from whom A-3

purchased the property. A-1 intentionally omitted to

make any endeavour to ascertain the nature of rights

of the tenants, despite the fact that in future it would

affect the enforceability of the mortgaged property by

the bank.

34.That Shri B.A. Srinivasan (A-1) also violated the

extant rules of the bank by not obtaining the Legal

Audit Report, on the mortgaged property, prior to

processing and sanctioning of loans to M/s. Nikhara

Electronics and Allied Tekchnics. Shri B.A.

Srinivasan (A-1) obtained this report only on

19.04.2012, more than six months after the loan was

sanctioned and disbursed.

35.By the above said acts, Shri B.A. Srinivasan (A-

1), the then AGM, Vijaya Bank, Mayo Hall Branch,

Bangalore; M/s. Nikhara Electronics and Allied

Technics (A-2); Shri B. Lakshman @ Lakshman

Reddy (A-3); Smt. Shanta Gowda (A-4); Shri

S.V.Isloor (A-5) and Shri Venkataramana Bhat (A-6)

committed the offences of cheating and personating as

proprietor, M/s. V-Tech Engineering Enterprises,

committed forgery of documents such as Quotations,

Cash/Credit Bills, vouchers etc. for the purpose of

cheating, using the forged documents as genuine in

pursuance of the criminal conspiracy among

themselves, thereby causing wrongful loss to the bank

and corresponding gains to themselves and others.

Investigation also establishes that Shri B.A.

Srinivasan (A-1) committed the offence of criminal

misconduct by gross abuse of his official position as

the then AGM of Vijaya Bank, Mayo Hall Branch,

Bangalore, and caused accrual of pecuniary advantage

to the accused private persons, attracting the penal

provisions of the Prevention of Corruption Act, 1988.

That, the above acts of Shri B.A. Srinivasan (A-1),

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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M/s. Nikhara Electronics and Allied Technics (A-2),

Shri B. Lakshman (A-3), Smt. Shanta Gowda (A-4),

Shri Shripad Vishwanath Isloor (A-5) and Shri

Venkataramana Bhat (A-6) constitute offences

punishable u/s 120-B r/w 420, 419, 468 & 471 IPC

and 13(2) r/2 13(1)(d) of the Prevention of Corruption

Act, 1988.

36.That Shri B.A. Srinivasan (A-1) is retired from

the services of Vijaya Bank on 31.10.2012; hence

sanction for prosecution u/s 19 of the PC Act, is not

required.”

4. After the cognizance was taken by the concerned court, an

application was moved by the Respondent No.1 seeking discharge in terms

of Sections 227 and 239 of the Code of Criminal Procedure, 1973 (‘the

Code’, for short). This application was rejected by the Additional City

Civil and Sessions Judge and Principal Special Judge for CBI cases,

Bangalore, vide order dated 13.04.2015. It was observed:-

“…As can be seen from the charge sheet and

statement of witnesses, accused No.1 has deliberately

violated the rules and regulations and bank norms of

the bank while processing the loan application of

accused No.2 firm and thereby he had entered into

criminal conspiracy with accused Nos.3 to 6 and

accepted the fabricated and forged vouchers, invoices

inflated financial statements in order to facilitate

accused Nos.3 and 4 to avail the term loan of Rs. Two

Crores cash credit and Rs. One Crore. The said term

loan and cash credit of Rs.Three Crores were

misutilised for the purpose other than for which the

loan was sanctioned. Thus, all materials clearly go to

show that there was dishonest intention on the part of

the accused No.1 from the inception itself. The said

circumstances and materials collected by the

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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Investigating Officer clearly reveal that accused No.1

had entered into criminal conspiracy with accused

Nos. 3 to 6 and he had accepted the forged, fabricated

invoices and inflated financial statement knowingly

fully well that they were forged. …

… ……

Though accused No.1 was public servant, it is alleged

that he has retired from the service from Vijaya Bank

on 31.10.2013. Therefore, sanction as required u/s 19

of PC Act, 1988 to prosecute accused No.1 is not

required. The discharge application filed by accused

No.1 is devoid of merits and on the contrary, there are

sufficient materials against accused No.1 for framing

charge for the offences punishable u/s 120B, 420, 471

IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of

Corruption Act, 1988….”

5. The Respondent No.1, being aggrieved, preferred Criminal

Revision Petition No. 834 of 2015 in the High Court, which was allowed

by the judgment and order presently under appeal. The High Court, thus set

aside the order dated 13.04.2015 as regards the Respondent No.1 and

discharged him of the offences with which he was sought to be charged.

6. While dealing with the submission that the allegations against the

Respondent No.1 could, at best, be administrative lapses, the High Court

observed:-

“10… …These aspects of administrative lapses, it is

to be stated, cannot be considered at the time of

framing charge. Unless the witnesses are subjected to

cross-examination, no finding can be given whether

the omission in following the procedure amounts to

administrative lapse or was deliberate. Therefore, this

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Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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point of argument cannot be a ground for discharging

accused No.1. Therefore, given a conclusion, it can

be opined that the materials on record are sufficient to

frame a charge against accused no.1, the findings of

the Special Court in this regard do not indicate non-

application of mind or, any infirmity or illegality in

coming to an opinion that accused no.1 cannot be

discharged on this ground. This finding needs to be

sustained.

On the issue of sanction, the High Court, however, stated:-

“11. However, another finding regarding sanction

cannot be sustained. The special court has held that

the sanction is not necessary as accused no.1 has

retired by the time charge-sheet was filed. But the

argument of petitioner’s counsel is that sanction in

accordance with Section 197 CrPC is necessary.

Before adverting to this point, I think it necessary to

opine that the offences triable by Special Judge

related to time when an accused was in service as a

public servant. Sanction under Section 19 of

Prevention of Corruption Act is necessary to see that a

public servant is not entangled in a frivolous and false

case. Sanction insulates a public servant from a false

or vexatious or frivolous prosecution. Therefore, a

protection available to a public servant while in

service should also be available after his retirement.

It cannot be forgotten that even after retirement, he is

prosecuted for offences under prevention of

Corruption Act. Indeed, the retirement removes one

from the garb of a public servant; but justice requires

that same protection should be available even after

one’s retirement. …”

(underlined by us)

Thereafter, while dealing with submissions based on the decisions

of this Court in Kalicharan Mahapatra vs. State of Orissa

2

, R.

2 AIR 1998 SC 2595

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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Balakrishna Pillai vs. State of Kerala

3

, State of Punjab vs. Labh

Singh

4

and N.K. Ganguly vs. CBI, New Delhi

5

, the matter was

considered as under:-

“The learned standing counsel for CBI submitted

insofar as offences under Indian Penal Code are

concerned, they cannot be said to have been

committed in discharge of official duty; sanction

therefore is not necessary even under Section 197

CrPC. If the allegations levelled against the first

accused are seen, and particularly with reference to

conspiracy, it is to be stated at the stage of framing

charge, it is difficult to discern whether offences can

be connected to official capacity or not. Thorough

trial requires to be held. If facts in N.K. Ganguly

(supra) are seen, there also the accused were sought to

be prosecuted for the offences under Prevention of

Corruption Act in addition to some of the offences

under Indian Penal Code. Thus seen, the first accused

should get the benefit of discharge for absence of

sanction under Section 197 of CrPC. …”

Thus, it was concluded that the material on record was sufficient

to frame a charge against Respondent No.1. The benefit of discharge was

however granted on the issue of absence of sanction under Section 197 of

the Code.

7. In this appeal challenging the view taken by the High Court, we

heard Mrs. Sonia Mathur, learned Senior Advocate, in support of the

3 (1996) 1 SCC 478

4 (2014) 16 SCC 807

5 (2016) 2 SCC 143

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appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent

No.1.

8. Mrs. Sonia Mathur, learned Senior Advocate, submitted that the

protection under Section 19 of the Act is available to a public servant only

till he is in the employment and no sanction is necessary after the public

servant has demitted office or has retired from service. As regards sanction

under Section 197 of the Code, it was submitted that for an action to come

within the purview of Section 197 of the Code, it must be integrally

connected with the official duties or functions of a public servant and that

if the office was merely used as a cloak to indulge in activities which result

in unlawful gain to the beneficiaries, the protection under said Section 197

would not be available.

It was also submitted that the decision of this Court in N.K.

Ganguly vs. Central Bureau of Investigation, New Delhi

5

was in the

context of the peculiar facts involved therein.

On the other hand, Mrs. V. Mohana, learned Senior Advocate,

submitted that the Respondent No. 1 retired in the year 2012; that the

allegations levelled against him would, at best, amount to administrative

lapses on his part and there was certainly no criminal intent so as to attract

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Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

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the charges under the relevant sections; and that this Court may not in its

jurisdiction under Article 136(1) of the Constitution interfere in the matter.

9. In S.A. Venkataraman vs. The State

6

while dealing with the

requirement of sanction under the pari materia provisions of the

Prevention of Corruption Act, 1947, it was laid down that the protection

under the concerned provisions would not be available to a public servant

after he had demitted his office or retired from service. It was stated:-

“… …if an offence under s. 161 of the Indian Penal

Code was committed by a public servant, but, at the

time a court was asked to take cognizance of the

offence, that person had ceased to be a public servant

one of the two requirements to make s. 6 of the Act

applicable would be lacking and a previous sanction

would be unnecessary. The words in s. 6(1) of the Act

are clear enough and they must be given effect to.

There is nothing in the words used in s. 6(1) to even

remotely suggest that previous sanction was necessary

before a court could take cognizance of the offences

mentioned therein in the case of a person who had

ceased to be a public servant at the time the court was

asked to take cognizance, although he had been such a

person at the time the offence was committed. … …”

The law so declared by this Court has consistently been followed.

For example, in Labh Singh

4

it was observed:-

“9. In the present case the public servants in question

had retired on 13-12-1999 and 30-4-2000. The

sanction to prosecute them was rejected subsequent to

6 [1958] SCR 1037

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their retirement i.e. first on 13-9-2000 and later on 24-

9-2003. The public servants having retired from

service there was no occasion to consider grant of

sanction under Section 19 of the PC Act. The law on

the point is quite clear that sanction to prosecute the

public servant for the offences under the PC Act is not

required if the public servant had already retired on

the date of cognizance by the court. In S.A.

Venkataraman v. State

6

while construing Section 6(1)

of the Prevention of Corruption Act, 1947 which

provision is in pari materia with Section 19(1) of the

PC Act, this Court held that no sanction was

necessary in the case of a person who had ceased to

be the public servant at the time the court was asked

to take cognizance. The view taken in S.A.

Venkataraman

6

was adopted by this Court in C.R.

Bansi v. State of Maharashtra

7

and in Kalicharan

Mahapatra v. State of Orissa

2

and by the Constitution

Bench of this Court in K. Veeraswami v. Union of

India

8

. The High Court was not therefore justified in

setting aside the order passed by the Special Judge

insofar as charge under the PC Act was concerned.”

10.Consequently, there was no occasion or reason to entertain any

application seeking discharge in respect of offences punishable under the

Act, on the ground of absence of any sanction under Section 19 of the Act.

The High Court was also not justified in observing ‘that the protection

available to a public servant while in service, should also be available

after his retirement’. That statement is completely inconsistent with the

law laid down by this Court in connection with requirement of sanction

under Section 19 of the Act.

7 (1970) 3 SCC 537

8 (1991) 3 SCC 655

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11.Again, it has consistently been laid down that the protection under

Section 197 of the Code is available to the public servants when an offence

is said to have been committed ‘while acting or purporting to act in

discharge of their official duty’, but where the acts are performed using

the office as a mere cloak for unlawful gains, such acts are not protected.

The statements of law in some of the earlier decisions were culled out by

this Court in Inspector of Police and another vs. Battenapatla Venkata

Ratnam and another

9

as under:-

“7. No doubt, while the respondents indulged in the alleged

criminal conduct, they had been working as public servants.

The question is not whether they were in service or on duty

or not but whether the alleged offences have been

committed by them “while acting or purporting to act in

discharge of their official duty”. That question is no more

res integra. In Shambhoo Nath Misra v. State of U.P.

10

, at

para 5, this Court held that: (SCC p. 328)

“5. The question is when the public servant is

alleged to have committed the offence of

fabrication of record or misappropriation of

public fund, etc. can he be said to have acted in

discharge of his official duties. It is not the

official duty of the public servant to fabricate the

false records and misappropriate the public funds,

etc. in furtherance of or in the discharge of his

official duties. The official capacity only enables

him to fabricate the record or misappropriate the

public fund, etc. It does not mean that it is

integrally connected or inseparably interlinked

with the crime committed in the course of the

9 (2015)13 SCC 87

10 (1997) 5 SCC 326

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same transaction, as was believed by the learned

Judge. Under these circumstances, we are of the

opinion that the view expressed by the High

Court as well as by the trial court on the question

of sanction is clearly illegal and cannot be

sustained.”

8. In Parkash Singh Badal v. State of Punjab

11

, at para 20

this Court held that: (SCC pp. 22-23)

“20. The principle of immunity protects all acts

which the public servant has to perform in the

exercise of the functions of the Government.

The purpose for which they are performed

protects these acts from criminal prosecution.

However, there is an exception. Where a

criminal act is performed under the colour of

authority but which in reality is for the public

servant’s own pleasure or benefit then such acts

shall not be protected under the doctrine of State

immunity.”

and thereafter, at para 38, it was further held that: (Parkash

Singh Badal case

11

, SCC p. 32)

“38. The question relating to the need of sanction

under Section 197 of the Code is not necessarily

to be considered as soon as the complaint is

lodged and on the allegations contained therein.

This question may arise at any stage of the

proceeding. The question whether sanction is

necessary or not may have to be determined from

stage to stage.”

9. In a recent decision in Rajib Ranjan v. R. Vijaykumar

12

at

para 18, this Court has taken the view that: (SCC p. 521)

“18. … even while discharging his official

duties, if a public servant enters into a criminal

conspiracy or indulges in criminal misconduct,

11 (2007) 1 SCC 1

12 (2015) 1 SCC 513

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such misdemeanour on his part is not to be

treated as an act in discharge of his official

duties and, therefore, provisions of Section 197

of the Code will not be attracted.”

(emphasis already supplied)

12.It has also been observed by this Court that, at times, the issue

whether the alleged act is intricately connected with the discharge of

official functions and whether the matter would come within the

expression ‘while acting or purporting to act in discharge of their official

duty’, would get crystalized only after evidence is led and the issue of

sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State

of Sikkim represented by the Central Bureau of Investigation

13

, this

Court stated:-

“15. Thus, from a conspectus of the aforesaid

decisions, it will be clear that for claiming protection

under Section 197 of the Code, it has to be shown by

the accused that there is reasonable connection

between the act complained of and the discharge of

official duty. An official act can be performed in the

discharge of official duty as well as in dereliction of

it. For invoking protection under Section 197 of the

Code, the acts of the accused complained of must be

such that the same cannot be separated from the

discharge of official duty, but if there was no

reasonable connection between them and the

performance of those duties, the official status

furnishes only the occasion or opportunity for the

acts, then no sanction would be required. If the case

as put forward by the prosecution fails or the defence

13 (2001) 6 SCC 704

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establishes that the act purported to be done is in

discharge of duty, the proceedings will have to be

dropped. It is well settled that question of sanction

under Section 197 of the Code can be raised any time

after the cognizance; maybe immediately after

cognizance or framing of charge or even at the time of

conclusion of trial and after conviction as well. But

there may be certain cases where it may not be

possible to decide the question effectively without

giving opportunity to the defence to establish that

what he did was in discharge of official duty. In order

to come to the conclusion whether claim of the

accused that the act that he did was in course of the

performance of his duty was a reasonable one and

neither pretended nor fanciful, can be examined

during the course of trial by giving opportunity to the

defence to establish it. In such an eventuality, the

question of sanction should be left open to be decided

in the main judgment which may be delivered upon

conclusion of the trial.”

(underlined by us)

13. The offences involved in the case of N.K. Ganguly

5

were under

Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e.

relating to conspiracy to commit offences punishable under the provisions

of the Act. Secondly, the conclusion was drawn in the context of the facts

available therein which is evident from the following: -

“35. From a perusal of the case law referred to supra,

it becomes clear that for the purpose of obtaining

previous sanction from the appropriate Government

under Section 197 CrPC, it is imperative that the

alleged offence is committed in discharge of official

duty by the accused. It is also important for the Court

to examine the allegations contained in the final

report against the appellants, to decide whether

previous sanction is required to be obtained by the

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respondent from the appropriate Government before

taking cognizance of the alleged offence by the

learned Special Judge against the accused. In the

instant case, since the allegations made against the

appellants in the final report filed by the respondent

that the alleged offences were committed by them in

discharge of their official duty, therefore, it was

essential for the learned Special Judge to correctly

decide as to whether the previous sanction from the

Central Government under Section 197 CrPC was

required to be taken by the respondent, before taking

cognizance and passing an order issuing summons to

the appellants for their presence.”

(underlined by us)

14. We now turn to the cases relied upon by Mrs. V. Mohana, learned

Senior Advocate. In Rishipal Singh vs. State of Uttar Pradesh and

another

14

this Court observed:-

“13. What emerges from the above judgments is that

when a prosecution at the initial stage is asked to be

quashed, the test to be applied by the court is as to

whether the uncontroverted allegations as made in the

complaint prima facie establish the case. The courts

have to see whether the continuation of the complaint

amounts to abuse of process of law and whether

continuation of the criminal proceeding results in

miscarriage of justice or when the court comes to a

conclusion that quashing these proceedings would

otherwise serve the ends of justice, then the court can

exercise the power under Section 482 CrPC. While

exercising the power under the provision, the courts

have to only look at the uncontroverted allegation in

the complaint whether prima facie discloses an

offence or not, but it should not convert itself to that

of a trial court and dwell into the disputed questions

of fact.”

14 (2014) 7 SCC 215

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

18

This decision thus dealt with the parameters which ought to be

considered while entertaining an application under Section 482 of the

Code and is not a decision directly on the point. The decision in Anil

Kumar Bose vs. State of Bihar

15

pertained to a case which had arisen

after a full fledged trial, where, as regards offence punishable under

Section 420/34 IPC, it was observed that the essential ingredient being

mens rea, mere failure on part of the concerned employees to perform

their duties or to observe the rules/procedure may be administrative lapses

but could not be said to be enough to attract the penal provisions under

Section 420 IPC. The matter was considered after the facts had

crystalized in the form of evidence before the court and as such, this

decision is of no relevance for the present purposes.

15. Having considered the matter in entirety, in our view, the High

Court clearly erred in allowing Criminal Revision Petition and accepting

the challenge raised by the Respondent No.1 on the issue of sanction.

We, thus, allow this Appeal, set aside the view taken by the High Court,

restore the order passed by the Trial Court and dismiss the application

seeking discharge preferred by the Respondent No.1.

15 (1974) 4 SCC 616

Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)

Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan

19

16. It is made clear that we have adverted to the facts and the

allegations only for the purpose of considering the basic issue pertaining to

issue of sanction and we shall not be taken to have expressed any view on

merits which shall be considered independently. It has been stated by the

learned counsel that the matter is listed before the Special Court on

11.12.2019. The Respondent No.1 shall appear before the Special Court

on that day and the matter shall, thereafter, be proceeded in accordance

with law.

17.This Appeal is allowed in aforestated terms.

………………………J.

[Uday Umesh Lalit]

………………………J.

[Indu Malhotra]

………………………J.

[Krishna Murari]

New Delhi;

December 05, 2019.