Bombay High Court: While considering a criminal revision application under Section 397 of the Criminal Procedure Code, 1973 (‘CrPC’), a Single Judge Bench of Mehroz K. Pathan, J., observed that sanction under Section 19 of the Prevention of Corruption Act, 1988 (‘PC Act’) is not necessary once the public servant has retired. The Court emphasised that the protection available to a public servant while in service does not extend after retirement, and held that offences under the Penal Code, 1860 (‘IPC’), such as cheating, forgery, and conspiracy cannot be regarded as acts done in discharge of official duty. Consequently, the Court upheld the Trial Court’s refusal to discharge the accused and directed that the trial be completed expeditiously, preferably within one year.
Background:
The matter arose from allegations of irregularities and misappropriation committed during the tenure of the applicant as Chief Executive Officer of Zilla Parishad, Jalna between August 1997 and October 1998. The offences invoked included conspiracy, criminal breach of trust, forgery, abetment under the IPC along with provisions of the PC Act. However, the applicant retired in April 2003, and a charge-sheet was filed in 2005.
The applicant contended that sanction was mandatory even for retired public servants, and relied on his exoneration in departmental inquiry conducted in May 2003. It was argued that refusal of sanction by the Government in December 2007 rendered the proceedings unsustainable. It was submitted that the trial court wrongly applied precedent, since in that case the officer was dismissed, whereas here the applicant had retired. Reliance was placed on judgments where the Supreme Court held that protection under Section 197 CrPC continues even after retirement. It was also stressed that sanction is a safeguard against harassment, and further argued that at the age of 83, the applicant should not face trial.
On the other hand, the prosecution submitted that sanction is not required once a public servant retires, citing earlier Supreme Court rulings. It was argued that IPC offences like cheating, forgery, and conspiracy cannot be considered acts done in discharge of official duty. The prosecution further contended that exoneration in departmental inquiry does not bar criminal proceedings, reiterating that criminal liability is distinct and must be tested on evidence before the court.
Analysis and Decision:
The Court emphasised that the charge-sheet shows there are serious allegations of criminal breach of trust by a public servant, coupled with conspiracy and forgery with an intention to cheat, against the applicant. The Court referred to State of Punjab v. Labh Singh, (2014) 16 SCC 807, wherein it was held that sanction to prosecute a public servant for offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the Court.
The Court observed that in the present case the applicant had retired from service on 30-04-2003 and the charge-sheet was filed thereafter in 2005. The Court noted that it cannot be said that the applicant was a public servant on the date of filing of the charge-sheet in Court, and as such, the sanction contemplated under Section 19 of the PC Act was not necessary and the contention of the applicant was therefore misconceived and liable to be rejected.
Insofar as the other ground raised by the applicant relating to discharge of official duty, the Court referred to Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, where it was held that the offence of cheating under Section 420 IPC, or offences relatable to Sections 467, 468, 471, and 120B IPC, cannot be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty, since in such cases official status only provides an opportunity for commission of the offence. Thus, the Court noted that it is clear that the offences alleged to have been committed by the applicant under the IPC cannot be regarded as acts done or purported to be done in furtherance of his official duties.
Further, on the argument made by the applicant with regard to exoneration in the departmental inquiry, the Court relied upon State (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685, wherein the Supreme Court held that the fact that the accused was exonerated in disciplinary proceedings by itself cannot be a ground for quashing the criminal proceedings, since a criminal case is decided on the basis of the evidence produced by the prosecution and cannot be rejected on the basis of evidence in departmental proceedings or the report of an inquiry officer. The Court emphasised that the FIR filed against the applicant was an independent initiation of criminal proceedings, which included allegations of criminal conspiracy, criminal misappropriation, and criminal breach of trust.
On the submission made by the applicant regarding his old age of 83, the Court observed that the applicant himself had obtained a stay of the trial by filing the present revision application, and the Court, vide order dated 17-06-2008, stayed the trial as against him. Thus, the applicant could not take undue advantage of his own acts.
Accordingly, the Court held that the Trial Court had not committed any error in rejecting the application for discharge. The Court found the revision application devoid of substance on merits and rejected it. Therefore, the interim stay was vacated, and the Trial Court was directed to complete the trial expeditiously, and in any case not beyond one year.
[Shamkant v. State of Maharashtra, Criminal Revision Application No. 53 of 2008, decided on 17-02-2026]
Advocates who appeared in this case:
For the Applicant: Rajendra Deshmukh a/w Hashmi Ubaid and Shital i/b. R.G. Dodiya
For the Respondent: A.S. Shinde
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