Mere failure to perform duties may be administrative lapses and it will not constitute an offense un

STATION HOUSE OFFICER, CBI/ACB/BANGALORE.VS. B.A. SRINIVASAN AND ANR., CRIMINAL APPEAL NO.1837 OF 2019 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.6106 OF 2019. – 5 DECEMBER 2019.

The bench encompassing Justice Uday Umesh Lalit, Justice Indu Malhotra and Justice Krishna Murari collectively pronounced judgment on mere failure on part of the concerned employees to perform their duties or to observe the rules/procedure may be administrative lapses. The Respondent No. 1 retired as Assistant General Manager, Vijaya Bank.  FIR 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 punishable under Sections 419, 420, 467, 468, 471 read with Section 120B of the Indian Penal Code, 1860 (IPC) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’). 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 but it was rejected by the Additional City Civil and Sessions Judge and Principal Special Judge for CBI cases. It held: “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….”

Aggrieved by it, he 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. Mrs. Sonia Mathur, learned Senior Advocate, appeared on behalf of the appellants and Mrs. V. Mohana, learned Senior Advocate, appeared on behalf of the respondents.

The appellants argued that the protection under Section 19 of the Act was available to a public servant only till he was in the employment and no sanction was necessary after the public servant had demitted office or had retired from service. They contended 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. Per contra, the respondents argued that the Respondent No. 1 retired in the year 2012 and 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 the charges under the relevant sections; and that Supreme Court may not in its jurisdiction under Article 136(1) of the Constitution interfere in the matter.

The Court observed the following:

1. At times, the issue whether the alleged act was 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 was led and the issue of sanction could be agitated at a later stage.

2. It relied on the decision in P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation; N.K. Ganguly vs. Central Bureau of Investigation, New Delhi; Rishipal Singh vs. State of Uttar Pradesh and another; and Anil Kumar Bose vs. State of Bihar.

3. 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.

4. The offences involved in the case of N.K. Ganguly5 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.

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 Court pronounced the following:

“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. 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 preceded in accordance with law.  This Appeal is allowed in afore stated terms.”

View/Download Judgment: STATION HOUSE OFFICER, CBI ACB BANGALORE v. B.A.A SRINIVASAN AND ANR.

–  Jumanah Kader

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