Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of Sheel Nagu and Vivek Agarwal, JJ. contemplated instant intra Court appeal filed under Section 2(1) of Madhya Pradesh High Court Act, 2005. The order passed by the Single Judge was challenged where the petition was dismissed on merits, the petitioner sought relief against his transfer order from one district to another.

D.P. Singh, counsel for the petitioner submitted that the child of the petitioner was in Class 11th and the transfer will affect the studies of the child and in between the mid-session there was very less possibility to getting admission in a new school. Hence the academic of the child was in jeopardy. Hence, the transfer must be stayed.

The Court observed that, transfer on the ground of the son/daughter of transferred employee was in Class-11th and 12th was not a justifiable cause however, it was stated that as our Constitution via Article 38, reflected that ‘State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.’

Hence, the Court decided that “for a public servant to strive towards excellence, it was of utmost importance that fair and equitable opportunities were made available by the State. One of the means to achieve the goal to provide equitable opportunities by the State was to make available healthy and stress-free working environment for a public servant. It further remarked that such stress-free environment was only possible when the employer, made transfers took into account not only the administrative exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which was though difficult but not impossible to achieve. Every government in its capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart-burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the overall development of the particular institution and as well as the nation.

The Court further observed that the public servants, whose children were pursuing their career in the higher secondary stage of education, were not to be disturbed barring an emergent situation where a transfer cannot be avoided or deferred. It was observed that such observation cannot be turned into a direction because of the inherent limitations of the power of judicial review.

Hence the order of transfer of the petitioner was quashed. Further Additional Advocate General and Chief Secretary of Government of M.P were served a copy of the particular order.[Ripudaman Singh Yadav v. State of M.P, 2019 SCC OnLine MP 1658, decided on 16-07-2019]

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Supreme Court: A 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has refused to entertain a PIL seeking a direction to the Punjab government to set up a special investigation team (SIT) to probe the death of a government official whose body was found on railway track near Jalandhar Cantt station in November 2017.

The bench said that it was not inclined to entertain the plea and granted liberty to the petitioners to approach the Punjab and Haryana High Court with their grievances. It said,

“We are not inclined to entertain this petition under Article 32 of the Constitution of India, on the ground stated before the Court by the petitioner-in-person that as a law student the petitioner has no time to move the High Court.”

The plea, filed by three law students Deepali Vashishth, Prateek Raj and Anurag Mani, said that Rahul Bhatia was posted in the Regional Passport office at Jalandhar and on November 15, 2017, his body was found near the railway station. They said that Bhatia’s parents, who are residing in Delhi, were informed by the police about it but no proper investigation was carried out in the case. They have said in the plea that several complaints and representations were made to the top authorities but no action was taken in the matter by the police.

The plea also sought a direction to the authorities to ensure that in every case of death, where proceedings under section 174 of the CrPC is initiated, a charge sheet is submitted to the judicial magistrate after conducting probe. Section 174 of CrPC deals with inquiry by police in cases of suicide or unnatural deaths.

 

(With inputs from PTI)

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceedings filed under the Prevention of Corruption Act, 1988 against a Panchayat Secretary, on the ground that the same lacked proper sanction of the competent authority.

Petitioner moved the Court under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of complaint case registered for offences under Sections 420 and 406 of the Penal Code, 1860 and Sections 13(2) and 13(1) (d) of PC Act. Petitioner, who at the relevant time was posted as Panchayat Secretary, was alleged to have committed irregularity in the purchase of solar panels.

Counsel for the petitioner Mr S. R. C. Pandey submitted that a complaint filed by a private person under PC Act against a public servant cannot proceed unless there is proper sanction by the competent authority. Petitioners, being Panchayat Secretary, were public servants under Section 2(c) of the Act, and were thus protected from prosecution without the previous sanction of the State Government in terms of Section 19(1)(b) of the Act.

Counsel for the respondent Mr Anjani Kumar agreed with the petitioner’s submission and submitted that both for preliminary enquiry as well as for lodging of FIR under the PC Act, prior sanction of the Competent Authority is required.

In view of the above, the instant application was allowed. [Rama Prasad Singh v. State of Bihar, 2019 SCC OnLine Pat 423, Order dated 29-03-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. allowed a petition filed against order of the trial court whereby it has taken cognizance of offence under Section 188 IPC (disobedience to order duly promulgated by public servant) against the petitioner.

The District Disaster Management Authority carried out an inspection of “M Cinemas” of the petitioner and identified certain shortcomings. The premised was directed to be closed for visitors. On petitioner’s failure to comply with the directions, CEO of the Authority filed a complaint with SHO of the police station concerned. An FIR was registered and chargesheet was assailed by the police, based on which cognizance was taken by the Magistrate vide the impugned order. Aggrieved thereby, the petitioner was before the High Court.

The petitioner was represented by Nina R. Nariman with Vrinda Bhandari and Geetika Kapur, Advocates. It was submitted that in terms of Section 195 CrPC, no Court can take cognizance of an offence under Section 188 IPC except on complaint of public servant concerned. It was contended that no complaint satisfying requirements of Section 2(d) CrPC was filed in the present case. As per Section 2(d), a “complaint” has to be in writing to the Magistrate.

The High Court held that the complaint made by CEO of the Authority was a complaint made to SHO which could not be treated as a complaint to the Magistrate so as to satisfy the requirements of Section 195 (1)(a)(i) CrPC. It was observed, “Non-compliance of Section 195 is a defect which cannot be cured subsequently as was sought to be done by the prosecution by filing a supplementary chargesheet or by way of a complaint given by the public servant after cognizance has been taken.” Holding that the present proceedings suffered from infraction of Section 195, the Court allowed the petition and quashed the impugned order. [Mohan Kukreja v. State (NCT of Delhi), 2019 SCC OnLine Del 6398, decided on 08-1-2019]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of Kh. Nobin Singh, J. allowed a writ petition filed by a retired public servant challenging the notice of enquiry issued against him under Rule 9(7) of the Manipur Public Servants’ Personal Liability Rules, 2006.

The petitioner had retired from the post of Head Clerk in the Department of Minorities and Other Backward Classes. After a gap of six years from the date of his retirement, the Deputy Secretary (Finance/PIC), Government of Manipur issued a notice against him under the rule mentioned above. It was issued in contemplation of an enquiry to be held against him for his irregularity of action as a public servant. Being aggrieved by the said notice, the petitioner filed the instant petition. The ground being, inter alia, that since he had already retired from service, the provisions of Manipur Public Servants’ Personal Liability Act, 2006 would not apply to him.

The question for consideration before the High Court was ‘whether the provisions of the Act will apply to a retired employee or not?’. It was noted by the Court that the main object and reason behind enactment of the Act is the recovery of Government money misappropriated by a public servant. The Court perused Section 2(g) [which defines public servant]  and Section 4 [which provides for liability for irregular action of public servant]; and observed that the retired employee is nowhere referred to in those sections. If the Act was intended to apply to retired employees also, nothing prevented the State Government from including it in the Act. After retirement, the employee is no longer a public servant for all practical purposes. The Court was of the view that the notice impugned was issued without jurisdiction and was liable to be quashed and set aside. The writ petition was accordingly allowed. [B. Malsawma v. State of Manipur,2018 SCC OnLine Mani 86, dated 10-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Prakash D. Naik, J. answered a reference made by the Additional Chief Metropolitan Magistrate in a case where the co-accused, who were not public servants, were tried under the provisions of Prevention of Corruption Act 1988 (PC Act) even after the death of main accused, a public servant.

The main accused (now deceased) was a postman in the Post office, and thus a public servant. He was alleged to have misappropriated to his own use, along with other co-accused, several shares of a private company which he was to deliver in furtherance of his official duty. The main accused died before framing of charges and hence criminal proceedings against him stood abated. The remaining co-accused (not public servants) were however tried by the Sessions Judge for the charges framed under PC Act along with charges under Penal Code. The main issue inter alia contended by the respondents was that since the main accused was dead, the Sessions Court was divested of the powers of the trial of the co-accused under PC Act.

The High Court referred to various decisions of the Supreme Court and other High Courts and finally reached a conclusion that there was no infirmity in the trial of the co-accused under the Act even after the death of the main accused who was the public servant. The Court perused Section 4(3) of the PC Act which provides that a Sessions Judge was vested with powers of trying non-public servants for charges under the Act along with charges framed under other statutes. The Court noted the fact that none of the co-accused being tried under PC Act was a public servant and the main accused who was the only public servant was dead. However, having noted thus, the Court observed that death of the main accused does not result in abatement of trial as regards the other co-accused. While answering the reference in affirmative, the Court directed the learned Sessions Judge to proceed with the case in accordance with the law. [State of Maharashtra, In re, 2018 SCC OnLine Bom 1125, dated 04-06-2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and AM Khanwilkar, JJ held that a public servant facing charge of criminal misconduct, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary resources or property disproportionate to his known sources of income.

The bench held that the primary burden to bring home the charge of criminal misconduct is indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence.

In the case where the appellant had challenged the Madhya Pradesh High Court’s order convicted him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 by drawing adverse inference without any conclusive proof, the Court, setting aside his conviction, said that the appellant must be given a benefit of doubt. The Court said that the prosecution, to succeed in a criminal trial, has to pitch its case beyond all reasonable doubt and lodge it in the realm of “must be true” category and not rest contended by leaving it in the domain of “may be true”. [Vasant Rao Guhe v. State of Madhya Pradesh, 2017 SCC OnLine SC 893, decided on 09.08.2017]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of the expression “the public servant or his administrative superior” under Section 195(1) (a)(i) CrPC, the bench of A.K. Goel and U.U. Lalit, JJ held that the expression cannot exclude High Courts.

Interpreting Section 195(1) (a)(i) CrPC which says that cognizance in respect of offence under sections 172 to 188 IPC cannot be taken except “on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate”, the Court said that that while the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person.

It was further held that direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. [CBI v. M. Sivamani, 2017 SCC OnLine SC 845, decided on 01.08.2017]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether an employee of a Public Sector Undertaking can be considered to be ‘Public servant’ under Section 197 CrPC, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that the protection by way of sanction under Section 197 CrPC is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are ‘State’ within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government.

In the present case, the respondent, who was convicted for offences punishable under Section 409/467/468/471 IPC, had contended that he being an employee of the appellant Corporation was a public servant and the trial had commenced without obtaining sanction under Section 197 CrPC and hence, the trial in entirety was invalid and as a result the conviction and sentence deserved to be set aside.

The Court rejected the aforesaid contention and held that the respondents are not entitled to have the protective umbrella of Section 197 CrPC and that the Punjab & Haryana High Court had erred in setting aside the conviction and sentence on the ground that the trial is vitiated in the absence of sanction. The Court, hence, remitted the matter to the High Court. [Punjab State Warehousing Corp v. Bhushan Chander, 2016 SCC OnLine SC 632, decided on 29.06.2016]

Case BriefsSupreme Court

Supreme Court: Writing down the 268 pages long judgment where the constitutional validity of Sections 499 and 500 IPC and Sections 199(1) to 199(4) CrPC was upheld, the bench of Dipak Misra and P.C. Pant, JJ stated that it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression.

The Court, after making an in depth analysis of Section 499 IPC, held that the provision along with Explanations and Exceptions cannot be called unreasonable, for they are neither vague nor excessive nor arbitrary. The Court further said that criminal defamation which is in existence in the form of Sections 499 and 500 IPC, is not a restriction on right to freedom of speech and expression that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other as protection of reputation is a fundamental right as well as a human right.

Regarding the Section 199 CrPC it was contended by the petitioner that except the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory, mention of the other public servants in the provision puts them in a different class to enable them to file a case through the public prosecutor in the Court of Session which makes the provision discriminatory. The Court rejected the said contention and held the public servants constitute a different class as public function stands on a different footing than the private activities of a public servant. The provision gives them protection for their official acts and there cannot be defamatory attacks on them because of discharge of their due functions.  However, the Court clarified that criticism is different than defamation. [Subramanian Swamy v. Union of India, 2016 SCC OnLine SC 550, decided on 13.05.2016]

High Courts

Madras High Court: While deciding that whether the Cane Officer of a Cooperative Sugar Mill comes under the category of ‘public servant’ for the purposes of proceedings under Prevention of Corruption Act, 1988, the Court observed that the Sugar Mills perform a public duty therefore the respondent in his capacity as a Cane Officer of Tiruthani Cooperative Sugar Mills, created under the Tamil Nadu Co-Operative Societies Act, 1983 is a ‘public servant’ within the meaning of Section 2(c) of Prevention of Corruption Act, 1988.

As per the facts of the case, the respondent was suspended on the charges of accepting bribes in lieu of transferring a Cane Assistant. The counsel for the respondent C. Prakasam contended that the respondent does not come under the category of ‘public servant’ as the Tiruthani Cooperative Sugar Mills is not an authority under Article 12 of the Constitution. The petitioner via his counsel S.Sivashanmugam contended that the cooperative sugar mills are performing public duty, therefore its employees come under the category of ‘public servants’ under Section 2(c) of Prevention of Corruption Act, 1988.

Perusing the arguments the Court observed that the Coop. Sugar Mill in question is being partly aided by the Government of Tamil Nadu via the legislation of The Sugarcane (Control) Order, 1966 which defines ‘cooperative society’ and the Essential Commodities Act, 1955 also the Sugar Mills’ service conditions and pay scales are being fixed by the Department of Industries indicating deep control by the Government thus indicating towards performing a public duty. Further referring the decisions by the Supreme Court and various High Courts, the Court observed that the definition of ‘public servant’ in the Prevention of Corruption Act has wider meaning as compared to the provisions of IPC and with the increase in number of corrupt practices by the public servants, the courts are therefore bound to give the term a wider scope in future.

Joint Registrar, M/s Tiruthani Co-op. Sugar Mills Ltd. v. P. Sivakumar, decided on 18.11.2014