- (1.) HEARD learned counsels for the par ties.
(2.) BY means of this petition, moved under Section 482 Code of Criminal Procedure, 1973, the petitioner has chal lenged his prosecution in criminal case No. 14 of 2004, State of Uttaranchal Vs. Yogendra Nath Arora, pending in the court of Special Judge, Anti Corrup tion, Nainital. Brief facts of the case, as nar rated in the petition are that the peti tioner is a public servant and aforesaid criminal case is pending before Special Judge, Anti Corruption, Nainital, relat ing to offence punishable under Section 7 read with Section 13 (1) (b) and Sec tion 13 (2) of Prevention of Corruption Act, 1988 (for brevity herein after re ferred as P. C. Act ). The grounds on which the prosecution is challenged by the petitioner is that prosecution is be ing proceeded without lawful sanction of a competent authority. The petitioner was employed as Deputy General Man ager with a Corporation known as UPICO, an undertaking of the Govern ment of U. P. It is only after the creation of State of Uttaranchal that the Uttaranchal Government proposed to take services of the petitioner on depu tation with its undertaking-State Indus trial Development Corporation (popu larly known as SIDCUL ). On the request of Government of Uttaranchal, UPICO relieved the petitioner to provide services of the petitioner on deputation with SIDCUL in compliance of which peti tioner joined his duties as Deputy Gen eral Manager in SIDCUL on 23-01-2003. The petitioner has further stated in the petition that after the period of deputation expired on 30-06-2004, the petitioner was repatriated to his parent department i. e. UPICO. It appears that a crime No. 168 of 2004 with police sta tion Dalanwala, District Dehradun, was registered against the accused by Vigi lance Inspector, relating to offence punishable under Section 7 read with Sec tion 13 (1) (b) and 13 (2) of the P. C. Act. After investigation, charge sheet was filed in respect of said crime and the im pugned criminal case is the result of said investigation. The respondent's reply to the pe tition is that sanction was obtained from the State of Uttaranchal to prosecute the petitioner. In substance, in the coun ter affidavit, contents of the petition are admitted that the petitioner's services were obtained from UPICO to SIDCUL. It is also not denied that he has been repatriated back to his parent depart ment. What has been stated in para-17 of the counter affidavit is that the State of Uttaranchal is taking remedial meas ures by writing to the State of Uttar Pradesh for granting sanction to pros ecute the petitioner.
(3.) BEFORE further discussions, it is pertinent to mention here that SIDCUL is an Authority created under Section 3 of U. P Industrial Area Development Act, 1976 (applicable to Uttaranchal ). The said authority known as SIDCUL was created after creation of State of Uttaranchal. It is also pertinent to mention here that expression 'public servant' is defined in Clause (c) of Section 2 of RC. Act, which provides as under- " (c) 'public servant' means,- (iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Gov ernment or a Government company as defined in section 617 of the Com panies Act, 1956 (1 of 1956); (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty; Explanation 1- Persons falling under any of the above sub-clauses are pub lic servants, whether appointed by the Government or not. " The aforesaid provision read with rel evant provision under U. P. Industrial Area Development Act, 1976, makes it amply clear that the petitioner is a pub lic servant. Now, the question is who is the competent authority, who can grant sanction to prosecute the petitioner. Ad mittedly, the petitioner was an employee of UPICO, an undertaking of Govern ment of Uttar Pradesh. It is also not de nied that after the period of expiry of deputation, the petitioner has been re patriated back to his parent department.;