R.C.Mishra, J. - (1.)THIS order shall govern disposal of the aforesaid cases as they are interrelated. For the sake of convenience, the petitioners shall be referred to by their respective names only.
(2.)MCRCS are the petitions, under Section 482 of the Code of Criminal Procedure, for quashing of the entire proceedings pending before the Special Judge (under the Prevention of Corruption Act, 1988), Khandwa as Special Criminal Case No.4/2006 whereas the criminal revisions have been preferred against the order dated 10/03/2008, framing charges of various offences against the petitioners as can be tabulated hereinunder - JUDGEMENT_1597_ILR(MP)_2011Image1.jpg JUDGEMENT_1597_ILR(MP)_2011Image2.jpg JUDGEMENT_1597_ILR(MP)_2011Image3.jpg
In that case, the cognizance of the offences was taken upon the charge- sheet submitted by S.P.E. (Lokayukt) before the Special Court after due investigation into Crime No. 100/1996 registered at its Indore office. Allegations contained therein may be summarized thus -

(i) Contract for earthwork of Indira Sagar Main Canal, RD 13.1 Km to RD 19.00 kms, Group No.ME-5 was awarded to M/s S. V. Engineering Constructions, Nellore, a registered partnership firm, having its office at Dargamitta Nellore (hereinafter referred to as 'the firm'). (ii) During the relevant point of time, S.C. Saxena, V.K. Talesara and Ram Singh Ahirwar were posted as Executive Engineer, Assistant Engineer and Sub Engineer in Narmada Division No.28, Indra Sagar Project whereas amongst the other petitioners N. Dashratha Rami Reddy, Nellore Hemawathi and Gorla Sundaraiah were the partners of the firm and M. Jagannatham was the holder of Power of Attorney to act for and on its behalf. (iii) Since the contractor had failed to stack the excavated hard rocks at a distance of 10 kms from the canal, an amount of Rs.7.80 per cubic meter was to be deducted from the respective running bills as per Unified Schedule of Rates, but in pursuance of a conspiracy hatched between the officers of Indira Sagar Project (Canals) including S.C. Saxena, V.K. Talesara and Ram Singh Ahirwar and representatives of the contractor including the other petitioners, a total amount of Rs.32,02,608/- was not deducted and was thus, wrongly sanctioned for payment. (iv) With a view to causing wrongful gain to the contractor, S.C. Saxena as Executive Engineer-in-charge classified the soft rocks as hard rocks, excavation of which carried comparatively higher rates. (v) The representatives of the contractor were instrumental in getting incorrect entries recorded by V.K. Talesara, Asstt. Engineer and Ram Kumar Ahirwar, Sub Engineer in the third running bill and the measurement book respectively so as to prevent deduction of amount for non-stacking of rocks.

For grant of sanctions, under Sections 19(1) of the Act and 197 of the Code of Criminal Procedure, to prosecute the following public servants -

(i) Akhilesh Kumar Agrawal, the then Chief Engineer, Indira Sagar Project. (ii) Suresh Chandra Sharma, the then Executive Engineer, Narmada Division No.28, Indira Sagar Project at Punasa. (iii) S.C. Saxena, Executive Engineer, Division No.28 V.K.Talesara, SDO, Water Resource Department, Khandwa and Ram Singh Ahirwar, Sub Engineer, Sub Division No.27 - report of the investigating agency along with material and evidence collected by it, was forwarded to the Principal Secretary, Department of Law and Legal Affairs, Bhopal. However, while observing that - (a) No sanction, under Section 19(1) of the Act, for prosecution of Akhilesh Kumar Agrawal who, in the meantime, had retired from service, was required. (b) He was not required to consider the matter of according sanction in respect of Suresh Chandra Sharma and S.C. Saxena whose services were allocated to the newly created State of Chhattisgarh, the Secretary, vide order-dated 29.04.2006, refused to accord sanction for prosecution of anyone of the public servants named above.

(3.)A bare perusal of the order-dated 29.04.2006 would reveal that sanction for prosecution was declined for the following reasons -
(i) No wrongful loss was caused to the State Government. (ii) After classification of strata by the Executive Engineer-in-charge, site was inspected by Chief Technical Examiner and Senior Geologist, Government of India, who were not able to pin-point any error in the classification. However, in the wake of certain complaints, the then Superintending Engineer namely K.K. Saraf inspected the site in presence of Executive Engineer and reclassified the strata and payment towards excavation work was made accordingly. (iii) Even though, no separate rate for recovery against non-stacking of the excavated rocks was provided in the agreement yet, the work of stacking was insisted upon in Schedule 'G'. Still, non-stacking charges were duly deducted from the subsequent bills. (iv) In absence of mens rea, none of the acts and omissions attributed to the public servants amounted to an offence and at the most, they could be termed as errors or irregularities. (v) The administrative department viz. Water Resources Department had expressed disagreement with the proposal for prosecution of the officers. (vi) Aggrieved by the alteration of classification of strata in the canal excavation, withholding of the amounts against the work of canal excavation and deductions due to non-stacking of the hard rocks, the contractor had referred the dispute to the M.P. Arbitration Tribunal. In its Award dated 5.10.2005 passed in Reference Case No. 107/1999, the Tribunal, while observing that error committed by the Executive Engineer in classification of strata could be rectified by the Superintending Engineer, proceeded to hold that classification of strata ascertained by the S.E. in presence of Executive Engineer was not unlawful.

In the light of these background facts, learned Senior Counsel has submitted that no offence was made out against representatives of the contractor whereas Shri A.T. Faridee, representing Ram Singh Ahirwar and V.K. Talesara has contended that in view of this Division Bench's decision in Bramha Swaroop Saini v. State of M.P. (Criminal Revision No.600/2010 decided on 19.11.2010), no cognizance of the offences whether under the Act or under the IPC could be taken in the wake of refusal of the sanction by the competent authority. Shri Manish Mishra, appearing on behalf of petitioner S.C. Saxena has contended that had he continued to serve in the State of Madhya Pradesh, the requisite sanction for his prosecution in respect of the offences would have been refused and as such, even cognizance of any one of the offences could not be taken.