Patna High Court denies anticipatory bail to Vice-Chancellor of Magadh University

The protective shield under Section 17A of the Prevention of Corruption Act (PC Act) is only for honest public servants and not for corrupt ones, the Patna High Court observed while denying anticipatory bail to the Vice Chancellor (VC) of Magadh University, Dr. Rajendra Prasad in a cheating case [Dr Rajendra Prasad vs State of Bihar]. .The Court was hearing two pleas filed by Dr. Prasad, who also holds additional charge of Veer Kunwar Singh University, seeking anticipatory bail and also seeking quashing of the first information report (FIR) lodged against him last year.The contention of the accused was that the prosecution had not obtained the mandatory sanction to prosecute him under Section 17A of the PC Act.Single-judge Justice Ashutosh Kumar referred to various judgments of the Supreme Court on interpretation of this provision along with Section 197(1) of the Code of Criminal Procedure (CrPC), to hold that not every offence committed by a public servant would require such a sanction."Nor every act done by him while he is actually engaged in the performance of his official duties, so that, if questioned, it could be claimed to have been done by virtue of the office, would require such sanction. It is only when the act complained of is directly connected with the official duties that sanction is necessary. If the act complained has no nexus or reasonable connection or relevance to the official act or duty and the act is otherwise illegal, unlawful or in the nature of an offence, the shelter of 197 CrPC is not available, which protection is qualified and conditional," Justice Kumar held.The purpose of the provision is to protect public servants from baseless prosecution, the Court underlined. "The protective shield is for an honest public servant and not for a corrupt one...There is a clear division between those acts which constitute an offence and those acts, though done while discharging the official duties of the public servant, but which do not constitute an act done in exercise of official duties or functions," the judge added..The FIR against the applicant disclosed that while working as Vice-Chancellor, Magadh University, he had entered into a criminal conspiracy with his PA-cum-Assistant Subodh Kumar and two private firms viz. M/s. XLICT Software Private Ltd., based in Lucknow and M/s. Poorva Graphics and Offset Printers as also the Finance Officer of Veer Kunwar Singh University as well as the Registrar of Patliputra University and had thereby dishonestly cheated the government ex-chequer to the extent of approximately ₹20 crores during the check-period 2019-21 while making purchases of various items like e-books and OMR answer-sheets for use in University for conducting examination. As per the prosecution case, such purchases worth several crores were made by adopting a procedure, which was arbitrary and with the sole purpose of getting undue advantage to himself. There was no requisition or tender and the materials, in derogation of the financial rules, were not procured through procedure.It was claimed that the E-Books which were purchased for Veer Kunwar Singh University were not even put to any use for the reason that there was no sufficient infrastructure for storage of those E-Books and that such purchases were against the advice of the Head of the Departments of various subjects, whose sanction and recommendation were necessary for procurement of the books. Upon search, it was found that the accused had acquired huge movable and immovable property at different places from such proceeds of crime.Accordingly, an FIR was registered against the accused under Sections 120B and 420B of the IPC read with Sections 12 read with Sections 13(ii) read with Sections 13(i)(b) of the PC Act..In his 50-page judgment, Justice Kumar said that protection under Section 17A cannot be used as a sword to stifle prosecution for per-se criminal offences which can never be in discharge of official duty or in connection with recommendation made by a higher officer."The protective cover is in the nature of a permitted exception to the equality provision of the Constitution. Any unnecessary and broad interpretation of the section would defeat the very purpose of such protective discrimination in favour of honest and dutiful officers," the judge observed.The accused relied upon the judgment of the apex court in the review petitions in Rafale case, wherein Justice KM Joseph in his judgment had held that since Section 17A isn't challenged, the petitioners should have had filed a complaint in accordance with law but subject to the authorities obtaining previous sanction under Section 17A of the PC Act.Justice Kumar, however, clarified that this couldn't be read as an omnibus protective cover."Such an observation in Yashwant Sinha, cannot be read as an omnibus protective cover to any public servant accused of committing a criminal act under the garb of performing official duty. Moreover, the Apex Court, in that instance, had not opined that the protection under Section 17A of the Act was an omnibus protection, without following the test of the alleged offence being in the nature of recommendation or the decision taken being in discharge of official duty. Thus, the observation is only a passing reference in the nature of a sidewind, which does not sweep away the established parameters under the Act, which has been explained by the Apex Court for claiming protection under Section 17A of the Act," the Court said..The bench further opined that the accused wasn't performing his official duties by committing the acts as alleged in the FIR and thus prior sanction was not needed in the instant case."He was made known that such procedure in financial matters cannot be ignored but despite that, he went for such purchases from unknown firms and the payment was made in the account of a person who is untraceable till today. This, even at the risk of repetition, cannot be part of official duty or relatable to any recommendation made with respect to any policy decision," the Court held.It further opined that the courts in such cases of financial irregularities, need to bear in mind the consequences that would befall on the society."Regard being had to the overt act of the petitioner in causing huge financial losses to the state exchequer, the possibility of the petitioner tampering with the witnesses and the evidence and the magnitude of dishonesty by a person holding an office as high as that of a Vice Chancellor of the University which is considered to be a temple of learning, this Court is not persuaded to admit the petitioner to anticipatory bail," the Court ordered. .Senior Advocate Jitendra Singh and advocates Ranjeet Kumar and Jai Prakash Singh appeared for the accused.Advocate Rana Vikram Singh appeared for State's special vigilance unit and advocate Mohammad Sufyan represented the State.Note: The accused has resigned from the post..[Read Judgment]