P.K. Choudhury Vs.
Commander, 48 Brtf (Gref)  INSC 455 (13 March 2008)
S.B. Sinha & V.S.
Criminal Appeal No. 480 of
2008 (Arising out of Slp (Crl.) No. 5911 of 2006) S.B. Sinha, J.
1. Appellant herein is aggrieved by and dissatisfied with a judgment and
order dated 21st March, 2006 passed by a learned Single Judge of the Gauhati
2. Indisputably, Appellant at all material times was a Commandant of 48 BRTF
(GREF) as a member of the Armed Forces. While he was acting in the said
capacity, allegations were made against him for commission of offences under
Section 166 and 167 of the Indian Penal Code,
3. The period during which the said offences are said to have been committed
is 5.1.1989 to 11.2.1992. A complaint petition was filed in November, 2000
purported to be on the basis of a report dated 20.12.1996 of the then
Commander, 48 BRTF at Tezu on 20.12.1996.
The Judicial Magistrate, First Class, Tezu took cognizance of the said
offences against the appellant by an Order dated 7.11.2000.
4. The application filed by the appellant under Section 482 of the Code of
Criminal Procedure, 1973 for quashing the said proceedings has been dismissed
by the Gauhati High Court by reason of the impugned judgment.
5. Mr. Nagendra Rai, the learned senior counsel appearing on behalf of the
appellant would submit that the order taking cognizance is bad in law as the
same was filed beyond the prescribed period of limitation and in any event was
not preceded by a valid order of sanction of the competent authority as
envisaged under Section 197 of the Code of Criminal Procedure.
6. Section 166 and 167 of the Indian Penal Code
provides for an offence by a public servant. Whereas Section 166 prescribes a sentence of simple imprisonment for a term
which may extend to one year; the sentence which can be imposed under Section
167 is one of either description for a term which may extend to three years or
with fine or with both.
7. Section 468 of the Code of Criminal Procedure, 1973 specifies the period
of limitation within which the cognizance of an offence can be taken. Clause (c) of Sub-section (2) of Section 468 specifies the period of
limitation to be three years if the offence is punishable with imprisonment for
a term exceeding one year but not exceeding three years.
8. There is no doubt or dispute that the Court has the power to condone the
delay. No order condoning the delay has however, been passed by the learned
Judicial Magistrate in this case. The ground taken for condonation of delay in the said complaint petition of
the complainant is as under:- "8. That a Court of Inquiry was held by the
Department against the irregularities in Supply Orders and thereafter the case
was under consideration by Army HQ. The Central Vigilance Commission also
investigated the matter since 20 Dec. 1996 and on the completion of
investigation by CVC, the matter was barred by limitation for taking action
under the Army Act against the accused. Hence the delay in filing this
complaint in the Court and the delay may be condoned under Section 473 Cr.P.C.
as the delay was not intentional but inevitable in holding Court of Inquiry."
9. The learned Judicial Magistrate did not apply his mind on the said
averments. It did not issue any notice upon the appellant to show cause as to
why the delay shall not be condoned. Before condoning the delay the Vinayak
Dongre and Others [(1995) 1 SCC 42] this Court held; "5. In our view, the High Court was perfectly justified in holding that
the delay, if any, for launching the prosecution, could not have been condoned
without notice to the respondents and behind their back and without recording
any reasons for condonation of the delay. However, having come to that
conclusion, it would have been appropriate for the High Court, without going
into the merits of the case to have remitted the case to the trial court, with
a direction to decide the application for condonation of delay afresh after
hearing both sides. The High Court however, did not adopt that course and
proceeded further to hold that the trial court could not have taken cognizance
of the offence in view of the application filed by the prosecution seeking
permission of the Court to file a "supplementary charge- sheet" on
the basis of an "incomplete charge-sheet" and quashed the order of
the CJM dated 21-11-1986 on this ground also. This view of the High Court, in
the facts and circumstances of the case is patently erroneous."
10. In view of the aforesaid decision, there cannot be any doubt whatsoever
that appellant was entitled to get an opportunity of being heard before the
delay could be condoned.
11. Far more important however, is the question of non-grant of sanction. Appellant admittedly is a public servant. He is said to have misused his
position as a public servant. Section 197 of the Code of Criminal Procedure lays down requirements for
obtaining an order of sanction from the competent authority, if in committing
the offence, a public servant acted or purported to act in discharge of his
official duty. As the offences under Section 166 and 167 of the Indian Penal Code
have a direct nexus with commission of a criminal misconduct on the part of a
public servant, indisputably an order of sanction was pre-requisite before the
learned Judicial Magistrate could issue summons upon the appellant.
12. Respondents in their counter affidavit, however, would contend that no
such sanction was required to be taken as the appellant would be governed by
the provisions of Section 125 and 126 of the Army Act, 1950. The said provisions in our considered opinion have no application
13. Section 125 of the Act postulates a choice of the competent authority to
try an accused either by a criminal court or any court or proceedings for court
martial. Section 126 provides for the power of the Criminal Court to require
delivery of offender.
14. As an option to get the appellant tried in a ordinary criminal court had
been exercised by the respondent, there cannot be any doubt whatsoever that all
the pre-requisites therefor in regard to the period of limitation as also the
necessity to obtain the order of sanction were required to be complied with. A Court of law cannot take cognizance of an offence, if it is barred by
limitation. Delay in filing a complaint petition therefore has to be condoned.
If the delay is not condoned, the court will have no jurisdiction to take
cognizance. Similarly unless it is held that a sanction was not required to be
obtained, the court's jurisdiction will be barred.
15. Section 197 of the Code unlike the provisions of the Prevention of
Corruption Act postulates obtaining of an order of sanction even in a case
where public servant has ceased to hold office. The requirements to obtain a
valid order of sanction have been highlighted by this Court in a large number
[(2004) 8 SCC 31], this Court held; "11. The correct legal position, therefore, is that an accused facing
prosecution for offences under the old Act or the new Act cannot claim any
immunity on the ground of want of sanction, if he ceased to be a public servant
on the date when the court took cognizance of the said offences. But the
position is different in cases where Section 197 of the Code has
application." (Emphasis adduced) See also State of Orissa through Kumar Raghvendra Singh
and Others Ors. [2008 (2) SCALE 303], having regard to the 41st Report of the
Law Commission, this Court observed; "24. It was in pursuance of this observation that the expression
"was" came to be employed after the expression "is" to make
the need for sanction applicable even in cases where a retired public servant
is sought to be prosecuted." It was furthermore held; "26. The High Court, therefore, was in error in observing that sanction
was not necessary because the expression used is "was".
16. The High Court, therefore, in our opinion committed a manifest error in
passing the impugned judgment.
17. The issues raised by the appellant were jurisdictional ones. The same
should have been adverted to by the High Court. For the reasons aforementioned, the impugned judgment cannot be sustained.
It is set aside accordingly. Appeal is allowed. No costs.