Lakshmi Shankar Srivastava Vs. State
(Delhi Administration) [1978] INSC 233 (21 November 1978)
DESAI, D.A.
DESAI, D.A.
KAILASAM, P.S.
KOSHAL, A.D.
CITATION: 1979 AIR 451 1979 SCR (2) 348 1979
SCC (1) 229
ACT:
Appeal, abatement of-An appeal does not abate
on the death of the accused when leave is granted to the near relative to
continue the appeal Criminal Procedure Code 1973 (Act II of 1974), Section
394(2) r/w sec. 8(3) and 9 of the Criminal Law Amendment Act.
Sanction for prosecution Effect of the order
issued by S.R.O. 631 by the president of India in exercise of the power
conferred by sub rule (2) of rule l, Clause (b) of sub rule (2) of rule 14 and
sub rule (1) of rule 23 of the Central Civil Services (Classification,, Control
and Appeal) Rules 1957.
HEADNOTE:
The appellant who was working as an
investigator in the office of the Chief Controller of Imports and Exports was
charged, found guilty and convicted and sentenced to suffer rigorous
imprisonment for 18 months on each count for an offence under Sections 5(1) (d)
and 5(2) of the Prevention OF Corruption Act, 1947 and section 161 I.P.C. and a
fine of Rs. 200/- or in default to undergo further rigorous imprisonment under
section 5(2) of the Act. His appeal to the High Court was dismissed and the
conviction and sentence were confirmed. Special leave was granted by the
Supreme Court limited to the question. Of validity of sanction accord under
section 6 of the Prevention of Corruption Act, 1947. The appellant died during
the pendency of the appeal and his near relatives were granted permission to
continue the appeal.
Dismissing the appeal, the. Court
HELD 1. The preliminary objection of the
State as to the abatement of the appeal because of the death of the appellant
taking into account preparedness to conclude that the sentence might he set
aside must be negatived. [352D] (a) As per the proviso to section 394(2) of the
Criminal Procedure Code, 1973, where the appeal is against the conviction and
sentence of imprisonment and the appellant dies during the pendency of the
appeal, any of his near relatives may, within the time prescribed therein,
apply to the appellate Court before which the appeal is pending for leave to
continue the appeal and if the leave is granted the appeal shall not abate. [352A-B]
(b) The appellant, in the, instant case, has preferred the appeal against his
conviction and sentence of imprisonment and also sentence of fine. After his
death his near relatives as contemplated in the Explanation to sub section (2)
of section 394 Crl. P.C., applied to continue the appeal and were granted leave
to continue the appeal.
Therefore, the near relations of the deceased
can continue the appeal and even if the respondent State concedes that the
sentence of fine be set aside yet the appeal would not abate if leave is
granted o the near relation of the deceased to continue the appeal. [352C-D]
349
2. 'The sanction accorded, for prosecution of
the appellant under section 6 of the Prevention of Corruption Act, 1947 by the
Joint Chief Controller of Imports and Exports is valid in law: [355H, 356A] (a)
The instant case is governed by Central Civil Services (Classification, Control
& Appeal) Rules, 1965 and in view of S.R.O.. 631 issued by the President,
in exercise of the power conferred by sub rule (2) of rule 11, clause (b) of
sub rule (2) of rule 14, and sub rule (2) of rules 23 of the Central Civil
Services (Classification, Control & Appeal) Rules, 1957, which order was
saved by rule 34 of the 1965 Rules. [353C-D] (b) Rule 12(1) and (2) of 1965
Rules is in pari materia with rule 14 of 1957 Rules. Rule 2 of 1965 Rules
confers power on the President to impose any of the penalties specified in rule
11 on any Government servant. Sub rule (2) (b) provides that any person
appointed to a Central Civil Post included in the General Central Service by
the authority specified in this behalf by a general or special order of the
President or where no such order has been issued, by the appointing authority
specified in the Schedule in this behalf, may impose any of the penalties
specified in rule 11 which includes the penalty of removal from service.
Therefore, the President has the power to issue any general or special order to
confer power to impose penalties as specified in rule 11 on any authority other
than the one specified in the Schedule in this behalf. If the order issued by
the President. S.R.O.. 631 under corresponding rule 11 and the relevant rules
bearing on the subject of 1957 Rules is not shown to be inconsistent with any
of the Rules included in 1965 Rules, obviously such order would be saved under
rule 34. There being no inconsistency as contemplated by Rule 34, indisputably
the order issued by the President S.R.O. 631 along with the schedule would be
saved. Once S.R.O. 631 is saved, the relevant entry in the schedule in respect
of the origination of C.C.I.E. would be saved. Accordingly the entry in the
order issued by the President would supplant the corresponding entry in 1965
Rules and would have to be substituted for the entries in the relevant item in
the Schedule. The necessary consequence would be that in the case of the
organization of The C.C.I.E. for all posts in Headquarters office, lt. C.C.I.E.
would be both the appointing and the disciplinary authority having tho power to
remove from service such persons belonging to Class III services. Now, the
appellant was indisputably holding a post in Class III service in the
Headquarters office of the organisation of C.C.I.E. He was at the relevant time
holding the post of Investigator which is admittedly a Civil Post in Class III
service in the office of C.C.I.E. Indisputably, therefore. Jt. C.C.I.E. would
be both the appointing and disciplinary authority with power to remove him from
service. Therefore, Jt. C.C.I.E. would be competent to accord sanction as
envisaged by s. 6(1)(c) of the Act.
[355B-H] The fact that the administrative
department in respect of the office of C.C.I.E. is the Ministry of Foreign
Trade & Supply does not make any difference because C.C.I.E. is a separate
office with its own establishment.[1354A] R. J. Singh Ahluwalia v. State of
Delhi, A.L.R. 1971 S.C. 1552; distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 124 of 1972 350 Appeal by Special Leave from the Judgment and order
dated 24-11-1971 of the Delhi High Court in Criminal Appeal No.54 of 1971.C. P.
Lal for the Appellant.
H. R. Khanna and M. N. Shroff for the
Respondent.
The Judgment of the Court was delivered by
DESAI, J.-The; appellant in this appeal by special leave limited to the
determination of the question: whether the sanction is valid in law or not, has
been convicted for offences under section 5(2) read with section S(1) (d) of
the Prevention of Corruption Act, 1947 ('Act' for short), and section 161 of
the Indian Penal Code, and was sentenced to suffer rigorous imprisonment for 18
months on each could and a fine of Rs. 2000/-, in default to suffer further
rigorous imprisonment for a period of two months, for an offence under s. 5(2)
of the Act. His appeal being Criminal Appeal No. 54 of 1971 was dismissed by
the High Court of Delhi and the conviction and sentence were confirmed.
As the leave is limited to the question of
the validity of sanction ac corded under s. 6 of the Act, it is not necessary
to set out in detail the prosecution case. Briefly stated, the prosecution case
is that the appellant who was employed at the relevant time as Investigator in
the office of the Chief Controller of Imports & Exports (C.C.I.E. for
short), accepted from one P.T. Toprani an amount of Rs. 250/- by way. of
illegal gratification which was not his legal remuneration in presence of
witnesses on 18th June 1969 at about 5.30 p.m. near Gujarati Samaj; Sabha,
Delhi.
D. S. P. Badri Sharma appeared as soon as the
trap arranged by him materialised and recovered the amount of Rs. 2501/- from
the appellant. After completing the investigation the appellant was
charge-sheeted for the offences hereinabove mentioned.
Section 6 of the, Act forbids the Court from
taking cognizance, inter alia, of offences punishable under s. 161, IPC and
under sub-s. (2) of s 5 of the Act except with the previous sanction of the
authority therein set out.
Necessary sanction was accorded by the Jt.
C.C.I.E. On 26th November 1969. The relevant portion of the sanction reads as
under:
"Now, therefore, I, S. P. Chablani,
being the authority competent to remove the said Shri L. S. Srivastava, from
office do hereby accord sanction under section 6(1) (c) of the prevention of
Corruption Act, 1947 for the prosecution of the said Shri L. S. Srivastava, for
the said offences under section 161, I.P.C. and 5(2) read with 5(1)(d) of Act
II of 1947 and in 351 any other offence punishable under the provisions of law,
in respect of the facts aforesaid and for the taking of cognizance of the said
offences by a court of competent jurisdiction".
Mr. H. R. Khanna, learned counsel who
appeared for the respondent raised a preliminary objection. It was urged that
the appellant died during the pendency of this appeal and, therefore, the
appeal abates and cannot be proceeded with.
Simultaneously it was urged that if the
appeal were not to abate on the only ground that the appellant was also
sentenced to pay a fine of Rs. 200/- and, therefore. it may he said that right
to property of the legal representatives may be adversely affected and,
therefore, they would be entitled to continue the appeal, the respondent State
is prepared to concede that the sentence of fine may be set aside.
Section 394 of the Criminal Procedure Code
which provides for abatement of appeals reads as under:
"394. (1) Every appeal under section 377
or section 378, shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter
(except all appeal from a sentence of fine) shall finally abate on the death of
the appellant:
Provided that where the appeal is against a
conviction and sentence of death or of imprisonment, and the appellant dies
during the pendency of the appeal any of his near relatives may, within thirty
days of the (death of the appellant, apply to the Appellate Court for leave to
continue to the appeal;
and if Leave is granted, the appeal shall not
abate.
Explanation-In this section, "near
relative" means a parent, spouse, lineal descendant, brother or
sister".
The appeal by the appellant is not one under
s. 377 or s. 378 or the Cr. P.C. and, therefore, sub-s. (1) of s. 394 will not
be attracted The trial for an offence under s. 161 IPC and s. 5(2) of the Act
would be governed by the provisions of Criminal Law Amendment Act, 1952. lt
envisages setting up of Court of special Judge. Section 8(3) of the Criminal
Law Amendment Act provides that the Court of Special Judge shall be deemed to
be a Court of Sessions.
Section 9 confers power upon the High Court
to exercise all powers of appellate Court as if the Court of Special Judge were
a Court of Sessions trying cases within the local limits of the jurisdiction of
the High Court.
352 The present case would, therefore, be
governed by sub- s. (2) of s.394, Cr.P.C. It becomes clear from the proviso to
s. 394(2), Cr.P.C. that where the appeal is against the conviction and sentence
of imprisonment and the appellant dies during the pendency of the appeal, any
of his near relatives may, within the time prescribed therein, apply to the
appellate court before which the appeal is pending for leave to continue the
appeal and if the leave is granted the appeal shall not abate. The appellant
has preferred the appeal against his conviction and sentence of imprisonment as
also sentence of fine. After his death his near relations as contemplated in
the Explanation to sub-s. (2) of s. 394, Cr. P.C. applied by Criminal
Miscellaneous Petition No. 559 of 1978 to continue the appeal and this Court
granted substitution of such near relations by its order dated 28th March 1978
and thereby granted leave to continue the appeal.
Therefore, the near relations of the deceased
can continue the appeal and even if the respondent State concedes that the
sentence of fine be set aside yet the appeal would not abate because the appeal
against conviction and sentence of imprisonment would not abate if leave is
granted to the near relations of the deceased to continue the appeal. Such
Leaving having been granted, the appeal would not abate.
There is thus no merit in the preliminary
objection and it must be negatived.
Section 6 of the Act which provides for
necessity of previous sanction for prosecution for any of the offences under
the Act reads as. under:
"6. (1) No court shall take cognizance
of an offence punishable under section 161 ( or section 164) or section 1165 of
the Indian Penal Code, or under sub- section (2) or Sub section (3A) of section
5 of this Act, alleged to have been committed by a public servant, except with
the previous sanction, (a) in the case of a person who is employed` in
connection with the affairs of the Union and is not removable from his office
save by or with the sanction of the State Government, of the Central
Government.
(b) in the case of a person who is employed
in connection with the affairs of a State and is not removable from his office
save by or with the sanction of the Central Government, of the State
Government.
(c) in the case of any other person, of the
authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt
arises whether the previous sanction as required under sub-section 353 (1)
should be given by the Central or State Government or any other authority, such
sanction shall be given by that Government or authority which would have been
competent to remove the public servant from his office at the time when the
offence was alleged to have been committed".
Mr. Lal for the appellant contended that as
the appellant was an Investigator in the office of the C.C.I.E.
which at best was a Department under the overall
control of the Ministry of Foreign Trade and Supply. Government of India, the
sanction to prosecute him could only be given by the Government of India. In
the alternative it was contended that as the C.C.I.E. is head of the office, he
alone could accord sanction for prosecution as contemplated by s. 6 and,
therefore. the sanction accorded by Jt. C.C.I.E., an officer subordinate to
C.C.I.E . was ab initio void and the Court could not have taken cognizance of
the offence. Mr. Khanna for the respondent on the other hand contended that
this case would be governed by Central Civil Services (Classification, Control
and Appeal Rules, 1965 ('1965 Rules' for short), and in view of S.R.O.. 631
issued by the President in exercise of the powers D` conferred by sub-rule (2)
of rule 11, clause (b) of sub-rule (2) of rule 14, and sub-rule (2) of rule 23
of the Central Civil Services (Classification, Control and Appeal) Rules, 1957
('1957 Rules' for short), which order was saved by rule 34 of the 1965 Rules
and, therefore, the Jt. C.C.I.E. was both the appointing and disciplinary
authority including the authority competent to remove the appellant from
service and was accordingly competent to accord sanction under s.
6(1)(c) of the Act. Rule 11(2) of 1957 Rules
provides that all appointments to Central Civil Posts, classes II, III and IV,
included in the General Central Service shall be made by the authorities
specified in that behalf by a general or special order of the President, or,
where no such order has been made, by the authorities specified in the Schedule
appended to the Rules. Similarly, rule 14(1) provides that the President may
impose any of the penalties including one of removal or dismissal from service
as envisaged by rule 13 on any Government servant. Sub-rule (2) of rule 14
provides that without prejudice to the provisions of sub-rule (1), any of the
penalties specified in rule 1 may be imposed under sub-clause (b) in respect of
person appointed to a Central Civil post included in the General Central Services
by the authority specified in this behalf by a general or special order of the
President or where no such order has been made by the appointing authority or
the authority specified in the Schedule in this behalf. The entry at p. 38
provides that the appointing and disciplinary authority in respect of posts in
non-Secretariat offices other than posts in respect of which specific provision
has been made by a general or special order 354 of the President, the head of
office would be both the appointing and the removing authority. Now,
undoubtedly in respect of the office of the C.C.I.E., the C.C.I.E. would be the
head of office. The office of the C.C.I.E. is a non- Secretariat office. May
be, the administrative department in respect of this office would be the
Ministry of Foreign Trade and Supply. But C.C.I.E. is a separate office with
its own establishment and undoubtedly head of office would be the C.C.I.E. The
President in exercise of the power conferred by sub-rule (2) of rule 11 and
clause (b) of sub- Rule (2) of rule 14 of the 1957 Rules has made a special
order as contemplated by rule 11(2) and rule 14(2)(b) as under:
"S.R.O. 631-In exercise of the powers
conferred by sub rule (2) of rule 11, clause (b) of sub-rule (2) of rule 14 and
sub-rule (1) of rule 23 of the Central Civil Services Classification, Control
and Appeal) Rules, 1957, The President hereby directs that- (1) in respect of
the posts in the General Central Service, Class II specified in column 1 of
Part I of the Schedule to this order, the authority specified in column 2 shall
be the Appointing Authority and the authority specified in column 3 shall be
the Disciplinary Authority in regard to the penalties specified in column 4,
(2) in respect of the posts in the General Central Service. Class III and the
General Central Service, Class II specified in column 1 of Parts II and III of
the said Schedule, the authority specified in column 2 shall be the Appointing
Authority ! and the authority specified in column 3 and 5 shall be the
Disciplinary Authority and Appellate Authority respectively in regard to the
penalties specified in column 4".
A comprehensive Schedule is annexed to this
order. 'The relevant entry is as under:
Description of Post Appointing Authority
competent Appellate authority to impose penalties authority penalties which it
may impose (with reference to item numbers in rule 13) Authority Penalties
------------------------------------------------------------ 1 2 3 4 5
------------------------------------------------------------ Organisation of
the Chief Controller of Imports and Exports All posts in- Headquarters office
Joint Chief Joint Chief All Chief Controller of Controller ofController of
Imports & Imports & Imports & Exports Exports Exports
------------------------------------------------------------ 355 The entries in
the Schedule appended to 1957 Rules will be effective and operative subject of
course to any general or special order made by the President in this behalf. It
was, however, contended that by rule 34 of 1965 Rules, 1957 Rules were repealed
and, therefore, the order issued by the President in exercise of the powers
conferred by sub-rule (2) of rule 11 and various other rules bearing on the
point would stand repealed and the order of the President would not be effective
unless a similar order is issued by the President under the corresponding rule
12 of 1965 Rules.
Rule 12(1) and (2) of 1965 Rules is in pari
materia with rule 14 of 1957 Rules. Rule 12 of 1965 Rules confers power on the
President to impose any of the penalties specified in rule 11 on any Government
servant. Sub-rule (2)(b) provides that any person appointed to a Central Civil
Post included in the General Central Service by the authority specified in this
behalf by a general or special order of the President or where no such order
Has been issued, by the appointing authority specified in the Schedule in this
behalf, may impose any of the penalties specified in rule 11 which includes the
penalty or removal from service. Therefore, the President has the power to
issue any general or special order to confer power to impose penalties as
specified in rule II on any authority other than the one specified in the
Schedule in this behalf. Now, if the order issued by the President, S.R.O.. 631
under corresponding rule l l and the relevant rules bearing on the subject of
1957 Rules is not shown to be inconsistent with any of the Rules included in
1965 Rules. obviously such order would be saved Tender rule
34. No inconsistency was shown to us as
contemplated by rule
34. Therefore, indisputably the order issued
by the President, S.R.O.. 631 along with the Schedule would be saved. Once
S.R.O.. 631 is saved, the relevant entry hereinabove quoted in respect of the
organisation of C.C.I.E. would be saved. Accordingly the entry in the order
issued by the President would supplant the corresponding entry in 1965 Rules
and would have to be substituted for the entries in the relevant item in the
Schedule. The necessary consequence would be that in the case of the
organisation of the C.C.I.E. for all posts in Headquarters office, Jt.
C.C.I.E. would be both the appointing and the
disciplinary authority having the power to remove from service such persons
belonging to Class III services. Now, the appellant was indisputably holding a
post in Class III service in the Headquarters office of the organisation of
C.C.I.E. He was at the relevant time holding, the post of Investigator which
was admittedly a Civil post in Class III service in the office of C.C.I.E.
Indisputably, therefore, Jt. C.C.I.E.
would be both the appointing and disciplinary
authority with power to remove him from service. Therefore, Jt. C.C.I.E.
would be competent to accord sanction as
envisaged by s. 6(1)(c) of the Act. Sanction 356 in this case having been granted
by the Jt. C.C.I.E., it was valid. There is thus no substance in the contention
of Mr. Lal.
Mr. Lal in this connection drew our attention
to a decision in R. J. Singh Ahluwalia v. The State of Delhi(1) The appellant
in that case was at the relevant time working as Assistant in Co-ordination III
of D.G.T.D. at Udyog Bhavan, New Delhi. His contention was that sanction
accorded by Shri K. Rajaram, Deputy Secretary to Government of India in the
Ministry of Industrial Development and Company Affairs (Department of
Industrial Development) was not valid and that he could only have been
prosecuted under a sanction that may be accorded by the Home Ministry. In
respect of this contention it was conceded on behalf of the State that in the
absence of such sanction the prosecution must fail.
The judgment proceeds on concession and not
on any analysis or examination of the relevant provisions. Therefore it in no
way helps the appellant in this case.
This being the only point that could be
raised in this appeal by limited leave and such contention being without merit,
the appeal fails. and is dismissed. As the appellant is dead there is no
question of his surrendering to Bail.
S.R. Appeal dismissed.
(1) A.I.R. 1971 S.C. 1552.
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