State of
Punjab & Ors Vs. Kailash Nath [1988] INSC
354 (22 November 1988)
Ojha, N.D. (J) Ojha, N.D. (J) Ray, B.C. (J)
CITATION:
1989 AIR 558 1988 SCR Supl. (3) 911 1989 SCC (1) 321 JT 1988 (4) 502 1988 SCALE
(2)1464
ACT:
Punjab Civil Service Rules: Volume II Rule
2.2-- Government Servant--Prosecution for offence committed while in service
after retirement--Whether there is immunity if the cause of action arose four
years before the institution of proceedings.
%
Words and Phrases: `Conditions of service'--Meaning of.
HEAD NOTE:
On the
basis of a vigilance enquiry against Kailash Nath, respondent, pertaining to
the purchase of sign boards by him while working as Executive Engineer in the
State Public Works Department, a First Information Report was lodged against
him in August 1985. The respondent challenged the F.I.R. in the High Court on
the ground that the same having been lodged about three years after his
retirement in October 1982 and about six years after the event of purchase in
1979. was in the teeth of proviso (3) to Rule 2.2(b) of the Punjab Civil
Service Rules, Volume II, which provided that no judicial proceedings if not
instituted while the officer was in service, shall be instituted in respect of
a cause of action which arose or an event which took place more than four years
before such institution. The same ground was taken by Mangal Singh Minhas,
respondent, when a challan was filed against him.
The
High Court, relying on its earlier decision, quashed the First Information
Report and the challan.
Dismissing
the State appeal against Kailash Nath and allowing it against Mangal Singh Minhas,
this Court,
HELD:
(1) Any rule framed under Article 309 has to be confined to recruitment and
conditions of service of persons mentioned therein.[916E]
(2)
The expression "conditions of service" means all those conditions
which regulate the holding of a post by a person right from the time of his
appointment till his retirement and even beyond it,in matters like pension etc.
PG NO
911 PG NO 912
(3) Rule
2.2. is in Chapter II of the Punjab Civil Service Rules which deals with
ordinary pension. There can be no manner of doubt that making provision with
regard to pension falls within the purview of "conditions of
service". [918D]
(4)
Whether or not a government servant should be prosecuted for an offence
committed by him obviously cannot be treated to be something pertaining to
conditions of service. [917D]
(5)
Even on a plain reading of Rule 2.2, it is apparent that the intention of
framing the said rule was not to grant immunity from prosecution to a
government servant, if the conditions mentioned therein are satisfied. [918C]
(6)
Making a provision that a government servant, even if he is guilty of grave
misconduct or negligence which constitutes an offence punishable either under
the Penal Code or Prevention of Corruption Act or an analogous law should be
granted immunity from such prosecution after the lapse of a particular period
so as to provide incentive for efficient work would not only be against public
policy but would also be counter productive. [917D-E]
(7) On
the face of it, the government servants cannot constitute a class by themselves
so as to bring their case within the purview of reasonable classification, if
the purpose of granting immunity from prosecution is ensuring peace of mind in
old age. [918B]
(8)
Even if in a given case a proviso may amount to a substantive provision, making
of such a substantive provision, will have to be within the framework of
Article 309. If a rule containing an absolute or general embargo on prosecution
of a government servant after his retirement for grave misconduct or negligence
during the course of his service does not fall within the purview of laying
down conditions of service under Article 309, such a provision cannot in the
purported exercise of power under Article 309 be made by either incorporating
it in the substantive clause of a rule or in the proviso thereto. [919C-D]
(9)
Even if on first impression Rule 2.2 may appear to be placing an embargo on
prosecution it has to be interpreted by taking recourse to the well settled
rule of reading down a provision so as to bring it within the framework of its
source of power, without, of course frustrating the purpose for which such
provision was made.
This
purpose can be achieved if the said proviso by adopting the rule of reading
down is interpreted to mean that even if PG NO 913 a government servant is
prosecuted and punished in judicial proceedings instituted in respect of cause
of action which arose or an event which took place more than four years before
such institution the government will not be entitled to exercise the right
conferred on it by the substantive provision contained in clause (b) with
regard to pension of such a government servant. The word "such" in
the beginning of the third proviso also supports this interpretation. [919D-H;920A]
(10)
By applying the role of interpretation with regard to a beneficent legislation,
a benefit never intended to be conferred cannot be conferred. [923D] (11) It is
always open to quash a prosecution on the ground of unexplained unconscionable
delay in investigation and prosecution on the facts of a given case. In this
view of the matter. the appeal against Kailash Nath is dismissed whereas the
appeals against Mangal Singh Minhas are allowed.
[924F]
Des Raj Singhal v. State of Punjab, [1986]
P.L.R. 86; State of Madhya
Pradesh & Ors. v.
Shardul Singh, [1970] 3 SCR 302; I.N. Subba Reddy v. Andhra University, [1976] 3 SCR 1013; M/s. Ram Narain Sons Ltd. v. Asstt.
Commissioner of Sales Tax and Others, [1955] 2 SCR 483; Abdul Jabar Butt v.
State of Jammu & Kashmir, [1957] SCR 51; Ishverlal Thanorelal Almaule v. Motibhai
Nagjibhai [1966] 1 SCR 367; P.P. Venkatavardan v. The State of Tamil Nadu by
the Deputy Superintendent of Police, Vigilance and Anti-corruption Vellore,
[1979] 23 MLJ (Crl.) 275; State of Punjab v. Charan Singh, [1981] 2 SCR 989; Madhashwardhari
Singh and Another v. State of Bihar, AIR (1986) Patna (Vol.73) page 324,
referred to.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal Nos. 422-424 of 1988.
From
the Judgment and Order dated 12.2.1986 and 4.9.1986 from the High Court of
Punjab and Haryana in Crl. Misc. No. 5837 of 1985 and Crl. Misc. No. 4488 and
2993 of 1986 respectively.
R.S. Suri
for the Appellants.
M.R.
Sharma, Kapil Sibal, M.C. Dhingra, T.S. Arora and Miss Kamini Jaiswal for
Respondents.
PG NO
914 The Judgment of the Court was delivered by OJHA, J. These appeals raise an
identical question of law and can conveniently be decided by a common order.
Kailash
Nath, respondent in Criminal appeal No. 422/88, was working as Executive
Engineer in Public Works Department in the State of Punjab in the year 1979. On various dates
in that year, he placed orders for the purchase of sign boards which were
required by the Department to avoid accidents on roads and for traffic safety.
The requisite sign boards were purchased in pursuance of the aforementioned
orders. In the year 1980 some complaints were received in the Department
against the respondent pertaining to the purchase of the sign-boards. vigilance
enquiry was instituted by the Vigilance Bureau to enquire into the complaints
and ultimately a First Information Report was lodged on August 27, 1985 against the respondent under
sub-sections (1) and (2) of Section 5 of the Prevention of Corruption Act. In
the meantime, the respondent had retired from the post of Executive Engineer
with effect from October
31, 1982.
The
aforesaid First Information Report was challenged by the respondent in the High
Court of Punjab and Haryana in Criminal miscellaneous No. 5837-M/85 on the
ground that the same having been lodged about three years after his retirement
and about six years after the event of purchase of sign-boards in 1979 was in
the teeth of Rule 2.2 of the Punjab Civil Service Rules, Volume II and
consequently was liable to be quashed. The plea raised by the respondent found favour
with the High Court which relying on an earlier decision of that Court in Des Raj
Singhal v. State of Punjab, [1986] P.L.R. 82 quashed the First
Information Report by its order dated February 12, 1986.
Mangal
Singh Minhas, the respondent in Criminal Appeal Nos. 423-24/1988, was posted in
the Industrial Supply Section of the Directorate of Industries where various
types of raw materials including wax and import lincences are dealt with. A
First Information Report was lodged against the respondent on June 19, 1980. It appears that the respondent
applied in the High Court of Punjab and Haryana for quashing of the First
Information Report on account of which challan could not be filed and it was
only when the challenge to the First Information Report was repelled by the
High Court that a challan was filed on August 28, 1985 In the meantime, the
respondent retired as Superintendent, Directorate of Industries, Punjab, on
September 30, 1983. On the challan being filed the respondent again made an
application in the High Court for quashing of the prosecution against him. This
prayer has been allowed by the PG NO 915 High Court by its order dated September 4, 1986 and the prosecution against the
respondent has been quashed relying on the aforesaid decision in the case of
Des Raj Singhal v. State of Punjab. The
present appeals have been filed by the State of Punjab against the aforesaid orders passed on the application of Kailash
Nath and Mangal Singh Minhas respectively.
It has
been urged by learned counsel for the appellant that Rule 2.2 of the Punjab
Civil Service Rules has been misinterpreted by the High Court in holding that
the said Rule placed an embargo on initiating judicial proceedings for
prosecution of a government servant on the expiry of four years of the cause of
action or the event referred to in the said rule and the High Court committed
an error of law in taking the said view. Learned counsel for the respondents,
on the other hand, submitted that the view taken by the High Court was correct
and in view of Rule 2.2 the First Information Report against Kailash Nath and
the prosecution as against Mangal Singh Minhas were rightly quashed. In order
to appreciate the respective submissions made by learned counsel for the
parties with regard to the scope and interpretation of Rule 2.2, it would be
useful to extract the relevant portion of sub-rule (b) of Rule 2.2. It reads:
"(b)
The Government further reserve to themselves the right of withholding or
withdrawing a pension or any part of it, whether permanently or for a specified
period and the right of ordering the recovery from a pension of the whole or
part of any pecuniary loss caused to Govt. if in a departmental or judicial
proceedings, the pensioner is found guilty of grave misconduct or negligence
during the period of his service, including service rendered upon re-
employment after retirement.
Provided
that:
(1)
... ... ...
(2)
... ... ...
(3) No
such judicial proceedings, if not instituted while the officer was in service,
whether before his retirement or during his re-employment shall be instituted
in respect of a cause of action which arose or an event which took place more
than four years before such institution:
PG NO
916 Explanation: For the purpose of his rule.
(a)
... ... ...
(b) a
judicial proceeding shall be deemed to be instituted (i) in the case of a
criminal proceedings on the date on which the complaint or report of the police
officer on which the Magistrate takes cognizance is made; ......." There
is no dispute that Punjab Civil Service Rules have been framed by the Governor
in exercise of the power conferred on him by Article 309 of the Constitution and
that Rule 2.2 occurs in chapter II of Volume II of the Rules dealing with
"Ordinary Pension". It has been urged by the learned counsel for the
appellant that keeping in view the scope of Article 309 as also the purpose of
Rule 2.2, the said rule cannot be interpreted to be a rule placing an embargo
on prosecution of a government servant on the expiry of a period of four years
from the date of cause of action or event mentioned therein.
Having
heard learned counsel for the parties, we find substance in the submission made
by learned counsel for the appellant. Article 309 empowers making of rules
regulating the recruitment and conditions of service of persons appointed to
public services and posts in connection with the affairs of the Union or any State. On the plain language of Article 309,
the proposition that any rule framed under this article has to be confined to
recruitment and conditions of service of persons mentioned therein admits of no
doubt. The rule in question certainly does not purport to regulate recruitment
. The question which, therefore, presents itself for answer is whether the said
rule if it is to be interpreted as one placing an embargo on institution of
judicial proceedings as against a person referred to therein for prosecution in
respect of a cause of action which arose or an event which took place more than
four years before such institution, as has been held by the High Court can be
treated to be a rule regulating the condition of service of such a person.
Learned counsel for the respondents asserts that the embargo aforesaid is a
condition of service calculated to ensure a person mentioned in the said rule
peace of mind after retirement. According to learned counsel for the respondent
every employer wants his employee to be efficient and to achieve this object,
various incentives are given. Consequently, according to learned counsel, an
assurance to an employee that he shall not be prosecuted after his retirement,
even though guilty of committing a grave misconduc or negligence during the PG
NO 917 period of his service, after the lapse of a particular time which has
been fixed in the instant case as four years would fall within the purview of
"conditions of service" as contemplated by Article 309. We find it
difficult to agree with the submission. As explained by this Court in State of Madhya Pradesh and Ors. v. Shardul Singh, [1970] 3
SCR 302 and reiterated in I.N. Subba Reddy v. Andhra University, [1976] 3 SCR
1013 the expression "conditions of service" means all those
conditions which regulate the holding of a post by a person right from the time
of his appointment till his retirement and even beyond it, in matters like
pension etc.
In the
normal course what falls within the purview of the term "conditions of
service" may be classified as salary or wages including subsistance
allowance during suspension, the periodical increments, pay-scale, leave,
provident fund, gratuity, confirmation, promotion, seniority, tenure or
termination of service, compulsory or premature retirement, superannuation,
pension, changing the age of superannuation, deputation and disciplinary
proceedings. Whether or not a government servant should be prosecuted for an
offence committed by him obviously cannot be treated to be something pertaining
to conditions of service. Making a provision that a government servant, even if
he is guilty of grave misconduct or negligence which constitutes an offence
punishable either under the Penal Code or Prevention of Corruption Act or an
analogous law should be granted immunity from such prosecution after the lapse
of a particular period so as to provide incentive for efficient work would not
only be against public policy but would also be counter productive. It is
likely to be an incentive not for efficient work but for committing offences
including embezzlement and misappropriation by some of them at the fag end of
their tenure of service and making an effort that the offence is not detected
within the period prescribed for launching prosecution or manipulating delay in
the matter of launching prosecution. Further, instances are not wanting where a
government servant may escape prosecution at the initial stage for want of
evidence but during the course of prosecution of some other person evidence may
be led or material may be produced which establishes complicity and guilt of
such government servant. By that time period prescribed, if any, for launching
prosecution may have expired and in that event on account of such period having
expired the government servant concerned would succeed in avoiding prosecution
even though there may be sufficient evidence of an offence having been
committed by him. Such a situation, in our opinion, cannot be created by
framing a rule under Article 309 of the Constitution laying down an embargo on
prosecution as a condition of service.
PG NO
918 There is another cogent ground on account of which the submission that
giving a government servant peace of mind after his retirement in his old age
can be a good ground to grant him immunity from prosecution cannot be accepted.
This would on the face of it be discriminatory and thus arbitrary inasmuch as
if peace of mind in old age can be a good ground for immunity from prosecution
for offences committed by a person, there seems to be no reason why such immunity
may not be available to all old persons and should be confined only to
government servants. On the face of it, the government servants cannot
constitute a class by themselves so as to bring their cases within the purview
of reasonable classification, if the purpose of granting immunity from
prosecution is ensuring peace of mind in old age.
Even
on a plain reading of Rule 2.2, it is apparent that the intention of framing
the said rule was not to grant immunity from prosecution to a government servant,
if the conditions mentioned the- rein are satisfied. As seen above, Rule 2.2 is
in chapter II of the Punjab Civil Service Rules which deals with ordinary
pension. There can be no manner of doubt that making provision with regard to
pension falls within the purview of "conditions of service". The
embargo on prosecution spelt out by the High Court is not to be found in the
main rule 2.2 but in the third proviso to the said rule. It is the third
proviso which enjoins that no judicial proceedings. if not instituted while the
officer was in service, whether before his retirement or during his
re-employment shall be instituted in respect of a cause of action which arose
or an event which took place more than four years before such institution. The
scope of a proviso is well settled.
In M/s
Ram Narain Sons Ltd. v. Asst. Commissioner of Sales Tax and others, [1955]2 SCR
483, it was held:
"It
is a cardinal rule of interpretation that a proviso to a particular provision
of statute only embraces the-field which is covered by the main provision. It
carves out an exception to the main provision to which it has been enacted as a
proviso and to no other." The same view was reiterated in Abdul Jabar Butt
v. State of Jammu & Kashmir, [1957] SCR 51 where it was held that a proviso
must be considered with relation to the principle matter to which it stands as
a proviso.
PG NO
919 With regard to scope of a proviso, it was urged by the learned counsel for
the respondents relying on the decision of this Court in Ishverlal Thakorelal Almaula
v. Motibhai Nagjibhai, [1966] 1 SCR 367 that even though the proper function of
a proviso is to except or qualify something enacted in the substantive clause
which but for the proviso would be within that clause, there is no rule that
the proviso must always be restricted to the ambit of the main enactment. It
may at times amount to a substantive provision. This submission too does not
advance the case of the respondent inasmuch as even if in a given case a
proviso may amount to a substantive provision, making of such a substantive
provision will have to be within the framework of Article 309. If a rule
containing an absolute or general embargo on prosecution of a government
servant after his retirement for grave misconduct or negligence during the
course of the service does not fall within the purview of laying down
conditions of service under Article 309, such a provision cannot in the
purported exercise of power under Article 309 be made by either incorporating
it in the substantive clause of a rule or in the proviso thereto. In view of
what has been said above and keeping in mind the scope of rule making power
under Article 309 of the Constitution, the third proviso to Rule 2.2 cannot be
interpreted as laying down an absolute or general embargo on prosecution of
government servant if the conditions stated therein are satisfied. Even if on
first impression the said rule may appear to be placing such an embargo it has
to be interpreted by taking recourse to the well settled rule of reading down a
provision so as to bring, it within the framework of its source of power
without, of course, frustrating the purpose for which such provision was made.
Clause
(b) of Rule 2.2 which can be called the substantive clause reserves to the
government the right of withholding or withdrawing a pension or any part of it,
whether permanently or for a specified period and the right of ordering the
recovery from a pension of the whole or part of any pecuniary loss caused to
Govt. if, in a departmental or judicial proceeding, the pensioner is found
guilty of grave misconduct or negligence during the period of his service,
including service rendered upon re-employment after retirement.
The
purpose of the third proviso thereto is, as is the scope of a proviso, to carve
out an exception to the right conferred on the government by the substantive
clause if the conditions contemplated by the proviso are fulfilled. This
purpose can be achieved if the said proviso by adopting the rule of reading
down is interpreted to mean that even if a government servant is prosecuted and
punished in judicial proceedings instituted in respect of cause of action which
arose or an event which took place more than four years PG NO 920 before such
institution the government will not be entitled to exercise the right conferred
on it by the substantive provision contained in clause (b) with regard to
pension of such a government servant. The word "Such" in the
beginning of the third proviso also supports this interpretation.
At
this place, it may be pointed out that an analogous provision contained in
Article 351-A of the Madras Pension Code came up for consideration before the
Madras High Court in P. V. Venkatavardan v. The State of Tamil Nadu by the Deputy Superintendent of
Police, Vigilance and Anti- corruption, Vellore, [1979] 23 MLJ (Crl) 275. Article 35 1-A in so far as it is relevant
for the purpose of this case is reproduced hereunder:
351-A.
Government further reserve to themselves the right of withholding or
withdrawing a pension or any part of it, whether permanently or for a specified
period and the right of ordering the recovery from a pension of the whole or
part of any pecuniary loss caused to Government, if, in a departmental or
judicial proceeding, the pensioner is found guilty of grave misconduct or
negligence during the period of his service, including service rendered upon
re- employment after retirement:
Provided
that:
(a)..........
(b)..........
(c) no
such judicial proceeding, if not instituted while the officer was in service,
whether before his retirement or during his re-employment shall be instituted
in respect of a cause of action which arose or an event which took place more
than four years before such institution; . . .
A
similar submission as has been made by the learned counsel for the respondents
in the instant cases was made in the case of Venkatavardan, (supra) also. S. Natarajan,
J. as his Lordship then was repelled the submission and held:
"The
other point urged was that as per Article 351-A of the Madras Pension Code, the
right of the Government to PG NO 921 withhold the pension of a Government sevant
will not cover events of grave misconduct or negligence committed by the
government servant more than four years prior to the institution of the
departmental proceedings. As the offences alleged to have been committed by the
petitioner are referable to the years 1968 and 1969, the petitioner contends,
the filing of a charge-sheet on 5th December, 1973 against him was beyond the
period of four years contemplated under Article 351-A of the Madras Pension
Code and, therefore, the proceedings were vitiated. Even this contention must
fail, for, a prosecution under section 161 and/or section 165, Indian Penal
Code, read with section 5(1)(a) and 5(2) of the Prevention of Corruption Act,
is not controlled or restricted or trammelled in any manner by the Madras
Pension Code. The provisions of the Pension Codemay, if at all, be relied on
only for safeguarding the pension and cannot be pressed into service to defeat
a prosecution on the threshold itself." The decision of this Court in
State of Punjab v. Charan Singh, [1981] 2 SCR 989 also throws some light on the
principle involved in the instant cases. In that case Rule 16.38 of the Punjab
Police Rules 1934 came up for consideration. The Punjab Police Rules laid down
the procedure to be followed in imposing punishment on a Police Officer found
guilty of misconduct or a criminal offence and made an exhaustive provision for
departmental inquiries.
Rule
i6.38 laid down the guidelines to be followed by the Superintendent of Police
in dealing with a complaint about the commission of a criminal offence by a
police officer in connection with his official relations with the public. The
respondent Charan Singh in that case was a police officer and was convicted and
sentenced of an offence under section 5(1)(d) read with section 5(2) of the
Prevention of Corruption Act. His conviction as well as sentence was set aside
and he was acquitted by the High Court on the ground that there was non
compliance with the provisions of Rule 16.38. Setting aside the order of
acquittal and remanding the case to the High Court for fresh disposal in
accordance with law, this Court held that Rule 16.38 was not designed to be a
condition precedent to the launching of a prosecution in a Criminal Court; it
was in the nature of instructions to the Department and was not meant to be of
the nature of sanction or permission for a prosecution, nor could it overrid
the provisions of the Code of Criminal Procedure and the Prevention of
Corruption Act.
PG NO
922 We may also point out that the correctness of the judgment of the High
Court of Punjab and Haryana in the case of Des Raj Singhal, (supra), relying
upon which the orders appealed against in the instant cases have been passed,
was challenged by the State of Punjab in this Court in Criminal Appeal No. 40
of 1987. The question of law raised in the appeal was, however, not gone into
and was left open to be decided in an appropriate case inasmuch as this Court
on the facts of that case, in its order dated April 15, 1987 took the view that
it would be a futile exercise to consider the question of law involved in the
appeal for the reason that the respondent had retired as long as on December
13, 1979.
We now
proceed to consider the other submissions made by learned counsel for the
respondents. It was urged that since government had the power to make suitable
amendments even retrospectively in Rule 2.2 of the Punjab Civil Service Rules
in order to bring home its intention, it was not open to it to challenge the
validity of Rule 2.2. Suffice it to say, so far as this submission is concerned
that the purpose of the State of Punjab in filing these appeals is really to
get the interpretation made by the High Court of Rule 2.2 reversed and to have
the interpretation made by the Trial Court in the case of Des Raj Singhal,
(supra) restored and not to get the said rule declared ultra vires.
It was
also urged by the learned counsel for the respondents that the third proviso to
clause (b) of Rule 2.2 as for the benefit of a government servant and virtually
incorporates the principle underlying Article 21 of the Constitution by fixing
four years as the limit for initiating prosecution. In support of the
submission reliance was placed on a full bench decision of the Patna High Court
in Madhesh- wardhari Singh and Another v. State of Bihar, AIR 1986 Patna Vol.
73 Page 324. In that case, it was held that in all criminal prosecutions the
right to a speedy public trial is now an inalienable fundamental right of the
citizen under Article 21 of the Constitution and it extends to all criminal
proceedings for all offences generically irrespective of their nature. It was
also held that giving effect to fundamental right of a speedy public trial,
therefore, would not in any way conflict with the provisions of the Code of
Criminal Procedure and that unless the fundamental right to speedy trial is to
be whittled down into a mere pious wish, its enforceability in Court must at
least be indicated by an outer limit to which an investigation and the trial in
a criminal prosecution may ordinarily extend.
PG NO
923 We are informed that special leave has been granted by this Court against
the aforesaid judgment and its correctness is thus sub judice. That apart, even
if the soundness of the principle that there should be speedy trial may not be
disputed, the said principle cannot be invoked by the respondents in support of
their interpretation of the third proviso to clause (b) of Rule 2.2 framed
under Article 309 of the Constitution whose purpose, as already indicated
above, is not to place an embargo on prosecution. It is always open to quash a
prosecution on the ground of unexplained unconscionable delay in investigation
and prosecution on the facts of a given case.
It was
then urged by the learned counsel for the respondents that the third proviso to
clause (b) of Rule 2.2 is in the nature of a beneficent legislation and in case
of doubt has to be interpreted in favour of the person for whose benefit the
Rule has been framed. In our opinion, keeping in view the scope of the power to
frame a rule under Article 309 and the purpose of Rule 2.2, there is no doubt
with regard to the interpretation of the said rule. By applying the rule of
interpretation with regard to a beneficent legislation, a benefit never
intended to be conferred cannot be conferred.
Learned
counsel for the respondents also submitted that the State enjoys plenary power
in the matter of prosecution for an offence and if the Government in its wisdom
thought it fit that a government servant after his retirement should not be be
prosecuted for grave misconduct of action arose or the incident took place more
than your years before the institution of judicial proceedings for prosecution,
no exception can be taken to that power. In this connection, apart form relying
on various sections of the Code of Criminal Procedure such as sections
197,321,432,433 and 468 and the power of the Governor to grant pardon, learned
counsel for the respondents also relied on Harold J. Laski's "A Girammar
Of Politics" for the proposition that every government has a power to
decide not to prosecute or prosecution having been commenced to decide upon its
discontinuance. We are of opinion that this submission too does not help the
respondents in these appeals for the simple reason that the third proviso to
clause (b) of Rule 2.2 has not been framed for that purpose but has been framed
for a different purpose namely to provide an exception to the power of the
government in the matter of withholding or withdrawing etc. of pension of a
retired government servant contained in clause (b) of Rule 2.2.
PG NO
924 Lastely, it was urged by learned counsel for the respondents in these
appeals that on the same principle on which criminal appeal No. 40 of 1987 in
the matter of Des Raj Singhal, was dismissed these appeals also deserve to be
dismissed. So far as this submission is concerned, we find substance as regards
the appeal against Kailash Nath. The First Information Report in this case was
lodged on 27th August, 1985, that is, after about six years of the accrual of
the cause of action or taking place of the events which took place in 1979 and
after about three years even from 3 1st October 1982 when the respondent
retired from service.
Now in
1988 it would be pursuing a stale matter. In this view of the matter, we are of
the opinion that the order of the High Court quashing the First Information
Report as against Kailash Nath, respondent in criminal appeal No. 422 of 1988,
deserves to be maintained though on a different ground.
The
facts of the case, with regard to Mangal Singh Minhas, respondent in Criminal
Appeal Nos. 423-24 of 1988, however, are different. In this case, as seen
above, First Information Report was promptly lodged on June 19, 1980. The filing of challan, however,
was delayed on account of the steps taken by the respondent for getting the
First Information Report quashed. He retired about three years after lodging of
the First Information Report and during the pendency of the proceedings in the
High Court for quashing of the said First Information Report. Since the High
Court quashed the prosecution of Mangal Singh Minhas on one ground alone based
on its earlier decision in the case of Des Raj singhal and did not consider
other grounds, if any, that may have been raised by him for quashing of the
prosecution, we are of the opinion that after setting aside the orders appealed
against in this case, the High Court should be required to decide afresh the
petition mde by Mangal Singh Minhas for quashing of the prosecution on grounds,
if any, other than those which have already been considered above.
In
view of the foregoing discussion, Criminal Appeal No. 422 of 1988 as against Kailash
Nath is dismissed and the order quashing the First Information Report in his
case is maintained even though on another ground; whereas Criminal Appeal Nos.
423-24 of 1988 as against Mangal Singh Minhas are allowed and the orders
appealed against passed by the High Court as set aside. The High Court shall
however, decide the petition made by Mangal Singh Minhas afresh in accordance
with law in the light of the observations made above.
R.S.S.
Crl. A
No. 422/88 is dismissed and Crl. A Nos. 423-24/88 is allowed.
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