Kalicharan
Mahapatra Vs. State of Orissa [1998] INSC 382 (4 August 1998)
Cji,
K.T. Thomas Thomas.J.
ACT:
HEAD NOTE:
Leave
granted.
Appellant
was an IPS Officer who reached upto the level of Superintendent of Police in
the State Police Service, Orissa. Based on some sleuth informations raid was
conducted in the residence of the appellant on 12-5-1990 and a good amount of cash and jewellery were recovered. A
case was registered against him under section 13(2) of the Prevention of
Corruption Act, 1988 (for short "the Act"). On 31-12-1990 appellant retired from service but the investigation
into the case continued. On 30-9-1992 the
Vigilance Department submitted a charge-sheet against the appellant for the
offence under Section 13(2) read with Section 13(1)(e) of the act.
The
case was since transferred to the Court of Special Judge, Bhubaneswar which was established under the
provisions of Orissa Special Courts Act 1990. Appellant made a multi-pronged
move against the prosecution. At the first instance he challenged the very
constitution of Special court and then he raised a preliminary objection that
he is not liable to be tried under the Act since he was no more a public
servant. His challenge against the constitution of the Special Court did not
succeed in spite of that contention having been taken up to this Court in SLP
(C) No. 13776/93 which was dismissed by this court. But he persisted with his
preliminary objection which was over- ruled by the Special Court. He then moved the High Court under
Section 482 of the code of Criminal Procedure (for short 'the code') to have
the prosecution proceedings quashed on that ground but the High Court dismissed
the petition as per the impugned order.
The
main contention of the appellant was that the legislature did not include a
retired public servant within the purview of the Act and that there is no
mention in the Act about a person who ceased to be a public servant. He invited
our attention to Section 197 of the Code which envisages sanction for
prosecution of public servants and pointed out that the section is now
applicable to former public servants also by virtue of the specific words in
the Section "any person who is or was......a public servant".
According
to the counsel since such words have not been employed in any of the provisions
of the Act it could be launched or continued against a person who, though was a
public servant at the time of commission of the offence, ceased to be so
subsequently.
"Public
servant" is defined in Section 2(c) of the Act.
It
does not include a person who ceased to be a public servant. Chapter III of the
Act which contains provisions for offences and penalties does not point to any
person who became a non-public servant, according to the counsel.
Among
the provisions subsumed in the Chapter, Sections 8,9,12 and 15 deal with
offences committed by persons who need not be public servants, though all such
offences are intertwined with acts of public servants. The remaining provisions
in the Chapter deal with offences committed by public servants. Section 7 of
the Act contemplates offence committed by a person who expects to be public
servant.
There
is no indication anywhere in the above provisions that an offence committed by
a public servant under the Act would vanish off from penal liability at the
moment he demits his office as public servant. His being a public servant is
necessary when he commits the offence in order to make him liable under the
Act. He cannot commit any such offence after he demits his office. If the
interpretation now sought to be placed by the appellant is accepted it would
lead to the absurd position that any public servant could commit the offences
under the Act soon before retiring or demiting his office and thus avert any
prosecution for it or that when a public servant is prosecuted for an offence
under the Act he can secure an escape by protracting the trial till the date of
superannuation.
Learned
counsel for the appellant invited our attention to Section 19(1) of the Act
which reads thus:
"19.
Previous sanction necessary for prosecution.- (1) No Court shall take
cognizance of an offence punishable under sections 7,10,11,13 and 15 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 central government, of that 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 State
Government, of that Government:
(c) in
the case of any other person, of the authority competent to remove him from his
office." It was contended that if the case does not fall under sub-clause
(a) or sub-clause (b) it should necessarily fall under sub-clause (c) and
otherwise no prosecution can lie for any offence under this Act. A person who
ceased to be public servant cannot be removed form any office, and hence it is
contended that he cannot be prosecuted for any offence under the Act.
Section
19(1) of the Act is in para materia with Section 6(1) of the preceding
enactment i.e. Prevention of corruption Act, 1947 (the old Act). When a similar
contention was raised before a three Judge Bench of this court regarding
Section 6 of the Old Act in S.A. Venkataraman vs The State (1958 SCR 1040),
that contention was repelled. It was held thus:
"The
words in s. 6(1) of the Act are clear enough and they must be given effect to.
There is nothing in the words used in s.6(1) to even remotely suggest that
previous sanction was necessary before a court could take cognizance of the
offences mentioned therein in the case of a person who had ceased to be a
public servant at the time the court was asked to take cognizance, although he
had been such a person at the time the offence was committed. It was suggested
that cl.(c) in s.6(1) refers to persons other than those mentioned in cls.
(a)
and (b). The words 'is employed' are absent in this clause which would, therefore,
apply to a person who had ceased to be a public servant though he was so at the
time of the commission of the offence. Clause (c) cannot be construed in this
way. The expressions 'in the case of a person' and 'in the case of any other
person' must refer to a public servant having regard to the first paragraph of
the sub-section.
Clauses
(a) and (b), therefore, servant who is employed in connection with the affairs
of the Union or a State and is not removable from his office save by or with
the sanction of the central Government or the State Government and cl.(c) would
cover the case of any other public servant whom a competent authority could
remove from his office. The more important words in cl.(C) are 'of the
authority competent to remove him from his office'." The same view was
adopted by another three Judge Bench in C.R. Bansi vs. State of Maharashtra"{1971(3) SCR 236}. This was
followed in State of West
Bengal etc. vs. Manmal
Bhutoria & ors. etc. "1977 (3) SCR 758}. The constitution Bench in K. Veeraswami
vs. Union of India and ors. "{1991(3) SCC 655} upheld the view that no
sanction is required to prosecute a public servant after retirement.
Learned
counsel, however, contended that the legal position must be treated as changed
under the Prevention of Corruption Act of 1988 since parliament has in the
meanwhile changed the wording in section 197 of the Code. The provision
provided a check against launching prosecution proceedings against a public
servant on the accusation of having committed an offence while acting or
purporting to act in the discharge of his official duty. For such prosecution
sanction of the Government is made a condition precedent under Section 197 of
the Code of criminal procedure 1898 (the old code). But such a sanction was not
then necessary when a retired public servant was prosecuted.
However,
in the corresponding provision of the present code (Section 197) the necessity
for previous sanction is made applicable to former public servants also by
using the words "when any person who is or was a public servant". The
contention here is that the earlier decisions of the court were rendered at a
time when sanction for prosecution was not contemplated in Section 197 of the
code as for a public servant who has retired from service. Hence, according to
him those decisions are of no help to sustain the same view now.
In R. Balakrishna
Pillai vs. State of Kerala and anr. {1996 (1) SCC 478} learned
Chief Justice Ahmadi has referred to the law commission's report which
suggested an amendment to Section 197 of the Code. the observation of the law
commission in paragraph 15.123 of its Report reads thus:
"It
appears to us that protection under the section is needed as much after
retirement of the public servant as before retirement. The protection afforded
by the section would be rendered illusory if it were open to a private person harbouring
a grievance to wait until the public servant ceased to hold his official
position, and then to lodge a complaint. The ultimate justification for the
protection conferred by Section 197 is the public interest in seeing that
official acts do not lead to needless or vexatious prosecutions.
It
should be left to the Government to determine from that point of view the
question of the expediency of prosecuting any public servant." Their
Lordships after referring to the above report have observed: "It was in
pursuance of this observation that the expression 'is' to make the sanction
applicable even in cases where a retired public servant is sought to be prosecuted."
It must be remembered that in spite of bringing such a significant change to
section 197 of the Code in 1973, the Parliament was circumspect enough not to
change the wording in Section 19 of the Act which deals with sanction. The
reason is obvious. The sanction contemplated in Section 197 of the Code
concerns a public servant who "is accused of any offence alleged to have
been committed by him while acting or purporting to act in the discharge of his
official duty", whereas the offences contemplated in the P.C. Act are
those which cannot be treated as acts either directly or even purportedly done
in the discharge of his official duties.
Parliament
must have desired to maintain the distinction and hence the wording in the
corresponding provision in the former P.C. Act was materially imported in the
new P.C. Act, 1988 without any change in spite of the change made in section
197 of the Code.
The
result of the above discussion is thus: A public servant who committed an
offence mentioned in the Act, while he was a public servant when the court
takes cognizance of the offence. But if he ceases to be a public servant by
that time the court can take cognizance of offence without any such sanction.
In other words, the public servant who committed the offence while he was
public servant is liable to be prosecuted whether he continues in office or not
at the time of trial or during the pendency of the prosecution.
The
Special court and the High Court have, therefore, rightly repelled the
preliminary objections of the appellant. Accordingly we dismiss this appeal.
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