B S GORAYA Vs. U T OF CHANDIGARH

JUDGEMENT

(1.) Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court dismissing the revision petition filed by the appellant. In the said revision challenge was to the order passed by learned Special Judge, Chandigarh deciding to frame charge against the appellant in terms of Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short the Act).

(2.) Background facts in a nutshell are as follows : A charge-sheet was filed against the appellant by the Central Bureau of Investigation Authorities (in short the CBI), Chandigarh. After completion of the investigation in the case it was registered on 6.8.1990, in terms of Section 13(1)(e) read with Section 13(2) of the Act. An application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) was filed for quashing the said FIR and the same was dismissed as withdrawn on 11.9.1996 . Liberty was however given to take all the available pleas as and when the same were available. An application under Section 227 of the Code was filed before the learned Special Judge Chandigarh for discharge stating that at the time of registration of the case he was serving as Colonel in the Army and was posted at Chandimandir, he was placed under suspension and enquiry was initiated and ultimately he was dismissed from service with effect from 27.1.1993. No sanction, whatsoever was obtained against him. The order of dismissal was challenged by him and he was ultimately reinstated. In the application it was stated by the appellant that in terms of Section 19 of the Act, no Court can take cognizance of the offence punishable under Sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant except with the previous sanction of the competent authority and that so long as the appellant remained in service it was not possible to file any charge-sheet against him without obtaining the requisite sanction. Several other pleas were also taken. Learned Special Judge held that the FIR was registered on 6.8.1998, while he was placed under suspension on 17.8.1990 and was dismissed from service on 27.1.1993. Charge-sheet against him was filed on 29.3.1993 and, therefore, he was not in Government service on the day the charge- sheet was filed. Contention of the appellant was that since order of dismissal was set aside, he is deemed to be in service during the relevant period and the protection available under Section 19 of the Act was available to him. The plea did not find acceptance by the trial Court. Before the High Court also that plea was reiterated. But the High Court by the impugned judgment dismissed the same. The plea taken before the learned Special Judge and the High Court was reiterated in the appeal and it was submitted that since the order of dismissal was set aside for all practical purposes appellant continued to be in service and therefore the orders of the learned Special Judge and the High Court are not maintainable. Reliance was placed on State of U.P. v. Mohammad Nooh (AIR 1958 SC 86) to buttress the plea. It was, therefore, submitted that if one is bidden to treat imaginary state of affairs as real, he will unless prohibited for doing so, also imagine the consequences and incidents, which if the putative state of affairs had in fact existed, must inevitably flow from or accompany it.

(3.) Mr. B. Dutta, learned Additional Solicitor General submitted that the decision in Mohammad Noohs case (supra) on which emphasis is led by the appellant has no application to the facts of the present case.