COL. B.S. GORAYA Vs. U.T. CHANDIGARH

JUDGEMENT

(1.) THIS is a criminal revision and has been directed against the order dated 6.2.1998 passed by the court of learned Special Judge, Chandigarh, who decided to frame the charge against the petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act').

(2.) THE brief facts of the case are that a charge-sheet was filed against the petitioner by the C.B.I. authorities at Chandigarh, after completing the investigation in the case which was registered at number 15 dated 6.8.1990 under Sections 13(1)(e) and 13(2) of the Act. An application under Section 482, Cr.P.C. was moved by the petitioner for quashing of the said F.I.R. but the same was dismissed as withdrawn vide order dated 11.9.1996 passed by the High Court. Liberty was, however, given to the petitioner to take all the legal and factual pleas as and when the same were available to him. Consequently, the petitioner filed an application under Section 227, Cr.P.C. before the learned Special Judge, Chandigarh, for his discharge stating that at the time of the registration of the case, he was serving as Colonel in the Army and was posted at Chandimandir; he was placed under suspension and an enquiry was initiated and, ultimately, he was dismissed from service with effect from 27.1.1993; no sanction whatsoever was obtained for launching the prosecution against him and the order of dismissal was challenged by him and he was, ultimately, reinstated. In the application, it was stated by the petitioner that as per the provisions of Section 19 of the Act, 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 of the competent authority and that so long as the petitioner remained in service, it was not possible to file charge-sheet against him without obtaining the requisite sanction. The second ground taken by the petitioner was that the proceedings before the court were without jurisdiction because under Section 475, Cr.P.C., no court could take cognizance of an offence against a person subject to the Army without making reference to the Commanding Officer of the person concerned. The third ground taken by the petitioner was that the C.B.I. had no authority to investigate the matter or register the case against the petitioner. Resultantly, the investigation initiated by the C.B.I. was illegal and unconstitutional.

(3.) THE learned Special Judge, for the reasons stated in paras 6 to 16 of the impugned order, dismissed the application of the petitioner and decided to frame the charges against the petitioner under Sections 13(1)(e) and 13(2) of the Act. The same read as under :- 6. The facts are admitted. The FIR was registered on 6.8.90. The accused/petitioner B. S. Guraya was put under suspension on 17.8.90 and he was dismissed from service on 27.1.1993. The charge-sheet against him was filed in the court on 29.3.93. As per this factual position, the accused/petitioner was not in government service on the day the charge-sheet was filed in the court. It is again the admitted fact that the order vide which the present accused/petitioner was dismissed from service has since been set aside. The contention of the learned counsel for the accused/petitioner is that with the setting aside of the order dismissing him from service, the accused/petitioner was deemed to be in service during all that time and no prosecution could be launched against him except after obtaining the sanction in case he is treated to be in government service at the requisite time. He has placed reliance upon Bhalchandra v. State of Gujarat, AIR 1964 Guj. 1, State of U.P. v. Mohammad Nooh, AIR 1958 Supreme Court 86. 7. I have gone through these authorities. In the first authority, it has been held that as a person against whom an order is passed in violation of the provisions of Article 311(1) would continue in service as if no such order had ever been made; similarly, a person against whom an order has been passed in breach of the provisions of Article 311(2) would equally continue in service as if no such order had ever been passed against him. The view taken in the other two authorities referred above is also said to be the same. 8. As against this, the learned PP, CBI, argued that if at the time the Special Judge had taken the cognizance of the offence, the accused had ceased to be a public servant on account of his dismissal from service and that dismissal order was set aside during the pendency of the criminal case that was registered against him, the cognizance already taken by the Special Judge, could not be said to be not proper. He placed reliance upon the authority reported as K. S. Dharmadattan v. Central Government and others, AIR 1979 Supreme Court 1495. In that case the appellant was being prosecuted for the offence under Sections 120-B, 420, 471 IPC and other sections including Section 5(2) and Section 5(1) of the Act. At the time the charge-sheet was filed and the cognizance was taken by the Special Judge, the appellant had ceased to be a public officer. He had then filed the appeal before the President of India against his removal from service and the President of India vide order dated 25.9.72 allowed his appeal and set aside the order of removal from service passed by the Collector of Customs against him. On his reinstatement, the appellant filed the application before the Special Judge praying that all further proceedings be dropped inasmuch as the prosecution against him was initiated in the absence of a proper and valid sanction. The Special Judge rejected his prayer and so did the Hon'ble High Court. The matter thus went upto the Apex Court. The point raised there was that the appellant must be deemed to be in service w.e.f. the date from which the departmental proceedings were initiated against him and, therefore, he would be a public servant at the time when the cognizance was taken by the Special Judge as no sanction under Section 6 of the Act was obtained, the entire proceedings became void ab initio. This contention was repelled by the Apex Court with the observation that it is well settled that deeming fiction should be confined only for the purpose for which it is meant. In the instant case, the order of the President reinstating the appellant and creating a legal fiction regarding the period of suspension must be limited only so far as the period of and the incidents of suspension were concerned and could not be carried too far so as to prejudice it even in cases where actions had already been taken and closed. In other words, the position seems to be that at the time when actual cognizance by the court was taken, the appellant was ceased to be a public servant having been removed from service. If some years later, he had been reinstated that would not make the cognizance which was validly taken by the court in October, 1970 or render it nugatory so as to necessitate taking of fresh sanction. 9. The learned PP CBI then referred to the authority of the Calcutta High Court reported as Sat Paul v. Inspector of Police, 1997(1) Recent CR 444. There also the criminal prosecution was of a public servant for accepting the bribe and he had ceased to be a public servant when the court was called upon to take cognizance of the offence and no sanction for prosecution was obtained. The order of dismissal was set aside during the pendency of the criminal case. It was held that still no sanction would be required. Again in the authority reported as Rajinder Kumar Sood v. The State of Punjab, 1982 Cr.LJ. 1718, wherein it has been held that sanction under Section 6 is not necessary for the prosecution of an accused public servant on the date of taking of the cognizance of the offence by the Special Judge, nor any sanction under Section 197 Cr.P.C. for such prosecution as Section 197 Cr.P.C. is not applicable to prosecutions before Special Judge. Section 8(3) of the Criminal Law Amendment Act, 1952 makes it clear that the Prevention of Corruption Act is a special legislation with regard to bribery and corruption both with regard to its substance and procedural aspects and, therefore, the special provisions of Section 6 of the Act would exclude the application of the general provisions of Section 197 Cr.P.C. 10. The Hon'ble High Court placed reliance upon the decision of the Apex Court in the authority reported as K. S. Dharmadattan v. Central Government and others, AIR 1979 Supreme Court 1495 and one authority of the Apex Court reported as R.S. Nayak etc. v. A.R. Antulay etc., AIR 1984 SC 684, and it was thus held that in view of the A.R. Antulay decision it is now well settled principle of law that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 of the Act is the date on which the court is called upon to take cognizance of the offence of which he is accused and that the terminus qua for a valid sanction is the time when the court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed the accused was public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. The subsequent setting aside of the dismissal order during the pendency of a criminal case could not nullify the cognizance taken by the Special Judge. 11. In view of the law thus settled by the Apex Court, no sanction for launching prosecution against the accused was required because at the time no cognizance was taken by the court, the accused was admittedly not a public servant. The fact that the order of his dismissal from service has subsequently been set aside cannot bring any difference so far as that position is concerned. 12. The next argument advanced by the learned counsel for the accused/petitioner was that the cognizance of the offence has been wrongly taken by the court in violation of the provisions contained in Section 475, Cr.P.C. which provides that no court can take cognizance of the offence against person subject to the Army Act without making reference to the C.O. of the person concerned. The learned counsel for the applicant placed reliance upon the authority reported as Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 Supreme Court 2548, and on the authority of Division Bench of our own Hon'ble High Court reported as Pritam Singh v. State of Haryana, 1994(1) Recent Criminal Reports 131. 13. On the other hand, the learned PP, CBI, has relied upon the authority reported as Lt. Col. H. N. Tripathi v. State, 1988 Cri. L.J. 582, where the facts were that an Army Officer was charged for corruption. It was held that the C.B.I. constituted under the Delhi Special Police Establishment Act can investigate into the matter and file report before the Special Judge Anti- corruption that the jurisdiction neither of C.B.I. nor of Special Judge to try offence against the member of Armed Forces is the State was taken away. While taking this view reliance was placed upon the authority of the Apex Court reported as Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1761, where it has been held as under :-