Judgment:
Dr. Arijit Pasayat, J.
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').
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dismissed as withdrawn on 11.9.1996 .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 Nooh's case (supra)
on which emphasis is led by the appellant has no application
to the facts of the present case.
4. In Kalicharan Mahapatra v. State of Orissa [1998 (6) SCC
411] the effect of Section 19(3) of the Act was considered with
the following words.
""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 submitted 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 a
public servant.
It must be remembered that in spite of
bringing such a significant change to Section
197 of the Code in 1973, 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
offence contemplated in the PC 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 PC Act was materially imported in
the new PC Act, 1988 without any change in
spite of the change made in Section 197 of the
Code."
5. Section 19(3) of the Act reads as follows:
"Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 :
(a) no finding, sentence or order passed by a
special Judge shall be reversed or altered by a
court in appeal, confirmation or revision on the
ground of the absence of, or any error,
omission or irregularity in, the sanction
required under sub-section (1), unless in the
opinion of that court, a failure of justice has in
fact been occasioned thereby;
(b) no court shall stay the proceedings under
this Act on the ground of any error, omission
or irregularity in the sanction granted by the
authority, unless it is satisfied that such error,
omission or irregularity has resulted in a
failure of justice;
(c) no court shall stay the proceedings under
this Act on any other ground and no court
shall exercise the powers of revision in relation
to any interlocutory order passed in any
inquiry, trial, appeal or other proceedings.
6. In C.S.T. Uttar Pradesh v. Modi Sugar Mills Ltd. (AIR
1961 SC 1047) it was held that the deeming provision is
operative for the purpose for which it has been created and
cannot be extended beyond the legitimate field. The position
was again reiterated in M/s. Braithwaite and Co. (India) Ltd. v.
The Employees' State Insurance Corporation [AIR 1968 SC
413]. It was observed that legal fiction is adopted in law for a
limited and definite purpose only and there is no justification
being extended beyond the purposes for which the legislature
adopted.
7. In Bengal Immunity Co. Ltd. v. State of Bihar and others
[AIR 1955 SC 661] it was observed that explanation should be
limited to the purposes the Constitution maker said and legal
fiction has created for some definite purposes.
8. Again in The Commissioner of Income Tax, Bombay City,
Bombay v. The Elphinstone Spinning and Weaving Mills Co.
Ltd. [AIR 1960 SC 1016] it was held that the fiction cannot be
carried further for what it is intended for. The view was re-iterated in
K.S. Dharmadatan v. Central Government and Ors.
(1979 (4) SCC 204) where the factual situation is almost
identical. The factual position was that the appellant in that
case was being prosecuted for commission of offence
punishable under Sections 120(B), 420, 471 of the Indian
Penal Code, 1860 (in short the 'IPC') and Section 5(1) of the
Prevention of Corruption Act, 1947 (in short the 'Old Act').
At
the time the charge sheet was filed and the cognizance was
taken by the Special Judge the appellant in that case had
ceased to be a public officer. He filed an appeal before the
President of India against the removal from service which was
allowed by order dated 25.9.1972 and the order of removal
from service was set aside. On his reinstatement appellant
filed application before the Special Judge praying that all
further proceedings be dropped inasmuch as the prosecution
against him was initiated in the absence of proper and valid
sanction. The Special Judge as well as the High Court
rejected the prayer. Before this Court the point raised was
that the appellant must be deemed to be in service with effect
from the date from which the departmental proceedings were
initiated against him and therefore he was a public servant at
the time the cognizance was taken by the Special Judge as no
sanction under Section 6 of the Old Act was obtained, the
proceedings were void ab initio. This contention was not
accepted by this Court with the observation that it is too well
settled that the deeming fiction should be confined only for the
purpose for which it is meant.
9. In Prakash Singh Badal and Another v. State of Punjab
and Others [2007(1) SCC 1] it was observed at para 9 as
follows:
"IPC provided for offences by or relating to
public servants under Chapter IX including
Sections 161 to 165A. The Old Act was
enacted on 12.3.1947, with the object of
making provisions for the prevention of
bribery and corruption more effective. In 1952
a Committee headed by Dr. Bakshi Tek Chand
was constituted. The said Committee
examined the true intent and purpose of
Section 6 of the Old Act. It was inter alia noted
by the Committee as follows:
"Section 6 of the Act prescribes that
no prosecution under Section 5(2) is
to be instituted without the previous
sanction of the authority competent
to remove the accused officer from
his office. The exact implications of
this provision have on occasions
given rise to a certain amount of
difficulty. There have been cases
where an offence has been disclosed
after the officer concerned has
ceased to hold office, e.g., by
retirement. In such cases it is not
entirely clear whether any sanction
is at all necessary. Another aspect of
the same problem is presented by
the type of case which, we are told,
is fairly common-where an officer is
transferred from one jurisdiction to
another or an officer who is lent to
another Department, commits an
offence while serving in his
temporary office and then returns to
his parent Department before the
offence is brought to light. In a case
of this nature doubts have arisen as
to the identity of the authority from
whom sanction for prosecution is to
be sought. In our opinion there
should be an unambiguous
provision in the law under which the
appropriate authority for according
sanction is to be determined on the
basis of competence to remove the
accused public servant from office at
the time when the offence is alleged
to have been committed."
10. In view of the aforesaid analysis the order of the High
Court does not suffer from any infirmity to warrant any
interference.
11. The appeal is sans merit, deserves dismissal which we
direct.
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