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CASE NO.: Appeal (crl.)  1205 of 1999

PETITIONER: B.S. Goraya

RESPONDENT: U.T. of Chandigarh

DATE OF JUDGMENT: 23/07/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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of Criminal Procedure, 1973 (in short the  ’Code’) was filed for quashing the said FIR and the same was  dismissed as withdrawn on 11.9.1996 .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

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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

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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

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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

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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.