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PETITIONER: KALICHARAN MAHAPATRA

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT:       04/08/1998

BENCH: CJI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS.J.      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

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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

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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

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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

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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.