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CASE NO.: Appeal (crl.)  480 of 2008

PETITIONER: P.K. Choudhury

RESPONDENT: Commander, 48 BRTF (GREF)

DATE OF JUDGMENT: 13/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   480      OF 2008 (Arising out of SLP (Crl.) No. 5911 of 2006)

S.B. Sinha, J.

       Leave granted.

1.      Appellant herein is aggrieved by and dissatisfied with a judgment and  order dated 21st March, 2006 passed by a learned Single Judge of the  Gauhati High Court.   

2.      Indisputably, Appellant at all material times was a Commandant of 48  BRTF (GREF) as a member of the Armed Forces.  While he was acting in  the said capacity, allegations were made against him for commission of  offences under Section 166 and 167 of the Indian Penal Code, 1860.

3.      The period during which the said offences are said to have been  committed is 5.1.1989 to 11.2.1992.  A complaint petition was filed in  November, 2000 purported to be on the basis of a report dated 20.12.1996 of  the then Commander, 48 BRTF at Tezu on 20.12.1996.  

The Judicial Magistrate, First Class, Tezu took cognizance of the said  offences against the appellant by an Order dated 7.11.2000.  

4.      The application filed by the appellant under Section 482 of the Code  of Criminal Procedure, 1973 for quashing the said proceedings has been  dismissed by the Gauhati High Court by reason of the impugned judgment.

5.      Mr. Nagendra Rai, the learned senior counsel appearing on behalf of  the appellant would submit that the order taking cognizance is bad in law as  the same was filed beyond the prescribed period of limitation and in any  event was not preceded by a valid order of sanction of the competent  authority as envisaged under Section 197 of the Code of Criminal Procedure.

6.      Section 166 and 167 of the Indian Penal Code provides for an offence  by a public servant.                  Whereas Section 166 prescribes a sentence of simple imprisonment  for a term which may extend to one year; the sentence which can be imposed  under Section 167 is one of either description for a term which may extend  to three years or with fine or with both.

7.      Section 468 of the Code of Criminal Procedure, 1973 specifies the

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period of  limitation within which the cognizance of an offence can be taken.    Clause (c) of Sub-section (2) of Section 468 specifies the period of  limitation to be three years if the offence is punishable with imprisonment  for a term exceeding one year but not exceeding three years.  

8.      There is no doubt or dispute that the Court has the power to condone  the delay. No order condoning the delay has however, been passed by the  learned Judicial Magistrate in this case.   

       The ground taken for condonation of delay in the said complaint  petition of the complainant is as under:-

"8. That a Court of Inquiry was held by the Department  against the irregularities in Supply Orders and  thereafter the case was under consideration by Army  HQ. The Central Vigilance Commission also  investigated the matter since 20 Dec. 1996 and on the  completion of investigation by CVC, the matter was  barred by limitation for taking action under the Army  Act against the accused.  Hence the delay in filing this  complaint in the Court and the delay may be condoned  under Section 473 Cr.P.C. as the delay was not  intentional but inevitable in holding Court of Inquiry."  

9.      The learned Judicial Magistrate did not apply his mind on the said  averments.  It did not issue any notice upon the appellant to show cause as to  why the delay shall not be condoned.   Before condoning the delay the  appellant was not heard.   In State of Maharashtra Vs. Sharadchandra  Vinayak Dongre and Others [(1995) 1 SCC 42] this Court held; "5.  In our view, the High Court was perfectly justified in  holding that the delay, if any, for launching the  prosecution, could not have been condoned without  notice to the respondents and behind their back and  without recording any reasons for condonation of the  delay.   However, having come to that conclusion, it  would have been appropriate for the High Court, without  going into the merits of the case to have remitted the case  to the trial court, with a direction to decide the  application for condonation of delay afresh after hearing  both sides.   The High Court however, did not adopt that  course and proceeded further to hold that the trial court  could not have taken cognizance of the offence in view  of the application filed by the prosecution seeking  permission of the Court to file a "supplementary charge- sheet" on the basis of an "incomplete charge-sheet" and  quashed the order of the CJM dated 21-11-1986 on this  ground also.   This view of the High Court, in the facts  and circumstances of the case is patently erroneous."

10.     In view of the aforesaid decision, there cannot be any doubt  whatsoever that appellant was entitled to get an opportunity of being heard  before the delay could be condoned.   

11.     Far more important however, is the question of non-grant of sanction.    Appellant admittedly is a public servant.   He is said to have misused his  position as a public servant.   

       Section 197 of the Code of Criminal Procedure lays down  requirements for obtaining an order of sanction from the competent  authority, if in committing the offence, a public servant acted or purported to  act in discharge of his official duty.  As the offences under Section 166 and

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167 of the Indian Penal Code have a direct nexus with commission of a  criminal misconduct on the part of a public servant, indisputably an order of  sanction was pre-requisite before the learned Judicial Magistrate could issue  summons upon the appellant.

12.     Respondents in their counter affidavit, however, would contend that  no such sanction was required to be taken as the appellant would be  governed by the provisions of Section 125 and 126 of the Army Act, 1950.    The said provisions in our considered opinion have no application  whatsoever.

13.     Section 125 of the Act postulates a choice of the competent authority  to try an accused either by a criminal court or any court or proceedings for  court martial.  Section 126 provides for the power of the Criminal Court to  require delivery of offender.   

14.     As an option to get the appellant tried in a ordinary criminal court had  been exercised by the respondent, there cannot be any doubt whatsoever that  all the pre-requisites therefor in regard to the period of limitation as also the  necessity to obtain the order of sanction were required to be complied with.   

A Court of law cannot take cognizance of an offence, if it is barred by  limitation.  Delay in filing a complaint petition therefore has to be condoned.    If  the delay is not condoned, the court will have no jurisdiction to take  cognizance.   Similarly unless it is held that a sanction was not required to be  obtained, the court’s jurisdiction will be barred.  

15.     Section 197 of the Code unlike the provisions of the Prevention of  Corruption Act postulates obtaining of an order of sanction even in a case  where public servant has ceased to hold office.  The requirements to obtain a  valid order of sanction have been highlighted by this Court in a large number  of cases.   In S.K. Zutshi and Another Vs. Bimal Debnath and Another  [(2004) 8 SCC 31], this Court held; "11.  The correct legal position, therefore, is that an  accused facing prosecution for offences under the old  Act or the new Act cannot claim any immunity on the  ground of want of sanction, if he ceased to be a public  servant on the date when the court took cognizance of  the said offences.  But the position is different in cases  where Section 197 of the Code has application."

                                       (Emphasis adduced)

       See also State of Orissa through Kumar Raghvendra Singh and Others  Vs. Ganesh Chandra Jew [(2004) 8 SCC 40].

       Recently in Raghunath Anant Govilkar Vs. State of Maharashtra and  Ors. [2008 (2) SCALE 303], having regard to the 41st Report of the Law  Commission, this Court observed; "24.    It was in pursuance of this observation that the  expression "was" came to be employed after the  expression "is" to make the need for sanction applicable  even in cases where a retired public servant is sought to  be prosecuted."

       It was furthermore held; "26. The High Court, therefore, was in error in  observing that sanction was not necessary because the  expression used is "was".

16.     The High Court, therefore, in our opinion committed a manifest error  in passing the impugned judgment.

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17.     The issues raised by the appellant were jurisdictional ones.  The same  should have been adverted to by the High Court.  

       For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  Appeal is allowed. No costs.