http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: STATE (SPE HYDERABAD)

       Vs.

RESPONDENT: AIR COMMODORE KAILASH CHAND

DATE OF JUDGMENT21/12/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1980 AIR  522            1980 SCR  (2) 697  1980 SCC  (1) 667  CITATOR INFO :  O          1984 SC 684  (25)

ACT:      Prevention of  Corruption Act,  1947 (11  of 1947),  S. 5(2)-Air Force  Officer  retiring  from  service-Reemployed- Services  transferred   to   Regular   Air   Force   Reserve Prosecution of  officer under  the Act-Officer  if a  public servant-Sanction whether necessary.

HEADNOTE:      The respondent  a  member  of  the  Indian  Air  Force, retired from service on June 15, 1965 but was reemployed for a period  of two  years with  effect from  June 16, 1965. On September 7,  1966 the  respondent was  transferred  to  the Regular Air  Force Reserve with effect from June 16, 1965 to June 15,  1970 i.e.  for a period of five years. On March 13 1968 the reemployment given to the respondent ceased and his services were  terminated with  effect from April 1, 1968. A charge-sheet was submitted against the respondent for having committed offences  under section  5(2) of the Prevention of Corruption Act,  1947, during  the period  March 29, 1965 to March 16,  1967. The  respondent filed a petition before the Special Judge  for dropping  the proceedings  against him on the ground  that the  Judge could not take any cognizance of the offences  in the  absence of  any valid  sanction of the appointing authority  OF the respondent. The application was rejected on  the ground  that as  the respondent  was not  a Commissioned Officer  in the  Air Force at the time when the cognizance was  taken, no  sanction  of  the  President  was necessary.      The respondent  moved the High Court in revision, which quashed the  proceedings, holding  that  as  the  respondent continued to  be a  public servant  within  the  meaning  of section 21  of the Indian Penal Code inasmuch as he remained a member of Air Force Reserve, sanction was necessary before prosecuting the respondent.      In the appeal to this Court, it was contended on behalf of the  appellant: (1)  that as  the respondent  had retired from the  Indian Air Force and his employment was terminated with effect  from April  1, 1968  he ceased  to be  a public servant and  therefore no  sanction was  necessary, and  (2)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

that reemployment  under the  provisions of  the Regular Air Force Reserve  Act would  not amount to an employment in the Regular Force  of the  Service and therefore even though the respondent may  have been reemployed he could not be said to hold the status of a public servant.      Dismissing the appeal, ^      HELD: 1.  The prosecution  must prove  that at the time when cognizance  of the  offence was  taken  the  respondent ceased to be a public servant. [700 C]      In the  instant case, the Special Judge took cognizance on June  19. 1969 at a time when the respondent continued to be a  public servant  having been  reemployed and though his services were terminated only on April 1, 1968 he 698 continued to  be a  member of  the Auxiliary  Air Force upto July 15,  1970, that  is a long time after cognizance of the offence was taken. [700 D]      S. A.  Venkataraman v.  The State  [1958] S.C.R.  1037; State of  West Bengal  etc. v.  Manmal Bhutoria  & Ors. Etc. [1977] 3 S.C.R. 758 referred to.      2(i) The  Provisions of  the Auxiliary Air Force Act do not expressly  contain the nature of the emoluments that the respondent may  receive but the general tenor and setting of the Act clearly show that a member of the Auxiliary Force is as much  a public  servant as an acting member of the Indian Air Force. [703 G]      (ii) Even  after the  respondent was transferred to the Auxiliary Air  Force he  retained his  character as a public servant because  he was  required to undergo training and to be called up for service as and when required. [703 F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 259 of 1973.      From the  Judgment and  order dated  27-4-1973  of  the Andhra Pradesh  High Court  in Criminal  Revision  Case  No. 72/73.      R. B.  Datar, M.  N. Shroff  and R. N. Sachthey for the Appellant.      P. Govindan Nair and A. Subba Rao for the respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal  by certificate  is directed against the  judgment dated  27th April  1973 of  the Andhra Pradesh High  Court allowing  the revisional application and quashing the  proceeding’s taken  against the respondent for offences committed  under  s.  5(2)  of  the  Prevention  of Corruption Act.      In the  view that  we take  in  the  case,  it  is  not necessary to  give the  facts in detail. IL appears that the respondent was  a member  of the  Indian  Air  Force  having entered the  service on l 7th November 1941. He retired from the service  on the  15th June 1965 but was reemployed for a period of two years with effect from 16th June 1965. O.. 7th September  1966,  the  respondent  was  transferred  to  the Regular Air Force Reserve with effect from 16th July 1965 to 15th June  1970, i.e.,  for a period of five years. In Other words, the  respondent  was  transferred  to  the  Auxiliary Reserve Air  Force under  the provisions of the Reserved and Auxiliary Air  Force Act 1952 (hereinafter to be referred to as the  ’Act’) and rules thereunder. On 13th March 1968, the reemployment given to the respondent ceased and his services were terminated from 1st April 1968.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

    A chargesheet  was submitted against the respondent for having committed offences under s. 5(2) of the Prevention of Corruption Act  during the  period 27th  March 1965  to 16th March 1967. The 699 respondent  filed  a  Petition  before  the  Special  Judge, Hyderabad for  dropping the  proceedings against  him on the ground that  the Judge  could not take any cognizance of the offences in  the  absence  of  any  valid  sanction  of  the appointing authority  of the  respondent. The Special Judge, however, rejected  this application  on the  20th of October 1972 on  the  ground  that  as  the  respondent  was  not  a Commissioned officer  in the  Air Force at the time when the cognizance was  taken, no  sanction  of  the  President  was necessary. Thereafter,  the respondent  moved the High Court in revision  and succeeded  before the High Court which held that as  the respondent  continued to  be a  public  servant within the  meaning of  s.  21  of  the  Indian  Penal  Code inasmuch as  he remained  a member of the Air Force Reserve, sanction was  essential before  prosecuting the  respondent. The High  Court accordingly  accepted the  revision petition and quashed  the  proceedings  against  the  respondent  but granted a  certificate to  the appellant for leave to appeal to this Court. Hence this appeal before us.      The only  point that  has been  canvassed before us was whether  the  respondent  having  retired  from  the  active service of  the Indian  Air Force  continued to  be a public servant even  though he was transferred to Regular Air Force Reserve. The  counsel for  the Union  submitted that  as the respondent had  retired from  the Indian  Air Force  and his reemployment was  terminated w.e.f. April 1, 1968, he ceased to be  a public  servant and,  therefore,  no  sanction  was necessary. We  have heard  counsel for  the parties and have also perused  the judgment of the High Court and the Special Judge. The  facts, mentioned above, are not disputed and two questions fall for determination in this case.      In the first place, it has to be decided whether or not the respondent  was a public servant during the period 27-3- 65 to  16-3-67. Secondly, what is the point of time when the sanction was  necessary, viz.,  the time  when the  offences were actually committed or when the court took cognizance of the said  offences. We  will take up the second point first. An identical  question came up for consideration before this Court in  the case  of S. A. Venkataraman v. The State where the Court, speaking through Imam J., observed as follows .      "In our  opinion, in  giving  effect  to  the  ordinary      meaning of  the words  used in  s. 6  of the  Act,  the      conclusion is  inevitable that  at the  time a court is      asked to take cognizance 700      not only  the offence  must have  been committed  by  a      public servant but the person accused is still a public      servant  removable  from  his  office  by  a  competent      authority before the provisions of s. 6 can apply." This case was followed by a recent decision of this Court in the case  of State  of West Bengal Etc. v. Manmal Bhutoria & Ors. Etc.  where the previous decision was followed. In view of the  decisions of  this Court,  referred  to  above,  the matter is  no longer  res integra  but is  concluded by  the decisions of  this Court.  It fol  lows, therefore, that the prosecution must  prove that at the time when the cognizance of the  offence was  taken, the  respondent ceased  to be  a public servant.  In the  instant  case,  the  Special  Judge appears to  have taken cognizance on June 19, 1969 at a time when the  respondent continued to be a public servant having

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

been reemployed  and as  referred to above his services were terminated only  on 1-4-1968 but he continued to be a member of the  Auxiliary Air  Force upto  15-6-70 that is to say, a long time after the cognizance of the offence was taken. The learned counsel  for the  Union, how  ever,  submitted  that reemployment under  the provisions  of the Regular Air Force Reserve Act would not amount to an employment in the Regular Force  of   the  Service   and  therefore  even  though  the respondent may have been reemployed, he could not be said to hold the  status cf  a public  servant. In  this connection, some of  the Rules  have been  placed before  us to show the nature of  the employment  held by  the respondent after his retirement. It is not disputed that even after reemployment, the respondent  was transferred  to the  Air Force Auxiliary Reserve and  continued to  be a  member of the Auxiliary Air Force Reserve.  Relevant sections  of the Act are. extracted below :-      "4.  Constitution  of  Regular  Air  Force  Reserve-The      Central Government may raise and maintain in the manner      hereafter in this Chapter provided an Air Force Reserve      to be  designated the  Regular Air  Force Reserve which      shall  consist   solely  of   persons  transferred   or      appointed to it under section 5.      5. Recruitment to the Regular Air Force Reserve-(1) The      competent authority  may, by  general or  special order      transfer to the regular Air Force Reserve-           (a)  any officer  or airman  of the  Air Force who                under the terms and conditions of his service                is liable to 701                serve in  any Air  Force Reserve  if and when                constituted;           (b)  any officer  or airman of the Air Force whose                com mission  or engagement  in the  Air Force                has been  terminated before  the commencement                of this  Act and  who under  the terms of his                commission or  engagement was liable to serve                in  any   Air  Force   Reserve  if  and  when                constituted;           (c)  any officer  or airman  who has served in the                Air Force and has retired therefrom;      and any  officer or  airman  so  transferred  shall  be      deemed to be a member of the said Reserve.           (2)  The  competent   authority   may,   in   such                circumstances and  subject to such conditions                as  may  be  prescribed,  by  special  order,                appoint to  the Regular Air Force Reserve any                member of  the Air  Defence  Reserve  or  the                Auxiliary Air  Force  raised  and  maintained                under this  Act, and where any such member is                so appointed,  he shall  cease to be a member                of the  Air Defence  Reserve or the Auxiliary                Air Force,  as the  case may be, and shall as                from the  date of  such appointment be deemed                to be  a member  of  the  Regular  Air  Force                Reserve.           (3)   ..          ..          ..          ..      6. Classes of persons in the Regular Air Force Reserve-      Members of  the Regular  Air  Force  Reserve  shall  be      divided into the following classes, namely:-           (a) general duties officers, and           (b) ground duties officers, and           (c) airmen,      and every  officer shall  be entitled  on  transfer  or      appointment to  the Reserve  to hold  the same  rank as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    that which  he-last held  in the  Air Force  or the Air      Defence Reserve or the Auxiliary Air Force, as the case      may be, before such transfer or appointment.      7. Period  of service-(1)  Every member  of the Regular      Air Force  Reserve shall  he liable  to  serve  in  the      Reserve-           (a)  if he  is transferred  to the  Reserve  under                sub- section (1) of section 5, for the period                of his Re serve liability; and 702           (b)  if he  is appointed to the Reserve under sub-                section (2)  of section  S, for the remainder                of the  period for  which he  was  liable  to                serve in  the  Air  Defence  Reserve  or  the                Auxiliary Air Force, as the case may be:           Provided that  the competent authority may require      any such  member to  serve  in  the  Reserve  for  such      further  period   or  periods   not  exceeding  in  the      aggregate five years as it may think fit.           x          x          x          x          x      9. Constitution  of  Air  Defence  Reserve-The  Central      Government may  raise and  maintain in  the manner here      after in  this Chapter provided an Air Force Reserve to      be designated  the  Air  Defence  Reserve  which  shall      consist of  persons  deemed  under  the  provisions  of      section 16 to be enrolled therein.      10. Classes  of persons  in the  Air  Defence  Reserve-      Members of  the Air  Defence Reserve  shall be  divided      into the following classes, namely:-           (a) general duties officers;           (b) ground duties officers; and           (c) airmen.           x          x          x          x          x      12. Liability  to be called up for inquiry-Every person      to whom  the provisions  of section  11 are  applicable      shall be  liable to  be called  up  for  inquiry  under      section 13-           (a)  if he belongs to any of the classes specified                in clauses  (a) to  (f) of sub-section (1) of                section  11,   until  he  has  completed  his                thirty-seventh year, and           (b)  if he belongs to any of the classes specified                in clauses  (g) and  (h)  of  the  said  sub-                section, until  he has completed his fiftieth                year.           x          x          x          x          x      18. Constitution of Auxiliary Air Force-(1) The Central      Government  may   raise  and  maintain  in  the  manner      hereafter in  this Chapter  provided an Air Force to be      designated the Auxiliary Air Force.           (2) The  Central Government  may  constitute  such      number of  squadrons and  units of  the  Auxiliary  Air      Force as  it thinks fit and may disband or reconstitute      any squadron or unit. 703      19. Classes  of persons  in the  Auxiliary  Air  Force-      Members of  the Auxiliary  Air Force  shall be  divided      into the following classes, namely:           (a) general duties officers;           (b) ground duties officers; and           (c) airmen.      20. Officers  of the  Auxiliary Air Force-The President      may grant  to such person as he thinks fit a commission      as an  officer in  the Auxiliary  Air  Force  with  the      designation  of  rank  corresponding  to  that  of  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

    commissioned officer in the Air Force.           ..                ..             ..            ..      22. Periods of service-Every officer and every enrolled      person shall,  subject to any rules that may be made in      this behalf under this Act, be required to serve in the      Auxiliary Air Force for a period of five years from the      date of  his appointment  or enrollment  but may, after      the completion  of his  period of service, volunteer to      serve therein for further periods each of not more than      five years’ duration.      23. Termination  of Service-The  service of any officer      or enrolled  person in  the Auxiliary Air Force may, at      any  time  before  the  completion  of  his  period  of      service, be terminated by such authority and under such      conditions as may be prescribed."      (Emphasis ours)      A perusal  of the  provisions of  these sections  would clearly reveal  that once  the respondent was transferred to the Auxiliary  Air Force  he retained  his  character  as  a public servant  because he  was required to undergo training and to  be called up for service as and when required. It is true that  these provisions  do not  expressly  contain  the nature of the emoluments that the respondent may receive but the general tenor and setting of the Act clearly show that a member of the Auxiliary Force is as much a public servant as an acting  member of  the Indian Air Force. This is the view which the  High Court  appears to  have taken  and  we  find ourselves in  complete agreement  with the  same. It  is not disputed in  this case  that no  sanction was taken from the appointing authority  before prosecuting the respondent. For these reasons, therefore, we do not find any error of law in the judgment  of the  High Court and the appeal fails and is accordingly dismissed N.V.K.         Appeal dismissed. 704