Awadhesh Kumar Verma vs State Of Madhya Pradesh

This petition under Section 482 of Cr.P.C. has been filed by petitioner Awadhesh Kumar Verma, retired Executive Engineer, Public Works

Department, seeking quashing of FIR registered at Crime No.41/2012 under Section 120 and 420 of IPC read with Section 13 (1) (c) & 13 (1) (d) of

the Prevention of Corruption Act, 1988, registered by State Economic Offence Bureau, the proceedings of which are pending before the Additional

Sessions Judge, Bhind in Special Trial No.10/2016 (Old No.1 of 2016) on the ground that allegations levelled in the FIR are stale and were for the

period between January 2008 to March 2008. It is submitted that on 31.03.2008, the petitioner stood retired and thereafter a complaint was lodged on

13.03.2009, on the basis of which FIR was lodged on 10.07.2012 registering Crime No.41/2012. It is submitted that charge sheet was filed on

01.08.2015 and since the incident of alleged misconduct/irregularity took place in the year 2008 and FIR was registered after lapse of about four

years, as per the provisions contained in Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter shall be referred to as the “Rules of

1976â€​) in Rule 9 (3) and Rule 9 (6) (b), which reads as under :

“9. Right of governor to withhold or withdraw pension.-

(1) -- -- --

(2) -- -- --

(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,

shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.

(4) -- -- --

(5) -- -- --

(6) For the purpose of this rule -

(a) --------

(b) judicial proceedings shall be deemed to be instituted -

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is

made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.â€​

FIR needs to be quashed.

Learned counsel for the petitioner has placed reliance on the order dt.12.08.2004 passed in M.Cr.C.No.2842/2004 - Parmanand Champalal Lad Vs.

State of M.P., wherein in a matter where Government Servant had retired from service on 30.09.1994 and proceedings were initiated against him on

30.12.2002, interpreting the provisions of Rule 9 (3) and Rule 9 (6) (b) of the Rules of 1976, learned Single Judge had set aside the order taking

cognizance of the offence as barred under Rule 9 (3) of the Rules of 1976 and had allowed the petition.

It is submitted that the State Government had filed Special Leave to Appeal (Cri.) No.001604-001604/2005 before the Hon'ble Supreme Court,

which was dismissed vide order dt.04.03.2005. Thus, the order of High Court has been approved and in the light of such order of the High Court

affirmed by the Hon'ble Supreme Court, present petition deserves to be allowed and the FIR alongwith consequential proceedings needs to be

quashed.

After hearing arguments of the learned counsel for the petitioner and going through the record, it is apparent that Rule 9 of Rules of 1976 deals with

right of Governor to withhold or withdraw pension. This rule envisages the circumstances and exigencies whereunder the Governor can exercise his

right to withhold or withdraw pension of a Government Servant governed by the Rules of 1976 with consultation of the Public Service Commission and

the circumstances in which such right shall be exercised. This rule in our considered opinion has no application to registration of a criminal case.

Section 468 (2) & (3) of Cr.P.C. deals with the period of limitation for taking cognizance of an offence, which reads as under :-

“468. Bar to taking cognizance after lapse of the period of limitation.â€

(1) -- -- --

(2) The period of limitation shall be â€

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to

the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.â€​

Section 468 (3) of Cr.P.C. provides that the period of limitation in relation to offences which may be tried together, shall be determined with

reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. It will not be out

of place to mention that maximum sentence prescribed under Section 420 of IPC is seven years. Therefore, it is apparent that provisions of Rule 9 of

Rules of 1976 are clearly not applicable in relation to registration of crime or taking cognizance of offences under the IPC or Prevention of Corruption

Act, whereas the scope of application of Rule 9 is only limited to the authority of the Governor to withhold or withdraw pension, learned Single Judge

in the case of Parmanand Champalal Lad (supra) clearly erred in not appreciating the scope and implication of Rule 9 of Pension rules of 1976 and

therefore we have no hesitation in holding that the order passed in Parmanand Champalal Lad (supra) does not lay correct proposition of law and is

not a correct law. Therefore, the proposition of law laid down in the case of Parmanand Champalal Lad (supra) is set aside.

As far as submission of learned counsel for the petitioner that the order of learned Single Judge in the case of Parmanand Champalal Lad (supra)

was upheld by the Hon'ble Supreme Court, when it dismissed the SLP (Cri.) No. 001604-001604/2005 in limine; thereby Hon'ble Supreme Court has

upheld the order of the learned Single Judge, has no force and legal sanctity as has been explained by Hon'ble Supreme Court in the case of

Kunhayammed and others Vs. State of Kerala and another as reported in AIR 2000 SC 258,7 wherein it has been held that exercise of jurisdiction

under Article 136 of the Constitution is in two stages, grant of leave and hearing of appeal. Analysing legal implication of both the stages, it has been

held that refusal to grant leave does not mean that order impugned is affirmed. The relevant para 14 of the judgment is reproduced as under :-

“14. The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to

appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in

exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme

Court under Article 136 of the Constitution shall be in form No.28. No separate application for interim relief need be filed, which can be incorporated

in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition

shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the

petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat. The Court if it thinks fit,

may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave

petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall

also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P.. On hearing

the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party.

Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional Court fee, if any, be treated as the

petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid

down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the

Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under :-

While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not.

While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to

grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters

or not would depend on the fate of his petition for special leave;

If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction

of the Court was not made out;

If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in

and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may

dismiss the appeal without noticing the respondent.

In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for,

continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order

appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass

a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. dismissal at stage of special leave -

without reasons - no res judicata, no merger.â€​

Recently, this view has been referred and affirmed by the Hon'ble Supreme Court in the case of Khoday Distilleries Limited Vs. Sri

Mahadeshwara Sahakara Sakkare Karkhane Limited as reported in AIR (2019) 4 SCC 376.

In view whereof, even second limb of argument by the learned counsel for the petitioner that Hon'ble Supreme Court has given stamp of approval

to the judgment passed by the learned Single Judge can not be accepted in the light of the law laid down in the case of Kunhayammed (supra) and

Khoday Distilleries Ltd. (supra). Therefore, petition fails and is dismissed. No costs.