Bhag Singh vs State of Punjab

S.S. Sudhalkar, J.

This is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for quashing F.I.R. No. 5 dated 19.1.1995, Police Station Vigilance, Patiala, annexure P/1 and the further proceedings arising out of the same.

Petitioner No. 1 Bhag Singh was posted as Block Primary Education Officer, Block Samrala (1) and was also Drawing and Disbursing Officer. Petitioner No. 2 Balwant Singh was working as Clerk in Government Primary School. Petitioner No. 1 retired in the month of March, 1990.

It is contended that the allegations in the F.I.R. are that one Piara Singh, teacher, gave an application to petitioner No. 2 in the presence of petitioner No. 1 for withdrawing Rs. 4000/ from the G.P. Fund as refundable advance and Rs. 4000/ from G.P. Fund as nonrefundable advance. It is alleged in the FIR that the amount of Rs. 4000/ was withdrawn by the petitioners and one Kaka Singh, teacher on 9.2.1989 and that another amount of Rs. 4000/ was withdrawn on 19.5.1989 by the same persons by forging signatures of Piara Singh, teacher. It is also alleged that Rs. 4000/ was paid back by them to said Piara Singh, complainant as agreed and remaining amount was not paid.

Learned counsel for the petitioners has argued that in view of rule 2.2 of the Punjab Civil Services Rules Volume II (hereinafter referred to as ''the Rules'') the prosecution cannot be continued against petitioner No. 1 who has retired from service. Rule 2.2 of the Rules is reproduced as under :

"The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement.

Provided that

(1) xx, xx, xx, xx

(2) xx, xx, xx, xx

(3) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re employment shall be instituted in respect of a cause of action which arose on an event which took place more than four years before such institution."

Explanation For the purposes of this rule

(a) xx, xx, xx, xx

(b) a judicial proceeding shall be deemed to be instituted

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

Learned counsel for the petitioners has relied on proviso (3) of Rule 2.2(b) of the Rules. He has also relied on the case of State of Punjab v. Sain Dass and others, 1988(2) Recent Criminal Reports 564 : 1988 C.C. Cases 547 wherein learned Single Judge of this Court has held that the provision of Rule 2.2 of the Rules is a special provision governing Government servants only whereas the provision in Section 468 of the Cr.P.C. is general and special provision would take precedence over the general provision.

Learned counsel for the petitioners has also relied on the case of Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and others, AIR 1961 SC 564 wherein it has been held that even if it is assumed for the purpose of argument that Articles 309 and 310 and other Articles in Chapter I, Part XIV of the Constitution relate only to an organised public service like the Indian Administrative Service etc. and excadre posts under a direct contract of service which have not yet been incorporated into a Service, the scope and effect of Clauses (1) and (2) of Article 16 cannot be cut down by reference to the provisions in the Services Chapter of the Constitution. Relying on this principle, learned counsel argued that the rules have been made under the Constitution and, therefore, have got the binding nature.

Learned counsel for the petitioners has also cited before me the case of Sardul Singh v. State of Punjab, 1993(2) Recent Criminal Reports 417 . In that case the F.I.R. was lodged in the year 1981. The officer was allowed to retire in the year 1990 and the challan was presented in the year 1991. It was held in that case that trial was barred under rule 2.2 of the Rules which prescribes limitation of four years from the date of event, and, therefore, the F.I.R. was quashed.

However, contrary view has been taken by the Supreme Court in the case of State of Punjab v. Kailash Nath, 1989(1) S.L.R. 12. It has been held by the Supreme Court in that case that provision relating to prosecution does not fall within the term "Conditions of Service" as mentioned under Article 309 of the Constitution and there is no embargo on prosecution after the expiry of 4 years as mentioned in Rule 2.2 of the Punjab Civil Services Rules. It is further held that even on a plain reading of Rule 2.2, it is apparent that the intention of framing the said rule was not to grant immunity from prosecution to a Government servant, if the conditions mentioned therein are satisfied. It has also been held that the said Rule 2.2 deals with ordinary pension and that there can be no manner of doubt that making provision with regard to pension falls within the purview of "Conditions of Service" and that the embargo on prosecution spelt out by the High Court is not to be found in the main rule 2.2 but in the third proviso to the said rule. It was further held that the purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if a Government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose or an event which took place more than four years before such institution, the Government will not be entitled to exercise the right conffered on it by the substantive provision contained in clause (b) with regard to pension of such a Government servant. This judgment explains the meaning of the proviso and, therefore, the principle laid down in the case of State of Punjab v. Sain Dass and others (supra) cannot be said to be a good law in view of the decision of the Supreme Court in the case of State of Punjab v. Kailash Nath (supra).

However, in the case of State of Punjab v. Kailash Nath (supra), it has been held by the Hon''ble Supreme Court that the High Court was right in quashing the stale proceedings where the prosecution was instituted after six years of the accrual of cause of action. However, in the subsequent case of Ganesh Narayan Hegde v. S. Bangarappa and others, 1995 Supreme Court Cases (Crl.) 634, the Hon''ble Supreme Court held that the complainant was not responsible for the delay and when there was a delay of 12 years and there was no suggestion that the complainant was responsible for the delay and no such contention was alleged before the High Court, the prosecution should not be quashed. Slightly different is the present case where it has been argued that the State is responsible for the delay. In what way the State is causing delay, is not shown. However, it has been contended by the State Counsel that the delay has been occasioned because of lengthy nature of the enquiry and investigation and dilatory tactics adopted by the accused and due to noncooperation of the department concerned.

Looking to the nature of the present case and applying the judgments of both the cases decided by the Hon''ble Supreme Court, this court will have to decide the question of quashing under two subheads viz :

(i) quashing so far it relates to the pensionary and other retiral benefits;

(ii) quashing in regard to the trial in the criminal court;

So far as the first point is concerned, because of the above mentioned rulings of the Supreme Court, it is clear that the Rule 2.2 of the Rules shall apply and the Government will not be entitled to exercise the right conferred on it by the substantive provision contained in clause (b) with regard to pension of such a Government servant. Therefore, irrespective of the fact that the proceedings so far as criminal trial are not quashed, it shall be deemed to have been quashed so far as the grant of pension to have been quashed and other retiral benefits to petitioner No. 1 are concerned.

Regarding the second point, considering the effect of both the above cited judgments of the Hon''ble Supreme Court and the facts of the present case, I do not find it proper to quash the FIR so far as the proceedings in the criminal trial are concerned. However, it will not be proper to give long rope to the respondents so that they can keep the sword of the prosecution on the accused. There may be delay for some reasons but when the present petition was filed in the court, the respondent should have become alert and taken a positive decision as to whether the petitioners are to be challaned or not. In case the petitioners are to be challaned, certain formalities will also be required. Therefore, it will be proper to give two months time to the respondent to take decision in this regard.

In view of the above findings, this petition stands partly allowed and the proceedings shall be deemed to have been terminated so far the pension and other retiral benefits of petitioner No. 1 are concerned. However, the FIR is not quashed and the respondent should take a decision within two months from today as to whether they should file challan in the court or not. Therefore, it goes without saying that if the challan is not presented against the petitioners within the said period of two months, the FIR shall stand quashed. JUDGMENT Dasti to AAG, Punjab.