B.S.Goraya, Col. vs U.T.Chandigarh

R. L. Anand, J.

This is a criminal revision and has been directed against the order dated 6.2.1998 passed by the court of learned Special Judge, Chandigarh, who decided to frame the charge against the petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the Act'').

The brief facts of the case are that a chargesheet was filed against the petitioner by the C.B.I. authorities at Chandigarh, after completing the investigation in the case which was registered at number 15 dated 6.8.1990 under Sections 13(1)(e) and 13(2) of the Act. An application under Section 482, Cr.P.C. was moved by the petitioner for quashing of the said F.I.R. but the same was dismissed as withdrawn vide order dated 11.9.1996 passed by the High Court. Liberty was, however, given to the petitioner to take all the legal and factual pleas as and when the same were available to him. Consequently, the petitioner filed an application under Section 227, Cr.P.C. before the learned Special Judge, Chandigarh, for his discharge stating that at the time of the registration of the case, he was serving as Colonel in the Army and was posted at Chandimandir; he was placed under suspension and an enquiry was initiated and, ultimately, he was dismissed from service with effect from 27.1.1993; no sanction whatsoever was obtained for launching the prosecution against him and the order of dismissal was challenged by him and he was, ultimately, reinstated. In the application, it was stated by the petitioner that as per the provisions of Section 19 of the Act, 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 of the competent authority and that so long as the petitioner remained in service, it was not possible to file chargesheet against him without obtaining the requisite sanction. The second ground taken by the petitioner was that the proceedings before the court were without jurisdiction because under Section 475, Cr.P.C., no court could take cognizance of an offence against a person subject to the Army without making reference to the Commanding Officer of the person concerned. The third ground taken by the petitioner was that the C.B.I. had no authority to investigate the matter or register the case against the petitioner. Resultantly, the investigation initiated by the C.B.I. was illegal and unconstitutional.

Reply to the application was filed on behalf of the C.B.I. and it was stated that a chargesheet was filed in the court on 24.9.1993 and by that time the petitioner had already been dismissed from service on 27.1.1993 and, as such, there was no need to obtain sanction to launch the prosecution against him. It was further stated that the chargesheet having been filed for the offence under Section 13(2) read with Section 13(1)(e) of the Act, Section 475, Cr.P.C. was not applicable in the instant case. It was further stated that the petitioner was residing at Chandigarh and hence the case was registered at Chandigarh and the chargesheet was filed in the court at Chandigarh and the C.B.I. had the jurisdiction to investigate the case against the petitioner.

The learned Special Judge, for the reasons stated in paras 6 to 16 of the impugned order, dismissed the application of the petitioner and decided to frame the charges against the petitioner under Sections 13(1)(e) and 13(2) of the Act. The same read as under :

The facts are admitted. The FIR was registered on 6.8.90. The accused/petitioner B. S. Guraya was put under suspension on 17.8.90 and he was dismissed from service on 27.1.1993. The chargesheet against him was filed in the court on 29.3.93. As per this factual position, the accused/petitioner was not in government service on the day the chargesheet was filed in the court. It is again the admitted fact that the order vide which the present accused/petitioner was dismissed from service has since been set aside. The contention of the learned counsel for the accused/petitioner is that with the setting aside of the order dismissing him from service, the accused/petitioner was deemed to be in service during all that time and no prosecution could be launched against him except after obtaining the sanction in case he is treated to be in government service at the requisite time. He has placed reliance upon Bhalchandra v. State of Gujarat, AIR 1964 Guj. 1, State of U.P. v. Mohammad Nooh, AIR 1958 Supreme Court 86.

I have gone through these authorities. In the first authority, it has been held that as a person against whom an order is passed in violation of the provisions of Article 311(1) would continue in service as if no such order had ever been made; similarly, a person against whom an order has been passed in breach of the provisions of Article 311(2) would equally continue in service as if no such order had ever been passed against him. The view taken in the other two authorities referred above is also said to be the same.

As against this, the learned PP, CBI, argued that if at the time the Special Judge had taken the cognizance of the offence, the accused had ceased to be a public servant on account of his dismissal from service and that dismissal order was set aside during the pendency of the criminal case that was registered against him, the cognizance already taken by the Special Judge, could not be said to be not proper. He placed reliance upon the authority reported as K. S. Dharmadattan v. Central Government and others, AIR 1979 Supreme Court 1495. In that case the appellant was being prosecuted for the offence under Sections 120B, 420, 471 IPC and other sections including Section 5(2) and Section 5(1) of the Act. At the time the chargesheet was filed and the cognizance was taken by the Special Judge, the appellant had ceased to be a public officer. He had then filed the appeal before the President of India against his removal from service and the President of India vide order dated 25.9.72 allowed his appeal and set aside the order of removal from service passed by the Collector of Customs against him. On his reinstatement, the appellant filed the application before the Special Judge praying that all further proceedings be dropped inasmuch as the prosecution against him was initiated in the absence of a proper and valid sanction. The Special Judge rejected his prayer and so did the Hon''ble High Court. The matter thus went upto the Apex Court. The point raised there was that the appellant must be deemed to be in service w.e.f. the date from which the departmental proceedings were initiated against him and, therefore, he would be a public servant at the time when the cognizance was taken by the Special Judge as no sanction under Section 6 of the Act was obtained, the entire proceedings became void ab initio. This contention was repelled by the Apex Court with the observation that it is well settled that deeming fiction should be confined only for the purpose for which it is meant. In the instant case, the order of the President reinstating the appellant and creating a legal fiction regarding the period of suspension must be limited only so far as the period of and the incidents of suspension were concerned and could not be carried too far so as to prejudice it even in cases where actions had already been taken and closed. In other words, the position seems to be that at the time when actual cognizance by the court was taken, the appellant was ceased to be a public servant having been removed from service. If some years later, he had been reinstated that would not make the cognizance which was validly taken by the court in October, 1970 or render it nugatory so as to necessitate taking of fresh sanction.

The learned PP CBI then referred to the authority of the Calcutta High Court reported as Sat Paul v. Inspector of Police, 1997(1) Recent CR 444 . There also the criminal prosecution was of a public servant for accepting the bribe and he had ceased to be a public servant when the court was called upon to take cognizance of the offence and no sanction for prosecution was obtained. The order of dismissal was set aside during the pendency of the criminal case. It was held that still no sanction would be required. Again in the authority reported as Rajinder Kumar Sood v. The State of Punjab, 1982 Cr.LJ. 1718, wherein it has been held that sanction under Section 6 is not necessary for the prosecution of an accused public servant on the date of taking of the cognizance of the offence by the Special Judge, nor any sanction under Section 197 Cr.P.C. for such prosecution as Section 197 Cr.P.C. is not applicable to prosecutions before Special Judge. Section 8(3) of the Criminal Law Amendment Act, 1952 makes it clear that the Prevention of Corruption Act is a special legislation with regard to bribery and corruption both with regard to its substance and procedural aspects and, therefore, the special provisions of Section 6 of the Act would exclude the application of the general provisions of Section 197 Cr.P.C.

The Hon''ble High Court placed reliance upon the decision of the Apex Court in the authority reported as K. S. Dharmadattan v. Central Government and others, AIR 1979 Supreme Court 1495 and one authority of the Apex Court reported as R.S. Nayak etc. v. A.R. Antulay etc., AIR 1984 SC 684, and it was thus held that in view of the A.R. Antulay decision it is now well settled principle of law that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 of the Act is the date on which the court is called upon to take cognizance of the offence of which he is accused and that the terminus qua for a valid sanction is the time when the court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed the accused was public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. The subsequent setting aside of the dismissal order during the pendency of a criminal case could not nullify the cognizance taken by the Special Judge.

In view of the law thus settled by the Apex Court, no sanction for launching prosecution against the accused was required because at the time no cognizance was taken by the court, the accused was admittedly not a public servant. The fact that the order of his dismissal from service has subsequently been set aside cannot bring any difference so far as that position is concerned.

The next argument advanced by the learned counsel for the accused/petitioner was that the cognizance of the offence has been wrongly taken by the court in violation of the provisions contained in Section 475, Cr.P.C. which provides that no court can take cognizance of the offence against person subject to the Army Act without making reference to the C.O. of the person concerned. The learned counsel for the applicant placed reliance upon the authority reported as Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 Supreme Court 2548, and on the authority of Division Bench of our own Hon''ble High Court reported as Pritam Singh v. State of Haryana, 1994(1) Recent Criminal Reports 131 .

On the other hand, the learned PP, CBI, has relied upon the authority reported as Lt. Col. H. N. Tripathi v. State, 1988 Cri. L.J. 582, where the facts were that an Army Officer was charged for corruption. It was held that the C.B.I. constituted under the Delhi Special Police Establishment Act can investigate into the matter and file report before the Special Judge Anti corruption that the jurisdiction neither of C.B.I. nor of Special Judge to try offence against the member of Armed Forces is the State was taken away. While taking this view reliance was placed upon the authority of the Apex Court reported as Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1761, where it has been held as under :

"It is contended that Section 7 confers an exclusive jurisdiction on a Special Judge only in regard to offences specified in subsection (1) of Section 6 and that the said subsection does not comprise offence under Section 52 of the Army Act. There is a fallacy underlying this argument. Certain acts committed or omissions made by a person constitute offences under Section 6(1) of the Criminal Law (Amendment) Act, 1952. Under Section 7 of the said Act, the said offences are exclusively triable by a Special Judge. In the present case the accused were charged having committed offences expressly falling under Section 6 of the said Act and, therefore, the Special Judge had clearly jurisdiction to try the accused in respect of the said offences. The mere fact that the said acts or omissions might also constitute an offence under Section 52 of the Army Act would not be of any relevance, as jurisdiction was exclusively conferred on the Special Judge notwithstanding anything contained in any other law. If that be so, the Special Judge had exclusive jurisdiction to try offences covered by Section 6 of the Criminal Law (Amendment) Act, 1952."

It has further been held in this very authority by the Apex Court as under :

"Sections 6 and 7 of the Criminal Law (Amendment) Act 1952 (Criminal) being identical to those of the State Criminal Law (Amendment) Act, 1958 and the Army Act being the same, the law on this question stands concluded and is no longer res integra even in respect of the State Law."

In view of the aforesaid discussion, this argument of the learned counsel for the accused/petitioner cannot be given any importance.

The argument advanced by the learned counsel for the accused was that the accused was posted at Chandi Mandir which does not fall within the jurisdiction of Chandigarh Union Territory and the offence, if any, was committed by him during the tenure of his posting at ChandiMandir and the case against him could not have been registered at Chandigarh. He also contended that simply because he happened to reside at Chandigarh during the time of his posting at Chandi Mandir, will not mean that the case could have been registered at Chandigarh. He tried to place reliance upon the authority reported as Kamal Dev v. State of Haryana, 1987(2) Recent Criminal Reports 44 , the head note whereof says that where the charge is against the public servant for possessing assets disproportionate to his known sources of income and the assets were situate at the place of offence and elsewhere the place of offence will determine the jurisdiction for the trial of offence.

In that case the facts were that the property said to have been acquired by him disproportionate to his known sources of income was situated at Chandigarh, Panchkula and Mohali whereas he was serving at Chandigarh. Panchkula fell in district Ambala at that time. In para No. 5 of the afore cited judgment it was said that though, it may be taken that the offence of criminal misconduct was committed at Chandigarh, yet it can perhaps legitimately be said that its consequences visited at places outside Chandigarh so as to attract the provisions of Sections 179 and 180 Cr.P.C. Without meaning to determine finally on this matter, it can at best be said that both courts i.e. at Ambala and Chandigarh have the jurisdiction. In the present case, the accused was definitely residing at Chandigarh and property was said to have been acquired by him which was disproportionate to his known sources was situated at Chandigarh. The registration of the case at Chandigarh, thus cannot be disputed and so is the jurisdiction of the court."

Aggrieved by the same, the present revision, which I am disposing of with the assistance rendered by Mr. R. S. Randhawa, counsel for the petitioner and Mr. R. K. Handa, Standing Counsel for the C.B.I. I have also gone through the record of the case and I am of the considered opinion that the present revision is totally devoid of any merit.

Mr. Randhawa, counsel for the petitioner, assailed the order of the learned Special Judge by submitting that with the reinstatement of the petitioner into service, it was incumbent on the part of the C.B.I. authorities to obtain sanction as required under Section 19 of the Act. Counsel unfolded his submission by submitting that the reinstatement of the petitioner was on account of total lack of jurisdiction on the part of the military authorities when they dismissed the petitioner from service on 17.1.1993. The Special Leave Petition of the military authorities has also been dismissed by the Hon''ble Supreme Court of India and, in these circumstances, it should be held that the order of dismissal of the petitioner was nonexistent in the eyes of law as if the petitioner was never dismissed from service. Resultantly, the chargesheet submitted by the C.B.I. authorities without obtaining the sanction from the competent authority is illegal and unconstitutional and on such a chargesheet, the learned Special Judge could not take cognizance. It was further submitted by the counsel for the petitioner that as per the case of the prosecution, the petitioner was posted at Chandimandir, which falls within the jurisdiction of Haryana and, in these circumstances, the C.B.I.authorities could not prosecute the petitioner by submitting the challan in the court of the Special Judge at Chandigarh. Rather, the challan, at the best, could be submitted before the Special Judge, C.B.I., in Haryana State. Also, it was submitted that before the submission of the challan, the C.B.I.authorities did not enquire from the military authorities as to whether they would like to prosecute the petitioner in Court Marshal or in the ordinary criminal court.

On the contrary, the learned C.B.I. has adopted all the reasons which have been adopted by the learned Special Judge in dismissing the application of the petitioner.

It is the admitted case of the petitioner that w.e.f. 27.1.1993, he was dismissed from service. Submission of a challan is a matter of procedure. The challan was submitted in this case on 24.9.1993. At that time, the petitioner was not in service. In such circumstances what is the law of the land, is the point for adjudication.

Kalicharan Mahapatra v. State of Orissa, 1998(3) RCR(Crl.) 771 , is a judgment which can be looked into for advantage where the Hon''ble Supreme Court has clearly laid down that while dealing with a corruption case against a public servant no sanction is required, if he ceases to be a public servant or retires. When the court was called upon to adjudicate the controversy, at that time the petitioner was not in service. The wording of Section 19 of the Act, which is para materia with Section 6 of the Prevention of Corruption Act, 1947, clearly suggests that the previous sanction is necessary against a public servant if at the time the court was asked to take cognizance, he is a public servant. Even if a person is a public servant when he commits a crime and when the I.O. submitted the challan he ceases to be a public servant, no sanction is required. Thus, even with the reinstatement of the petitioner into service, the submission of the chargesheet and the taking of the cognizance by the Special Judge into the matter will not invalidate the proceedings.

Counsel for the petitioner relied upon Bhalchandra Ramchandra Vaidya v. State of Gujarat, AIR 1964 Gujarat 1, and submitted that any order passed in breach of the provisions contained in Article 311(2) is an order which is void and inoperative and a nullity and the person purported to be dismissed would remain in service as if no such order of dismissal had been passed. The counsel submitted that the effect of the setting aside of the dismissal of the petitioner would be as if he was never dismissed from service and, therefore, he is protected in all matters including the matter of sanction as required under Section 19 of the Act.

So far as this judgment, which has been relied upon by the counsel for the petitioner, is concerned, the same was rightly interpreted and considered by the learned Special Judge. This judgment does not come to the rescue of the petitioner. It does not affect the process of procedure which has already been adopted according to law by the court. The setting aside of the dismissal of the petitioner would not invalidate the pending proceedings against him. The gist of the interpretation of Section 19 of the Act, which is equivalent to Section 6 of the old Act, is to see whether at the time of the presentation of the challan under Section 173, Cr.P.C., a person was a public servant or not. Admittedly, the petitioner was not a public servant. He stood dismissed from service w.e.f. 27.1.1993. In this view of the matter, the judgment which has been relied upon by the counsel for the petitioner, at the first instance, has no applicability to the facts in hand and does not come to his rescue.

The learned counsel for the respondent placed reliance on K.S. Dharmadattan v. Central Government and others, AIR 1979 SC 1495, where the first argument of the petitioner has been fully met when the Hon''ble Supreme Court made the observations that it is well settled that deeming fiction should be confined only for the purpose for which it is meant. In other words, if at the time when the Special Judge had taken the cognizance into the matter, the petitioner was not a public servant, in such a situation, the sanction for prosecution is not required. Similar view was also taken by the Calcutta High Court in Sat Paul v. Inspector of Police, 1997(1) Recent C.R. 444 .

Thus, I reject the first submission of the counsel for the petitioner.

With regard to the territorial jurisdiction, the case of the prosecution is that though the petitioner was posted at Chandimandir, he was residing at Chandigarh and he acquired the property by illegal means disproportionate to his known sources at Chandigarh and, in these circumstances, the Chandigarh Special Judge had the jurisdiction to try the case.

On the contrary, the contention of the counsel for the petitioner was that as per the allegations of the prosecution, the petitioner committed the offence in the capacity of a public servant in Chandimandir; therefore, the Haryana Court (Special Judge, C.B.I.) alone had the jurisdiction. Reliance was placed on Kamal Dev v. State of Haryana, 1987(2) Recent CR 44 . In para 5 of this judgment, it was observed as follows :

"Viewing the case from another angle, it would be fair, even otherwise, to have the case tried at Chandigarh. Though it may be taken that the offence of criminal misconduct was committed at Chandigarh, yet it can perhaps legitimately be said that its consequences visited at places outside Chandigarh so as to attract the provisions of Sections 179 and 180 of the Code of Criminal Procedure. Without meaning to determine finally on this matter, it can best be said that both courts, i.e. at Ambala and Chandigarh have the jurisdiction. So, out of the two, it would be appropriate in the interest of justice to have the case tried before the Special Judge, Chandigarh."

In the present case, the petitioner acquired the assets on account of corrupt means. He may be posted in Chandimandir but he acquired the property in Chandigarh and, in these circumstances, the jurisdiction was very much there with the Special Judge, Chandigarh, who rightly took congnizance into the matter.

With regard to the last submission of the counsel for the petitioner to the effect that the ordinary court should have taken permission from the Commanding Officer before trying the petitioner, it is also devoid of any merit for the reasons already advanced by the learned Special Judge in para 13 of the impugned order, which I have already quoted above.

Thus, I am of the considered opinion that this petition is totally devoid of any merit and perhaps has been filed with the purpose of delaying the matter. The judgments relied upon by the counsel for the petitioner, reported as State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, Capt. U. R. Roy Choudhary v. The State, 1976 Cri. LJ 796, Pritam Singh v. State of Haryana, 1994(1) RCR 131 , are beyond the point in issue. The question of jurisdiction was never the matter of interpretation in any of these judgments. So long the C.B.I. authorities had the jurisdiction by virtue of the power conferred under the Delhi Special Police Establishment Act, which has the jurisdiction to investigate all the offences covered by those provisions.

No merit. Dismissed.