Devki Nandan vs State of Punjab

P.K. Jain, J.

This petition has been filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for quashing FIR No. 6 dated 17.1.1990, registered at Police Station Civil Lines Ludhiana, for the offences under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ''the Act of 1947) and the proceedings initiated in pursuance thereof pending in the Court of Special Judge, Ludhiana.

The necessary facts for the disposal of this petition are that the petitioner was employed as Sub Divisional Engineer, PWD (B&R) in the State of Punjab, and was posted as such at Phillaur when he retired from service on superannuation on 30.6.1988 (A.N.). At the time of his superannuation, no departmental enquiry or criminal case was pending against the petitioner.

On 17.1.1990, a case under section 5(1) read with Section 5(2) of the Act of 1947 was registered against the petitioner on the basis of a letter dated 15.1.1990 written by the Inspector, Vigilance Branch, Punjab, Ludhiana, addressed to the S.H.O. Police Station Civil Lines, Ludhiana. In nutshell, the allegations contained in the said letter are that the petitioner had amassed wealth through improper and illegal means during the period 1.7.1969 to 30.9.1982 and is in possession of property in excess of his known sources of income on account of his corrupt acts. The details of the income and expenditure have been given therein. After completing the investigation, a chargesheet was submitted against the petitioner in the Court of the Special Judge, Ludhiana. A charge under section 5(1) read with Section 5(2) of the Act of 1947 was framed against the petitioner on 14.12.1992 to which he pleaded not guilty and claimed trial. According to the prosecution, certain witnesses have also been examined and the trial is pending.

It has been alleged in the petition that in view of the provisions of subrule (3) of Rule 2.2 of the Punjab Civil Service Rules, Volume II, the present prosecution is barred by limitation since the event giving cause of action to the prosecution took place more than four years before the retirement of the petitioner. It has been further alleged that the prosecution is liable to be quashed for want of sanction under section 197 of the Code, and also for the reason that the case was registered and investigated, the challan was presented and the charge has been framed under the repealed Act of the year 1947. It has also been stated that the wife of the petitioner was a Government servant during the checkperiod and her income has been clubbed with the income of the petitioner which is not permissible under the law, that the challan was presented after a long time and the petitioner is not expected to keep account of things from 1969 to 1982 and that a stale prosecution is liable to be quashed to avoid unnecessary harassment to a retired Government employee.

In reply, the respondentState has stated that a regular enquiry No. 7 of 198 was registered against the petitioner regarding keeping of disproportionate assets and then the FIR was registered on the basis of the findings of the said enquiry. The checkperiod with effect from 1.7.1969 to 30.9.1982 is not disputed. It has been further stated that after investigating, a proper chargesheet under the proper provision of law has been submitted to the Court, that a charge under the relevant provision of law has been framed against the petitioner and the trial is proceeding in accordance with law. It has been further stated that the legal pleas now sought to be raised by the petitioner are not sustainable in the eyes of law. It has also been stated that the petitioner has approached this Court after a considerable delay and this Court will not quash the criminal trial in exercise of its inherent powers under section 482 of the Code.

I have heard the learned counsel for the parties and have gone through the record.

It is not disputed that the petitioner who was SubDivisional Engineer, PWD (B&R) Branch and posted as such at Phillaur, retired from service of the Punjab Government on superannuation on 30.6.1988 (A.N.). It is also not disputed that at that time no departmental enquiry or criminal case was instituted or pending against him. It is also not disputed that a regular enquiry was conducted on the basis of which the present case has been registered against the petitioner under section 5(1) read with Section 5(2) of the Act of 1947 relating to the period 1.7.1969 to 30.7.1982. The impugned first information report was registered on 17.1.1990. In other words the events giving rise to the cause of action for launching prosecution took place between 6 to 19 years before the retirement of the petitioner. The first question that falls for consideration is as to whether the prosecution is barred by time in view of subrule (3) of Rule 2.2 of the Punjab Civil Service Rules, Volume II. It would be useful to extract the relevant portion of sub rule (b) of Rule 2.2 ibid. It reads :

"(b) 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 proceeding, 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) and (2) ... ... ... ... ...

(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 or an event which took place more than four years before such institution."

There is no dispute that Punjab Civil Service Rules have been framed by the Governor in exercise of the powers conferred upon him by Article 309 of the Constitution of India and that Rule 2.2 occurs in Chapter 2 of Volume II of the Rules dealing with ''ordinary pension''. According to the petitioner, the third proviso to clause (b) places embargo on prosecution of a Government servant on the expiry of a period of 4 years from the date of cause of action or the event mentioned therein. In support of this plea, the petitioner has placed reliance upon the judgment of a Single Bench of this Court in Sardul Singh v. State of Punjab, 1993(2) Recent Criminal Reports 417 : 1993(2) RSJ 774 . No doubt, this judgment fully supports this plea of the petitioner. But it appears that the attention of the learned Single Judge was not drawn to the decision of the apex Court rendered in State of Punjab v. Kailash Nath, 1989(1) Recent Criminal Reports 139 : AIR 1989 SC 558 , wherein the said proviso fell for consideration. After stating the scope of a proviso, it was held by their Lordships 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. After examining the scope of Rule 2.2, their Lordships were pleased to hold as under:

"Keeping in view the scope of rulemaking power under Article 309 of the Constitution, the third proviso to Rule 2.2 cannot be interpreted as laying down an absolute or general embargo on prosecution of a government servant if the conditions stated therein are satisfied. Even if on first impression the said rule may appear to be placing such an embargo, it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring it within the framework of its source of power without, of course, frustrating the purpose for which such provision was made. Clause (b) of Rule 2.2 which can be called the substantive clause reserves to the government 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 proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement. The purpose of the third proviso to Rule 2.2 is to carve out an exception to the right conferred on the government by the substantive clause if the conditions contemplated by the proviso are fulfilled. This 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 on an event which took place more than four years before such institution, 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. The word "such" in the beginning of the third proviso also supports this interpretation."

In view of the law as enunciated by the apex Court in the aforesaid case, the learned counsel for the petitioner has abandoned this plea. But, it has been argued that even in this decision, the apex Court recognised the right of an accused to a speedy trial under Article 21 of the Constitution of India and held that it is always open to quash a prosecution on th ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case. It has been pointed out by the learned counsel that in that case the first information report was lodged after about 6 years of the particular criminal act of cause of action or taking place of events or after about 3 years from the date of retirement of the petitioner, whereas in the present case the first information report has been lodged after a period of about 8 to 20 years of the events giving rise to the alleged cause of action and after two years of the retirement of the petitioner. After giving my careful thought, I am unable to accept this contention. The obvious reason is that in the case in hand, the chargesheet was filed and the charge was framed against the petitioner in the year 1992 and thereafter certain prosecution witnesses have also been examined. The present petition was filed in May 1995 i.e. about 3 years after the filing of the chargesheet, whereas of Kailash Nath''s case (supra), the petitioner had approached the High Court immediately after the registration of the case.

The next contention of the learned counsel for the petitioner is that the prosecution is bad for want of necessary sanction as required by Section 197 of the Code. It has been contended by the learned counsel that the provisions of Section 197 of the Code are applicable to a Government servant even after his retirement. In support of this plea, the learned counsel has placed reliance upon a judgment of the apex Court in R. Balakrishna Pillai v. State of Kerala and another, 1996(1) SCC 478.

On the other hand learned Assistant A.G., Punjab, has argued that no sanction under section 197 of the Code is required for launching prosecution under section 5(2) read with Section 5(1) of the Act of 1947.

After considering the respective arguments on the said point, I am of the view that this plea raised on behalf of the petitioner is misconceived. The obvious reason is that for taking cognizance of an offence under the Act of 1947, a valid sanction from the competent authority is the condition precedent as envisaged by Section 6 thereof. In other words, in a prosecution under the Act of 1947, it is Section 6 of the Act and not Section 197 of the Code which can be pressed into service. However, a valid sanction under section 6 of the Act of 1947 can be said to be sine qua non for taking cognizance of an offence committed by a public servant while he is still in service. 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 against the public servant, he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This view finds affirmation in a series of decisions of the apex Court rendered in S.A. Venkataraman v. The State, AIR 1958 Supreme Court 107, K.S. Dharmadatan v. Central Government and others, AIR 1979 Supreme Court 1495, R.S. Nayak v. A.R. Antulay, AIR 1984 Supreme Court 684. A careful perusal of the decision of the apex Court rendered in R. Balakrishna Pillai''s case (supra) relied upon by the learned counsel for the petitioner, in itself goes to show that Section 197 of the Code is not applicable so far as a charge under section 5(2) read with Section 5(1) of the Act of 1947 is concerned. Therefore, this plea has no merit in it and the same is hereby rejected.

The petitioner has also thrown a challenge to the registration of the case, investigation thereof, filing of the chargesheet and the framing of the charge on the ground that everything or the act has been done and is being done under the Act of 1947 which stands repealed by the Prevention of Corruption Act, 1988 (hereinafter referred to as ''the Act'' of 1988) which is contrary to law and all the proceedings are liable to be quashed. The plea also appears to have been taken to be rejected. Section 30 of the Act of 1988 provides as under :

"30. Repeal and saving : (1) The Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act, 1952 are hereby repealed.

(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897, anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act."

Section 6 of the General Clauses Act, 1897 reads as under :

"6. Effect of repeal: Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not :

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

From a combined reading of the aforesaid provisions of the two Acts, it is evident that the repeal of the law is operative for future acts, but it does not affect acts or events that have taken place before such repeal and such acts or events would continue to be governed by the repealed law. All the provisions of the repealed Act would (unless a different intention appears in the repealing Act) continue in force for the purposes of enforcing the liability incurred when the Act was in force and any investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act had not expired. This view finds further affirmation in a judgment of the apex Court in Amadalavalasa Cooperative Agricultural and Industrial Society Ltd. and another v. Union of India and another, AIR 1976 Supreme Court 958. In the present case, the acts and events had taken place while the Act of 1947 was in force. Therefore, the registration and investigation of the case, filing of the chargesheet and framing of the charge in respect of those acts and events against the petitioner under the provisions of the Act of 1947 are in accordance with law and not affected in any manner by the Act of 1988. Accordingly, this plea of the petitioner is also rejected.

Lastly, the learned counsel for the petitioner has contended that during investigation the income of the wife of the petitioner has been clubbed with that of the petitioner, which is not permissible in the eyes of law, that the property owned by the wife of the petitioner also cannot be taken into consideration while examining the income and expenses of the petitioner, and that the prosecution has been launched for the checkperiod 1969 to 1982 for which the petitioner is not supposed to keep any receipts, vouchers or other relevant documents after his retirement. All these pleas can be gone into only during the trial and not on affidavits. Admittedly, the Special Judge, on the basis of the material collected during the investigation has found a prima facie case against the petitioner and accordingly framed a charge against him. It is also not disputed that some of the prosecution evidence has also been recorded. In these circumstances, this Court will not invoke its inherent jurisdiction to interfere with the progress of the trial and to decide the case on affidavits filed by the respective parties. However, it is just and proper that a direction is given to the trial Court to conclude the trial within a reasonable period.

As a result of the above discussion, I do not find any merit in this petition and the same is hereby dismissed. However, the Special Judge is directed to make efforts to give priority to this case and conclude the trial within a period of six months from the date of receipt/production of a copy of this order.