K. Shyam Rao vs The State

A crime was registered against the accused on 25-7-1979. The Charge-sheet was filed on 21-1-1984 and the case has been registered before, the 1st Additional Special Judge for SPE and ACB Cases, Hyderabad, as C.C. No. 4/84 against the accused for the offence under S. 5(2) read with Section 5(1)(a) and (d) of the Prevention of Corruption Act. The accused was retired on 28th February, 1983, on attaining superannuation. The accused filed Crl.M.P. No. 210/84 under S. 239, Cr.P.C. for discharge. The learned Special Judge dismissed the petition. Against that, the accused preferred Crl.R.C. No. 125/85.

On the basis of another complaint dated 27-7-1979, the charge-sheet was filed on 6-9-1985 alleging that the accused has committed the offence under S. 5(2) read with S. 5(1) of the Prevention of Corruption Act and the same was registered as C.C. No. 44/85. The accused filed Crl.M.P. No. 171 of 1985 under S. 239, Cr.P.C. for discharge. The II Addl. Special Judge for SPE and ACB Cases, Hyderabad, dismissed that petition.

In both the revisions, the point involved is one and the same, viz., whether the prosecution was barred by virtue of the provisions contained in R. 9(2) of the A.P. Revised Pension Rules, 1980. The Rule reads as follows :

"No judicial proceeding, 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 event which took place, more than four years before such institution."

On the basis of a crime registered against the accused, proceedings by way of a criminal prosecution were initiated against the accused after retirement, that too after four years. It is on the basis of this rule Shri Padmanabha Reddy contended that as admittedly the prosecution has taken steps for filing cases against the accused four years after the registration of the complaint or four years after the retirement, the accused is entitled for discharge. Prior to R. 9(3) came into force the pensioners are governed by the provisions of the A.P. Pension Code, Proviso (c) to Art. 351-A of the A.P. Pension Code reads as under :

"No such judicial proceeding, 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."

The proviso in the old Code refers only to such judicial proceedings and not to all judicial proceedings or any judicial proceeding. While interpreting the same, a Division Bench of this Court in M. V. Krishna Rao v. Divisional Panchayat Officer (1980) 2 APLJ 188 : (1981 Cri LJ 75) held that the prohibition against the institution of a judicial proceeding in respect of a cause of action which arose or an event took place more than four years before such institution as contained in the proviso (c) is only for the purpose of exercising the power reserved under the main Art. 351-A and not for any other purpose. The prohibitory words in the proviso (c) cannot be construed as a bar against criminal prosecutions in general.

The same provision which contained in Art. 351-A of the Madras Pension Code was considered in Venkata Rao v. State of Tamil Nadu 1979 Mad LJ 275. In this case also, the accused was prosecuted for an offence under S. 5(1) read with Section 5(2) of the Prevention of Corruption Act, after his retirement. The question arose there was whether the accused was entitled for discharge on the basis of the proviso in the Madras Pension Code. It was held that the prosecution u/s 161 or 165, I.P.C. read with S. 5(1)(a) and 5(2) of the Prevention of Corruption Act is not controlled or restricted or trammelled in any manner by the Madras Pension Code and the provisions of the Pension Code may, if at all, be relied on only for safeguarding the pension, and cannot be pressed into service to defeat a prosecution on the threshold itself.

Sri. Padmanabha Reddy contended about the omission of the word in Arts. 351A and 9(3) of the Code. In Art. 351-A, the words used are ''no such judicial proceeding'', whereas the words used in 9(3) are ''no judicial proceeding''. The word ''such'' has been omitted and in the old Code there is no such provision as contained in R. 9(6)(b) which reads as follows :

"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 proceeding on the date of the plaint is presented in the Court."

On the basis of that omission and giving meaning to a judicial proceeding as contained in 9(6)(b) it is contended that the judgments that have been rendered under the previous Code are not applicable. To my mind what has been explained in 9(6)(b) relates only to criminal proceedings on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made. In the case on hand, the offences alleged are under the Prevention of Corruption Act and they have to be directly instituted before a Special Judge in the cadre of a Sessions Judge, but not before a Magistrate.

The Rules that have been framed are issued by the Government of A.P. and the Revised Pension Rules merely contain provisions which regulate the pension of the members of a civil service of the State or those who hold a civil post under the State. It also provides for the manner in which the pension has to be calculated. The penal provisions are available for withholding or withdrawing permanently or for a specified period the whole or part of a pension and there is no provision which has any bearing on the general liability of an employee or a retired employee for criminal prosecution. While exercising the powers conferred by Proviso under Art. 309 of the Constitution of India for framing the Revised Pension Rules, 1980, the State Government has no right to take away the general law that has been prevailing for prosecution of the delinquents for offences committed by them u/s 5(2) read with Section 5(1)(a) to (e) of the Prevention of Corruption Act which is a Central Act.

Section 468, Cr.P.C. provides the period of limitation gradedly for certain offences. The other provisions in Ch. 34 provide for the mode of computation of the period of limitation. The period of limitation that has been prescribed in Section 465, Cr.P.C. is only for offences which are punishable with imprisonment which may extend to three years and not upwards. There may be certain other special offences under special enactments and periods of limitation for taking cognisance of those offences may be prescribed under those enactments in the light of the gravity or otherwise of the offences contemplated under those special enactments. In these two cases, the accused was charge-sheeted for offences under S. 5(1) read with S. 5(1)(a)(d) and (e) of the Prevention of Corruption Act and those offences are punishable with imprisonment for a term not exceeding seven years. The offence under S. 161, I.P.C. has to be clubbed with other offences and by virtue of Clause (3) of Section 468, Cr.P.C. 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 more severe punishment. The Code has not any controlling effect over the Law of Limitation with regard to criminal proceedings instituted by the State for offences committed under S. 1(a) to (e) read with Section 5(2) of the Prevention of Corruption Act. The contention that has been advanced that the charge-sheet filed for the offences under the Prevention of Corruption Act also falls within the ambit of Rs. 9(3) of the Code and the accused is entitled for the benefit of discharge cannot be accepted. While construing the scope and effect of the Rules, we have to consider the heading of R. 9 of the Code which is ''Right of Government to withhold or withdraw pension.'' When the Rule itself says about the right of the Government to withhold or withdraw pension, we cannot say that under the guise of the power in framing the Rules, the Government has got a right to take away the right in filing the complaint for offences committed under the Prevention of Corruption Act. The reasoning given by this High Court and the Madras High Court in the cases referred to above are still applicable and simply because there is an omission of the word ''such'' we cannot say that there is any change in the position or that any right has been conferred on the accused to plead discharge for the offences committed by him under the Prevention of Corruption Act while he was in service. The view that has been taken by the Madras High Court and this High Court are applicable after the introduction of R. 9(c) of A.P. Pension Rules, 1980.

In the result, the revision fail and they are accordingly dismissed.

Revision dismissed.