Kripa Ram vs State of U.P.

M.P. Saxena, J.—These two applications u/s 482, Code of Criminal Procedure viz Nos. 7515 of 1979 and 272 of 1980 have been presented by Kripa Ram and Khushi Ram Malhotra respectively for quashing the charges framed against them in case No. 6/74 State v. Khushi Ram Malhotra and Ors. pending in the Court of the Special Judge, Anti Corruption (West), U.P. Lucknow. They have come up before Us for disposal under the following circumstances.

In the year 1969 the State Bank of India launched a scheme of Agricultural Financing to assist the agriculturists, inter alia, for providing them with loans for the purpose of (1) purchasing pump sets and (2) raising crops. Applicant Khushi Ram Malhotra was working as an Agent of the State Bank of India, Nakur, District Saharanpur during the period February 1970 to April 1970. The prosecution case is that during this period the farmers approached the State Bank of India for loans. The Agent of the State Bank of India, Nakur Branch, (namely Khushi Ram Malhotra) did not entertain their applications on one pretext or the other until the applicants for the loans took assistance of intermediaries to arrange disbursement of loans through the Agent on consideration that they would pay 10% as service charges which was shared by both the applicants and other co-accused as illegal gratification. A FIR about it was lodged by Shri J. P. Kundra, Chief Development Officer, State Bank of India, New Delhi on 15-7-1971 at Delhi, investigation of the case was entrusted to Sri Jetha Nand, Deputy Superintendent of Police, Delhi Special Police Establishment, who embarked on investigation but there after he was transferred and all the investigation of the case was done by Bhollan Das, Inspector of Delhi Special Police Establishment. He interrogated most of the witnesses and submitted a chargesheet against the applicants and others on 30-i 0-1974. Thereafter the cognizance of the offence was taken by the Special Judge, mentioned above. He framed charges under Sections 120B, 165A IPC and 5(2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947, against Kripa Ram applicant and under Sections 120B, 161 IPC and 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (under two counts) against Khushi Ram Malhotra.

At first Khushi Ram Malhotra filed an application u/s 482, Code of Criminal Procedure for quashing the charges framed against him. It gave rise to Misc. Case No. 4382 of 1975. The charges were sought to be quashed on the following grounds:

(a) That the illegal gratification was alleged to have been taken by the applicant during February 1970 to April 1970, the FIR was lodged in 1971 and the charge-sheet was submitted on 30-10-1974. The cognizance of the offence u/s 161 IPC was taken after the expiry of three years which could not be done in view of Section 468(2)(c) of the Code of Criminal Procedure, 1974 (hereinafter called the new Code).

(b) That investigation of the case was done by an Inspector when, according to the provisions of the Prevention of Corruption Act, it should have been conducted by a police officer not below the rank of a Deputy Superintendent of Police.

(c) That for prosecution u/s 5 (2) of the Prevention of Corruption Act prior sanction u/s 6 of the Prevention of Corruption Act to prosecute the applicant should have been taken but it was not done.

(d) That u/s 219 of the new Code three offences of the same kind committed within one year can be tried together but in the instant case 93 persons are said to have taken loans on different dates from the Bank and the applicant has been charged in respect of all of them which is illegal.

(e) That the Special Judge has acted illegally in permitting Chand Kiran to become an approver in the case.

This application came up for hearing before Hon''ble P. N. Bakshi, J. He negatived all the contentions and dismissed the application on 28-7-1976. For purposes of the present application it will be sufficient to reiterate the finding on the point of limitation only. The learned single Judge had held that the present case will be governed by the provisions of the old Code and as no period of limitation for taking cognizance of an offence was prescribed thereunder the plea of limitation had no force.

Kripa Ram, another applicant, also moved an application u/s 482; Code of Criminal Procedure for quashing the charges framed against him on identical grounds. It gave rise to Cr. Misc. Case No. 7515 of 1979. While it was pending Khushi Ram Malhotra came forward with another application u/s 482 Code of Criminal Procedure for quashing the charges on the same grounds on which he had moved the first application. It gave rise to Misc. Case No. 272 of 1980. Both these applications viz. Nos. 7515 of 1979 and 272 of 1980 came up for hearing before Hon''ble B.N. Katju, J. In his opinion provisions of the new Code were applicable to these cases and in view of Section 468(2)(c) of this Code cognizance of offences u/s 165A and 161, IPC which are punishable with imprisonment upto three years, could not be taken after the expiry of this period. As this period had expired the learned Special Judge was not competent to take cognizance of these offences.

Since Hon''ble Bakshi, J. had taken a contrary view in Misc. Case No. 4382 of 1975 he directed that both the applications be placed before the Hon''ble the Chief Justice for referring the cases to a Division Bench for disposal. These cases have, therefore, been sent to this Bench for disposal.

We have heard the learned Counsel for both sides and have given our anxious consideration to the whole matter. So far as the application of Kripa Ram (Cr. Misc. Case No. 7515 of 1979) is concerned, his learned Counsel has vehemently contended that Section 165A, IPC with which the applicant has been charged does not exist on the Statute Book and this charge is liable to be quashed on that score. Reliance has been placed on the decision of a learned single Judge of this Court in Tejpal Singh Vs. State, in which it was held that Section 165A does not exist on the Statute Book after the Repealing and Amending Act No. XXXVI of 1957 came into force. It may be stated here that this plea has not been specifically taken in the application. However, even on merit it carries no force. Section 165A came on the Statute Book by Section 3 of Criminal Law (Amendment) Act No. XLVI of 1952. Sections 2.3,4 and 5 of this Act were repealed by the Repealing and Amending Act No. XXXVI of 1957 but it contains a Savings Clause in Section 4 which reads as follows:

The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to;

and this Act shall not affect the validity, invalidity effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liablility, claim or demand, or any indemnity already granted, or the proof of any past act or thing;

Nor shall this Act affect any principle or Rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, or recognised or derived by, in or from any enactment hereby repealed;

Now shall the repeal by this Act or any enactment revive or restore any jurisdiction, office, custom, liablility, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.

The opening paragraph of this Savings Clause makes it clear that repeal by this Act will not affect those enactments in which the provisions introduced by Act XLVI of 1952 had already been incorporated. Section 165A had already been introduced in the Penal Code. Therefore, by virtue of the Savings Clause, it continues as a provision of that Code inspite of Section 3 of Act No. XXXVI of 1957. The same view has recently been taken by a Division Bench of this Court in the case of Bhagwati Prasad v. State of U.P., Cr. A. No. 344 of 1976 Of- 30-10-1980 and we respectfully agree with it. Therefore, we hold that Section 165A still continues in the Indian Penal Code.

Another point urged before us is that the offences under Sections 161 and 165A, IPC are alleged to have been committed by the applicants between February 1970 and August 1971. As both the offences are punishable with imprisonment for three years, the learned Special Judge had no jurisdiction to take cognizance of these offences after the expiry of three years on 30-10-1974 when the charge-sheet was filed against them. In this connection reliance has been placed on Section 468 of the new Code which says:

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

(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.

It may be mentioned here that this section was amended by Act No. XLV of 1978 on 19-12-1978 and the following Sub-section was added to it:

(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.

This Sub-section will not apply to the instant cases as the charge-sheet was submitted against the applicants on 30-10-1974 i. e. before coming into force of Act XLV of 1978 and it is prospective in operation and not retrospective.

As stated above, Hon''ble Bakshi, J. had taken the view that provisions of the old Code apply to the case of Khushi Ram Malhotra and the question of limitation does not arise. Hon''ble Katju, J. has been of the view that provisions of the new Code apply. It is true that against the decision of Hon''ble Bakshi, J. Khushi Ram Malhotra did not file any appeal and that judgment has become final but Khushi Ram Malhotra and Kripa Ram are both being tried in the same case for almost analogous offences committed within the same priod and the ends of justice require that the same procedure should be followed in the case of both of them. The conflicting decisions are bound to create complications before the trial Court. It is, therefore, necessary to resolve this controversy. We feel competent to do so u/s 482 of the new Code which clearly lays down that "nothing in this Code shall be deemed to limit or affect inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." In order to secure the ends of justice and to avoid complications in the trial we propose to set at rest this controversy.

11 Section 484 of the new Code relates to repeal and savings. Sub-section (2) of it reads:

Notwithstanding such repeal:

(a) if immediately before the date on which this code comes into force, there is any appeal, application, trial, inquiry or investigation pendi�g, then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898, as in force immediately before such commencement (hereinafter referred to as the old Code) as if this Code had not come into force:

Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.

This provision makes it clear that if any application, trial, inquiry or investigation was pending on 1-4-1974 when the new Code came into force it had to be continued and disposed of in accordance with the provisions of the old code. In the instant case only the investigation was pending on that date and the same was completed in accordance with the old Code. No trial was pending as the charge sheet was submitted on 30-10-1974. There were also no enquiry proceedings Therefore, the trial against both the accused which commenced after 1-4-1974 will have to be disposed of in accordance with the provisions of the new Code in this view of the matter Section 468 of the new Code will come into play and it will be necessary to consider whether cognizance of the offence under Sections 161 and 165A IPC can betaken. These offences are alleged to have been committed during the period February 1970 to April 1970. The first information report was lodged on 15-7-1971 and the charge sheet was submitted on 30-10-1974, obviously after the expiry of the period of three years. However, Section 473 of the new Code lays down:

Notwithstanding anything contained in the foregoing provisions of this chapter, any Court may take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interests of justice.

It is manifestly clear that the trial Court can take cognizance of an offence even if the period of limitation has expired if it is satisfied that the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice. This discretion is to be exercised by the trial Court. Obviously it cannot be done unless all the facts and circumstances are placed before it. We have no material on the basis of which this question may be disposed of by us. The interests of justice, therefore, require that the applicants should be directed to raise this point before the Special Judge who will consider on the facts and circumstances placed before him whether the delay should be condoned or that it is necessary in the interests of justice to take cognizance of the case. Since the primary point for consideration is whether cognizance of the offences under Sections 161 and 165A can be taken against the applicants after the expiry of the period of limitation we do not propose to go into the merit of other points. With these observations we reject both the applications.