O.P.Dogra and two ors. vs State through CBI and Anr.

This petition under Section 561A of the Code of Criminal Procedure and Criminal Revisions 77 and 78 of 1979 are directed against the order

passed by Special Judge, Anticorruption, Jammu on June 16, 1979, by which the preliminary objection of the petitioners herein and of respondent

No. 2 challenging the jurisdiction of the Special Judge is rejected and all the three petitioners, namely, (1) O. P. Dogra, 2) Sat Brat Sharma and 3)

J. K. Baskar and respondent No. 2Balraj Kohli have been chargesheeted by the learned Judge under Sections 420, 468 and 471 of the RPC and

Section 5(2) read with Section 5(1) (d) of the J&K Prevention of Corruption Act, 2006 (hereinafter called the Act).

Three petitioners abovenamed against that order filed two petitionsone under Section 561A of the Cr. P. C. praying for the quashing of the

proceedings against them, which is registered as Criminal Revision No. 58 of 1979 and the other is registered as Criminal Revision No. 77 of

1977 for the setting aside the chaage alleging it to be without jurisdiction and the ether Criminal Revision is filed by Balraj Kohli against the framing

of charge by the same order, which is registered as Criminal Revision Petition No: 78 of 1979.

Since all the above three petitions arise out of the same composite order passed by the SpecialJudge rejecting the preliminary objection and

framing the charge under the above noted provisions of law against them. Ail the three petitions are heard together and disposed of by the single

order.

Briefly stated the fact giving arise to the prosecution filed against the three petitioners on the allegation that in October 1973petitioner O. P.

Dogra while he was posted as Assistant DivisionalManager, Oriental, Fire and General Insurance Company, Jammu laid a false claim of Rs. 1,

355/ with Messrs. Jupiter Insurance Company, Jammu, with whom the Car bearing No: JKN 8228 belonging to Oriental, Fire and General

Insurance Company had met with an accident while in use of O. P. Dograpetiticner. It is not disputed that the Car was initially purchased by the

Insmance Company and was used by the petitioner O. P. Dogra in his official capacity, who got it insured in his own name, because the car was

on the HigherPurchase System and was responsible for the payment of premium and received the benefits arising out of the same. When the claim

was put before the Insurance Company for payment of loss caused due to the accident to the said car, 'the report submitted by the Surveyor

approving the claim of Rs. 1, 355/ was not accepted by the Insurance Company It was entrusted to another Surveyor J. K. Whig to assess the

damage, who reported that the car had not met with an accident and ail the claim made by the petitionerO. P. Dogra was false and fabricated. It is

alleged that on the recommendation of petitioners Sat Brat Sharrna and Jugal Kishore, who were the members of the Insurance Company of

Jupiter Insurance Company passed the claim of Rs 742/ as per surveyor report and verification made by the petitioner Balraj Kohli and was paid

to petitionerO P. Dogra by means of a cheque, which was latter encashed by him. The prosecution alleged that the said payment was obtained by

O. P. Dogra by entering into a conspiracy with other petitioners and getting false claim approved obtained the sum of Rs. 742/ acting as a Public

Servant in discharge of his official duties and thus the prosecution under the Sections noted in the first paragraph of this order, which were

entertained by the Special Judge, who chargesheeted all the petitieaers.

Earlier all the three petitioners were deposed of by an order of the Division Bench of this Court pasted on December 10, 1981, whereby the

preliminary objection of the petitioners was allowed holding that they were not the Public Servants for the purposes, of Section 5(2) of the Act and

hence the case was not entertainable by the Special Judge, AntiCorruption, Jammu. Against, the said order, respondentState went by Special

Leave before the Hon'bleSupreme Court. The said appeals after the grant of Special Leave were registered as Criminal Appeals No: 422 to 424

of 1983 and were disposed of on September 25, 1985. Their Lorpships of the Apex Court held that the petitioners are Public Servants within the

meaning of Section 21 of the RPC and, therefore, the order passed by the Division Bettch was set aside. It was also argued by the counsel for the

present petitioners that an additional contention was also raised before the High Court at that time by Dogra and others that the claim made by

them was not in their official capacity and the offence alleged does not relate to discharge of duty qua Public Servant, which was also convassed

before the High Court on which no finding was given, hence the question was kept open for determination of this Court as a result of which all the

three Revision Petitions are laid before this Court for disposal. After a long lapse of time, the petitioners were served and hence the petitions were

taken for hearing together, which are being disposed of by this order.

The main contention put forward by the learned counsel for the petitioners is with respect to the fact that while the claim of accident was put by

the petitionerO. P. Dogra with M/s JupiterInsurance Company, Jammu. It was in his personal capacity being the insurer of the Car JKN 8228,

which though was purchased by Oiiental, Fire and General Insurance Company, in which/petitionerO. P. Dogra was working as Assistant

Manager and was using the same in his official capacity, but his claim for accident has no concern with the official capacity to attract the provisions

of Section 5(2) of the Act. In so far ss other petitioners are concerned, no such allegation was either put forward nor can be sustained, because

their functioning cannot be separated from their official capacity as they entertain the claim and after Surveyor approved the same made the

payment to petitionerO. P. Dogra, which cannot be clubbed together according to leaned counsel for the petitioner and therefore, the learned

Special Judge acted without jurisdiction and without any basis in rejecting the preliminary objection and charging the petitioners under the

provisions of Section 5(2) of the Act. It is thus clear according to the learned counsel for the petitioners that the moment it is found that the claim

put forward by O. P. Dogra was not in his official capacity as a Public Servant, the provisions of Section 5 (1) (d) and 5(2) will not be attracted

taking out the jurisdiction of the Special Judge to continue the prosecution against tha petitioners. In support of his arguments, reliance is placed by

learned counsel on the proposition laid down by their Lordships of the Supreme Court in A.I.R. 1973 S.C. 330 (The State of Gujarat Appellant

(In all the Appeals) Vs. Manshankar Prabhaskar Dwivedi and other Respondents) and 1980 J&K L. R. 596 (Manobar Nath Kaul Vs. State).

Learned Additional Advocate General for the respondent State by referring to the provisions of the Act submitted that the word 'official

capacity' has been taken out of the provisions of Section 5 of the Act by way of Amendment in the Act, as such the petitioners cannot take the

shelter of that provision. Regarding O. P. Dogra's conduct, it is submitted that even though while submitting the claim for the accident and

accepting the cheque, if he is not found acting in his official capacity as a Public Servant, his action of getting the claim approved falls within the

ambit of clause (d) of subsection (1) of Section 5 of the Act and, therefore, he shall be held liable for propecution under the Act, which has rightly

been proceeded before the Special Judge under the Act and hence neither his application under Section 561A of the Cr. P. C can be entertained

nor the charge framed against him can in any manner be said to be without jurisdiction. It is, therefore, submitted by learned counsel for the State

that the authorities cited by the petitioners are of no held to them and the charge framed against the petitioners by the learned Special Judge cannot

be assailed.

In order to appreciate the arguments, a distinction is to be drawn between the act of O. P. Dogra and that of the other petitioners including the

Surveyor, who was engaged by the InsuranceCompany and was paid for the services rendered by him, who for that purpose cannot be taken out

of the ambit of the word ""Public Servant'. On the perusal of the record of the trial court in the light of the arguments advanced by the respective

counsel, the prosecution has not put forward any such allegation against O. P. Dogra that the claim put forward by him on account of the accident

to the Insurance Company, he was claiming the amount in the capacity of a 'Public Servant' What has been charged in the chargesheet that Shri O.

P. Dogra entered into criminal conspiracy with Balraj Kohli, Sat Brat Sharma and Jugal Kishore Baskar with the object of committing the offences

of cheating and criminal misconducted. It is no where mentioned that in obtaining the claim he acted as a public servant. Even otherwise it cannot

be put forward for the simple reason that the relationship of the Insurance Company with O. P. Dogra was in his personal capacity as an insurer

holding the Insurance for the car personally and not on behalf of the Company. Had it been OB behalf of the Company, the payment should have

been made in the same of the Company and not to Mr. O. P. Dogra in his personal name. The provisions of clause (d) of subsection (1) of Section

5 of the Act runs as follows:

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable

thing or pecuniary advantage"".

Followed by subsection (2) of the Act, which provides for the punishments runs as follows:

(2) any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be less than 9ne year but

which may extend to seven years shall also be liable to fine:

Subsection (2) cannot be read in isolation of subsection (1). If the action alleged by the prosecution cannot be connected with the official capacity

of public servant, it is clear that the provisions of section 5 of the Act will not be attracted. The moment it is found that the provisions cannot be

attracted the jurisdiction to try the offence will not lie with the Special Judge, Anticorruption under the Act and the prosection before him cannot be

allowed to continue, as the same will amount to an abuse of the process of the Court as against the person, who is not found to be acting as public

servant.

In support of his contention, the reliance placed by learned counsel for the petitioner on A. I. R. 1973 S.C. 330 (Supra) can be pressed into

service. Their Lordships were dealing with a case of Lecturer of a Govt. College appointed as Examiner by the University against whom the

allegation of corruption in his capacity as an Examiner under Section 5(1) (d) of the Act was made. In that case their Lordships held as mentioned

in Head Note (B) as follows:

Where a Lecturer of a Govt College appointed as Examiner by the University commits an act of corruption in his capacity as Examiner Section

5(1) (d) will not apply because he cannot be said to have abused his position as a public servant as he was not a public servant when he was acting

as an Examiner"".

Similar view has been taken though in a different context in the case of Manohar Nath Kaul Vs. State by this Court in the case reported in 1980

J&K L. R. 596 (Supra), where the accused over charged his claim for travelling allowance. It was held:

Now, the act of overcharging is no part of the duty of a public servant. His duty may be to charge T. A. but it cannot be reasonably contended

that the duty to charge would include the duty to overcharge. So viewed the act is not directly and reasonably relatable to the official duty of the

accused""'.

The above two dictums in the facts and circumstances of the present eases are clearly applicable in so for as the case of O. P. Dogra is concerned,

who while claiming the amount alleged and receiving the same did not act as public servant attracting the provisions of either Section 5 (1)(d) or

Section 5 (2) of the Act. In this view of the matter, the preliminary objection as to the entertainability of the prosecution against O. P. Dogra before

the Special Judge is sustainable on the basis of which the proceedings instituted against O. P. Dogra to that extent and the framing of charge against

him are liable to be quashed as illegal and without jurisdiction.

10, Adverting to the allegation put forward by the other petitioners with respect to the preliminary objection and framing of the charge cannot be

assailed for the simple reason that the actions of the other petitioners cannot be separated from their official capacity, as suck on the basis of the

record, the charge framed against them under the provisions of the Act cannot be said to be without jurisdiction so as to interfere either in revision

or to quash the same under Section 561A of the Code of Criminal Procedure. The plea advanced en behalf of O. P. Dogra was neither availed

nor could be available in the facts and circumstances of the case to the other petitioners. To frame the charge against the other petitioners, there

was enough material, which cannot be said to be without jurisdiction. The revisions to that extent in my opinion except the case of O. P. Dogra,

about which the detailed discussion is made here in above are not entertainable.

For the reasons stated hereinabove, Revision Petitions in so far as they relate to O. P. Dogra partly succeeds. The proceedings initiated before

special Judge, Anticorruption, Jammu under the Act and the charge framed against O. P. Dogra being without jurisdiction are hereby quashed and

he stands discharged and the Revision Petitions 58 and 77 of 1979 to that extent are allowed. Rest of the part of the order with respect to other

petitioners is maintained and all the three revisions to that evtent are, therefore, disallowed. Record be sent back to the trial court for further

proceedings according to law.