R. Krishnan Nair vs State of Kerala

Chettur Sankaran Nair, J.—The two petitions u/s 482 of the Code raise a common question and are accordingly disposed of by a common order.

Petitioner seeks to quash charges in C.C. Nos. 36 and 37 of 1987 on the file of Enquiry Commissioner and Special Judge, Trivandrum, in so far as they relate to him. There is another accused in C.C. No. 36 of 1987. Charges are under Sections 409 and 477A of the Indian Penal Code and Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act, 1947 and these are in respect of events, alleged to have taken place in 1977. Petitioner retired from service on 30th April 1978. Crime was registered on 26th September 1979. Sanction was obtained on 4th July 1984, and charge sheet was filed on 3rd September 1984.

Petitioner contends that proceedings are barred by limitation. Reliance is placed on Rule 3 of Part III of Kerala Service Rules. Rule 3-Sub-rule (c)-reads:

(c) No such judicial proceeding, if not instituted while the employee 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.

Explanation (b) to Rule 3-Sub-rule (c)-reads:

(i) in the case of criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance is made;

Rule 3 reserves the right in the Government to withhold pension or withdraw pension or a part thereof, if in a departmental or judicial proceeding a pensioner is found guilty. Departmental proceedings are dealt with under Rule 3(b). Rule 3(c) deals with judicial proceedings. No judicial proceedings shall be instituted in respect of a cause of action, four years prior to such institution. Expression ''institution'' is defined in explanation (b) to Rule 3 Sub-rule (c)-as noticed above.

Position therefore is that no judicial proceeding shall be instituted after four years of the alleged cause of action, and instituting is deemed to mean on making of complaint or report by police officer. Back to facts. Alleged acts are in 1977. Petitioner retired on 30th April 1978. Charge sheet was filed on 3rd September 1984, four years after the cause of action (1977) and retirement. For this reason, Counsel for Petitioner would submit that proceedings are barred by limitation.

Public Prosecutor submitted that the Rule deals only with pension and recovery thereof, and not with criminal proceedings. True, caption to Part III shows that the chapter deals with pension. But, the clear language of the Rule, leaves no room for doubt, that it deals with other matters as well. Clearly the Rule refers to criminal proceedings. Rule also incorporates provisions of limitation. Explanation (b)(i) to Rule 3(c) states that a criminal proceeding will be deemed to be instituted on a particular event; and Rule 3(c) states that no such judicial proceeding shall be instituted four years after the cause of action. The only reasonable way of understanding the rule is to understand it as incorporating a provision of limitation in respect of a judicial proceeding. The plain language of the Rule must be given effect to. Statute cannot be read out. Draftsman must heed the counsel of Sir James Fitzjames Stephen:

In drafting, it is not enough to gain a degree of precision which a person reading in good faith can understood, but it is necessary to attain, if possible, a degree of precision which a person reading in bad faith cannot misunderstand.

(Lex Gentium. Lex then and now.)

Special Judge thought that provisions of Service Rules, cannot override provisions of the Indian Penal Code and Code of Criminal Procedure. Otherwise put, according to Sessions Judge, these are self-contained and other provisions of law cannot control them. The view is unsustainable. Situations are familiar, where criminal proceedings are governed by provisions in other Statutes. For example, provisions relating to sanction contained in the Prevention of Corruption Act, govern cognizance. Likewise, by reason of Section 20 of the Prevention of Food Adulteration Act, no Court shall take cognizance except on a complaint by the Food Inspector. Again, u/s 137 of the Customs Act, no Court shall take cognizance of offences under Sections 132 - 135, except with previous sanction of Collector of Customs. Section 55 of the Wild Life (Protection) Act, 1972, is another instance in point. Argument that provisions of the Code of Criminal Procedure relating to cognizance, are not amenable to external restrictions, must therefore fail.

Kerala Service Rules are referrable to Article 309 of the Constitution of India, and are deemed to have been issued under the Kerala Public Services Act. These provisions have force, springing forth from a fountain of Constitutional authority.

A suggestion was made that cognizance was taken within the prescribed period. When cognizance was taken, is really not material because, limitation is with reference to the date of ''institution''. Cognizance can be only after institution (filing of Police Report).

Cognizance is taken in different ways. Section 190 deals with cognizance of offences by Magistrate. Section 193 deals with cognizance of offences by Courts of Session. Special Judge though a Sessions Judge, is not governed by Section 193. Section 8 of the Criminal Law Amendment Act states that a Special Judge may take cognizance of offences without the accused being committed, for trial. Cognizance could, therefore, be only in accordance with one of the modes u/s 190 of the Code. Section 190 on its plain language deals only with Magistrate. But, by incorporation, Special Judge would come within the purview of Section 190. Position is now settled by the decision of the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, . Supreme Court, considering the question of cognizance by the Special Judge on a private complaint said:

It is idle to say that Section 190 is confined to Magistrates, and Special Judge is not a Magistrate. The Special Judge can take cognizance of offences upon a complaint or upon a police report.

Institution itself is on the filing of police report, on 3rd September 1984, for that is what explanation (b)(i) to Rule 3(c) states. Proceeding therefore was clearly beyond the period of limitation. It is not necessary to consider, the alternate argument that institution of proceedings seven years after the Petitioner''s retirement is abuse of process of Court. The amount involved is small. Retirement benefits of Petitioner are held up, and loss caused to him by way of interest he would have earned, would be far more than the amount alleged to be misappropriated. Such delays should be obviated. A prosecution, which should merit a conviction, could be barred. As far as accused is concerned, long delay can amount to harassment. Rights under Article 21 of the Constitution also may be invaded. Authorities will do well to finalise proceedings against retired employees or retiring employees without undue delay, because it amounts to hardship to a person in the evening of his life. It must be ensured that an employee should not be subjected to harassment, for reasons attributable to administrative machinery.

In the result, charges in C.C. 36 of 1987 and C.C. 37 of 1987 on the file of the Enquiry Commissioner and Special Judge, Trivandrum to the extent they relate to the Petitioner are quashed.

I record appreciation of the help rendered by Shri M.N. Sukumaran Nair as amicus curiae.