Sardul Singh vs State of Punjab

S.K. Jain, J.

This petition under section 482 of the Code of Criminal Procedure, raises an important question of limitation in the matter of prosecuting a retired Government servant for offences alleged to have been committed by him while still in service.

The petitionerSardul Singh was employed as SubDivisional Officer in the Punjab Irrigation Department. On July 22, 1981, First Information Report No. 290 was registered against him and others under Section 5 (2) of the Prevention of Corruption Act, 1947, as also under sections 409, 468, 467, 420, 201 and 120B of the Indian Penal Code, on the allegations that he alongwith his other coaccused with a common intention to defraud the State, had prepared false record in respect of 13 tubewells of the Tubewell Section of the Department, showing repairs to these tubewells and had thus misappropriated the Government money. The petitioner was, however, allowed to retire from service on May 31, 1990, by which date the challan had not been put in Court against him. The challan was presented in Court, on 1911991, that is more than 7 months after his retirement. Before his retirement even a chargesheet was not issued to him. The offences were alleged to have been committed in the year 1978. The prosecution was launched against the petitioner and others after about ten years from the date of alleged commission of the crime. Learned counsel for the petitioner has argued that the trial was barred in view of rule 2.2. of the Punjab Civil Service Rules, Volume 11 whereunder limitation of four years had been prescribed computable from the date of the event which was spelled out as an offence.

My attention has been drawn to the relevant rule 2.2. of the Punjab Civil Service Rules, Volume II, which figures in the Chapter earmarked for ''Pensions'', and ChapterII, thereof, wherein Rule 2.2. occurs, is meant for ''Ordinary Pension'', and relevant extract of subrule (b) thereof provides as follows :

(b) The Government further reserve to themselves the right of withholding 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 pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty or grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement provided that

(1) ...... ....... ......

(2) ...... ...... ......

(3) No such judicial proceedings, if not instituted while the Officer was in service, whether before his retirement or during his reemployment shall be instituted in respect of a cause of action which arose of an event which took place more than four years before such institution."

ExplanationFor the purpose of rule

(a) ...... ......

(b) a judicial proceeding shall, be deemed to be instituted.

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

A plain reading of the afore extracted rule puts a fetter that no criminal proceeding can be instituted in respect of an event which took place more than four years before the date on which a complaint or report of a police officer, on which the Court takes cognizance, is made. Keeping apart whether the officer was in service or retired or reemployed at that time. The embargo on institution of a criminal proceeding though occurring in the Chapter meant for ''Pensions'', apparently reserves the right to the Government of withholding or withdrawing a pension, or part of it if the pensioner is found guilty of grave misconduct or negligence during the period of service or reemployment.

The source of the Punjab Services Rules, is Article 309 of the Constitution, that it is so is beyond challenge, that these rules came into operation after the enforcement of the Constitution is also beyond challenge, that they are legislative in character also cannot be challenged in view of the ratio laid down in B.S. Yadav and others v. State of Haryana, AIR 1981 Supreme Court 561, and in particular for the observations made by the Supreme Court, which are reproduced below :

"That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor''s power under the proviso to Article 309 being in the nature of a legislative power. By Article 158, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by Governor is the power given to him by Article 213 to promulgate Ordinance when the legislature is not in Session. Under that Article, he exercises a power of the same kind which the legislature normally exercises, the power to make laws. The heading of Chapter IV of Part VI of the Constitution" in which Article. 213 occurs, is significant Legislative power of the Governor. The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 302, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject."

On the touchstone of the aforesaid authoritative consideration, rule 2.2 is a legislative measure enacted under the legislative power of the Governor. In the context of the rule, it is discernible that pension is alterable to the detriment of the pensioner if he is found guilty of grave misconduct or negligence in a judicial proceeding. But a criminal judicial proceeding mandatorily is required to be instituted, in respect of an event within four years of its taking place, reckoned on the date on which the Magistrate takes cognizance on the police report or complaint, as the case may be. Thus, the narrow point required to be determined is whether the embargo is put for the limited purpose of pension or does it enure to the benefit of the accused pensioner, objecting to the continuance of trial, being a proceeding in violation thereof.,

As stated above, the rule being a law with all the strength and efficacy of the law of a legislature, wisdom to the legislature need be attributed that it thought that so for as a pensioner is concerned, he should not be kept in a state of lurking fear about an event, for which he is answerable, for more than four years from the date, when, it took place, and that the pensioner should quietly and safely keep his earned rest and peace well preserved. This seem to be in keeping with the well recognised, off repeated, saying that controversies are limited to a fixed period of time lest they be immortal while men are mortal. The life expectancy in this country being what it is, ranging between 60 to 70 years and government servant under the Punjab Civil Service, Rules normally retiring on attaining the age of superannuation of 58 the rule, cannot be said to be of limited application to pensions only and not to the government''s power in prosecuting the pensioners. It is equally true that the bar of limitation merely bars the remedy and does not destroy the right and that in the matter of interpretation courts must lean in favour of ''the availability of limitation, yet the intention of the Governor in providing limitation in the rule, as it is clear, was to serve a dual purpose. And the purpose was, as disclosed earlier, not to put the pensioner to trial beyond the specified period. And if timely brought to trial on a grave misconduct or negligence, pension could be withheld or withdrawn on the establishment of the charge. The rule thus serves both purposes and I hold it accordingly.

The matter can be viewed from, another angle also. I find that in the Prevention of Corruption there is no period of limitation prescribed in the Prevention of Corruption Act, but a trial thereunder is to be governed by the Code of Criminal Procedure subject to certain modification as envisaged under. Section 7A. Section 5 of the Code, of Criminal Procedure specifically provides that nothing in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force. Law of limitation is undoubtedly a part of the law of procedure. It is now idle to contend that, law of limitation has no place in criminal proceedings for the employment of limitation principles have found their way in the Code of Criminal Procedure, 1947 but to a limited extent, in Chapter XXXVI, Sections 467 to 473. The offence does not get washed off or even the right to prosecute the offender. It is the remedy for getting him punished which is taken away, by law of limitation. It is for that reason advisedly in all penal statutes as also in the one in hand, that the act is made ''Punishable'' for a term of imprisonment provided. Nowhere has the expression been used that he `shall be punished. The employment of the word ''Punishable'' conveys the cardinal principle of criminal law that the accused is punishable if he is capable of being punished, and otherwise deserves the punishment on proven guilt. But when the bar of limitation takes away the remedy, the ability of the Court to punish him is taken awayby the express provision of law. Thus, without doing any violence to the penal statute, the law creating limitation bars the remedy of having the offender punished and thereby does not suffer from the vice of repugnancy. If any authority on the subject is required, a reference can be had to Des Rai Singal v. The State of Punjab, 1986(1) Recent Criminal Report 66 : 1986(1) PLR 82.

It is now well settled that when a stale and old prosecution is launched, superior Courts have interfered and quashed prosecutions.

In the peculiar circumstances of this case, letting the trial commence and then putting the petitioner to his defence at an age when his memory is likely to have got blurred and uncertain, it would be an abuse of the process of the the Court causing serious, prejudice to the accused in his defence.

For the aforesaid reasons, I quash the First Information Report No. 290 dated July 22, 1981 recorded in Police Station City, Kotwali Kapurthala and all the proceedings arising out of it only qua the petitioner.

This petition is disposed of accordingly,