STATE OF WEST BENGAL ETC. versus MANMAL BHUTORIA & ORS. ETC.

STATE OF WEST BENGAL ETC.

MANMAL BHUTORIA & ORS. ETC.

May 3, 1977

[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]

Prevention of Corruption Act, 1941-S. 5(2)-Scope of Retired Army Officer and an outsider prosecuted under s. 5 (2 )-ProsecuJion, if ·valid-If Special Court under the West Bengal Criminal Law A1nendment (Special Courts) Act, 1949 could try the case.

In May 1967. case was lodged against the respondent and Major of the Indian Army who was retired in 1966, alleging that the Major, along with the respondent, had -committed offences of conspiracy of criminal misconduct by public servant in dishonestly abusing his position as public servant, under s. 5(2) of the Prevention of Corruption Act, 1947. When the case, which was allotted to the Fourth Additional Special Court under s. 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, came up for hearing the respondent filed writ petition challenging its jurisdiction to try th~ case. The order of allotment to the Special Court was held illegal by the High Court on the ground that the Special Court had no jurisdiction to try person who had ceased to be public servant on the date the Court was required to take cognisance of the offence since it could not be said that in certain respects he was public servant and in certain others he was not.

It \Vas contended on behalf of the respondent that (1) since the case invol-v-ed interpretation of Art. 14 of the Constitution it should be referred to larger Bench in view of Art. 144(A) of the Constitution; (2) in view of the defini-tion of public servant contained in s. 21 IPC, public servant is one who is in office and not one who has ceased to be in office; (3) in view of s. 10 of the Bengal A.ct the Special Court had no jurisdiction to try the offence; and ( 4) the respondent, not being public servant, is outside the provisions of the B'2ngal Act and· the Prevention of Corruption Act.

Allowing the appeal.

HELD : (1) There is no substance in the contention that the appeal should be referred to larger Bench. The plea of applicability of Art. 14 on the basis of the JUdgment in S. A. Venkataraman v. The State [1958] S.C.R. 1037 is wholly misconceived. r764 Gl

(a) In view of the decision in Venkataraman's case there is no warrant for including in one category public servants in office and public servants who have ceased to be so. These two classes of public servants are not similarly situated as has been clearly pointed out in C. R. Bansi v. State of Maharashtra [1971] 3 S.C.R. 236. (764 El

(b) It cannot be argued that the decision in Venkatararian'5 case is viola-G tive of Art. 14 of the Constitution. That decision only says that s. 6 of the Act is not applicable to public servant if at the time of taking cognizance by the Court he ceases to be so. Because particular sectiQTI is not applicable to public servant after he has ceased to be in office, the question of the Act being violative of Art. 14 will not arise.. This Court has clearly placed public servant, who has ceased to be in office, in. separate ca~egory al!d the clMsification has held the field all these years without demur. [764 F-G]

( c) The proviso to s. 4( 1) of the B~ngal Act cannot attract Art. 14. By this proviso the Special Court, when trying schedule offence finds that some other offence has also been committed, and the trial of the same in one trial is permissible under the Cr.P.C., it may try such charge. Under s. 4(1) of the Bengal Act scheduled offence which includes an offence under s. 5 (2) of

the Prevention of Corruption Act as also conspiracy to commit that offence shall be triable by Special Courts only. No other court can try those offences. [764 H, 765 B-C]

The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 held inapplicable.

(2) Section 21 JPC does not afford true test in determining the present controversy. The crucial date for the purpose of attracting the provisions of the Act as well as those of the Bengal Act is whether the offence had been committed by public servant within the definition of s. 21 !PC. The date for determining the offence is the date of the commission of the offence when the person arraigned must be public servant. Section 6 makes clear dis· tinction between cognizance of an offence and alleged commission of an offence. The date of sanction is necess;nily subsequent to the date of commis· sion of the offence and some times far remote from that date. Retirement, resignation, dismissal or removal of public servant would not wipe out the offence \1.'hich he had committed while in service. Under s. 6 ( 1), as in the case of s. 190(1) Cr.P.C., the Court takes cognizance of an offence and not an offender. [765 E-GJ

Raghubans Dubey v. State of Bihar [1967] 2 S.C.R. 423 referred to.

\3) Section 10 of the Bengal Act which provides that the provisions of the Prevention of Corruption Act shall apply to trials under the Bengal Act are clearly attracted. Section 6 is interpreted by this Court not to apply to public servant who has ceased to be in office. That would not affect the inter-pretation of s. 10 of the Bengal Act. [766 A-Bl

( 4) There is no merit in the sublnission that the special Court cannot try the offence under s. 5(2) of the Act read withs. 120B IPC against the respon· dent.

Even under the Prevention of Corruption Act, an outsider can be prose· cuted under s. 5(3) of the Act when person habitually commits an offence punishable under s. 165A, IPC. Section 165A which provides that "whoever, abets an offence punishable under s. 161 ors. 165, whether or not that offence is committed in consequence of the abetment, shall punished .... " is clearly ~pplicabie to an outsider who may abet public servant. Item 8 of the Sche-dule to the Bengal Act mentions any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1, 2. 3 and 7. It is clear that under item 8 of the Schedule an outsider can be tried along· wiih pubhc s~rvant if the former abets or commits an offence of conspiracy ·10 commit an offence under s. 5 of the Prevention of Corn1ption Act which is mentioned in item 7 to the Schedule. [766 C-E]

CIVIL APPELLATE Ju1USDICTION: Civil Appeal No. 1134 of 1973.

(From the judgment and Order dated 14-7-1972 of the Calcutta High Court in Appeal from Original Order No. 253 of 1969).

CRIMINAL APPELLATE JURISDICTION.: Criminal Appeal No. 319 of 1974.

(Appeal by special leave petition from the .iudgment and order dated 4-10-1973 of the Delhi High Court in Criminal Revision No. 264 of 1973).

CRIMINAL APPEAL No. 358 of 1976.

(Appeal by Special Leave from the Judgment and Order dated 30-7-1976 of the Special Judge Delhi in criminal C.C. No. 16 of 1975).

V. P. Raman, D. N. Mukherjee and G. S. Chatterjee, for the appel-lant in C.A. No. 1134173.

[1977] 3 s.c.R.

Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No. l, in CA 1134/73.

R. N. Sachthey, for the respondent No. 3 in CA No. 1134/73.

Praveen Kumar, for the appellant in Cr!. A. No. 319 /7 4.

R. N. Sachthey, for respondent No. 1 in Crl. No. 319174.

R. H. Dhebar and B. V. Desai for the appellant in Cr!. A. No. 358 of 1976.

V. P. Raman and R. N. Sacl;they, for the respondents in Cr!. A. No. 385/76.

The Judgment of the Court was delivered by

GOSWAMI, J. In these appeals common question of law arises for ~o~sideration., We will therefore refer to the. facts as appearing m C!Vll Appeal No. 1134 of 1973 to decide the issue and our deci-sion will govern these appeals.

We are informed that the sole appellant in Criminal Appeal No. 319 of 1974 died. The said appeal, therefore, abates and is dismissed.

Civil Appeal No. 1134 of 1973 is directed against the judgment o± the Division Bench of the Calcutta High Court whereby the earlier judgment of the single Judge was reversed. The facts so far as material may be briefly stated :

On or about May 27, 1967, case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Divi-sion, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was businessman. It was alleged that R. C. Bhattacharjee in collusion and conspiracy with the respondent had accepted certain tenders from fictitious nominee of the said respondent for supply of certain stores to the military authorities at price exceeding the price quoted by the other tenderers and thereby caused substantial loss to the Military Authority and to the Government of India. It was further alleged that the said Bhattacharjee along with the respon-dent had committed offence of conspiracy of criminal misconduct by public servant in dishonestly abusing his position as public servant for obtaining undue pecuniary advantage which amounted to an offence under section 5(2) of the Prevention of Corruption Act, 1947.

Accused Bhattacharjee was invalidated from the Military service with effect from February 14, 1966, as permanently unfit for any form of military service.

· case under the Prevention of Corruption Act, 194 7 (herein-after, briefly the Act) can be tried only by special court constituted under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949) (briefly the Bengal Act). By notification in the Calcutta Gazette dated June 15, 1967, the State Government allotted the said case to the Fourth

Additional Special Conrt in Calcutta under sub-section (2) of Section 4 of the Bengal Act. When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Article 226 of the Constitution on November 7, 1967, inter alia, contending that-

(!) at the point of time when the case was distributed to the Special Court the co-accused, ex-Major Bhattacharjee, had ceased to be public servant and as such the Bengal Act had no applica\ion and the said Court had no jnrisdiction to entertain the case;

(2) public officer having ceased to be such an officer at the date of allotment of the case the order of allotment by the State Government was without jurisdiction and void; and

(3) the Special Court had no jurisdiction to try cases in which two private persons were involved and the allotment of the case to the Special Court was thus illegal.

point regarding absence of sanction was also taken up but was not pressed before us in view of the decision of this Court in S. A. Venkataraman v. The State(').

The single Judge of the High Court dismissed the writ application but the Division Bench by two concurring judgments set aside the said judgment and order of the single Judge. That is how this matter has come before us on certificate under Article 133(1) (c) of the Constitu-ti on.

P. B. Mukherjee, J. held-

" ...... the only solution is to hold that these two acts, namely, the Special Courts Act and the Prevention of Corrup-tion Act do not apply-to pnblic servant who had ceased to be public servant on the date the co)lrt takes cognizance. This solution seems all the more proper because it seems to steer clear of Article 14 of the Constitution "

The learped Judge further observed-

"Therefore person who has ceased to be in office, that is, who has ceased to be public servant, does not come within the ambit of the expression 'public servant' and con-G sequently is not governed by the Prevention of Corruption Act and, as such, cannot commit an offence under section 5 (2) of the said Act".

The learned Judge again observed-

"lt will appear that though Major Bhattacharjee had ceased to be public servant, the state Government by dis-tributing the present case to the Special Court violated the

(l) [1958] S.C.R. 1037.

principle of equal protection clause by denying the advan-tages associated with the office of public servant but im-posing on him the disadvantages and/or disabilities associated with the office of public servant. Hence the Act is not discriminatory but the action, allotment and distribution of this case to the Special Court of the State Government is discriminatory. Therefore it is to be struck down and the order of the distribution quaBhed''.

The learned Judge also observed-

" .... but public servant who has ceased to be public servant, can neither be prosecuted in respect of any sche-duled offence nor of an offence under section 5 (2) of the Prevention of Corruption Act and as such, the trial of such person cannot be in accordance with the provisions of those two statutes".

" so far as the appellant Manmal Bhutoria is con-cerned, he never being 'a public servant' is clearly not triable by the Special Court under the Prevention of Corruption Act and West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and suffer all the handicaps of being presumed to be guilty".

B. C. Mitra, J. in his concurring judgment observed as follows :-"On careful consideration of the various clauses under s. 21 of the Penal Code, I have no doubt that person who was previously public servant, but who has ceased to be such, do not come within the ambit of that section.

Both s. 5 (1) and s. 5 (2) deal with public servants only. There is no provision in this Act whereby person who was previously public servant, but has ceased to be public servant at the relevant time, can be charged with an offence under s. 5(1) (d) or s. 5(2) of the Prevention Act''.

Before we proceed further we may immediately set out what this \ Court has held in Venkataraman's case (supra) since what was held therein has largely influenced the decision of the Division Bench. At page 1044 of the report in that decision this Court observed as fol-lows:-

"'These provisions of the Act (namely Act 2 of 1947) indicate that it was the intention of the legislature to treat more severely than hitherto corruption on the part of public servant and not to condone it in any manner whatsoever. If s. 6 had not found place in the Act it is clear that cogni-zance of an offence under s. 161, 164 ors. 165 of the Indian Penal Code or under s. 5 (2) of the Act committed by

public servant could be taken by court even if he had ceased to be public servant. The mere fact that he had ceased to be public servant after the commission. of the offence would not absolve him from his crime. Section 6 certainly does prohibit the taking of cognizance of his offence, without previous sanction, while he is still public servant but do~s that prohibition continue after he h_as ceased to be pubhc servant"?

Again at page 1048/1049 this Court observed as follows :-

"In our opinion, in giving effect to the ordinary meaning of the words used in s. 6 of the Act, the conclusion is in-evitable that at the time court is asked to take cognizance not only the offence must have been committed by public servant but the person accused is still public servant remov-able from his office by competent authority before the provisions of s. 6 can apply. In the present appeals, admit-edly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accord-ingly, the provisions of s. 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of previous sanction by competent authority".

A, similar view was affirmed by the Court in C. R. Bansi v. State of Maharashtra.(') This Court held therein as follows :-

"The policy underlying s. 6, and similar sections, is that there should not be unnecessary harassment of public ser-vants. But if person ceased to be public servant the question of harassment does not arise. The fact that an appeal is pending does not make him public servant. The appellant ceased to be public servant when the order of dismissal was passed. There is no force in the contention of the learned connsel and the trial cannot be held to be bad for Jack of sanction nnder s. 6 of the Act".

Accepting the position that sanction under section 6 of the Act is not necessary if th~ public servant ceased to be public servant on the date the court takes cognizance of the offence, the High Court arrived at the conclusion that there would be discrimination between one class of public servants and another similarly situated when those in office will be protected from harassment on account of the require-ment of sanction for prosecution whereas the public servants ~fter they ceased to be in office will be prosecuted and harassed in absence of the requirement of the sanction. It is in that view of the matter the High Court bas helcl that the Special Court has no jurisdiction to try public servant who has ceased to be public servant on the date the Court was required to take cognizance of the offence, since, accord-ing to the High Court, "it cannot be said that in certain respects he

(l) [1971] 3 S.C.R. 236.

i~ public servant for. the offences under the Prevention of Conup-t1on Act and for certam other respects, he is not public servant". It is .in taking this view that P. B. Mukherjee, J. observed that "this solution seems all the more proper because it seems to steer clear of Ar~icle 14 of the Constitution". The High Court, however, did not slnke down the Act or any provisions of the Act as unconstitutional. It has only held the order of .allotment of the case to the Special Court as illegal as the case of public servant who has ceased to be pnblic servant cannot be allotted to the Special Court since, accord-ing to the High Court, to hold otherwise would be violative of Article 14 of the Constitution. It is in the background of such conclusion that Mr. Niren De, counsel for the respondent, submits that this appeal involves the deter-mination of question as to the constitutional validity, on the basis of Article 14 of the Constitution, of the provisions of the Bengal Acl, particularly the proviso to section 4 (1) of that Act. He further sub-. mils that person who ceased to be public servant cannot be treated differently from person who is public servant in office for the pur-pose of the Bengal Act. He, therefore, submits that in view of Article 144(A), as inserted by the 42nd Amendment, this appeal should be heard by minimum number of seven Judges of this Court and we should therefore, refer the same to larger Bench. This submission is supported by Mr. Dhebar who is appearing in an identical matter in Criminal Appeal No. 358 of 1976 and he has submitted an ~ppli­cation to urge additional grounds on the basis of Article 14 of the Constitution.

There is. some misconception both in the judgment of the High Court as well as in the submission made by counsel on this point. In view of the decision in Venkataraman's case (supra) there is no warrant for including in one category public servants in office and· public servants who have ceased to be so. These two classes of public servants are not similarly situated as has been clearly pointed out in Bansi's case (supra). The plea of applicability of Article 14 on the basis of the judgment in Venkataraman's case (supra) is, therefore, wholly misconceived. It cannot be argued that the decision in V enka-taraman's case (supra) is violative of Article 14 of the Constitution. That decision only says that s~ction 6 of the Act is not applicable to public servant if at the time of taking cognizance by the court he ceases to be so. Because particular section is not applicable to public servant after he has ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. This Court has clearly placed public servant, who has ceased to be in office, in separate category and that c)assification has held the fic!d all these years without demur. There 1s, therefore, no substance Ill the contention that this appeal should be referred to larger Bench.

Under section 4( 1) of the Bengal Act, the scheduled offences which include an offence under section 5 (2) of the Act as also cons-piracy. to commit that offence shall be triable by Special Cou~ only. No other court can, therefore, try these offences. The prov1s1011s of the Bengal Act are clearly different from those of the West Bengal

Special CQllrts Act which were the subject matter in The State of West Bengal v. Anwar Ali Sarkar('). Proviso to section 4(1) of the Bengal Act is in the following terms :

"Provided that when trying any case, Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial".

By this proviso the Special Court, when trying scheduled offence finds that some other offence has also been committed and the trial of the same in one trial is permissible under the Code of Criminal Procedure, may try such charge. It is difficult to imagine how such proviso can at all attract Article 14 of the Constitution.

On merits it is submitted by Mr. De that the respondent is complete outsider and is not public servant at all. The Bengal Act is not applicable to him. It is submitted that the Bengal Act provides for reference to the Special Court only offences mentioned in the Schedule to that Act and all the offences mentioned in the Schedule, according to him, are those which may be committed by public ser-vant. He draws our attention to the definition of publio servant under section 21 of the Indian Penal Code which definition is applicable under section 2 of the Act. He sub mitts that the public servant in view Of the definition means public servant in office and not one who has ceased to be in office.

It is true that section 21 IPC enumerates various classes of public servants who are or who happen to be in office. That is, however, not the true test in determining the present controversy. The crucial date fo; the' purpose of attracting the provisions of the Act as well as those of t!te Bengal Act is whether the offence has been committed by public servant within the definition of section 21. The date for determining the offence is the date of the commission of the offence when the person arraigned must be public servant.. Section 6 of the Act provides that no court shall. take cognizance of an offence specified in that section alleged to have been committed by public servant except with the previous sanction. The section itself makes clear distinction between cognizance of an offence ancL alleged commission of an offence. Sanction refers to the date when after submission of report or complaint the court takes cognizance of the off=e-. That date is necessarily subsequent to the date of com-mission of the offence and sometimes far remote from that date. Retire-ment, resignation, dismissal or removal of public servant would not wipe out the offence which he had committed while in service. Under section 6(1) o~ the Act, as in the, case of section 190(1) Cr.P.C .. the court takes cognizance of an offence and not an offender (see Raghu-bans Dubey v. State of Bihar([2]). The crucial date, therefore, for taking cognizance in this case is the date when the case. was recei;·ed by the Special Court on being allotted by the State Government under section 4(2) of the Bengal Act.

(1) [1952] S.C.R. 284.

(2) [1967] 2 S.C.R. 423, 428.

Mr. De submits that section 10 of the Bengal Act provides t11at the provisions of the Prevention of Corruption Act shall apply to trials under the Bengal Act. He, therefore, submits that section 6 of the Act must apply and since this Court has held that that section does not apply and section 6 is also not applicable in the case of the respondent, being not public servant, the Special Court has no juris-diction to try the offence. We are clearly of opinion that section I 0 of the Bengal Act will apply when the provisions of that section are dearly attracted. Section 6 is interpreted by this Court not to apply to public servant who has ceased to be in office. That would not affect the interpretation of section 10 of the Bengal Act. There is no merit in the submission that because of section 10 the Special Court cannot be said to have jurisdiction to try the offence in this case.

Mr. De further submits that since the respondent is not public servant he is outside the provisions of the Bengal Act, as well as the Prevention of Corruption Act. This argument is entirely misconceiv-ed. Even under the Prevention of Corruption Act, an outsider can be prosecuted under section 5 (3) of the Act when person habitually commits an offence punishable under section 165A of the Indian Penal Code. Section 165A provides that "whoever, abets any offence puni-D shable under section 161 or section 165, whether or not that offence is committed in consequence of the abetment, shall be punished .... ". This section is clearly applicable to an outsider who may abet pub-lic servant. Item 8 of the Schedule to the Bengal Act mentions any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items I, 2, 3 and 7. It is, therefore, clear that under item 8 of the Schedule an outsider can be tried along with public servant if the former abets or commits an offence of conspiracy to commit an offence under section 5 of the Prevention of Corruption Act which is mentioned in item 7 to the Schedule. There is, therefore, no merit in the submission that the Special Court cannot try the offence under section 5 (2) of the Act read with section 120B IPC against the respondent.

All the submissions of counsel for the respondent fail. The judg-ment and order of the Division Bench are set aside. The appeal is allowed but there will be no order as to costs.

In Criminal Appeal No. 358 of 1976 the appellant was charged under section 5 (2) read with section 5 (I)( e) of the Prevention of Corruption Act. At the time of commission of the offence he was admittedly public servant. He, however, ceased to be public ser-vant on October 30, 1974, when the chargesheet against him was put up before the Special Judge. The offences are triable only by ;he Special Judge under the provisions of the Criminal Law Amendment Act 1952 (Act XI, VI of 1952). For the reasons given above in connection with Civil Appeal No. 1134 of 1973, the trial before the Special Judge cannot be questioned as illegal. The appeal fails and is dismissed.