PETITIONER:
STATE (SPE HYDERABAD)
Vs.
RESPONDENT:
AIR COMMODORE KAILASH CHAND
DATE OF JUDGMENT21/12/1979
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KAILASAM, P.S.
KOSHAL, A.D.
CITATION:
1980 AIR 522 1980 SCR (2) 697
1980 SCC (1) 667
CITATOR INFO :
O 1984 SC 684 (25)
ACT:
Prevention of Corruption Act, 1947 (11 of 1947), S.
5(2)-Air Force Officer retiring from service-Reemployed-
Services transferred to Regular Air Force Reserve
Prosecution of officer under the Act-Officer if a public
servant-Sanction whether necessary.
HEADNOTE:
The respondent a member of the Indian Air Force,
retired from service on June 15, 1965 but was reemployed for
a period of two years with effect from June 16, 1965. On
September 7, 1966 the respondent was transferred to the
Regular Air Force Reserve with effect from June 16, 1965 to
June 15, 1970 i.e. for a period of five years. On March 13
1968 the reemployment given to the respondent ceased and his
services were terminated with effect from April 1, 1968. A
charge-sheet was submitted against the respondent for having
committed offences under section 5(2) of the Prevention of
Corruption Act, 1947, during the period March 29, 1965 to
March 16, 1967. The respondent filed a petition before the
Special Judge for dropping the proceedings against him on
the ground that the Judge could not take any cognizance of
the offences in the absence of any valid sanction of the
appointing authority OF the respondent. The application was
rejected on the ground that as the respondent was not a
Commissioned Officer in the Air Force at the time when the
cognizance was taken, no sanction of the President was
necessary.
The respondent moved the High Court in revision, which
quashed the proceedings, holding that as the respondent
continued to be a public servant within the meaning of
section 21 of the Indian Penal Code inasmuch as he remained
a member of Air Force Reserve, sanction was necessary before
prosecuting the respondent.
In the appeal to this Court, it was contended on behalf
of the appellant: (1) that as the respondent had retired
from the Indian Air Force and his employment was terminated
with effect from April 1, 1968 he ceased to be a public
servant and therefore no sanction was necessary, and (2)
that reemployment under the provisions of the Regular Air
Force Reserve Act would not amount to an employment in the
Regular Force of the Service and therefore even though the
respondent may have been reemployed he could not be said to
hold the status of a public servant.
Dismissing the appeal,
^
HELD: 1. The prosecution must prove that at the time
when cognizance of the offence was taken the respondent
ceased to be a public servant. [700 C]
In the instant case, the Special Judge took cognizance
on June 19. 1969 at a time when the respondent continued to
be a public servant having been reemployed and though his
services were terminated only on April 1, 1968 he
698
continued to be a member of the Auxiliary Air Force upto
July 15, 1970, that is a long time after cognizance of the
offence was taken. [700 D]
S. A. Venkataraman v. The State [1958] S.C.R. 1037;
State of West Bengal etc. v. Manmal Bhutoria & Ors. Etc.
[1977] 3 S.C.R. 758 referred to.
2(i) The Provisions of the Auxiliary Air Force Act do
not expressly contain the nature of the emoluments that the
respondent may receive but the general tenor and setting of
the Act clearly show that a member of the Auxiliary Force is
as much a public servant as an acting member of the Indian
Air Force. [703 G]
(ii) Even after the respondent was transferred to the
Auxiliary Air Force he retained his character as a public
servant because he was required to undergo training and to
be called up for service as and when required. [703 F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
259 of 1973.
From the Judgment and order dated 27-4-1973 of the
Andhra Pradesh High Court in Criminal Revision Case No.
72/73.
R. B. Datar, M. N. Shroff and R. N. Sachthey for the
Appellant.
P. Govindan Nair and A. Subba Rao for the respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This appeal by certificate is directed
against the judgment dated 27th April 1973 of the Andhra
Pradesh High Court allowing the revisional application and
quashing the proceeding’s taken against the respondent for
offences committed under s. 5(2) of the Prevention of
Corruption Act.
In the view that we take in the case, it is not
necessary to give the facts in detail. IL appears that the
respondent was a member of the Indian Air Force having
entered the service on l 7th November 1941. He retired from
the service on the 15th June 1965 but was reemployed for a
period of two years with effect from 16th June 1965. O.. 7th
September 1966, the respondent was transferred to the
Regular Air Force Reserve with effect from 16th July 1965 to
15th June 1970, i.e., for a period of five years. In Other
words, the respondent was transferred to the Auxiliary
Reserve Air Force under the provisions of the Reserved and
Auxiliary Air Force Act 1952 (hereinafter to be referred to
as the ’Act’) and rules thereunder. On 13th March 1968, the
reemployment given to the respondent ceased and his services
were terminated from 1st April 1968.
A chargesheet was submitted against the respondent for
having committed offences under s. 5(2) of the Prevention of
Corruption Act during the period 27th March 1965 to 16th
March 1967. The
699
respondent filed a Petition before the Special Judge,
Hyderabad for dropping the proceedings against him on the
ground that the Judge could not take any cognizance of the
offences in the absence of any valid sanction of the
appointing authority of the respondent. The Special Judge,
however, rejected this application on the 20th of October
1972 on the ground that as the respondent was not a
Commissioned officer in the Air Force at the time when the
cognizance was taken, no sanction of the President was
necessary. Thereafter, the respondent moved the High Court
in revision and succeeded before the High Court which held
that as the respondent continued to be a public servant
within the meaning of s. 21 of the Indian Penal Code
inasmuch as he remained a member of the Air Force Reserve,
sanction was essential before prosecuting the respondent.
The High Court accordingly accepted the revision petition
and quashed the proceedings against the respondent but
granted a certificate to the appellant for leave to appeal
to this Court. Hence this appeal before us.
The only point that has been canvassed before us was
whether the respondent having retired from the active
service of the Indian Air Force continued to be a public
servant even though he was transferred to Regular Air Force
Reserve. The counsel for the Union submitted that as the
respondent had retired from the Indian Air Force and his
reemployment was terminated w.e.f. April 1, 1968, he ceased
to be a public servant and, therefore, no sanction was
necessary. We have heard counsel for the parties and have
also perused the judgment of the High Court and the Special
Judge. The facts, mentioned above, are not disputed and two
questions fall for determination in this case.
In the first place, it has to be decided whether or not
the respondent was a public servant during the period 27-3-
65 to 16-3-67. Secondly, what is the point of time when the
sanction was necessary, viz., the time when the offences
were actually committed or when the court took cognizance of
the said offences. We will take up the second point first.
An identical question came up for consideration before this
Court in the case of S. A. Venkataraman v. The State where
the Court, speaking through Imam J., 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 inevitable that at the time a court is
asked to take cognizance
700
not only the offence must have been committed by a
public servant but the person accused is still a public
servant removable from his office by a competent
authority before the provisions of s. 6 can apply.”
This case was followed by a recent decision of this Court in
the case of State of West Bengal Etc. v. Manmal Bhutoria &
Ors. Etc. where the previous decision was followed. In view
of the decisions of this Court, referred to above, the
matter is no longer res integra but is concluded by the
decisions of this Court. It fol lows, therefore, that the
prosecution must prove that at the time when the cognizance
of the offence was taken, the respondent ceased to be a
public servant. In the instant case, the Special Judge
appears to have taken cognizance on June 19, 1969 at a time
when the respondent continued to be a public servant having
been reemployed and as referred to above his services were
terminated only on 1-4-1968 but he continued to be a member
of the Auxiliary Air Force upto 15-6-70 that is to say, a
long time after the cognizance of the offence was taken. The
learned counsel for the Union, how ever, submitted that
reemployment under the provisions of the Regular Air Force
Reserve Act would not amount to an employment in the Regular
Force of the Service and therefore even though the
respondent may have been reemployed, he could not be said to
hold the status cf a public servant. In this connection,
some of the Rules have been placed before us to show the
nature of the employment held by the respondent after his
retirement. It is not disputed that even after reemployment,
the respondent was transferred to the Air Force Auxiliary
Reserve and continued to be a member of the Auxiliary Air
Force Reserve. Relevant sections of the Act are. extracted
below :-
“4. Constitution of Regular Air Force Reserve-The
Central Government may raise and maintain in the manner
hereafter in this Chapter provided an Air Force Reserve
to be designated the Regular Air Force Reserve which
shall consist solely of persons transferred or
appointed to it under section 5.
5. Recruitment to the Regular Air Force Reserve-(1) The
competent authority may, by general or special order
transfer to the regular Air Force Reserve-
(a) any officer or airman of the Air Force who
under the terms and conditions of his service
is liable to
701
serve in any Air Force Reserve if and when
constituted;
(b) any officer or airman of the Air Force whose
com mission or engagement in the Air Force
has been terminated before the commencement
of this Act and who under the terms of his
commission or engagement was liable to serve
in any Air Force Reserve if and when
constituted;
(c) any officer or airman who has served in the
Air Force and has retired therefrom;
and any officer or airman so transferred shall be
deemed to be a member of the said Reserve.
(2) The competent authority may, in such
circumstances and subject to such conditions
as may be prescribed, by special order,
appoint to the Regular Air Force Reserve any
member of the Air Defence Reserve or the
Auxiliary Air Force raised and maintained
under this Act, and where any such member is
so appointed, he shall cease to be a member
of the Air Defence Reserve or the Auxiliary
Air Force, as the case may be, and shall as
from the date of such appointment be deemed
to be a member of the Regular Air Force
Reserve.
(3) .. .. .. ..
6. Classes of persons in the Regular Air Force Reserve-
Members of the Regular Air Force Reserve shall be
divided into the following classes, namely:-
(a) general duties officers, and
(b) ground duties officers, and
(c) airmen,
and every officer shall be entitled on transfer or
appointment to the Reserve to hold the same rank as
that which he-last held in the Air Force or the Air
Defence Reserve or the Auxiliary Air Force, as the case
may be, before such transfer or appointment.
7. Period of service-(1) Every member of the Regular
Air Force Reserve shall he liable to serve in the
Reserve-
(a) if he is transferred to the Reserve under
sub- section (1) of section 5, for the period
of his Re serve liability; and
702
(b) if he is appointed to the Reserve under sub-
section (2) of section S, for the remainder
of the period for which he was liable to
serve in the Air Defence Reserve or the
Auxiliary Air Force, as the case may be:
Provided that the competent authority may require
any such member to serve in the Reserve for such
further period or periods not exceeding in the
aggregate five years as it may think fit.
x x x x x
9. Constitution of Air Defence Reserve-The Central
Government may raise and maintain in the manner here
after in this Chapter provided an Air Force Reserve to
be designated the Air Defence Reserve which shall
consist of persons deemed under the provisions of
section 16 to be enrolled therein.
10. Classes of persons in the Air Defence Reserve-
Members of the Air Defence Reserve shall be divided
into the following classes, namely:-
(a) general duties officers;
(b) ground duties officers; and
(c) airmen.
x x x x x
12. Liability to be called up for inquiry-Every person
to whom the provisions of section 11 are applicable
shall be liable to be called up for inquiry under
section 13-
(a) if he belongs to any of the classes specified
in clauses (a) to (f) of sub-section (1) of
section 11, until he has completed his
thirty-seventh year, and
(b) if he belongs to any of the classes specified
in clauses (g) and (h) of the said sub-
section, until he has completed his fiftieth
year.
x x x x x
18. Constitution of Auxiliary Air Force-(1) The Central
Government may raise and maintain in the manner
hereafter in this Chapter provided an Air Force to be
designated the Auxiliary Air Force.
(2) The Central Government may constitute such
number of squadrons and units of the Auxiliary Air
Force as it thinks fit and may disband or reconstitute
any squadron or unit.
703
19. Classes of persons in the Auxiliary Air Force-
Members of the Auxiliary Air Force shall be divided
into the following classes, namely:
(a) general duties officers;
(b) ground duties officers; and
(c) airmen.
20. Officers of the Auxiliary Air Force-The President
may grant to such person as he thinks fit a commission
as an officer in the Auxiliary Air Force with the
designation of rank corresponding to that of any
commissioned officer in the Air Force.
.. .. .. ..
22. Periods of service-Every officer and every enrolled
person shall, subject to any rules that may be made in
this behalf under this Act, be required to serve in the
Auxiliary Air Force for a period of five years from the
date of his appointment or enrollment but may, after
the completion of his period of service, volunteer to
serve therein for further periods each of not more than
five years’ duration.
23. Termination of Service-The service of any officer
or enrolled person in the Auxiliary Air Force may, at
any time before the completion of his period of
service, be terminated by such authority and under such
conditions as may be prescribed.”
(Emphasis ours)
A perusal of the provisions of these sections would
clearly reveal that once the respondent was transferred to
the Auxiliary Air Force he retained his character as a
public servant because he was required to undergo training
and to be called up for service as and when required. It is
true that these provisions do not expressly contain the
nature of the emoluments that the respondent may receive but
the general tenor and setting of the Act clearly show that a
member of the Auxiliary Force is as much a public servant as
an acting member of the Indian Air Force. This is the view
which the High Court appears to have taken and we find
ourselves in complete agreement with the same. It is not
disputed in this case that no sanction was taken from the
appointing authority before prosecuting the respondent. For
these reasons, therefore, we do not find any error of law in
the judgment of the High Court and the appeal fails and is
accordingly dismissed
N.V.K. Appeal dismissed.
704