Jammu & Kashmir High Court
Jawahar Lal Koul vs State Of J. And K. on 20 October, 1999
Equivalent citations: 2000CRILJ3581
ORDER
1. The question involved in the petition for quashing criminal proceedings is (1) Whether a person ceases to be a public servant as defined Under Section 21 of the Ranbir Penal Code after he superannuates from service and (2) Whether a public servant before he is asked to show cause for the failure to submit annual return can be prosecuted for the offence created by Section 11 of the Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983 (for short Act of 1983).
2. Both the questions have arisen because a case Under Section 11 of Act of 1983 read with Section 5(2) of Prevention of Corruption Act was registered against the petitioner in November, 1994 while he had retired from service in 1992. The allegation against the petitioner is that while serving as Divisional Forest Officer in the Forest Department at various places he failed to submit return of his assets and had therefore, violated Section 11 of the Act of 1983 which is a criminal misconduct within the meaning of Clause (e) of Sub-section (1) of Section 5 of the P.C. Act and thus punishable Under Section 5(2). After investigation challan was produced in the Court of Special Judge Anti-Corruption, Jammu on 14-12-1995 who after taking cognizance of the case framed charges Under Section 11 read with Section 5(2) of the P.C. Act. The contention of Mr. Goja appearing for the petitioner is that petitioner having superannuated from Govt. service in the year 1992 is no longer public servant under Section 21 of the State Ranbir Penal Code. He therefore, could not be prosecuted for the offence committed by him as public servant. According to the learned counsel while a public person who has been under the employment of the Govt. can be prosecuted even after his retirement under the Prevention of Corruption Act, 2006, this cannot be so Under Section 11 of the Act of 1983. He further argued that offence Under Section 11 of Act of 1983 is not complete unless person has been provided an opportunity to show cause for his failure to submit annual return of his assets. Since no such opportunity was provided to the petitioner, his prosecution is misuse of the process of the Court.
3. Mr. Sharma, GA appearing for the respondent on the other hand argued that it is the date of commission of offence which determines the criminal liability and not the date of retirement of a public servant. With regard to the 2nd question, the argument of Mr. Sharma is that accused was provided an opportunity by the Vigilance Organisation to show cause why he failed to submit return and this satisfies the requirement of law.
4. Under Section 2-F of the Act of 1983 a public servant means public servant as defined in Section 21 of the State Ranbir Penal Code. Definition of public servant as given in Section 21, R.P.C. does not include a person who has retired from service. By virtue of this section every servant of the State is a public servant. However, a civil servant of the State does not include a person who has retired from service because he is not discharging any duty under the Govt. He is only entitled to pension for the service rendered by him and thus does not make him a public servant. Referring to Section 21, the Supreme Court in K. Veeraswami v. Union of India (1991) 3 SCC 655 observed as under :-
Section 21 of the I.P.C. while defining "public servant" has denoted as many as twelve categories of persons. It includes not only State and Central Govt. employees, but also others like Judge, Jurymen, assessors and arbitrators. It also includes every person in the service or pay of the Govt. or remuneration by fee or commission by the Govt....
(Emphasis supplied) So a person must be in service before he can be held to be a public servant. The petitioner, therefore, had ceased to be public servant after his superannuation and could not be prosecuted for violation of Section 11 as he had ceased to be public servant under the Act of 1983.
5. Nearer to home in case of State of J. & K. v. Charan Dass Puri Cri Appeal No. 537/ 98 decided on April 29, 1999 arising from the judgment of this Court their Lordships observed :-
The point that arises for consideration in this appeal is whether in case of a retired public servant, previous sanction of the Govt. is required before the Court can take cognizance of the offence under the Public Servant Prevention of Corruption Act.
Their Lordships answered the point as follows :-
This Court in Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411 : 1998 Cri LJ 4003 has held that if a public servant has ceased to be a public servant at the time the Court is called upon to take cognizance of the offence, no previous sanction is necessary. This Court also referred to its previous decision in R. Balakrishna Pillai v. State of Kerala 1996 (1) SCC 478 : AIR 1996 SC 901 on which the reliance has been placed by the High Court for taking the contrary view and has pointed out that judgment can of no relevance where the offence alleged is the offence punishable under the Prevention of Corruption Act. In paragraph 13 of the judgment this Court has specifically dealt with the aspect. Thus, the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence punishable under the Prevention of Corruption Act, no previous sanction would be required if by the time the Court is called upon to take cognizance of the offence he has ceased to be a public servant, the High Court was wrong in taking the contrary view....
The legal position is thus settled that no sanction is required for the prosecution after his superannuation because he ceases to be a public servant and is not removable from the service. Moreover, the legislature in its wisdom decided to adopt the definition of public servant as given in Section 21 of RPC instead of making Sub-section (2) of P.C. Act, 2006 applicable. Section 2 of P.C. Act was also amended in 1983 to enlarge its scope so as to include members of either House of the State Legislature and members of counsel of Minister within definition of public servant. Clause (b) of this section being relevant is reproduced below :-
2...(b) every person who is or has been under the employment of Govt. whether on permanent, temporary or work charge basis.
So the definition of public servant has also been enlarged to include a person who has been under the employment of the Govt. It therefore, follows that a person who is shown to be a public servant can also be prosecuted for the offence committed by him though in his case previous sanction Under Section 6 will not be necessary because he holds no public office from which he is required to be removed. So the inescapable conclusion is that a person ceases to be public servant after he superannuates from service on any ground under Article 226 of the Civil Services Regulation or is otherwise discharged from service. The first question is answered accordingly.
6. The second question should not detain us for long because Section 11 itself creates a right in favour of a public servant to show any reasonable cause for its failure to submit the return annually. This section reads :-
11. Penalty for non-submission of returns.- If any public servant without any reasonable cause which he shall be required to show, fails to submit the returns annually, he shall be guilty of committing criminal misconduct as specified in Clause (e) of Sub-section (1) of Section 5 of the Prevention of Corruption Act, Samvat 2006, and shall be punishable under the said Act.
Opening words of the section "if any public servant without any reasonable cause which he shall be required to show, fails to submit the returns annually," leave no doubt whatsoever that before a person is held guilty he is entitled to show cause notice, Admittedly, no opportunity has been provided to him. Mr. Sharma however, argued that the Vigilance Organization had issued a questionnaire, but the petitioner failed to show any reasonable cause for his failure and this satisfies the requirement of this section. However, under Section 3(c) the petitioner has to submit return of his assets to the Govt. It was thus for the Govt. to ask him to explain why he has failed to submit the return annually before reporting the matter to the police. Power to accept or reject the explanation is given to the authority prescribed Under Section 2 and not to the Vigilance Organisation because the explanation can be accepted or rejected only by the prescribed authority to whom the returns are to be submitted and not to police investigating agency. This question has already been considered by my learned Brother G.D. Sharma, J. in O.W.P. No. 93/96 decided on 10-9-1996 : 1997 Cri LJ 870 in which has Lord-ship held as under (at page 871 of Cri LJ):-
From the conjoint reading of Sections 2, 9 and 11 of the Act of 1983, it transpires that in the instant case show cause notice should have been issued by the Govt. for eliciting reasonable cause from the petitioner for the nonsubmission of the property statements of the years in question and not by the Investigating Officer. If law requires something to be done in a particular manner that should be got done in the same manner.
7. In am in respectful agreement with the proposition propounded by his Lordship. The second question is answered accordingly. In view of what has been said, this petition is allowed and the prosecution of the petitioner in case State v. Jawahar Lal Koul arising out of FIR No. 101/94 registered by the Vigilance Organisation, Jammu is quashed. Consequently order of framing the charge dated 7-8-1996 shall also stand quashed.