PETITIONER:
STATE OF WEST BENGAL ETC.
Vs.
RESPONDENT:
MANMAL BHUTORIA & ORS. ETC.
DATE OF JUDGMENT03/05/1977
BENCH:
GOSWAMI, P.K.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 1772 1977 SCR (3) 758
1977 SCC (3) 440
ACT
Prevention of Corruption Act, 1947--S. 5(2)--Scope of a
Retired Army Officer and an outsider prosecuted under s.
5(2)--Prosecution, if valid--If Special Court under the
West Bengal Criminal Law Amendment (Special Courts) Act,
1949 could try the case.
HEADNOTE
In May 1967 a case was lodged against the respondent and
a 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 a public
servant in dishonestly abusing his position as a 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 a writ petition
challenging its jurisdiction to try the 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 a person who had ceased to be a 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 a public servant and in certain
others he was not.
It was contended on behalf of the respondent that (1) since
the case involved interpretation of Art. 14 of the Constitu-
tion it should be referred to a larger Bench in view of Art
144(A) of the Constitution; (2) in view of the definition
of public servant contained in s. 21 IPC, a 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 Act the Special
Court had no jurisdiction to try the offence; and (4) the
respondent, not being a public servant, is outside the
provisions of the Bengal Act and the Prevention of Corrup-
tion Act.
Allowing the appeal.
HELD: (1) There is no substance in the contention that
the appeal should be referred to a 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. [764 G]
(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 [19711 3 S.C.R. 236. [764 E]
(b) It cannot be argued that the decision in Venkatara-
man’s case is violative of Art. 14 of the Constitution.
That decision only says that s. 6 of the Act is not applica-
ble to a public servant if at the time of taking cognizance
by the Court he ceases to be so. Because a particular
section is not applicable to a 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 a public servant, who has ceased to be in office, in
a separate category and the classification has held the
field all these years without demur. [764 F-G]
(c) The proviso to s. 4(1) of the Bengal Act cannot
attract Art. 14. By this proviso the Special Court, when
trying a 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 a charge.
Under s. 4(1) of the Bengal Act a scheduled offence which
includes an offence under s. 5(2) of
759
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 IPC does not afford a true test in deter-
mining 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 a public servant within the definition of s. 21
IPC. The date for determining the offence is the date of
the commission of the offence when the person arraigned must
be a public servant. Section 6 makes a clear distinction
between cognizance of an offence and alleged commission
of an offence. The date of sanction is necessarily subse-
quent to the date of commission of the offence and some
times far remote from that date. Retirement, resignation,
dismissal or removal of a public servant would not wipe out
the offence which 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-
G]
Raghuban 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 a
public servant who has ceased to be in office. That would
not affect the interpretation of s. 10 of the Bengal Act.
[766 A-B]
(4) There is no merit in the submission that the special
Court cannot try the offence under s. 5(2) of the Act read
with s. 120B IPC against the respondent.
Even under the Prevention of Corruption Act, an outsider
can be prosecuted under s. 5(3) of the Act when a person
habitually commits an offence punishable under s. 165A,
IPC. Section 165A which provides that "whoever abets an
offence punishable under s. 161 or s. 165, whether or not
that offence is committed in consequence of the abetment,
shall punished .... is clearly "applicable to an outsider
who may abet a public 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 1, 2. 3 and 7. It is clear that under
item 8 of the Schedule an outsider can be tried alongwith a
public servant if the former abets or commits an offence of
conspiracy to commit an offence under s. 5 of the Prevention
of Corruption Act which is mentioned in item 7 to the Sched-
ule. [766 C-E]
JUDGMENT
CIVIL AppELLATE JURISDICTION: Civil Appeal No. 1134 of
1973.
(From the judgment and Order dated 14-7-1972 of the Cal-
cutta 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 judgment 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. Ratnan, D.N. Mukherjee and G.S. Chatterjee, for the
appellant in C.A. No. 1134/73.
760
Niren De and N.C. Talukdar, B.M. Bagaria, Dilip Sinha
and D.P. Mukherjee, for respondent No. 1, in CA 1134/73.
R.N. Sachthey, for the respondent No. 3 in CA No. 1134/73.
Praveen Kumar, for the appellant in Crl. A. No. 319/74. R.N.
Sachthey, for respondent No. 1 in Crl. A. No. 319/74.
R.H. Dhebar and B.V. Desai for the appellant in Crl. A.
No. 358 of 1976.
V.P. Raman and R.N. Sachthey, for the respondents in
Crl. A. No. 385/76.
The Judgment of the Court was delivered by
GOSWAMI, J. In these appeals a common question of law
arises for consideration. We will therefore refer to the
facts as appearing in Civil Appeal No. 1134 of 1973 to
decide the issue and our decision 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. 1/34 of 1973 is directed against the
judgment the Division Bench of the Calcutta High Court
whereby the earlier judgment of the single Judge was re-
versed. The facts so far as material may be briefly stated:
On or about May 27, 1967, a case was lodged by the
Deputy Superintendent of Police, Central Bureau of Investi-
gation, Sub-Division, Calcuta, against R.C. Bhattacharjee
who was an ex-Major of the Indian Army and Manmal Bhutoria
(hereinafter, the respondent) who was a businessman. It was
alleged that R.C. Bhattacharjee in collusion and conspiracy
with the respondent had accepted certain tenders from a
fictitious nominee of the. said respondent for supply of
certain stores to the military authorities at a price ex-
ceeding 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 respondent had committed of-
fence of conspiracy of criminal misconduct by a public
servant in dishonestly abusing his position as a 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.
A case under the Prevention of Corruption Act, 1947
(hereinafter, briefly the Act) can be tried only by a spe-
cial 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
a notification in the Calcutta Gazette dated June 15, 1967,
the State Government allotted the said case to the Fourth
761
Additional Special Court 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--
(1 ) at the point of time when the case
was distributed to the Special Court the co-
accused, ex-Major Bhattacharjee, had ceased to
be a public servant and as such the Bengal Act
had no application and the said Court had no
jurisdiction to entertain the case;
(2) a 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.
A 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(1).
The single Judge of the High Court dismissed the writ
application but the Division Bench by two concurring judg-
ments set aside the said judgment and order of the single
Judge. That is how this matter has come before us on cer-
tificate under Article 133(1) (c) of the Constitution.
P.B. Mukherjee, J. held--
" ...... the only solution is to hold
that these two acts, namely, the Special
Courts Act and the Prevention of Corruption
Act do not apply to a public servant who had
ceased to be a public servant on the date the
court takes cognisance. This solution seems
all the more proper because it seems to steer
clear of Article 14 of the Constitution ....
".
The learned Judge further observed--
"Therefore a person who has ceased to be
in office, that is, who has ceased to be a
public servant, does not come within the ambit
of the expression ’public servant’ and conse-
quently 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--
"It will appear that though Major Bhat-
tacharjee had ceased to be a public servant,
the state Government by distributing the
present case to the Special Court violated the
(1) [1958] S.C.R. 1037.
762
principle of equal protection clause by deny-
ing the advantages associated with the office
of a public servant but imposing on him the
disadvantages and/or disabilities associated
with the office of a 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
quashed".
The learned Judge also observed-
" .... but a public servant who has
ceased to be a public servant, can neither be
prosecuted in respect of any scheduled offence
nor of an offence under section 5(2) of the
Prevention of Corruption Act and as such, the
trial of such a person cannot be in accordance
with the provisions of those two statutes".
* * *. *
" .... so far as the appellant Manmal
Bhutoria is concerned, he never being ’a
public servant’ is dearly not triable by the
Special Court under the Prevention of Corrup-
tion Act and West Bengal Criminal Law Amend-
ment (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 a careful consideration of the various
clauses under s. 21 of the Penal Code, I have
no doubt that a person who was previously a
public servant, but who has ceased t0 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 a person who was previously a
public servant, but has ceased to be a 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 immedi-
ately set out what this Court has held in
venkataraman’s case (supra) since what was
held therein has largely influenced the deci-
sion of the Division Bench. At page 1044 of
the report in that decision this Court ob-
served as follows :--
"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 a public
servant and not to condone it in any manner
whatsoever. If s. 6 had not found a place in
the Act it is clear that cognizance of an
offence under s. 161,164 or s. 165 of the
Indian Penal Code or under s. 5(2) of the Act
committed by a
763
public servant could be taken by a court even
if he had ceased to be a public servant. The
mere fact that he had ceased to be a public
servant after the commission of the offence
would not absolve him from his crime. Section
6 certainly does prohibit the taking of cogni-
zance of his offence, without a previous
sanction, while he is still a public servant
but does that prohibition continue after he
has ceased to be a public 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 inevitable that at
the time a court is asked to take cognizance
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. In the present
appeals, admittedly, 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 serv-
ants. Accordingly, the provisions of s. 6 of
the Act did not apply and the prosecution
against them was not vitiated by the lack of a
previous sanction by a competent authority".
A similar view was affirmed by the Court
in C.R. Bansi v. State of Maharashtra.(1)
This Court held therein as follows :--
"The policy underlying s. 6, and similar
sections, is that there should not be unneces-
sary harassment of public servants. But if a
person ceased to be a public servant the
question of harassment does not arise. The
fact that an appeal is pending does not make
him a public servant. The appellant ceased to
be a public servant when the order of dismiss-
al was passed. There is no force in the
contention of the learned counsel and the
trial cannot be held to be bad for lack of
sanction under s. 6 of the Act".
Accepting the position that sanction under section 6 of
the Act is not necessary if the public servant ceased to be
a 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
after 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 has held that
the Special Court has no jurisdiction to try a public serv-
ant who has ceased to be a public servant on the date the
Court was required to take cognizance of the offence, since,
according to the High Court, "it cannot be said that in
certain respects he
(1) [1971] 3 S.C.R. 236.
764
is a public servant for the offences under the Prevention of
Corruption Act and for certain other respects, he is not a
public servant". It is in taking this view that P.B. Mukher-
jee, J. observed that "this solution seems all, the more
proper because it seems to steer clear of Article 14 of the
Constitution". The High Court, however, did not strike 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 a public servant who
has ceased to be a public servant cannot be allotted to the
Special Court since, according to the High Court, to hold
otherwise would be violative of Article 14 of the Constitu-
tion.
It is in the background of such a conclusion that Mr.
Niren De, counsel for the respondent, submits that tiffs
appeal involves the determination of a question as to the
constitutional validity, on the basis of Article 14 of the
Constitution, of the provisions of the Bengal Act, particu-
larly the proviso to section 4(1) of that Act. He further
submits that a person who ceased to be a public servant
cannot be treated differently from a person who is a public
servant in office for the purpose of the Bengal Act. He,
therefore, submits that in view of Article 144(A), as in-
serted by the 42nd Amendment, this appeal should be heard by
a minimum number of seven Judges of this Court and we should
therefore, refer the same to a 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 submit-
ted an application 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 cleared 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 Venkataraman’s case (supra) is violative of
Article 14 of the Constitution. That decision only says that
section 6 of the Act is not applicable to a public servant
if at the time of taking cognizance by the court he ceases
to be so. Because a particular section is not applicable to
a 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 a
public servant, who has ceased to be in office, in a sepa-
rate category and that classification has held the field all
these years without demur. There is, therefore, no sub-
stance in the contention that this appeal should be referred
to a 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 conspiracy to commit that offence shall be
triable by Special Courts only. No other court can, there-
fore, try these offences. The provisions of the Bengal Act
are clearly different from those of the West Bengal
765
Special Courts Act which were the subject matter in The
State of West Bengal v. Anwar Ali Sarkar(1) Proviso to
section 4(1) of the Bengal Act is in the following terms:
"’Provided that when trying any case, a
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 a scheduled
offence finds that some other offence has also been commit-
ted and the trial of the same in one trial is permissible
under the Code of Criminal Procedure, may try such a
charge. It is difficult to imagine how such a proviso can
at all attract Article 14 of the Constitution.
On merits it is submitted ’by Mr. De that the respondent
is a complete outsider and is not a 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 a public servant.
He draws our attention to the definition of public servant
under section 21 o{ the Indian Penal Code which definition
is applicable under section 2 of the Act. He submits that
the public servant in ’view of the definition means a public
servant in office and not one who has ceased to be in of-
fice.
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 [c:’ the. purpose of attract-
ing the provisions of the Act as well as those of the Bengal
Act is whether the offence has been committed by a 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 a 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 a public servant except with the
previous sanction. The section itself makes a clear dis-
tinction between cognizance of an offence and alleged
commission of an offence. Sanction refers to the date when
after submission of a report or a complaint the court takes
cognizance of the offence. That date is necessarily
subsequent to the date of commission of the offence and
sometimes far remote from that date. Retirement, resigna-
tion, dismissal or removal of a public servant would not
wipe out the offence which he had committed while in serv-
ice. Under section 6(1) of 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 Raghubans Dubey v. State
of Bihar(e). The crucial date, therefore, for taking cogni-
zance in this case is the date when the case was received 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.
766
Mr. De submits that section 10 of the Bengal Act pro-
vides that the provisions of the Prevention of Corruption
Act shall apply to trials under the Bengal Act. He, there-
fore, 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 a public servant, the Special Court
has no jurisdiction to try the offence. We are clearly of
opinion that section 10 of the Bengal Act will apply when
the provisions of that section are clearly attracted.
Section 6 is interpreted by this Court not to apply to a
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 juris-
diction to try the offence. in, this case.
Mr. De further submits that since the respondent is not
a public, servant he is outside the provisions of the Bengal
Act, as well as the Prevention of Corruption Act. This
argument is entirely misconceived. Even under the Preven-
tion of Corruption Act, an outsider can be prosecuted under
section 5(3) of the Act when a person habitually commits an
offence punishable under section 165A of the Indian Penal
Code. Section 165A provides that "whoever, abets any of-
fence punishable under section 161 or section 165, whether
or not that offence is committed in consequence of the
abetment, shall be punished .... ". This section is clear-
ly applicable to an outsider who may abet a public servant.
Item 8 of the Schedule to the Bengal Act mentions any con-
spiracy 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, therefore, clear that under item 8 of the Schedule an
outsider can be tried along with a 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 judgment 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(1)(e) of the
Prevention of Corruption Act. At the time of commission of
the offence he was admittedly a public servant. He, howev-
er, ceased to be a public servant on October 30, 1974, when
the chargesheet against him was put up before the Special
Judge. The offences are triable only by the Special Judge
under the provisions of the Criminal Law Amendment Act 1952
(Act XI, VI of 1952). For the reasons given above in con-
nection with Civil Appeal No. 1134 of 1973, the trial before
the Special Judge cannot be questioned as illegal. The
appeal fails and is dismissed.
P.B.R. Appeal dis-
missed.
767