Important Point
The public servant who committed the offence while he was a public servant, is liable to be prosecuted under Prevention of Corruption Act, 1988 whether be continues in office or not at the time of trial or during the pendency of the prosecution. No sanction is required to prosecute a public servant after retirement.

Headnote:Prevention of Corruption Act, 1988—Sections 13(2) r/w 13(1)(e) —Case registered against appellant on 12.5.90 when a public servant—Retired on 31.12.90—Investigation continued and charge sheet filed on 30.9.92 tried by Special Court—Preliminary objection that he is not liable to be tried under the P.C. Act since he was no more a public servant—Amendment in sanction under Section 197, Cr.P.C., 1973 pleaded—Special Court rejected the preliminary objection—Upheld by High Court—Appeal to Supreme Court—Whether Special Court and High Court have rightly repelled the preliminary objection? (Yes)—Appeal dismissed (Section 6 of old P.C. Act compared with Section 19 of New P.C. Act) — Case Law reviewed.
       Held : There is no indication anywhere in the above provisions that an offence committed by a public servant under the Act would vanish off from penal liability at the moment he demits his office as public servant. His being a public servant is necessary when he commits the offence in order to make him liable under the Act. He cannot commit any such offence after he demits his office. If the interpretation now sought to be placed by the appellant is accepted it would lead to the absurd position that any public servant could commit the offences under the Act soon before retiring or demiting his office and thus avert any prosecution for it or that when a public servant is prosecuted for an offence under the Act he can secure an escape by protracting the trial till the date of superannuation. (Para 7)
       It must be remembered that in spite of bringing such a significant change to Section 197 of the Code in 1973, the Parliament was circumspect enough not to change the wording in Section 19 of the Act which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the Code concerns a public servant who “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, whereas the offences contemplated in the P.C. Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former P.C. Act was materially imported in the new P.C. Act, 1988 without any change in spite of the change made in Section 197 of the Code. (Para 13)
       The result of the above discussion is thus : A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time the Court can take cognizance of offence without any such sanction. In other words, the public servant who committed the offence while he was a public servant, is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution. (Para 14)
       Held finally : The Special Court and the High Court have, therefore, rightly repelled the preliminary objections of the appellant. Accordingly we dismiss this appeal. (Para 15)
       Result : Appeal dismissed.

Judgment

Thomas, J.—Leave granted.

2. Appellant was an IPS Officer who reached upto the level of Superintendent of Police in the State Police Service, Orissa. Based on some sleuth informations raid was conducted in the residence of the appellant on 12.5.1990 and a good amount of cash and jewellery were recovered. A case was registered against him under Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”). On 31.12.1990 appellant retired from service but the investigation into the case continued. On 30.9.1992 the Vigilance Department submitted a charge-sheet against the appellant for the offence under Section 13(2) read with Section 13(1)(e) of the Act.

3. The case was since transferred to the Court of Special Judge, Bhubaneswar which was established under the provisions of Orissa Special Courts Act, 1990. Appellant made a multi-pronged move against the prosecution. At the first instance he challenged the very constitution of Special Court and then he raised a preliminary objection that he is not liable to be tried under the Act since he was no more a public servant. His challenge against the constitution of the Special Court did not succeed in spite of that contention having been taken up to this Court in SLP (C) No. 13776/93 which was dismissed by this Court. But he persisted with his preliminary objection which was over-ruled by the Special Court. He then moved the High Court under Section 482 of the Code of Criminal Procedure (For short ‘the Code’) to have the prosecution proceedings quashed on that ground but the High Court dismissed the petition as per the impugned order.

4. The main contention of the appellant was that the legislature did not include a retired public servant within the purview of the Act and that there is no mention in the Act about a person who ceased to be a public servant. He invited our attention to Section 197 of the Code which envisages sanction for prosecution of public servants and pointed out that the section is now applicable to former public servants also by virtue of the specific words in the Section “any person who is or was .... a public servant”. According to the counsel since such words have not been employed in any of the provisions of the Act it could be inferred with reasonable precision that no prosecution can be launched or continued against a person who, though was a public servant at the time of commission of the offence, ceased to be so subsequently.

5. “Public servant” is defined in Section 2(c) of the Act. It does not include a person who ceased to be a public servant. Chapter III of the Act which contains provisions for offences and penalties does not point to any person who became a non-public servant, according to the counsel.

6. Among the provisions subsumed in the Chapter, Sections 8, 9, 12 and 15 deal with offences committed by persons who need not be public servants, though all such offences are intertwined with acts of public servants. The remaining provisions in the Chapter deal with offences committed by public servants. Section 7 of the Act contemplates offence committed by a person who expects to be public servant.

7. There is no indication anywhere in the above provisions that an offence committed by a public servant under the Act would vanish off from penal liability at the moment he demits his office as public servant. His being a public servant is necessary when he commits the offence in order to make him liable under the Act. He cannot commit any such offence after he demits his office. If the interpretation now sought to be placed by the appellant is accepted it would lead to the absurd position that any public servant could commit the offences under the Act soon before retiring or demiting his office and thus avert any prosecution for it or that when a public servant is prosecuted for an offence under the Act he can secure an escape by protracting the trial till the date of superannuation.

8. Learned counsel for the appellant

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Cases Referred (4)