State Of West Bengal Etc vs Manmal Bhutoria & Ors. Etc

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1134 of 1973, Judgment Date: May 03, 1977

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] 

State Of West Bengal Etc vs Manmal Bhutoria & Ors. Etc