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State (S.P.E, Hyderabad) v. Air Commodore Kailash Chand .
Factual and Procedural Background
The respondent joined the Indian Air Force on 17 November 1941. He retired on 15 June 1965, was immediately re-employed for two years from 16 June 1965, and on 7 September 1966 was transferred to the Regular Air Force Reserve (Auxiliary Air Force) for five years ending 15 June 1970. His re-employment ceased and his services were terminated with effect from 1 April 1968.
A charge-sheet alleged that between 27 March 1965 and 16 March 1967 the respondent committed offences punishable under Section 5(2) of the Prevention of Corruption Act. Before the Special Judge, Hyderabad, he sought dismissal of the case for want of a valid sanction from the competent authority. The Special Judge rejected this plea on 20 October 1972, holding that the respondent was not a commissioned officer at the time cognizance was taken and therefore no sanction was required.
On revision, the Andhra Pradesh High Court held that the respondent, being a member of the Air Force Reserve, continued to be a “public servant” within Section 21 of the Indian Penal Code; consequently, sanction was a condition precedent to prosecution. The High Court quashed the proceedings but granted a certificate to the Union of India to appeal to the Supreme Court. The present appeal challenges that decision.
Legal Issues Presented
- Whether the respondent, after retirement but while serving in the Regular/Auxiliary Air Force Reserve, remained a “public servant” during the relevant period (27 March 1965–16 March 1967).
- At what point in time the requirement of sanction under Section 6 of the Prevention of Corruption Act must be satisfied—on the date of the alleged offence or on the date when the court takes cognizance.
Arguments of the Parties
Appellant (Union of India)
- Contended that the respondent’s retirement from active Air Force service and the cessation of his re-employment on 1 April 1968 ended his status as a public servant.
- Argued that, because he was no longer a public servant when cognizance was taken, sanction from the President or other competent authority was unnecessary.
Respondent
- Maintained that transfer to and service in the Auxiliary Air Force Reserve conferred continuing obligations of training and potential deployment, preserving his character as a public servant.
- Asserted that prosecution could not proceed without prior sanction from the appropriate authority, rendering the Special Judge’s cognizance invalid.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.A. Venkataraman v. State, AIR 1958 SC 107 (1958 SCR 1040) | Sanction under Section 6 of the Prevention of Corruption Act is required only if, at the moment the court is asked to take cognizance, the accused is still a public servant removable by a competent authority. | The Court regarded this authority as conclusive; it framed the inquiry around the respondent’s status on 19 June 1969, the date cognizance was taken. |
| State of West Bengal v. Manmal Bhutoria, (1977) 3 SCC 440 (1977 SCR 758) | Reaffirmed the Venkataraman principle that the necessity of sanction is tested at the time of cognizance, not merely at the time of offence. | Cited to show that the legal position was settled and not open to re-examination; the Court followed it in assessing the present facts. |
Court's Reasoning and Analysis
Following the two Supreme Court precedents, the Bench first determined the relevant point for judging the need for sanction: the date on which the Special Judge took cognizance (19 June 1969). It then examined whether the respondent was still a public servant on that date.
The Court analysed sections 4, 5, 6, 7, 18, 19, 20, 22 and 23 of the Reserve and Auxiliary Air Force Act, 1952. These provisions show that an individual transferred to the Auxiliary Air Force Reserve remains subject to military discipline, training, and possible mobilisation, and continues to hold the rank last borne in active service. From this statutory scheme, the Court inferred that membership in the Reserve carries the same public-service character as active duty.
Because the respondent’s Reserve term ran until 15 June 1970, he was indisputably a public servant on 19 June 1969 when cognizance was taken. No prior sanction from the competent authority had been obtained. Under Section 6 of the Prevention of Corruption Act, absence of such sanction bars the court from taking cognizance.
The Supreme Court therefore agreed with the High Court that the prosecution was vitiated for want of sanction and rejected the Union’s argument that retirement and termination of re-employment severed public-servant status.
Holding and Implications
APPEAL DISMISSED. The judgment of the Andhra Pradesh High Court quashing the criminal proceedings for lack of sanction is affirmed.
Direct Implication: The respondent cannot be prosecuted for the alleged offences unless and until proper sanction is obtained. The decision leaves the High Court’s order intact, providing no new precedent but reaffirming established Supreme Court authority that sanction must exist when the court takes cognizance if the accused is still a public servant.
S. Murtaza Fazal Ali, J.— This appeal by certificate is directed against the judgment dated April 27, 1973 of the Andhra Pradesh High Court allowing the revisional application and quashing the proceedings taken against the respondent for offences committed under Section 5(2) of the Prevention of Corruption Act.
2. In the view that we take in the case, it is not necessary to give the facts in detail. It appears that the respondent was a member of the Indian Air Force having entered the service on November 17, 1941. He retired from the service on June 15, 1965 but was re-employed 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. In other words, the respondent was transferred to the Auxiliary Reserve Air Force under the provisions of the Reserve and Auxiliary Air Force Act, 1952 (hereinafter to be referred to as the ‘Act’) and rules thereunder. On March 13, 1968, the re-employment given to the respondent ceased and his services were terminated from April 1, 1968.
3. A charge-sheet was submitted against the respondent for having committed offences under Section 5(2) of the Prevention of Corruption Act during the period March 27, 1965 to March 16, 1967. The 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 October 20, 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 Section 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.
4. 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 re-employment 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.
5. In the first place, it has to be decided whether or not the respondent was a public servant during the period March 27, 1965 to March 16, 1967. 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. State AIR 1958 SC 107, 1958 SCR 1040, (1958) 2 LLJ 1, 1958 Cri LJ 254 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 Section 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 Section 6 can apply.”
This case was followed by a recent decision of this Court in the case of State of W.B. v. Manmal Bhutoria (1977) 3 SCC 440, (1977) 3 SCR 758 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 follows, 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 re-employed and as referred to above his services were terminated only on April 1, 1968, but he continued to be a member of the Auxiliary Air Force up to June 15, 1970, that is to say, a long time after the cognizance of the offence was taken. The learned counsel for the Union, however, submitted that re-employment 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 re-employed, he could not be said to hold the status of 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 re-employment, 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 serve in any Air Force Reserve if and when constituted;
(b) any officer or airman of the Air Force whose commission 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.
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 be 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 Reserve liability; and
(b) if he is appointed to the Reserve under sub-section (2) of Section 5, 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.
9. Constitution of Air Defence Reserve.—The Central Government may raise and maintain in the manner hereafter 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.
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.
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.
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. Period 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 enrolment 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)
6. 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.
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