N Criminal Appeal No 259 of 1973
From the Judgment and order dated 27 4 1973 of the Andhra Pradesh High Court in Criminal Revision Case No 7273
R B Datar M N Shroff and R N Sachthey for the Appellant
P Govindan Nair and A Subba Rao for the respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by certificate is directed against the judgment dated 27th April 1973 of the Andhra Pradesh High Court allowing the revisional application and quashing the proceeding s taken against the respondent for offences committed under section 52 of the Prevention of Corruption Act
In the view that we take in the case it is not necessary to give the facts in detail
IL appears that the respondent was a member of the Indian Air Force having entered the service on l 7th November 1941
He retired from the service on the 15th June 1965 but was reemployed for a period of two years with effect from 16th June 1965
O 7th September 1966 the respondent was transferred to the Regular Air Force Reserve with effect from 16th July 1965 to 15th June 1970 ie for a period of five years
In Other words the respondent was transferred to the Auxiliary Reserve Air Force under the provisions of the Reserved and Auxiliary Air Force Act 1952 hereinafter to be referred to as the Act  and rules thereunder
On 13th March 1968 the reemployment given to the respondent ceased and his services were terminated from 1st April 1968
A chargesheet was submitted against the respondent for having committed offences under section 52 of the Prevention of Corruption Act during the period 27th March 1965 to 16th March 1967
The 699 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 the 20th of October 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
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 reemployment was terminated wef
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
In the first place it has to be decided whether or not the respondent was a public servant during the period 27 3 65 to 16 3 67
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 section A Venkataraman vs The State 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 700 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 West Bengal Etc
vs Manmal Bhutoria  Ors
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 fol lows 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 reemployed and as referred to above his services were terminated only on 1 4 1968 but he continued to be a member of the Auxiliary Air Force upto 15 6 70 that is to say a long time after the cognizance of the offence was taken
The learned counsel for the Union how ever submitted that reemployment 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 reemployed he could not be said to hold the status cf 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 reemployment 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
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 701 serve in any Air Force Reserve if and when constituted b any officer or airman of the Air Force whose com mission 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
3   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
Period of service 1 Every member of the Regular Air Force Reserve shall he 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 Re serve liability and 702 b if he is appointed to the Reserve under sub section 2 of section S 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
x x x x x 9
Constitution of Air Defence Reserve The Central Government may raise and maintain in the manner here after 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
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
x x x x x 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
x x x x x 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
703 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
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
Periods 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 enrollment 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
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 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 NVK Appeal dismissed


Summary:
The respondent a member of the Indian Air Force retired from service on June 15 1965 but was reemployed 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 ie for a period of five years
On March 13 1968 the reemployment given to the respondent ceased and his services were terminated with effect from April 1 1968
A charge sheet was submitted against the respondent for having committed offences under section 52 of the Prevention of Corruption Act 1947 during the period March 29 1965 to March 16 1967
The respondent filed a petition before the Special Judge 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 application was rejected 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
The respondent moved the High Court in revision which quashed the proceedings holding 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 Air Force Reserve sanction was necessary before prosecuting the respondent
In the appeal to this Court it was contended on behalf of the appellant 1 that as the respondent had retired from the Indian Air Force and his employment was terminated with effect from April 1 1968 he ceased to be a public servant and therefore no sanction was necessary and 2 that reemployment 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 reemployed he could not be said to hold the status of a public servant
Dismissing the appeal  HELD 1
The prosecution must prove that at the time when cognizance of the offence was taken the respondent ceased to be a public servant
700 C In the instant case the Special Judge took cognizance on June 19
1969 at a time when the respondent continued to be a public servant having been reemployed and though his services were terminated only on April 1 1968 he 698 continued to be a member of the Auxiliary Air Force upto July 15 1970 that is a long time after cognizance of the offence was taken
700 D section A Venkataraman vs The State  State of West Bengal etc
vs Manmal Bhutoria  Ors
 referred to
2i The Provisions of the Auxiliary Air Force Act 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
703 G ii Even after 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
703 F