ivil 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 No264 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 CC No 16 of 1975
VP Ratnan DN Mukherjee and GS Chatterjee for the appellant in CA No 113473
760 Niren De and NC Talukdar BM Bagaria Dilip Sinha and DP Mukherjee for respondent No 1 in CA 113473
RN Sachthey for the respondent No 3 in CA No 113473
Praveen Kumar for the appellant in Crl
A No 31974
RN Sachthey for respondent No 1 in Crl
A No 31974
RH Dhebar and BV Desai for the appellant in Crl
A No 358 of 1976
VP Raman and RN Sachthey for the respondents in Crl
A No 38576
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 134 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 RC Bhattacharjee who was an ex Major of the Indian Army and Manmal Bhutoria hereinafter the respondent who was a businessman
It was alleged that RC 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 52 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 SA Venkataraman vs The State1
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 1331 c of the Constitution
PB 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 52 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 1 762 principle of equal protection clause by deny ing the advantages associated with the office of a public servant but imposing on him the disadvantages andor 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 52 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
BC Mitra J in his concurring judgment observed as follows  On a careful consideration of the various clauses under section 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 section 51 and section 52 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 section 51d or section 52 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 section 6 had not found a place in the Act it is clear that cognizance of an offence under section 161164 or section 165 of the Indian Penal Code or under section 52 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 10481049 this Court 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
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 section 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 CR Bansi vs State of Maharashtra1 This Court held therein as follows  The policy underlying section 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 section 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  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 PB 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 41 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 144A 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 41 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 vs Anwar Ali Sarkar1 Proviso to section 41 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 61 of the Act as in the case of section 1901 Cr
PC the court takes cognizance of an offence
and not an offender see Raghubans Dubey vs State of Bihare
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 42 of the Bengal Act
1  2   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 53 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 52 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 52 read with section 51e 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
PBR Appeal dis missed


Summary:
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 section 52 of the Prevention of Corruption Act 1947
When the case which was allotted to the Fourth Additional Special Court under section 42 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 article 14 of the Constitu tion it should be referred to a larger Bench in view of Art 144A of the Constitution 2 in view of the definition of public servant contained in section 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 section 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 article 14 on the basis of the judgment in SA Venkataraman vs The State 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 CR Bansi vs State of Maharashtra 19711 3 SCR 236
764 E b It cannot be argued that the decision in Venkatara man s case is violative of article 14 of the Constitution
That decision only says that section 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 article 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 section 41 of the Bengal Act cannot attract article 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
PC it may try such a charge
Under section 41 of the Bengal Act a scheduled offence which includes an offence under section 52 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 vs Anwar Ali Sarkar 1952 SCR 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 section 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 section 61 as in the case of section 1901 Cr
PC the Court takes cognizance of an offence and not an offender
765 E G Raghuban Dubey vs State of Bihar  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 section 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 section 52 of the Act read with section 120B IPC against the respondent
Even under the Prevention of Corruption Act an outsider can be prosecuted under section 53 of the Act when a person habitually commits an offence punishable under section 165A IPC
Section 165A which provides that whoever abets an offence punishable under section 161 or section 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 section 5 of the Prevention of Corruption Act which is mentioned in item 7 to the Sched ule
766 C E