S.I. Jafri, J.@mdashThis petition u/s 482 Code of Criminal Procedure has been preferred by Shahabuddin Qureshi applicant praying for quashing the proceedings pending against him u/s 5(2) of the Prevention of Corruption Act 1947 in the Court of Sessions Judge, Dehradun as Special Case No. 2 of 1983. The aforesaid proceedings arise out of Crime No. 156 of 1972 registered in the year 1970 at Dehradun.
2. The applicant was serving as Conservator of Forest, Tehri Garhwal Circle, Dehradun and he was superannuated from the service in the year 1972. Subsequent to his retirement, a charge-sheet was filed by CID against him on 11-5-1983 in the Court of Sessions Judge, Dehradun and as a consequence of the filing of the said charge-sheet, the applicant was summoned by the Court. The applicant put in his appearance before the Court of Sessions Judge Dehradun on 2-6-1983. Thereafter, the applicant preferred the aforesaid petition u/s 482 Code of Criminal Procedure in the High Court praying that the aforesaid proceedings pending against him be quashed. This Court admitted the application and stayed further proceedings on 19-4-1985 in Special Case No. 2 of 1983 pending against him in the Court of Sessions Judge, Dehradun and issued notice to the State whereupon Sri Krishna Kumar Tyagi, Inspector of Police (Vigilance) Establishment, Meerut Sector, Meerut filed rejoinder to the counter affidavit.
3. I have heard Sri G. Section Chaturvedi, learned Counsel for the applicant as well as Sri R.P. Tripathi, learned Counsel for the State at a considerable length. Upon a conspectus of the facts and circumstances of the case, the material on record and the submissions propounded before me by the learned Counsel for the parties, I feel pursuaded to take the view that the proceedings in the case referred to above, deserve to be quashed in the interest of justice.
4. The case as set up by the prosecution is that in the year 1971, Shahbuddin Qureshi applicant was posted as Conservator of Forest, Tehri Garhwal, Circle Dehradun and while posted as such, he caused hindrances and delay in the execution of the lawful action of Sri Chain Singh Saundal, Deputy Forest Officer in realising the government dues from the forest Contractor Sri Manohar Lal resulting in a loss of Rs. 2,21,936.72 p. to the Forest Department, which could not be realised from the said Contractor till date and also the timber could not be auctioned due to his illegal interference, which might have compensated Rs. 1,06,805.00. Thus Shahabuddin had caused unlawful loss to the Forest Department. It was further alleged that on 14-12-1970, Logging Forest Division, Uttar Kashi had auctioned lots Nos. 4, 6 and 7 for the years 1970-71. The applicant did not approve of the aforesaid auction within forty days and also withheld the auction of Lot No. 6 on the basis of a complaint and illegally approved the auction of other lots and consequently a loss to the tune of Rs. 2,5218.54 p. approximately was caused due to re-auction of the said lot with the approval of the applicant and, thus the applicant was charged for over-looking the interest of the Government being a public servant and had caused loss of revenue to the Government rendering himself liable to be prosecuted u/s 5(2) of the Prevention of Corruption Act.
5. At the very out-set, it has been submitted on behalf of the applicant that considering the prosecution case in its entirety, there is not a vestige of allegation indicative of illegal gratification having been accepted by the applicant. The only allegation is that of negligence on the part of the applicant causing loss of revenue to the Government. Here, it is worth mentioning that the timber which was auctioned by Chain Singh Saundal, District Forest Officer, was not removed from the Forest and it continued to be in possession of the Forest Department. It is submitted by the learned Counsel for the applicant that it had yielded no monetary advantage to the applicant or to any Contractor in not approving the auction of the timber of lot No. 6. The learned Counsel has invited my attention to Section 5 of Prevention of Corruption Act 1947 (herein after referred to as the Act) to show that the allegations contained in the charge-sheet do not attract the provisions of the said Act. The relevant section is reproduced below:
5. Criminal Misconduct-(1) A public servant is said to commit the offence of criminal misconduct-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code (45 of 1860), or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do or,
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage (or),
(e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
6. The learned Counsel for the applicant has taken me through the entire Clauses (a) to (e) of Section 5(1) of Prevention of Corruption Act, and submitted that the allegations in the charge-sheet do not attract the provisions of Section 5(1) of the Act. On the contrary, learned Counsel for the State submits that Sub-clause (d) of Section 5(1) takes within its sweep the prosecution allegations against the applicant. I have very carefully scanned through the said Clauses (a) to (e) of Section 5(1) of the Act and I am of the view that there is no whisper therein to hold that the applicant by illegal means or otherwise abusing his position as a public servant, has obtained for himself or for any other person any valuable thing or pecuniary advantage. Upon consideration of the legal aspect of the matter, I find that the contention of the learned Counsel for the State is devoid of any substance. Under the circumstance, I hold that the allegations contained in the charge-sheet (Annexure I to the petition) do not constitute any offence punishable u/s 5(2) of the Prevention of Corruption Act.
7. The further submission of the learned Counsel for the applicant relates to undue delay in the prosecution of the applicant and on this score alone, learned Counsel submits that the prosecution of the applicant is liable to be set aside. The learned Counsel for the applicant pointed out that the incident involving the applicant relates to the year 1970 and the charge-sheet against the applicant was submitted by the CID, U.P. Vigilance Establishment, Meerut Region, Meerut on 11th May 1983 in the court of the Sessions Judge Dehradun qua the fact that the applicant was superannuated as conservator of Forest on 15-8-1972. It was contended by him that All India Services Act, 1951 (No. LXI of 1951) applies to all the Central Government Servants including the applicant. The learned Counsel has further drawn my attention to Rule 6 of All India Services (death-cum-retirement Benefits Rules 1958) Manual. The said rule is reproduced below:
6. Recovery from pension-(1). The Central Government reserves to itself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from pension of the whole part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement :
Provided that:
(a) such departmental proceedings, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the pensioner be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service;
(b) such departmental proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment:
(i) shall not be instituted save with the sanction of the Central Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and
(iii) shall be conducted by such authority and in such place or places as the Central Government may direct and in accordance with the procedure applicable to proceeding on which an order of dismissal from service may be made;
(c) such judicial proceeding, if not instituted while the pensioner was in service, whether before his retirement or during his re-employment shall not be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution. Explanation--for the purpose of this rule:
(a) a departmental proceeding shall be deemed to be instituted when the charges framed against the pensioner are issued to him or, if he has been placed under suspension from an earlier date, on such date; and
(b) a judicial proceeding shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to the criminal court; and
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a civil Court.
(2) where any departmental or judicial proceeding is instituted under Sub-rule (1), or where a departmental proceeding is continued under Clause (1) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherewise, he shall be sanctioned by the Government which instituted such proceedings, during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension; but no gratuity or death-cum retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon.
(3) Payment of provisional pension made under Sub-rule (2) shall be adjusted against the final retirement benefits sanctioned to the pensioner upon conclusion of the aforesaid proceeding, but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
8. Learned Counsel for the applicant further submitted that Clause ''C'' of the aforesaid rule is applicable to the officers of Indian Forest Service as well. It was further pointed out by the learned Counsel that these rules were framed by virtue of Section 3 of All India Services Act, 1951 and were approved by both the houses of parliament and under the circumstances, the rules made under the statute must be treated for all purposes of constructions as if they were under the Act. To lend strength to his contention, the learned Counsel placed reliance on
Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. Subject to the overriding power of the President or the Governor under Article 310 of the Constitution as qualified by the provisions of Article 311, the rules governing disciplinary proceedings cannot be treated as administrative directions, but shall have the same effect as the provisions of the statute whereunder they are made, in so far as they are not inconsistent with the provisions thereof. The statutory rules cannot be described as, or equated with, administrative directions. Rules, made under the Police Act are not administrative directions. The Police Act, and the rules made thereunder constitute a self-contained code providing for the appointment of Police Officers and prescribing the procedure for their removal. It follows that where the appropriate authority takes disciplinary action under the Police Act or the rules made thereunder, it must conform to the provisions of the Statute.
9. The learned Counsel also placed reliance on
10. Taking into account the aforesaid law as pointed out by the learned Counsel for the applicant, it is clear that in Rule 6 Clause ''C'' of All India Services (Death cum retirement Benefit Rules, 1958) Manual, limitation prescribed for launching of judicial proceedings is only four years from the date on which cause of action arises or on which the event takes place. Clause (b)(i) of the explanation of the aforesaid rule provides that Judicial proceedings shall be deemed to be instituted includes all criminal proceedings on the date on which the complaint is made or a charge-sheet is submitted to the Criminal Court.
11. The learned Counsel pointed out that in this case, charge-sheet was submitted in the Court of Sessions Judge, Dehradun on 11th May 1983, i.e. after an interval of 13 years from the date when the cause of action had arisen. The learned Counsel further placed reliance on 1988 1 DSVLR 176, T.J. Stephen v. Parle Bottling Co. (P) Ltd. wherein the offence was committed about 20 years back of the filing of the complaint. The Hon''ble Court having regard to the undue delay in the prosecution of the applicant, has observed as under:
While we have no sympathy for the Respondent No. 2 and we are clearly of the opinion that he has no equity in his favour and the delay after the complaint had been filed has been mostly on account of his malafide move, we do not think, it would be in the interest of justice to allow a prosecution to start 20 years after the offence has been committed. We therefore, do not propose to allow the learned Munsif to proceed with the trial of the case at this belated stage.
12. The learned Counsel further submitted that in the present case, the applicant was not at all to be blamed for the delay in the prosecution of the applicant. The long delay in the prosecution of the applicant was caused by the Vigilance department itself. Considering that the offence had taken place about 18 years back, the prosecution of the applicant on the charges as formulated in the charge-sheet (Annexure-1) will be nothing, but an instance of gross abuse of the process of the court. This contention of the learned Counsel for the applicant is loaded with substantial force and therefore, I also do not think to allow the prosecution against the applicant at this belated stage after such a long interval of 18 years in the interest of justice.
13. In the result, the application u/s 482 Code of Criminal Procedure is allowed and the proceedings pending against the applicant in Special Case No. 2 of 1983, arising out of Crime No. 156 of 1972, State v. Shahbuddin u/s 5(2) of the Prevention of Corruption Act 1947 pending in the Court of Sessions Judge, Dehradun are quashed accordingly.
