Full Judgment Text
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PETITIONER:
LAKSHMI SHANKAR SRIVASTAVA
Vs.
RESPONDENT:
STATE (DELHI ADMINISTRATION)
DATE OF JUDGMENT21/11/1978
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
KAILASAM, P.S.
KOSHAL, A.D.
CITATION:
1979 AIR 451 1979 SCR (2) 348
1979 SCC (1) 229
ACT:
Appeal, abatement of-An appeal does not abate on the
death of the accused when leave is granted to the near
relative to continue the appeal Criminal Procedure Code 1973
(Act II of 1974), Section 394(2) r/w sec. 8(3) and 9 of the
Criminal Law Amendment Act.
Sanction for prosecution Effect of the order issued by
S.R.O. 631 by the president of India in exercise of the
power conferred by sub rule (2) of rule l, Clause (b) of
sub rule (2) of rule 14 and sub rule (1) of rule 23 of the
Central Civil Services (Classification,, Control and Appeal)
Rules 1957.
HEADNOTE:
The appellant who was working as an investigator in the
office of the Chief Controller of Imports and Exports was
charged, found guilty and convicted and sentenced to suffer
rigorous imprisonment for 18 months on each count for an
offence under Sections 5(1) (d) and 5(2) of the Prevention
OF Corruption Act, 1947 and section 161 I.P.C. and a fine of
Rs. 200/- or in default to undergo further rigorous
imprisonment under section 5(2) of the Act. His appeal to
the High Court was dismissed and the conviction and sentence
were confirmed. Special leave was granted by the Supreme
Court limited to the question. Of validity of sanction
accord under section 6 of the Prevention of Corruption Act,
1947. The appellant died during the pendency of the appeal
and his near relatives were granted permission to continue
the appeal.
Dismissing the appeal, the. Court
^
HELD 1. The preliminary objection of the State as to
the abatement of the appeal because of the death of the
appellant taking into account preparedness to conclude that
the sentence might he set aside must be negatived. [352D]
(a) As per the proviso to section 394(2) of the
Criminal Procedure Code, 1973, where the appeal is against
the conviction and sentence of imprisonment and the
appellant dies during the pendency of the appeal, any of his
near relatives may, within the time prescribed therein,
apply to the appellate Court before which the appeal is
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pending for leave to continue the appeal and if the leave is
granted the appeal shall not abate. [352A-B]
(b) The appellant, in the, instant case, has preferred
the appeal against his conviction and sentence of
imprisonment and also sentence of fine. After his death his
near relatives as contemplated in the Explanation to sub
section (2) of section 394 Crl. P.C., applied to continue
the appeal and were granted leave to continue the appeal.
Therefore, the near relations of the deceased can continue
the appeal and even if the respondent State concedes that
the sentence of fine be set aside yet the appeal would not
abate if leave is granted o the near relation of the
deceased to continue the appeal. [352C-D]
349
2. ’The sanction accorded, for prosecution of the
appellant under section 6 of the Prevention of Corruption
Act, 1947 by the Joint Chief Controller of Imports and
Exports is valid in law: [355H, 356A]
(a) The instant case is governed by Central Civil
Services (Classification, Control & Appeal) Rules, 1965 and
in view of S.R.O.. 631 issued by the President, in exercise
of the power conferred by sub rule (2) of rule 11, clause
(b) of sub rule (2) of rule 14, and sub rule (2) of rules 23
of the Central Civil Services (Classification, Control &
Appeal) Rules, 1957, which order was saved by rule 34 of the
1965 Rules. [353C-D]
(b) Rule 12(1) and (2) of 1965 Rules is in pari materia
with rule 14 of 1957 Rules. Rule 2 of 1965 Rules confers
power on the President to impose any of the penalties
specified in rule 11 on any Government servant. Sub rule (2)
(b) provides that any person appointed to a Central Civil
Post included in the General Central Service by the
authority specified in this behalf by a general or special
order of the President or where no such order has been
issued, by the appointing authority specified in the
Schedule in this behalf, may impose any of the penalties
specified in rule 11 which includes the penalty of removal
from service. Therefore, the President has the power to
issue any general or special order to confer power to impose
penalties as specified in rule 11 on any authority other
than the one specified in the Schedule in this behalf. If
the order issued by the President. S.R.O.. 631 under
corresponding rule 11 and the relevant rules bearing on the
subject of 1957 Rules is not shown to be inconsistent with
any of the Rules included in 1965 Rules, obviously such
order would be saved under rule 34. There being no
inconsistency as contemplated by Rule 34, indisputably the
order issued by the President S.R.O. 631 along with the
schedule would be saved. Once S.R.O. 631 is saved, the
relevant entry in the schedule in respect of the origination
of C.C.I.E. would be saved. Accordingly the entry in the
order issued by the President would supplant the
corresponding entry in 1965 Rules and would have to be
substituted for the entries in the relevant item in the
Schedule. The necessary consequence would be that in the
case of the organization of The C.C.I.E. for all posts in
Headquarters office, lt. C.C.I.E. would be both the
appointing and the disciplinary authority having tho power
to remove from service such persons belonging to Class III
services. Now, the appellant was indisputably holding a post
in Class III service in the Headquarters office of the
organisation of C.C.I.E. He was at the relevant time holding
the post of Investigator which is admittedly a Civil Post in
Class III service in the office of C.C.I.E. Indisputably,
therefore. Jt. C.C.I.E. would be both the appointing and
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disciplinary authority with power to remove him from
service. Therefore, Jt. C.C.I.E. would be competent to
accord sanction as envisaged by s. 6(1)(c) of the Act.
[355B-H]
The fact that the administrative department in respect
of the office of C.C.I.E. is the Ministry of Foreign Trade &
Supply does not make any difference because C.C.I.E. is a
separate office with its own establishment.[1354A]
R. J. Singh Ahluwalia v. State of Delhi, A.L.R. 1971
S.C. 1552; distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
124 of 1972
350
Appeal by Special Leave from the Judgment and order
dated 24-11-1971 of the Delhi High Court in Criminal Appeal
No.54 of 1971.C. P. Lal for the Appellant.
H. R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
DESAI, J.-The; appellant in this appeal by special
leave limited to the determination of the question: whether
the sanction is valid in law or not, has been convicted for
offences under section 5(2) read with section S(1) (d) of
the Prevention of Corruption Act, 1947 (’Act’ for short),
and section 161 of the Indian Penal Code, and was sentenced
to suffer rigorous imprisonment for 18 months on each could
and a fine of Rs. 2000/-, in default to suffer further
rigorous imprisonment for a period of two months, for an
offence under s. 5(2) of the Act. His appeal being Criminal
Appeal No. 54 of 1971 was dismissed by the High Court of
Delhi and the conviction and sentence were confirmed.
As the leave is limited to the question of the validity
of sanction ac corded under s. 6 of the Act, it is not
necessary to set out in detail the prosecution case. Briefly
stated, the prosecution case is that the appellant who was
employed at the relevant time as Investigator in the office
of the Chief Controller of Imports & Exports (C.C.I.E. for
short), accepted from one P.T. Toprani an amount of Rs.
250/- by way. of illegal gratification which was not his
legal remuneration in presence of witnesses on 18th June
1969 at about 5.30 p.m. near Gujarati Samaj; Sabha, Delhi.
D. S. P. Badri Sharma appeared as soon as the trap arranged
by him materialised and recovered the amount of Rs. 2501/-
from the appellant. After completing the investigation the
appellant was charge-sheeted for the offences hereinabove
mentioned.
Section 6 of the, Act forbids the Court from taking
cognizance, inter alia, of offences punishable under s. 161,
IPC and under sub-s. (2) of s 5 of the Act except with the
previous sanction of the authority therein set out.
Necessary sanction was accorded by the Jt. C.C.I.E. On 26th
November 1969. The relevant portion of the sanction reads as
under:
"Now, therefore, I, S. P. Chablani, being the
authority competent to remove the said Shri L. S.
Srivastava, from office do hereby accord sanction under
section 6(1) (c) of the prevention of Corruption Act,
1947 for the prosecution of the said Shri L. S.
Srivastava, for the said offences under section 161,
I.P.C. and 5(2) read with 5(1)(d) of Act II of 1947 and
in
351
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any other offence punishable under the provisions of
law, in respect of the facts aforesaid and for the
taking of cognizance of the said offences by a court of
competent jurisdiction".
Mr. H. R. Khanna, learned counsel who appeared for the
respondent raised a preliminary objection. It was urged that
the appellant died during the pendency of this appeal and,
therefore, the appeal abates and cannot be proceeded with.
Simultaneously it was urged that if the appeal were not to
abate on the only ground that the appellant was also
sentenced to pay a fine of Rs. 200/- and, therefore. it may
he said that right to property of the legal representatives
may he adversely affected and, therefore, they would be
entitled to continue the appeal, the respondent State is
prepared to concede that the sentence of fine may be set
aside.
Section 394 of the Criminal Procedure Code which
provides for abatement of appeals reads as under:
"394. (1) Every appeal under section 377 or
section 378, shall finally abate on the death of the
accused.
(2) Every other appeal under this Chapter (except
all appeal from a sentence of fine) shall finally abate
on the death of the appellant:
Provided that where the appeal is against a
conviction and sentence of death or of imprisonment,
and the appellant dies during the pendency of the
appeal any of his near relatives may, within thirty
days of the (death of the appellant, apply to the
Appellate Court for leave to continue to the appeal;
and if Leave is granted, the appeal shall not abate.
Explanation-In this section, "near relative" means
a parent, spouse, lineal descendant, brother or
sister".
The appeal by the appellant is not one under s. 377 or
s. 378 or the Cr. P.C. and, therefore, sub-s. (1) of s. 394
will not be attracted The trial for an offence under s. 161
IPC and s. 5(2) of the Act would be governed by the
provisions of Criminal Law Amendment Act, 1952. lt envisages
setting up of Court of special Judge. Section 8(3) of the
Criminal Law Amendment Act provides that the Court of
Special Judge shall be deemed to be a Court of Sessions.
Section 9 confers power upon the High Court to exercise all
powers of appellate Court as if the Court of Special Judge
were a Court of Sessions trying cases within the local
limits of the jurisdiction of the High Court.
352
The present case would, therefore, be governed by sub-
s. (2) of s.394, Cr.P.C. It becomes clear from the proviso
to s. 394(2), Cr.P.C. that where the appeal is against the
conviction and sentence of imprisonment and the appellant
dies during the pendency of the appeal, any of his near
relatives may, within the time prescribed therein, apply to
the appellate court before which the appeal is pending for
leave to continue the appeal and if the leave is granted the
appeal shall not abate. The appellant has preferred the
appeal against his conviction and sentence of imprisonment
as also sentence of fine. After his death his near relations
as contemplated in the Explanation to sub-s. (2) of s. 394,
Cr. P.C. applied by Criminal Miscellaneous Petition No. 559
of 1978 to continue the appeal and this Court granted
substitution of such near relations by its order dated 28th
March 1978 and thereby granted leave to continue the appeal.
Therefore, the near relations of the deceased can continue
the appeal and even if the respondent State concedes that
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the sentence of fine be set aside yet the appeal would not
abate because the appeal against conviction and sentence of
imprisonment would not abate if leave is granted to the near
relations of the deceased to continue the appeal. Such
Leaving having been granted, the appeal would not abate.
There is thus no merit in the preliminary objection and it
must be negatived.
Section 6 of the Act which provides for necessity of
previous sanction for prosecution for any of the offences
under the Act reads as. under:
"6. (1) No court shall take cognizance of an
offence punishable under section 161 ( or section 164)
or section 1165 of the Indian Penal Code, or under sub-
section (2) or Sub section (3A) of section 5 of this
Act, alleged to have been committed by a public
servant, except with the previous sanction,
(a) in the case of a person who is employed‘ in
connection with the affairs of the Union and is not
removable from his office save by or with the sanction
of the State Government, of the Central Government.
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the sanction
of the Central Government, of the State Government.
(c) in the case of any other person, of the
authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt
arises whether the previous sanction as required under
sub-section
353
(1) should be given by the Central or State
Government or any other authority, such sanction shall
be given by that Government or authority which would
have been competent to remove the public servant from
his office at the time when the offence was alleged to
have been committed".
Mr. Lal for the appellant contended that as the
appellant was an Investigator in the office of the C.C.I.E.
which at best was a Department under the over all control of
the Ministry of Foreign Trade and Supply. Government of
India, the sanction to prosecute him could only be given by
the Government of India. In the alternative it was contended
that as the C.C.I.E. is head of the office, he alone could
accord sanction for prosecution as contemplated by s. 6 and,
therefore. the sanction accorded by Jt. C.C.I.E., an officer
subordinate to C.C.I.E . was ab initio void and the Court
could not have taken cognizance of the offence. Mr. Khanna
for the respondent on the other hand contended that this
case would be governed by Central Civil Services
(Classification, Control and Appeal Rules, 1965 (’1965
Rules’ for short), and in view of S.R.O.. 631 issued by the
President in exercise of the powers D‘ conferred by sub-rule
(2) of rule 11, clause (b) of sub-rule (2) of rule 14, and
sub-rule (2) of rule 23 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1957 (’1957
Rules’ for short), which order was saved by rule 34 of the
1965 Rules and, therefore, the Jt. C.C.I.E. was both the
appointing and disciplinary authority including the
authority competent to remove the appellant from service and
was accordingly competent to accord sanction under s.
6(1)(c) of the Act. Rule 11(2) of 1957 Rules provides that
all appointments to Central Civil Posts, classes II, III and
IV, included in the General Central Service shall be made by
the authorities specified in that behalf by a general or
special order of the President, or, where no such order has
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been made, by the authorities specified in the Schedule
appended to the Rules. Similarly, rule 14(1) provides that
the President may impose any of the penalties including one
of removal or dismissal from service as envisaged by rule 13
on any Government servant. Sub-rule (2) of rule 14 provides
that without prejudice to the provisions of sub-rule (1),
any of the penalties specified in rule 1 may be imposed
under sub-clause (b) in respect of person appointed to a
Central Civil post included in the General Central Services
by the authority specified in this behalf by a general or
special order of the President or where no such order has
been made by the appointing authority or the authority
specified in the Schedule in this behalf. The entry at p. 38
provides that the appointing and disciplinary authority in
respect of posts in non-Secretariat offices other than posts
in respect of which specific provision has been made by a
general or special order
354
of the President, the head of office would be both the
appointing and the removing authority. Now, undoubtedly in
respect of the office of the C.C.I.E., the C.C.I.E. would be
the head of office. The office of the C.C.I.E. is a non-
Secretariat office. May be, the administrative department in
respect of this office would be the Ministry of Foreign
Trade and Supply. But C.C.I.E. is a separate office with its
own establishment and undoubtedly head of office would be
the C.C.I.E. The President in exercise of the power
conferred by sub-rule (2) of rule 11 and clause (b) of sub-
Rule (2) of rule 14 of the 1957 Rules has made a special
order as contemplated by rule 11(2) and rule 14(2)(b) as
under:
"S.R.O. 631-In exercise of the powers conferred by
sub rule (2) of rule 11, clause (b) of sub-rule (2) of
rule 14 and sub-rule (1) of rule 23 of the Central
Civil Services Classification, Control and Appeal)
Rules, 1957, The President hereby directs that-
(1) in respect of the posts in the General Central
Service, Class II specified in column 1 of Part I of
the Schedule to this order, the authority specified in
column 2 shall be the Appointing Authority and the
authority specified in column 3 shall be the
Disciplinary Authority in regard to the penalties
specified in column 4,
(2) in respect of the posts in the General Central
Service. Class III and the General Central Service,
Class II specified in column 1 of Parts II and III of
the said Schedule, the authority specified in column 2
shall be the Appointing Authority ! and the authority
specified in column 3 and 5 shall be the Disciplinary
Authority and Appellate Authority respectively in
regard to the penalties specified in column 4".
A comprehensive Schedule is annexed to this order. ’The
relevant entry is as under:
Description of Post Appointing Authority competent Appellate
authority to impose penalties authority
penalties which it
may impose (with
reference to item
numbers in rule 13)
Authority Penalties
------------------------------------------------------------
1 2 3 4 5
------------------------------------------------------------
Organisation of the
Chief Controller of
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Imports and Exports
All posts in-
Headquarters office Joint Chief Joint Chief All Chief
Controller of Controller ofController of
Imports & Imports & Imports &
Exports Exports Exports
------------------------------------------------------------
355
The entries in the Schedule appended to 1957 Rules will be
effective and operative subject of course to any general or
special order made by the President in this behalf. It was,
however, contended that by rule 34 of 1965 Rules, 1957 Rules
were repealed and, therefore, the order issued by the
President in exercise of the powers conferred by sub-rule
(2) of rule 11 and various other rules bearing on the point
would stand repealed and the order of the President would
not be effective unless a similar order is issued by the
President under the corresponding rule 12 of 1965 Rules.
Rule 12(1) and (2) of 1965 Rules is in pari materia with
rule 14 of 1957 Rules. Rule 12 of 1965 Rules confers power
on the President to impose any of the penalties specified in
rule 11 on any Government servant. Sub-rule (2)(b) provides
that any person appointed to a Central Civil Post included
in the General Central Service by the authority specified in
this behalf by a general or special order of the President
or where no such order Has been issued, by the appointing
authority specified in the Schedule in this behalf, may
impose any of the penalties specified in rule 11 which
includes the penalty or removal from service. Therefore, the
President has the power to issue any general or special
order to confer power to impose penalties as specified in
rule II on any authority other than the one specified in the
Schedule in this behalf. Now, if the order issued by the
President, S.R.O.. 631 under corresponding rule l l and the
relevant rules bearing on the subject of 1957 Rules is not
shown to be inconsistent with any of the Rules included in
1965 Rules. obviously such order would be saved Tender rule
34. No inconsistency was shown to us as contemplated by rule
34. Therefore, indisputably the order issued by the
President, S.R.O.. 631 along with the Schedule would be
saved. Once S.R.O.. 631 is saved, the relevant entry
hereinabove quoted in respect of the organisation of
C.C.I.E. would be saved. Accordingly the entry in the order
issued by the President would supplant the corresponding
entry in 1965 Rules and would have to be substituted for the
entries in the relevant item in the Schedule. The necessary
consequence would be that in the case of the organisation of
the C.C.I.E. for all posts in Headquarters office, Jt.
C.C.I.E. would be both the appointing and the disciplinary
authority having the power to remove from service such
persons belonging to Class III services. Now, the appellant
was indisputably holding a post in Class III service in the
Headquarters office of the organisation of C.C.I.E. He was
at the relevant time holding, the post of Investigator which
was admittedly a Civil post in Class III service in the
office of C.C.I.E. Indisputably, therefore, Jt. C.C.I.E.
would be both the appointing and disciplinary authority with
power to remove him from service. Therefore, Jt. C.C.I.E.
would be competent to accord sanction as envisaged by s.
6(1)(c) of the Act. Sanction
356
in this case having been granted by the Jt. C.C.I.E., it was
valid. There is thus no substance in the contention of Mr.
Lal.
Mr. Lal in this connection drew our attention to a
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decision in R. J. Singh Ahluwalia v. The State of Delhi(1)
The appellant in that case was at the relevant time working
as Assistant in Co-ordination III of D.G.T.D. at Udyog
Bhavan, New Delhi. His contention was that sanction accorded
by Shri K. Rajaram, Deputy Secretary to Government of India
in the Ministry of Industrial Development and Company
Affairs (Department of Industrial Development) was not valid
and that he could only have been prosecuted under a sanction
that may be accorded by the Home Ministry. In respect of
this contention it was conceded on behalf of the State that
in the absence of such sanction the prosecution must fail.
The judgment proceeds on concession and not on any analysis
or examination of the relevant provisions. Therefore it in
no way helps the appellant in this case.
This being the only point that could be raised in this
appeal by limited leave and such contention being without
merit, the appeal fails. and is dismissed. As the appellant
is dead there is no question of his surrendering to Bail.
S.R. Appeal dismissed.
(1) A.I.R. 1971 S.C. 1552.
357