Holding

The deeming provision under Section 19 of the Prevention of Corruption Act cannot be extended; the appellant was not in service on the relevant date and therefore the protection of Section 19 was unavailable.

Summary

The Central Bureau of Investigation filed a charge‑sheet against B.S. Goraya under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988. Goraya, then a Colonel, was suspended and dismissed from Army service in January 1993, but his dismissal was later set aside and he was reinstated. He contended that, under Section 19 of the Act, he should be deemed to have been in government service at the time the charge‑sheet was filed and therefore the prosecution required prior sanction. The Special Judge and the Punjab and Haryana High Court rejected this plea, holding that he was not in service on the relevant date and Section 19 protection did not apply. On appeal, the Supreme Court affirmed that the deeming provision in Section 19 is limited to its specific purpose and cannot be extended to cover periods after reinstatement. Consequently, the appeal was dismissed and the charge‑sheet stood.

Issues considered

Whether a person whose dismissal was later set aside can be deemed to be in government service for the purpose of invoking Section 19 protection under the Prevention of Corruption Act, 1988.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 482
Prevention of Corruption Act, 1988s. 13(1)(e), s. 13(2), s. 19, s. 19(3)

Subjects

Prevention of Corruption ActSection 19sanction requirementdeeming provisionpublic servantreinstatementcharge sheetlegal fictionstatutory interpretation

Judgment

-~
A B.S.GORAYA
v.
U.T. OF CHANDIGARH

JULY 23, 2007

B [DR. ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Prevention of Corruption Act, 1988-s. 19- Sanction before
·x
prosecution-Charge-sheet in terms of s. 13 (I) (e) rlw s. 13 (2)-Prior to
the date ofregistration ofthe case, accused was dismissed from the Government
c service-However he was reinstated later-Application for discharge-On !·

the ground of non-compliance of provision of sanction uls 19, on the plea
that in view of reinstatement, he is deemed io be in service on the relevant •
date-Held: Accused cannot be deemed to be in service on the relevant
date-Hence not entitled to protection uls 19-A deeming provision is
D operative only for the purpose for which it has been created and not beyond
that-Interpretation of Statutes-Legal Fiction.
--r
A charge-sheet was filed against the appellant by CBI u/s 13 (1) (e)
r/w s. 13 (2) of Prevention of Corruption Act, 1988. After withdrawing his
application u/s 482 Cr.P.C. for quashing the FIR, he filed an application u/s
E 227 Cr.P.C. for discharge. His case was that charge-sheet could not have been
filed against him without obtaining requisite sanction as at the time of
registration of the case he was in Army service. His plea was that though on
the date when the charge-sheet was filed he was not in service due to his
dismissal prior thereto, but in view of the fact that later he was reinstated, he
should be deemed to be in service during the relevant period. Special Judge
F
held that protection u/s 19 of the Act was not available to him as he could not
be deemed to be in Government Service on the relevant date. High Court
affirmed the order of Special Judge. Hence the present appeal.

Dismissing the appeal, the Court
G
HELD: 1. The order of the High Court does not suffer from any infirmity
to warrant any interference. Protection u/s 19 of Prevention of Corruption
Act, 1988 ~as not available to the appellant. The Deeming provision is operative
~
for the purpose for which it has been created and cannot be extended beyond

H 458
B.S. GORA YA v. U. T. OF CHANDIGARH [PASA YAT, J.] 459

~ the legitimate field. !Paras 10 and 6) 1462-C, 464-A) A I

Kalicharan Mahapatrav. Stare ofOrissa, (1998( 6 SCC 411; C.S.T. Uttar
Pradesh v. Modi Sugar Mills Ltd AIR 1961 SC 1047; Mis. Braithwaite and
Co.(India) Ltd. v. The Employees' State Insurance Corporation, AIR 1968
SC 413; Bengal Immunity Co. Ltd. v. State of Bihar and Ors., AIR (1955) SC
661; The Commissioner of Income Tax, Bombuy City, Bombay v. The B
Elphinstone Spinning and Weaving Mills Co. Ltd., AIR (1960) SC 1016 and
:::..:,
K.S. Dharmadatan v. Central Government and Ors., 11979) 4 SCC 204, relied
on.

State of U.P. v. Mohammad Noah, AIR (1958) SC 86, distinguished. c
Prakash Singh Badal and Anr. v. State of Punjab and Ors., (2007) 1
sec 1, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1205 of

;.
1999. p
'T
From the Judgment & Order dated 29.09.1998 of the High Court of
Punjab and Haryana at Chandigarh in Crl. Revision No. 210 of 1998.

Jawahar Lal Gupta, Nidhi Gupta and Sureshta Bagga for the Appellant.
E
B. Dutta, ASG., Vikas Shanna, P. Panneswaran and Sushma Suri for the
Respondent.

The Judgment of the Court was delivered by
F
DR. ARIJIT PASA YAT, J. 1. Challenge in this appeal is to the order
passed by a learned Single Judge of the Punjab and Haryana High Court
dismissing the revision petition filed by the appellant. In the said revision
challenge was to the order passed by learned Special Judge, Chandigarh
deciding to frame charge against the appellant in terms of Section 13(2) read 1

with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short the G
Act').

2. Background facts in a nutshell are as follows:

A charge sheet was filed against the appellant by the Central Bureau H

/
460 SUPREME COURT REPORTS [2007] 8 S.C.R.

A of Investigation Authorities (in short the 'CBI') Chandigarh. After completion
of the investigation in the case it was registered on 6.8.1990, in tenns of
Section 13(l)(e) read with Section 13(2) of the Act. An application under
Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code') was
filed for quashing the said FIR and the same was dismissed as withdrawn on
11.9.1996 . Liberty was however given to take all the available pleas as and
B when the same were available. An application under Section 227 of the Code
was filed before the learned Special Judge Chandigarh for discharge stating
that at the time of registration of the case he was serving as Colonel in the
Army and was posted at Chandimandir, he was placed.under suspension and
enquiry was initiated and ultimately he was dismiss~d from service with effect
C from 27.1.1993. No sanction, whatsoever was obtained against him. The order
of dismissal was challenged by him and he was ultimately reinstated. In the
application it was stated by the appellant that in terms of Section 19 of the
Act, no Court can take cognizance of the offence punishable under Sections
7, 10, 11, 13, and 15 alleged to have been committed by a public servant except
with the previous sanction of the competent authority and that so long as
P the appellant remained in service it was not possible to file any charge sheet ..
against him without obtaining the requisite sanction. Several other pleas were
·also taken. Learned Special Judge held that the FIR was registered on
6.8.1990, while he was placed under suspension on 17 .8.1990 and was
dismissed from service on 27.1.1993. Charge sheet against him was filed on
E 29 .3 .1993 and, therefore, he was not In government service on the day the
charge sheet was filed. Contention of the appellant was that since order of
dismissal was set aside, he is deemed to be in service during the relevant
period and the protection available under Section 19 of the Act was available
to him. The plea did not find acceptance by the trial Court. Before the High
Court also that plea was reiterated. But the High Court by the impugned
F judgment dismissed the same. The plea taken before the learned Special
Judge and the High Court was reiterated in the appeal and it was submitted
that since the order of dismissal was set aside for all practical purposes
appellant continued to be in service and therefore the orders of the learned
Special Judge and the High Court are not maintainable. Reliance was placed
G on State of U.P. v. Mohammad Nooh, AIR (1958) SC 86 to buttress the plea.
It was, therefore, submitted that if one is bidden to treat imaginary state of
- affairs as real, he will unless prohibited for doing so, also imagine the
consequences and incidents, which if the putative state of affairs had in fact
existed, must inevitably flow from or accompany it.
r- ·.
H 3. Mr. B. Dutta, learned Additional Solicitor General submitted that the
B.S.GORAYAv. U.T.OFCHANDIGARH[PASAYAT,J.] 461
decision in Mohammad Noah's case (supra) on which emphasis is led by the A
appellant has no application to the facts of the present case.

4. In Kalicharan Mahapatra v. State of Orissa, {1998] 6 SCC 41 l the
effect of Section 19(3) of the Act was considered with the following words.

""Public servant" is defined in Section 2 (C ) of the Act. It does not B
include a person who ceased to be a public servant. Chapter III of
the Act which contains provisions for offences and penalties does
not point to any person who became a non-public servant, according
to the counsel.

Among the provisions submitted in the chapter, Sections 8,9,12 C
and 15 deal with offences committed by persons who need not be
public servants, though all such offences are intertwined with acts of
public servants. The remaining provisions in the chapter deal with
offences committed by public servants. Section 7 of the Act
contemplates offence committed by a person who expects to be a Ii)
public servant.
It must be remembered that in spite of bringing such a significant
change to Section 197 of the Code in 1973, Parliament was circumspect
enough not to change the wording in Section 19 of the Act which
deals with sanction. The reason is obvious. The sanction contemplated E
in Section 197 of the Code concerns a public servant who "is accused
of any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty", whereas the
offence contemplated in the PC Act are those which cannot be treated
as acts either directly or even purportedly done in the discharge of
his official duties. Parliament must have desired to maintain the F.
distinction and hence the wording in the corresponding provision in
the former PC Act was materially imported in the new PC Act, 1988
without any change in spite of the change made in Section 197 of the
Code."

5. Section 19(3) of the Act reads as follows: G
"Notwithstanding anything contained in the Code of Criminal
I -t Procedure, 1973 :

(a) no finding, sentence or order passed by a special Judge shall be
reversed or altered by a court in appeal, confirmation or revision on H
462 SUPREME COURT REPORTS [2007] 8 S.C.R.

A the ground of the absence of, or any error, omission or irregularity
in, the sanction required under sub-section (I), unless in the opinion
of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground
of any error, omission or irregularity in the sanction granted by the·
B authority, unless it is satisfied that such error, omission or irregularity
has resulted in a failure of justice;
~
(c) no court shall stay the proceedings under this Act on any•other
~
ground and no court shall exercise the powers of revision in relation
to any interlocutory order passed in any inquiry, trial, appeal or other
c proceedings.

6. In C.S.T. Uttar Pradesh v. Modi Sugar Mills Ltd., AIR (1961) SC 1047
it was held that the deeming provision is operative for the purpose for which
it has been created and cannot be extended beyond the legitimate field. The
p~sition was again reiterated in Mis. Braithwaite and Co.(Jndia) Ltd v. The
D Employees' State Insurance Corporation, AIR (1968) SC 413. It was observed
A
that legal fiction is adopted in law for a limited and definite purpose only and ,
y
there is no justification being extended beyond the purposes for which the
legislature adopted.

7. In Bengal Immunity Co. Ltd v. State of Bihar and Ors., AIR (1955)
E SC 661 it was observed that explanation should be limited to the purposes
the Constitution maker said and legal fiction has created for some definite
purposes.

8. Again in The Commissioner of Income Tax, Bombay City. Bombay v.
F The Elphinstone Spinning and Weaving Mills Co. Ltd. AIR (1960) SC 1016
it was held that the fiction cannot be carried further for what it is intended
for. The view was re-iterated in KS. Dharmadatan v. Central Government
and Ors., [ 1979] 4 SCC 204 where the factual situation is almost identical. The
factual position was that the appellant in that case was being prosecuted for
commission of offence punishable under Sections 120(8), 420, 471 of the
G Indian Penal Code, 1860 (in short the 'IPC') and Section 5(1) of the Prevention
of Corruption Act, 1947 (in short the 'Old Act'). At the time the charge sheet
was filed and the cognizance was taken by the Special Judge the appellant

.,
in that case had ceased to be a public officer. He filed an appeal before the r-
President of India against the removal from service which was allowed by
order dated 25.9.1972 and the order of removal from service was set aside. On
H
B.S.GORAYAv. U.T.OFCHANDIGARH[PASAYAT,J.] 463

his reinstatement appellant filed application before the Special Judge praying A
that all further proceedings be dropped inasmuch as the prosecution against
him was initiated in the absence of proper and valid sanction. The Special
Judge as well as the High Court rejected the prayer. Before this Court the
point raised was that the appellant must be deemed to be in service with effect
from the date from which the departmental proceedings were initiated against B
him and therefore he was a public servant at the time the cognizance was
taken by the Special Judge as no sanction under Section 6 of the Old Act
was obtained, the proceedings were void ab initio. This contention was not
accepted by this Court with the observation that it is too well settled that the
deeming fiction should be confined only for the purpose for which it is meant.

9. In Prakash Singh Badal and Anr. v. State of Punjab and Ors., [2007]
c
I SCC I it was observed at para 9 as follows:

"IPC provided for offences by or relating to public servants under
Chapter IX including Sections 161 to I 65A. The Old Act was enacted
on 12.3.1947, with the object of making provisions for the prevention D
of bribery and corruption more effective. In 1952 a Committee headed
by Dr. Bakshi Tek Chand was constituted. The said Committee
examined the true intent and purpose of Section 6 of the Old Act. It
was inter alia noted by the Committee as follows:
"Section 6 of the Act prescribes that no prosecution under Section E
5(2) is to be instituted without the previous sanction of the
authority competent to remove the accused officer from his office.
The ~xact implications of this provision have on occasions given
rise to a certain amount of difficulty. There have been cases
where an offence has been disclosed after the officer concerned
...J... has ceased to hold office, e.g., by retirement. In such cases it is F
not entirely clear whether any sanction is at all necessary. Another
aspect of the same problem is presented by the type of case
which, we are told, is fairly common-where an officer is transferred
from one jurisdiction to another or an officer who is lent to
another Department, commits an offence while serving in his G
temporary office and then returns to his parent Department before
the offence is brought to light. In a case of this nature doubts
have arisen as to the identity of the authority from whom sanction
for prosecution is to be sought. In our opinion there should be
an unambiguous provision in the law under which the appropriate
H
464 SUPREME COURT REPORTS [2007] 8 S.C.R.

A authority for according sanction is to be determined on the basis
of competence to remove the accused public servant from office
at the time when the offence is alleged to have been committed."

10. In view of the aforesaid analysis the order of the High Court does
not suffer from any infirmity to warrant any interference.
B
11. The appeal is sans merit, deserves dismissal which we direct.

K.K.T. Appeal dismissed.