Holding

The respondent remained a public servant as a member of the Auxiliary Air Force Reserve, so sanction was required at the time of cognizance and its absence invalidates the prosecution.

Summary

The respondent, a retired Air Force officer who had been re‑employed and transferred to the Regular Air Force Reserve and subsequently to the Auxiliary Air Force, was charged under section 5(2) of the Prevention of Corruption Act for offences alleged to have occurred between March 1965 and March 1967. He moved to have the proceedings dismissed on the ground that no sanction from the appointing authority was obtained. The Special Judge rejected the petition, holding that no presidential sanction was required because the respondent was not a commissioned officer at the time of cognizance. The Andhra Pradesh High Court reversed, finding that the respondent remained a public servant as a member of the Air Force Reserve and that sanction was essential. On appeal, the Supreme Court affirmed that the prosecution must show the accused was a public servant at the time the court took cognizance; the respondent continued to be a public servant while in the Auxiliary Reserve, and no sanction had been obtained, rendering the prosecution invalid. Consequently, the appeal was dismissed.

Issues considered

Whether the respondent was a public servant during the period of the alleged offences and at the time the court took cognizance.
At what stage does the requirement of sanction under the Prevention of Corruption Act arise – at the time of commission of the offence or at the time of judicial cognizance.
Whether re‑employment under the Regular Air Force Reserve and subsequent transfer to the Auxiliary Air Force confers the status of a public servant.

Legislation cited

Indian Penal Code, 1860s. 21
Prevention of Corruption Act, 1947s. 5(2), s. 6
Reserve and Auxiliary Air Force Act, 1952s. 10, s. 12, s. 18, s. 19, s. 20, s. 22, s. 23, s. 4, s. 5, s. 6, s. 7, s. 9

Subjects

public servantsanction requirementPrevention of Corruption ActRegular Air Force ReserveAuxiliary Air Forcecognizancecriminal procedure

Judgment

697

STATE (SPE HYDERABAD) A
v.
AIR COMMODORE KAILASH CHAND
December 21, 1979
' 1s. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.J B
Prevention of Corruption Act, 1947 (11 of 1947), S. 5(2)-Air Force Officer
retiring fron1 servicc-Rec1nployed-Services transferred to Regular Air Fore~
Reserve:_Prosecution of officer under the Act-Officer if a public servant-

IJ"
Sanction whether neces!>ary.

1'he respondent "' member of the Indian Air Forc'e, retired from senrice on
June 15, 1965 but was reemployed for a period of two ye-ars with effa::t from
c
June 16, 1965. On September 7, 1966 th'e respondent was transferred to the
Regular Air Force Reserve with effect from June 16, 1965 to June 15, 1970
i.e. for a period of five years. On March 13, 1968 the re'employment 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 com-
mitted offences under section 5 (2) of the Prevention of Corruption Act, 1947,
during the period March 29, 1965 to March 16, 1967. The respondent filed
D
a petition before the Special Judge for dropping the procceding..11· .against him on
the ground that the Judge could not take any cogniZE•nce of the offences in the
absence of any valid sanction of the appointing authority of the respond'ent.
The application was rejected on the ground that as the respo~dent was not a
Commissioned Officer in the Air Force at the time wh'en the cognizance \\·as
taken, no sanction of the President was necessary.
E
•
The respondent moved the High Court in revision, which quashed th'e pro-
ceedings, holding that as the respondent continued to be a public st:rvant 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.
F
In the appeal to thi~ Court, it was contended on behalf of the appellant :
(1) that as the respondent had retired from the Indian Air Force and his em-
ployment 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 Regula.r 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 h'e could not be said to hold
G
the status of a public servant.

Dismissing the appeal,

HELD : 1. The prosecution must prove that at the time when cognizanc'o
'Of the offenct~ was takrn the respondent ceased to be a public servant. [700 C]

In the instant cMe, th'e Specfol Judge took cognizance on June 19, 1969 at H
a time when the respondent continued to be a public servant having b'een re"
employed and though his services were terminated only on April 1, 1968 he
698 SUPREME COURT REPORTS Ll98J] 2 s.c.R.

A oontinued to be a member of the Auxiliary Air Force upto June 15, 1970, that
is a long time after cognizaDCe of the offence was taken. [700 DJ

S. A. Venkataraman v. 1'hc State [1958] S.C.R. 1037; State of West Bengal
etc. v. Manrr1al Bhutoril1 c.ll Ors. Etc. [1977] 3 S.C.R. 758 referred to.
2(i) The Provisions of the Auxiliary A..ir :force Act do not 'expressly con~ '
tain the nature of the emoluments that the respondent may receive but the
B general tenor and setting of th'e Act clearly show that a member of the Auxiliary
Force is as much ai public serv,ant as an acting member of the Indian Air Force.
[703 GJ
(ii) Even after the respondent was transferred to the Auxiliary 1~.ir Force la
he retained his character as a public servant because he vtas required to under-
go training and to be called up for service as and when required. [703 F] -y
C CRLMINAL APPELLATE JURISDICTION : Criminal Appeal No. 259 '
of 1973.
Frcm the Judgment and Order dated 27-4-1973 the Andhraof
Pradesh Hifh Court in Criminal Revision Case NL}. 72/73.
R. B. Datar, M. N. Shroff and R. N. Sachthey fer the Appellant.
D
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 ol the Andhra Pradesh High Court
allowing the revisional application and quashing the proceedings taken
E
against the respondent for offences committed under s. 5 (2) 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. It appears that the respondent was a member
of the Indian Air Force having entered the service on 17th November
F 1941. He retired from the service on the 15th lune 1965 but was
reemployed for a period of two years with effect from 16th June
1965. On 7th September 1966, the respondent was transferred to
the Regular Air Force Reserve with effect from 16th June 1965 to
15th June 1970, i.e., for a period of .five years. In other words,
the respondent was transferred to the Auxiliary Reserve Air Force •
G
under the provisions of the Reserve and Auxiliary Air Force Act
1952 (hereinafter to be referred to as the 'Act') and rules there-
under. On 13th March 1968, the reemployment given to the res-
pondent ceased and his services were terminated from 1st April
1968.
H A chargesheet was submitted against the respondent for having
committed offences under s. 5(2) of the Prevention of Corruption·
Act during the period 27th March 1965 to 16th March 1967. The
STATE v. KAILASH CHAND (Fazal Ali, !.) 699

respondent filed a Petition before the Special Judge, Hyderabad for A
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 gronnd that as the respondent was not a
Commissioned oillcer in the Air Force at the time when the cogni- B
zance was taken, no sanction of the President was necessary. There-
after, the respondent moved the High Court in revision and succeeded
before the High Court which held that as the respondent con-
tinued to be a pnblic servant within the meaning of s. 21 of the
Indian Penal Code inasmuch as he remained a member of the
Air Force Reserve, sanction was essential before prosecuting the c
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 wa~ D
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 w.e.f. April 1,
E
1968, he ceased to be a public servant and, therefore, no sanction
was necessary. We have heard counsel for the parties and have
also persued the judgment of the High C:iurt and the Special
Judge. The facts, mentioned above, are not disputed and two ques-
tions fall for determination in this case.
F
In the first place, it has to be decided whether or not
the respondent was a public servant during the period 2 7-3-65 to
16-3-67. Secondly, what is the point of time when the sanction
• was necessary, viz ... the time when the offences were actually com-
mitted or when the court took cognizance of the said offence!. We
will take up the second point first. An identical question came up G
for consideration before this Court in the case of S. A. Venkazaraman
v. The State( 1 ) 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 s. 6 of the Act, the conclusion is inevi-
table that at the time a court is asked to take cognizance H
(1) [1958] S.C.R. 1037.
700 SUPREME COURT REPORTS (1930] 2 s.c.R ..

A not only the offence must have been committed by a public
servant but the person accused is still a public ser-
vant removable from his office by a competent autho-
rity before the provisions of s. 6 can apply."
This case was followed by a recent decision of this Court in the
B case of State of West Bengal Etc. v. Manmal Bhutoria & Ors.
Etc.(') where the previous decision was followed. In view of the
decisions of this Court, referred to abo'>le, the matter is no longer
res integm but is concluded by the decisions of this Court. Tt fol-
lows, therefore, that the prosecution must prove that at the time
•
/
when the cognizance of the offence was taken, the respondent ceased
c 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
1
and as referred to above his services were terminated only on
1-4-1968 but he continued to be a member of the Auxiliary Nr
Force upto 15-6-70 that is to say, a long time after the cognizance
D of the offence was taken. The learned counsel for the Union, how-
ever, submitted that reemployment under the provisions <;f the
Regular Air Force Reserve Act wouk! not amount to an employ-
ment 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 o[ a public servant. In this cormection, wmc of the Rules
E
have been placed before us to show the nature of the employment
held by th~ 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 arEO
F extracted below :--
"4. Constiution 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 cQil- •

G
sist solely of persons transferred or appointed to it under
section 5.
5. Recrnitment to the Regular Air Force Reserve--(!)
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
B
terms and conditions of his service is liable to
(1) [1977] 3 S.C.R. 758.
STATE v. KAILASH CHAND (Fazul Ali, !.) 701

serve in any Air Force Reserve if and when A
constituted;
(b) any officer or airman of the Air Force whose com-
ntission or engagement in the Air Force has been
terminated before the commencement of this Act
and who under the terms of his commission or
B
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 C
be a member of the said Reserve.
(2) The competent authority may, in such circumstances
:rnd subject to such conditions a-. may be presc,ibed,
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 D
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 iifom the date of
such appointment be deemed to be a member of the
Regular Air Force Reserve. E
(3)
\ 6. Classes of persons in the Regular Air Force Reserve--
Members of the Regular Air Force Reserve shall be divi-
ded into the following classes, namely .
(a) general duties officers, and F
( b) ground duties officers, a.nd
(c) airmen,
• and every officer shall be entitled on transfer or appoint-
ment to the Reserve to hold the same rank as that which
he· last held in the Air Force or the Air Defence Reserve G
or the Auxiliary Air Force, as the case may be, before such
transfer or appointment.
7. Period of service--(1) Every member of the Regular
Air Force Reserve shall be liable to serve in the Reserve--
(a) if he is transferred to the Reserve under sub- e
section (1) of section 5, for the period of his Re-
serve liability; and
702 SUPREME COURT REPORTS [1980] 2 5.C.R.

A (b) if he is appointed to the Reserve under sub-section
(2) of section 5, 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
B 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 x
9. Constitution of Air Defence Reserve-The Central ,-
c G-Overnment 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.
10. C'lasses of persons in the Air Defence Reserve--
fl 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.
E x 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
F 1L until he has c0111pleted 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.
G
x 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 ~uch
H number of squadrons and units of the Auxiliary Air
Force as it thinks fit and may disband or reconstitute any
squadron or unit.
STATE v. KAILASH CHAND (Fazal Ali, J.) 703

19. Classes ot persons in the Auxiliary Air Force-Mem- A
bers of the Auxiliary Air Force shall be divided into the
following classes, namely :
• (a) general duties officers;
(b) ground duties officers; and
(c) airmen. B
20. 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 designa-
tion of rank corresponding to that of any commissioned
officer in the Air Force. c
22. Periods of service-Every ollicer 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
D
appointment or enrolment 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.

' 23. 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 E
by such avthorily and under such conditions as may he
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 F
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. TI1is is the view which the High G
Court appears to have taken and we find ourselves in complete agree-
ment with the same. It is not disputed in this case that no sanction
was taken from the appointing authority before prosecuting the res-
pondent. For these reasons, therefore, we do not find any error of
Jaw in the judgment of the High Court and the appeal fails and is
accordingly dismissed. H

N.V.K. Appeal dismissed.