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Mohamed Haneef Vs. Thirthahalli Police - Court Judgment

LegalCrystal Citation
SubjectCriminal;Service
CourtKarnataka High Court
Decided On
Case NumberCrl. Petition No. 66 of 1984
Judge
Reported inILR1985KAR2793
ActsKarnataka Civil Services Rules, 1958 - Rules 213 and 214
AppellantMohamed Haneef
RespondentThirthahalli Police
Appellant AdvocateK.S. Desai, Adv.
Respondent AdvocateS.S. Koti, H.C.G.P.
DispositionPetition dismissed
Excerpt:
.....conduct of the pensioner while he was in service resulting in a finding either in departmental or judicial proceeding, that he is guilty of grave misconduct or negligence. that is why no period of limitation is prescribed in respect of the acts and conduct of a pensioner resulting in a conviction of a serious crime or a finding of guilty of grave misconduct as they relate to future acts and conduct after the pensioner retired from service and period of limitation has been prescribed respecting departmental as well as judicial proceedings under rule 214 because it applies to past acts and conduct of the pensioner while he was in service. both clause (b) as well as clause (c) of the proviso to rule 214 prescribe a period of four years for instituting a departmental or judicial proceeding..........by the pension sanctioning authority after following the requirements laid down in the said rule. rule 214 merely reserves to the government a right to withhold or withdrawing a pension or any part thereof whether permanently or for a specified period and the right ofordering the recovery from a pension of the whole or part of any pecuniary loss caused to the government, if in departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment afterretirement subject to the conditions and limitations provided in the proviso to rule 214.13. a close examination of the provisions contained in rules 213 and 214 would reveal that rule 213 is based upon the concept that future.....
Judgment:
ORDER

Kudoor, J.

1. This Criminal Petition, one under Section 482 of the Code of Criminal Procedure, 1973 (for short the 'Code') is by the accused Mohamed Haneef in C C. No. 577/1982 on the file of the Munsiff and J.M.F.C.Thirthahalli for an offence under Section 409 and in the alternative under Section 408 of the I.P.C. initiated upon a charge-sheet filed by the Thirthahalli police under Section 408 and alternatively under Section 409 I.P.C.

2. In the course of the trial, the petitioner filed an application on 25-5-1983 contending that the prosecution was bad for want of sanction under Section 197 of the Code. The Magistrate after hearing both sides and withoutpronouncing order on the application, framed a charge against the accused under Section 409 I.P.C. and alternatively under Section 408 I.P.C. and commenced the trial. The accused has filed this Petition to quash the proceedings initiated against him.

3. Sri K.S. Desai, learned Advocate for the accused, presented two arguments for consideration. Firstly he contended that the prosecution initiated against the accused and pending trial before the Court below is bad for want of sanction under Section 197 of the Code. His secondcontention was that the criminal prosecution against the accused is barred under Clause (c) of the proviso to Rule 214 of the Karnataka Civil Services Rules, 1958 (the 'Rules').

4. Sri S.S. Koti, learned High Court Government Pleader for the Respondent-State, submitted that there is no force in either of the contentions. He maintained that no prior sanction is necessary since the criminal prosecution initiated against the accused does not fall within the scope of Section 197 of the Code. He has also contended that Clause (c) of the proviso to Rule 214 of the Rules does not apply to the facts of the case.

5. I shall proceed to consider the points urged by Sri Desai in the order in which they were presented before me.

6. As regards the first point, Sri Desai; in the course of his arguments submitted that although the criminalprosecution initiated against the accused is bad for want of previous sanction under Section 197 of the Code, he does not press for a decision by this Court since the application filed by the accused raising the very same legal objection before the Court below was not considered and disposed of on merits and if point No. 2 is held against the accused and the matter has to go back to the Court below for further trial of the case, the Trial Court may be directed to dispose of the application in accordance with law. This submission appears to me just and proper. Accepting the same, I refrain from recording my view on this point.

7. The only other question remains to be considered is whether Clause (c) of the proviso to Rule 214 of the Rules is a bar for the institution of the criminal proceedings against the accused.

8. Part IV of the Rules deals with ordinary pension. Chapter XV of Part IV deals with general rules. Rule 213 provides for withholding or withdrawing a pension or part thereof whether permanently or for a specified period on certain circumstances by the pension sanctioning authority. The material portion of Rule 213 reads :

'213(1): Future good conduct shall be an implied condition of every grant of pension. The pension sanctioning authority may by order in writing withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct :

Provided that no order shall be passed under this Clause by an authority subordinate to the authority competent to make an appointment to the post held by the pensioner immediately before his retirement from service.

2) Where a pensioner is convicted of a serious crime by a court of law, action under Clause (1) shall be taken in the light of the judgment of the court relating to such conviction.

3) In a case not falling under Clause (2), if the competent authority under Clause (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under Clause (1).

a) Serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days as may be allowed by the said authority, suchrepresentation as he may wish to make against the proposals ; and

b) take the representation, if any, submitted by the pensioner under Clause (a) into consideration.

Rule 214 provides that the Government further reserves to themselves 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 a pension of the whole or part of any pecuniary loss caused toGovernment under certain circumstances. Rule 214 as it stood prior to the amendment by the Karnataka Civil Services (Second Amendment) Rules 1985 which came into force with effect from 3rd January 1985 which is applicable to the case on hand reads :

'214. Government further reserve to themselves the right of with-holding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if, in departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service, includingservice rendered upon re-employment after retirement :

Provided that-

a) Such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service,

b) Such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment :-

i) shall not be instituted save with the sanction of Government ;

ii) shall not be in respect of any event which took place more than 4 years before such institution; and

iii) shall be conducted by such authority and in such place as Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made-in relation to the officer during his service.

(c) No such judicial proceeding, if not instituted while the officer was in services whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and

d) The Public Service Commission shall be consulted before final orders are passed.

Explanation: For the purpose of this rule -

a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from any earlier date, or such date; and

b) a judicial proceeding shall be deemed to be instituted :-

i) in the case of criminal proceeding, on the date on which the complaint or report of Police Officer, on which the Magistrate takes cognizance, is made, and

ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court.'

9. For proper and better appreciation of the question covered under this point, it is relevant to notice a few facts of the case.

10. The accused was an employee of the State Government. He retired as a Tahsildar on superannuation on 31-10-1981. A complaint was filed against the accused by the Tahsildar, Thirthahalli while the accused was in service for offences under Sections 406, 408, 409 and 477A of the I.P.C. in the police station at Thirthahalli which was registered in Cr. No.358/81 and an F.I.R. was sent to the Jurisdictional Magistrate's Court for the aforesaid offences on 7-4-1981 and the investigation was taken up. The alleged offences were in respect of a sum of Rs. 4,100/-relating to the period from 15-7-1975 to 23-10-1975 and a sum of Rs. 3,65,108 relating to the period from 21-1-1976 to 7-2-1976 which were detected while the accounts of the Tahsildar's office at Thirthahalli were audited. As noticed earlier, the accused had retired from service on 31-10-1981. The police at Thirthahalli after completing the investigation placed a charge sheet against the accused on 6-12-1982 under Section 408 and alternatively under Section 409 I.P.C. The Trial Court after framing a charge under Section 409 I.P.C. and alternatively under Section 408 I.P.C commenced the trial of the case.

11. Keeping these material facts of the case in view, let me now consider the argument advanced by SriK.S. Desai.

12. As can be seen from the preamble to Part IV of the Rules the Rules contained in Part IV supersede the Mysore Pension Rules, 1957 and the Mysore Commutation of Pension Rules, 1957 which came into force from 1st September 1957 and all claims under the above said Rules pending on the date of coming into force of Part IV will be dealt with in accordance with the corresponding provisions of Part IV. Thus it is clear that the rules contained in Part IV are intended to define the conditions under which the pension is earned by a person who is a member of a civil service of the State or holds a civil post under the State and the manner in which it is calculated and the conditions to receive the pension declared to be entitled by a civil servant of the State. The provisions in Part IV are intended only to regulate the pension of retired employees and do not have any bearing or relation on the operation or enforcement of the general criminal law. Rule 213 provides forwithholding or withdrawing a pension or part thereof whether permanently or for a specified period if the petitioner is convicted of a serious crime or is found guilty of gravemisconduct by the pension sanctioning authority after following the requirements laid down in the said rule. Rule 214 merely reserves to the Government a right to withhold or withdrawing a pension or any part thereof whether permanently or for a specified period and the right ofordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if in departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment afterretirement subject to the conditions and limitations provided in the proviso to Rule 214.

13. A close examination of the provisions contained in Rules 213 and 214 would reveal that Rule 213 is based upon the concept that future good conduct shall be an implied condition of every grant of pension and appropriate action could be taken against the pensioner respecting the payment of pension, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct during the period, the pensioner receives pension without any period of limitation for being convicted of a serious crime or found guilty of grave misconduct; where as Rule 214 can beinvoked and action be taken against a pensioner if in any depart-mental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement, subject to the conditions and limitations stipulated therein for instituting departmental or judicial proceedings. In other words, action could be taken under Rule 213 respecting the future acts and conduct of apensioner resulting in the conviction of a serious crime or guilty of grave misconduct after his retirement; whereas Rule 214 applies in respect of the acts and conduct of the pensioner while he was in service resulting in a finding either in departmental or judicial proceeding that he is guilty of grave misconduct or negligence. That is why no period of limitation is prescribed in respect of the acts and conduct of a pensioner resulting in a conviction of a serious crime or finding of guilty of grave misconduct as they relate to future acts and conduct after the pensioner retired from ser-vice and period of limitation has been prescribed respecting departmental as well as judicial proceedings under Rule 214 because it applies to past acts and conduct of the pensioner while he was in service. Both Clause (b) as well as Clause (c) of the proviso to Rule 214 prescribe a period of four years for instituting a departmental or judicial proceeding in respect of any event in the case of former or any event or cause of action from the date of its taking place or arising in the case of latter if no such departmental or judicial proceeding was instituted while the officer was in service whether before his retirement or during his re-employment This period of limitation does not apply to a case where departmental or judicial proceeding had been initiated in respect of an employee while he was in service. It is abundantly clear that Clause (c) of the proviso to Rule 214 governs only the judicial proceedings referred to in Rule 214. This is clear from the terms 'such judicial proceeding' thereby meaning judicial proceeding referred to in Rule 214 and not other judicial proceedings including criminalproceedings before any Criminal Court dealing with general criminal law. The prohibition against the institution of a judicial proceedings in respect of a cause of action which arose or. an event which took place more than 4 years before such institution as contained in Clause (c) or against the institution of a departmental enquiry in respect of any event which took place more than 4 years before such institution as stipulated under Clause (b) of the proviso is only for the purpose of exercising the powers under Rule 214 and not for any other purpose. The period of limitation provided in Clauses (b) and (c) of the proviso appears to be intended to prevent harassment, by instituting either departmental or judicial proceedings in respect of a state or remote event or cause of action which arose more than 4 years before such institution after the officer has retired. It seems to me that the prohibitory words in Clause (c) relied upon by Sri Desai cannot be construed as a bar against criminal prosecutions in general.

14. I am fortified with the view I take on this question by a Division Bench Ruling of the Andhra Pradesh High-Court inM.V.K. Rao v. Divisional Panchayat Officer (A.P.), 1980 (3) S.L.R. 756 The facts of that case are these:

The petitioner worked as the Executive Officer of the Guraja Gram Panchayat from 1st July 1972 to 9th August 1975. On the allegation that he committed grave irregular-ties involving forgery and misappropriation which took place on 2-12-1974 and 29-1-1975, the Collector (Panchayat Wing) initiated proceedings against him while he wasworking as Executive Officer of Tarakatur Gram Panchayat. While the disciplinary proceedings were pending, thepetitioner was permitted to retire from service on superannuation on 31-3-1978. The disciplinary proceedings had not been completed. Even so, on 13-2-1980, the Divisional Panchayat Officer, Gudiwada, filed a complaint against the Petitioner under Section 409 and 471 I.P.C. in the Court of the Additional J.M.F.C, Gudiwada in regard to two incidents which took place on 2-12-1974 and 294-1975. On the complaint having been taken on the Court's file as C.C. No, 14/1980, the petitioner approached the High Court of Andhra Pradesh with a Criminal Petition under Section 482 of the Code for quashing the proceedings in the Court of the Additional J.M.F.C, Gudiwada. The short question that arose for decision in that case was whether a criminal prosecution launched against a retired public servant governed by the Andhra Pradesh Pension Code was barred by limitation if such prosecution was launched after the retirement of the public servant in regard to the misconduct which took place more than 4 years before the launching of the prosecution. Answering this question, their Lordships of the Andhra Pradesh High Court by construing the scope and ambit of Article 351 and 351A of the Andhra Pradesh Pension Code which are in pari materia with Rules 213 and 214 of the Rules and in particularproviso(c) to Article 351-A which is identical to Clause (c) of the proviso to Rule 214 held that the prohibitory words in theproviso(c) cannot be construed as a bar against criminal prosecutions in general.

15. In the instant case, the accused retired as Tahsildar on superannuation on 31-10-1981. While the accused was in service, a complaint was lodged against him by the Tahsildar, Thirthahalli for offences punishable underSections 406, 408, 409 and 477-A I.P.C. The said complaint was registered in Crime No. 358/1981 by the Thirthahalli police and an F.I.R. was submitted to the jurisdictionalMagistrate's Court on 7-4-1981 and the investigation was taken up. After completing the investigation, the police placed a charge-sheet against the accused on 6-12-1982 under Sections 408 and 409 I.P.C. The Trial Court after framing a charge under Section 409 and alternatively under Section 408I.P.C commenced the trial of the case. Admittedly the alleged offences in question were in respect of certain sums of money relating to the period 15-7-1975 to 23-10-1975 and 21-1-1976 to 7-2-1976. Undoubtedly, though the complaint against the accused was filed while he was in service, charge-sheet was placed against him long after he retired from service. As per the explanation to Rule 214, a judicial proceeding shall be deemed to be instituted in the case of a criminal proceeding on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance is made. That being so, the criminal prosecution was initiated against the accused on 6-12-1982 as per the aforesaid explanation. The criminal prosecution is admittedly in respect of a cause of action or an event which arose or took place more than 4 years before the institution of the criminal prosecution. Undoubtedly if Rule 214 applies to the facts of the case, the objection raised by Sri Desai on behalf of the accused should prevail. Since the institution of the criminal proceedings against the accused was not in the course of a proceedings initiated against him by the Government in exercise of its powers under Rule 214, the criminal prosecution against the accused clearly falls outside the sweep of Rule 214. The accused was proceeded with under general criminal law for offences punishable under the Indian Penal Code before the ordinary Criminal Courts constituted under the Code of Criminal Procedure. In this view of the matter, 1 am inclined to hold that proviso (c) to Rule 214 is no bar to institute criminal proceedings against the accused.

16. In the result for the reasons stated above, this Petition fails and it is dismissed.


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