STATE OF WEST BENGAL ETC. versus MANMAL BHUTORIA & ORS. ETC.

Citation: [1977] 3 S.C.R. 758 · Decided: 03-05-1977 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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t758 
STATE OF WEST BENGAL ETC. 
v. 
MANMAL BHUTORIA & ORS. ETC. 
May 3, 1977 
[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.] 
Prevention of Corruption Act, 1941-S. 5(2)-Scope of a Retired Army 
Officer and an outsider prosecuted under s. 5 (2 )-ProsecuJion, if ·valid-If 
i. 
Special Court under the West Bengal Criminal 
Law 
A1nendment (Special 
Courts) Act, 1949 could try the case. 
In May 1967. a case was lodged against the respondent and a Major of the 
Indian Army who was retired in 1966, alleging that the Major, along with the 
respondent, had -committed offences of conspiracy of criminal misconduct by a 
public servant in dishonestly abusing his position as a public servant, 
under 
s. 5(2) of the Prevention of Corruption Act, 1947. When the case, which was 
allotted to the Fourth Additional Special Court under s. 4(2) 
of the 
West 
Bengal Criminal Law Amendment (Special Courts) Act, 1949, came up 
for 
hearing the respondent filed a writ petition challenging its jurisdiction to try 
th~ case. The order of allotment to the Special Court was held illegal by the 
High Court on the ground that the Special Court had no jurisdiction to try a 
person who had ceased to be a public servant on the date the Court was 
required to take cognisance of the offence since it could not be said that in 
certain respects he was a public servant and in certain others he was not. 
It \Vas contended on behalf of the respondent that (1) since the case invol-v-
ed interpretation of Art. 14 of the Constitution it should be referred to a larger 
Bench in view of Art. 144(A) of the Constitution; (2) in view of the defini-
tion of public servant contained in s. 21 IPC, a public servant is one who is in 
office and not one who has ceased to be in office; (3) in view of s. 10 of the 
Bengal A.ct the Special Court had no jurisdiction to try the offence; and ( 4) 
the respondent, not being a public servant, is outside the 
provisions 
of the 
B'2ngal Act and· the Prevention of Corruption Act. 
Allowing the appeal. 
HELD : (1) There is no substance in the contention that the appeal should 
be referred to a larger Bench. The plea of applicability of Art. 14 
on the 
basis of the JUdgment in S. A. Venkataraman v. The State [1958] S.C.R. 1037 
is wholly misconceived. r764 Gl 
(a) In view of the decision in Venkataraman's case there is no warrant for 
including in one category public servants in office and public servants who have 
ceased to be so. These two classes of public servants are not similarly situated 
as has been clearly pointed out in C. R. Bansi v. State of Maharashtra [1971] 
3 S.C.R. 236. (764 El 
(b) It cannot be argued that the decision in Venkatararian'5 case is viola-
tive of Art. 14 of the Constitution. That decision only says that s. 6 of the 
Act is not applicable to a public servant if at the time of taking cognizance by 
the Court he ceases to be so. 
Because a particular sectiQTI is not applicable to 
a public servant after he has ceased to be in office, the question of the Act 
being violative of Art. 14 will not arise.. 
This Court has clearly placed a 
public servant, who has ceased to be in office, in. a separate ca~egory al!d the 
clMsification has held the field all these years without demur. [764 F-G] 
( c) The proviso to s. 4( 1) of the B~ngal Act cannot attract Art. 
14. 
By 
this proviso the Special Court, when trying a schedule offence finds that some 
other offence has also been committed, and the trial of the same in one trial 
is permissible under the Cr.P.C., it may try such a charge. Under s. 4(1) of 
the Bengal Act a scheduled offence which includes an offence under s. 5 (2) of 
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WEST BENGAL v. MANMAL (Goswami; J.) 
7 59 
the Prevention of Corruption Act as also conspiracy to commit that offence 
A 
shall be triable by Special Courts only. 
No other court can try those offences. 
[764 H, 765 B-C] 
The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 
held 
inapplicable. 
(2) Section 21 JPC does not afford a true test in determining the present 
controversy. The crucial date for the purpose of attracting the provisions of 
the Act as well as those of the Bengal Act is whether the offence 
had been 
committed by a public servant within the definition of s. 21 !PC. The date 
for determining the offence is the date of the commission of the offence when 
the person arraigned must be a public servant. Section 6 makes a clear dis· 
tinction between cognizance of an offen
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