STATE(SPE HYDERABAD) versus AIR COMMODORE KAILASH CHAND

Citation: [1980] 2 S.C.R. 697 · Decided: 21-12-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

' 
" 
I 
J 
• 
• 
697 
STATE (SPE HYDERABAD) 
v. 
AIR COMMODORE KAILASH CHAND 
December 21, 1979 
1s. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.J 
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-
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 
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 
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. 
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. 
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 
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 
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 
A 
B 
c 
D 
E 
F 
G 
H 
A 
698 
SUPREME COURT REPORTS 
Ll98J] 2 s.c.R. 
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 
' 
D 
E 
F 
G 
H 
of 1973. 
Frcm the Judgment and Order dated 27-4-1973 of the Andhra 
Pradesh Hifh Court in Criminal Revision Case NL}. 72/73. 
R. B. Datar, M. N. Shroff and R. N. Sachthey fer the Appellant. 
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 
against the respondent for offences committed under s. 5 (2) of the 
Prevention of Corruption Act. 
In the v

Excerpt shown. Read the full judgment & AI analysis in Lexace.