KALICHARAN MAHAPATRA Vs. STATE OF ORISSA

FACTS

• An IPS Officer (appellant), serving as Superintendent of Police in Orissa, was arrested after a raid on 12-5-1990 resulted in the recovery of cash and jewellery.

• A case was registered under Section 13(2) of the Prevention of Corruption (PC) Act, 1988.

• The appellant retired from service while the investigation continued.

• On 30-9-1992, the Vigilance Department filed a charge sheet against him for the offence under Section 13(2) and Section 13(1)(e) of the Act.

ISSUES

• Whether retired public servants could be included within the purview of the Act and could be prosecuted without prior sanction.

JUDGEMENT

• The apex court held that the Special Court and High Court have correctly dismissed the appellant's preliminary objections, ensuring the fairness of the proceedings.

• The appeal was dismissed, confirming that the prosecution could proceed.

OBSERVATION

• Liability to Prosecution: The public servant who committed the offence while he was a public servant is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution.

• Sanction under PC Act (Section 19): The protection of sanction under Section 19 of the PC Act is required only if the accused continues to hold office as a public servant on the date the Court takes cognizance of the offence.

• Sanction under Cr.P.C. (Section 197): The sanction contemplated in Section 197 of the Code concerns a public servant who "is accused of any offense alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." Since the offence of corruption is generally not considered an "official act," and the accused was retired, no sanction was required under either Act.

COMMENTARIES

• Retired Public Servant: A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the Court takes cognizance of the offence. But if he ceases to be a public servant by that time, the Court can take cognizance of the offence without any such sanction.

• Offence Does Not Vanish: There was no indication that the offence committed by a public servant under the Act would vanish from penal liability at the moment he demitted his office as public servant. Being a public servant at the time of the commission of the offence was necessary to make a person liable under the Act.