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2003 DIGILAW 240 (SC)

V. P. SHETH v. State Of M. P.

2003-02-14

B.N.AGARWAL, S.N.VARIAVA

body2003
ORDER 1. HEARD LEARNED COUNSEL FOR THE PARTIES. 2. DELAY CONDONED. 3. LEAVE GRANTED. 4. BRIEFLY STATED THE FACTS ARE: BY AN ORDER DATED 4-1-1989, THE APPELLANT WAS COMPULSORILY RETIRED WITH EFFECT FROM 10-1-1989. THE APPELLANT CHALLENGED THE COMPULSORY RETIREMENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL (CAT). CAT SET ASIDE THE ORDER OF COMPULSORY RETIREMENT. THE RESPONDENTS FILED A SPECIAL LEAVE PETITION BEFORE E THIS COURT. THIS COURT PASSED AN INTERIM ORDER STAYING THE ORDER OF CAT. ULTIMATELY BY AN ORDER DATED 11-1-1994 T THIS COURT SET ASIDE THE ORDER OF CAT. 5. DURING THE OPERATION OF INTERIM STAY, PROSECUTION WAS LAUNCHED AGAINST THE APPELLANT FOR OFFENCES UNDER SECTION 13(1)(D) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 AND SECTION 120-B OF THE PENAL CODE. 6. THE APPELLANT FILED A PETITION BEFORE THE SPECIAL JUDGE CLAIMING THAT IN THE ABSENCE OF SANCTION, THE PROSECUTION COULD NOT BE PROCEEDED WITH. THE APPLICATION WAS DISMISSED BY THE SPECIAL JUDGE. REVISION FILED BY HIM HAS BEEN DISMISSED BY THE HIGH COURT. HENCE THIS APPEAL. 7. BEFORE US, IT HAS BEEN URGED THAT IN THE ABSENCE OF SANCTION UNDER G SECTION 19 OF THE PREVENTION OF CORRUPTION ACT, 1988, THE PROSECUTION COULD NOT PROCEED. IT IS SUBMITTED THAT ON THE DAY PROSECUTION WAS LAUNCHED, THE ORDER OF COMPULSORY RETIREMENT HAD BEEN SET ASIDE BY CAT. IT IS SUBMITTED THAT EVEN THOUGH THIS COURT HAD GRANTED AN INTERIM STAY, THE ORDER OF CAT HAD NOT BEEN QUASHED. IT IS SUBMITTED THAT THE EFFECT WAS THAT THE APPELLANT CONTINUED TO BE IN SERVICE. IN SUPPORT OF THIS SUBMISSION, RELIANCE IS PLACED UPON THE CASE OF SHREE CHAMUNDI MOPEDS LTD. V. CHURCH OF SOUTH INDIA TRUST A ASSN.1 WHEREIN IT HAS BEEN HELD THAT THE EFFECT OF AN INTERIM STAY IS THAT THE ORIGINAL ORDER DOES NOT GET QUASHED BUT THAT ORDER WOULD NOT BE OPERATIVE AND MAY GET RESTORED. 8. WE ARE UNABLE TO ACCEPT THIS SUBMISSION. AS HAS BEEN HELD IN CHAMUNDI MOPEDS EASEL THE EFFECT OF STAY IS THAT THE ORDER IS NOT OPERATIVE. AS THE ORDER OF CAT IS NOT OPERATIVE, THE ORDER OF COMPULSORY RETIREMENT REMAINS IN FORCE. OF COURSE IF THE APPEAL WAS DISMISSED, THE ORDER OF CAT WOULD HAVE GOT RESTORED. BUT AT THE TIME PROSECUTION WAS LAUNCHED, IT WAS THE ORDER OF COMPULSORY RETIREMENT WHICH WAS EFFECTIVE. AS THE ORDER OF CAT IS NOT OPERATIVE, THE ORDER OF COMPULSORY RETIREMENT REMAINS IN FORCE. OF COURSE IF THE APPEAL WAS DISMISSED, THE ORDER OF CAT WOULD HAVE GOT RESTORED. BUT AT THE TIME PROSECUTION WAS LAUNCHED, IT WAS THE ORDER OF COMPULSORY RETIREMENT WHICH WAS EFFECTIVE. THEREFORE NO SANCTION WAS REQUIRED UNDER SECTION 19 OF THE PREVENTION OF CORRUPTION ACT, 1988. IN ANY EVENT THIS COURT FINALLY QUASHED THE ORDER OF CAT. THIS COURT HELD THAT THE APPELLANT HAD BEEN COMPULSORILY RETIRED WITH EFFECT FROM 10-1-1989. AS THE APPELLANT HAD RETIRED WITH EFFECT FROM 10-1-1989, ON THE DAY PROSECUTION WAS LAUNCHED, NO SANCTION WAS REQUIRED. 9. IT IS NEXT URGED THAT SANCTION UNDER SECTION 197 OF THE CRIMINAL PROCEDURE CODE WOULD BE REQUIRED. IT IS POINTED OUT TO US THAT THE LEARNED JUDGE HAS HELD, IN THE IMPUGNED JUDGMENT, THAT SANCTION UNDER SECTION 197 OF THE CRIMINAL PROCEDURE CODE IS NOT REQUIRED. IN OUR VIEW THE QUESTION WHETHER SANCTION UNDER SECTION 197 OF THE CRIMINAL PROCEDURE CODE IS REQUIRED OR NOT DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF THE CASE. WE, THEREFORE, SET ASIDE THAT PORTION OF THE IMPUGNED JUDGMENT WHICH HOLDS THAT NO SANCTION IS REQUIRED UNDER SECTION 197 OF THE CRIMINAL PROCEDURE CODE. WE LEAVE THIS QUESTION OPEN TO BE URGED AFTER EVIDENCE IS RECORDED. THE SPECIAL JUDGE SHALL DECIDE THIS QUESTION UNINFLUENCED BY ANY OBSERVATION MADE BY THE HIGH COURT. THE APPEAL IS PARTLY ALLOWED TO THE ABOVE EXTENT. THE APPEAL STANDS DISPOSED OF ACCORDINGLY.