# STATE (SPE HYDERABAD) v. AIR COMMODORE KAILASH CHAND

- **Citation:** [1980] 2 S.C.R. 697
- **Court:** Supreme Court of India
- **Decided:** 1979-12-21
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-spe-hyderabad-v-air-commodore-kailash-chand-7924
- **Pages:** 7

## Headnote

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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 servantSanction 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 committed 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 proceedings, 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 employment 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
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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
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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
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he retained his character as a public servant because he vtas required to undergo training and to be called up for service as and when required. [703 F]
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CRLMINAL APPELLATE JURISDICTION : Criminal Appeal No. 259
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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

## Text

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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 servantSanction 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 committed 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 proceedings, 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 employment 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
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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
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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
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he retained his character as a public servant because he vtas required to undergo training and to be called up for service as and when required. [703 F]
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CRLMINAL APPELLATE JURISDICTION : Criminal Appeal No. 259
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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 view that we take in the case, it is not necessary to give
the facts in detail.
It appears that the respondent was a member
of the Indian Air Force having entered the service on 17th November
1941.
He retired from the service on the 15th lune 1965 but was
reemployed for a period of two years with effect from 16th June
1965.
On 7th September 1966, the respondent was transferred to
the Regular Air Force Reserve with effect from 16th June 1965 to
15th June 1970, i.e., for a period of .five years.
In other words,
the respondent was transferred to the Auxiliary Reserve Air Force
under the provisions of the Reserve and Auxiliary Air Force Act
1952 (hereinafter to be referred to as the 'Act') and rules
thereunder.
On 13th March 1968, the reemployment given to the respondent ceased and his services were terminated from 1st April
1968.
A chargesheet was submitted against the respondent for having
committed offences under s. 5(2) of the Prevention of Corruption·
Act during the period 27th March 1965 to 16th March 1967.
The
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STATE v. KAILASH CHAND (Fazal Ali, !.)
699
respondent filed a Petition before the Special Judge, Hyderabad for
dropping the proceedings against him on the ground that the Judge
could not take any cognizance of the offences in the absence of any
valid sanction of the appointing authority of the respondent.
The
Special Judge, however, rejected this application on the 20th of
October 1972 on the gronnd that as the respondent was not a
Commissioned oillcer in the Air Force at the time when the cognizance was taken, no sanction of the President was necessary. Thereafter, the respondent moved the High Court in revision and succeeded
before the High Court which held that as the respondent continued to be a pnblic servant within the meaning of s. 21 of the
Indian Penal Code inasmuch as he remained a member of the
Air Force Reserve, sanction was essential before prosecuting the
respondent.
The High Court
accordingly
accepted the
revision
petition and quashed the proceedings against the
respondent
but
granted a certificate to the appellant for leave to appeal to this Court.
Hence this appeal before us.
The only point that has
been canvassed before us
wa~
whether the respondent having retired from the active service of the
Indian Air Force continued to be a public servant even though he
was transferred to Regular Air Force Reserve.
The counsel for the
Union submitted that as the respondent had retired from the Indian
Air Force and his reemployment was terminated w.e.f. April 1,
1968, he ceased to be a public servant and, therefore, no sanction
was necessary.
We have heard counsel for the parties and have
also persued the judgment of the High C:iurt and the Special
Judge.
The facts, mentioned above, are not disputed and two questions fall for determination in this case.
In the first
place, it has
to
be decided whether or not
the respondent was a public servant during the period 2 7-3-65 to
16-3-67.
Secondly, what is the point of time when the sanction
was necessary, viz ... the time when the offences were actually committed or when the court took cognizance of the said offence!.
We
will take up the second point first.
An identical question came up
for consideration before this Court in the case of S. A. Venkazaraman
v. The State( 1) where the Court, speaking through Imam J., observed
as follows :
"In our opinion, in giving effect to the ordinary meaning of
the words used in s. 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance
(1) [1958] S.C.R. 1037.
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not only the offence must have been committed by a public
servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of s. 6 can apply."
This case was followed by a recent decision of this Court in the
case of State
of West
Bengal Etc. v. Manmal Bhutoria & Ors.
Etc.(') where the previous decision was followed.
In view of the
decisions of this Court, referred to abo'>le, the matter is no longer
res integm but is concluded by the decisions of this Court.
Tt follows, therefore, that the prosecution must prove that at the time
when the cognizance of the offence was taken, the respondent ceased
to be a public servant. In the instant case, the Special Judge appears
to have taken cognizance on June 19, 1969 at a time when the
respondent continued to be a public servant having been reemployed
and as referred to above his
services were
terminated
only on
1-4-1968 but he continued to be a member of the Auxiliary Nr
Force upto 15-6-70 that is to say, a long time after the cognizance
of the offence was taken. The learned counsel for the Union, however, submitted that reemployment under the provisions <;f the
Regular Air Force Reserve Act wouk! not amount to an employment in the Regular Force of the Service and therefore even though
the respondent may have been reemployed, he could not be said to hold
the status o[ a public servant. In this cormection, wmc of the Rules
have been placed before us to show the nature of the employment
held by th~ respondent after his retirement. It is not disputed that
even after reemployment, the respondent was transferred to the Air
Force Auxiliary Reserve and continued to be a member of the
Auxiliary Air Force Reserve.
Relevant sections of the Act arEO
extracted below :--
"4. Constiution of Regular Air Force Reserve---The Central
Government may raise and maintain in the manner hereafter
in this Chapter provided an Air Force Reserve to be
designated the Regular Air Force Reserve which shall cQilsist solely of persons transferred or appointed to it under
section 5.
5. Recrnitment to the Regular Air Force Reserve--(!)
The competent authority may, by general or special order
transfer to the regular Air Force Reserve~
(a) any officer or airman of the Air Force who under the
terms and conditions of his service is liable to
(1) [1977] 3 S.C.R. 758.
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STATE v. KAILASH CHAND (Fazul Ali, !.)
701
serve in any Air Force Reserve if and when
constituted;
(b) any officer or airman of the Air Force whose comntission or engagement in the Air Force has been
terminated before the commencement of this
Act
and who under the terms of his
commission
or
engagement was liable to serve in any Air Force
Reserve if and when constituted;
( c) any officer or airman who has served in the
Air
Force and has retired therefrom;
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and any officer or airman so transferred shall be deemed to
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be a member of the said Reserve.
(2) The competent authority may, in such circumstances
:rnd subject to such conditions a-. may be presc,ibed,
by special order, appoint to the Regular Air Force
Reserve any member of the
Air Defence Reserve
or the Auxiliary Air Force raised and maintained
under this Act, and where any such member is so
appointed, he shall cease to be a member of the
Air Defence Reserve or the Auxiliary Air Force, as
the case may be, and shall as iifom the date of
such appointment be deemed to be a member of the
Regular Air Force Reserve.
(3)
6. Classes of persons in the Regular Air Force Reserve--
Members of the Regular Air Force Reserve shall be divided into the following classes, namely .
(a) general duties officers, and
( b) ground duties officers, a.nd
(c) airmen,
and every officer shall be entitled on transfer or appointment to the Reserve to hold the same rank as that which
he· last held in the Air Force or the Air Defence Reserve
or the Auxiliary Air Force, as the case may be, before such
transfer or appointment.
7. Period of service--(1) Every member of the
Regular
Air Force Reserve shall be liable to serve in the Reserve--
(a) if he is transferred to the
Reserve
under
subsection (1) of section 5, for the period of his Reserve liability; and
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[1980] 2 5.C.R.
(b) if he is appointed to the Reserve under sub-section
(2) of section 5, for the remainder of the period
for which he was liable to serve in the Air Defence
Reserve or the Auxiliary Air Force, as the case may
be :
Provided that the competent authority may require any
such member to serve in the Reserve for such further
period or periods not exceeding in the aggregate five years as
it may think fit.
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9. Constitution of Air Defence Reserve-The Central
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G-Overnment may raise and maintain in the manner hereafter in this Chapter provided an Air Force Reserve to be
designated the Air Defence Reserve which shall consist of
persons deemed under the provisions of section 16 to be
enrolled therein.
10. C'lasses of persons in the
Air Defence Reserve--
fl
Members of the Air Defence Reserve shall be divided into
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the following classes, namely :-
(a) general duties officers;
(b) ground duties officers; and
(c) airmen.
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12. Liability to be called up for inquiry-Every person to
whom the provisions of section 11 are applicable shall be
liable to be called up for inquiry under section 13-
( a) if he belongs to any of the classes specified in
clauses (a) to ( f) of sub-section (1) of section
1 L until he has c0111pleted his thirty-seventh year,
and
(b) if he belongs to any of the classes specified in
clauses ( g) and (h) of the said sub-section, until
he has completed his fiftieth year.
x
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18. Constitution of Auxiliary Air Force-(1) The Central
Government may raise and maintain in the manner hereafter
in this Chapter provided an Air Force to be designated
the Auxiliary Air Force.
(2) The Central Government may constitute
~uch
number
of squadrons and units
of the Auxiliary Air
Force as it thinks fit and may disband or reconstitute any
squadron or unit.
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STATE v. KAILASH CHAND (Fazal Ali, J.)
703
19. Classes ot persons in the Auxiliary Air Force-Members of the Auxiliary Air Force shall be divided into the
following classes, namely :
(a) general duties officers;
(b) ground duties officers; and
(c) airmen.
20. Officers of the Auxiliary Air Force-The President
may grant to such person as he thinks fit a commission
as an officer in the Auxiliary Air Force with the designation of rank corresponding to that of any commissioned
officer in the Air Force.
22. Periods of service-Every ollicer and every enrolled
person shall, subject to any rules that may be made in this
behalf under this Act, be required to serve in the Auxiliary
Air Force for a period of five years from the date of his
appointment or enrolment but may, after the completion of
his period of service, volunteer to serve therein for further
periods each of not more than five years' duration.
23. Termination of Service-The service of any officer or
enrolled person in the Auxiliary Air Force may, at any time
before the completion of his period of service, be terminated
by such avthorily and under such conditions as may he
prescribed."
(Emphasis ours)
A perusal of the provisions of these sections would clearly reveal
that once the respondent was transferred to the Auxiliary Air Force
he retained his character as a public servant because he was required
to undergo training and to be called up for service as and when
required.
It is true that these provisions do not expressly contain
the nature of the emoluments that the respondent may receive but
the general tenor and setting of the Act clearly show that a member
of the Auxiliary Force is as much a public servant as an acting
member of the Indian Air Force.
TI1is is the view which the High
Court appears to have taken and we find ourselves in complete agreement with the same. It is not disputed in this case that no sanction
was taken from the appointing authority before prosecuting the respondent.
For these reasons, therefore, we do not find any error of
Jaw in the judgment of the High Court and the appeal fails and is
accordingly dismissed.
N.V.K.
Appeal dismissed.
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