JAWAHAR LAL KOUL Vs. STATE OF JAMMU AND KASHMIR
HIGH COURT OF JAMMU AND KASHMIR
JAWAHAR LAL KOUL
STATE OF JAMMU AND KASHMIR
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(1.) ORDER :- The question involved in the petition for quashing criminal proceedings is (1) Whether a person ceases to be a public servant as defined u/S. 21 of the Ranbir Penal Code after he superannuates from service and (2) Whether a public servant before he is asked to show cause for the failure to submit annual return can be prosecuted for the offence created by S. 11 of the Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983 (for short Act of 1983).
(2.) Both the questions have arisen because a case u/S. 11 of Act of 1983 read with S. 5(2) of Prevention of Corruption Act was registered against the petitioner in November, 1994 while he had retired from service in 1992. The allegation against the petitioner is that while serving as Divisional Forest Officer in the Forest Department at various places he failed to submit return of his assets and had therefore, violated S. 11 of the Act of 1983 which is a criminal misconduct within the meaning of Cl. (e) of sub-section (1) of S. 5 of the P.C. Act and thus punishable u/S. 5(2). After investigation challan was produced in the Court of Special Judge Anti-Corruption, Jammu on 14-12-1995 who after taking cognizance of the case framed charges u/S. 11 read with S. 5(2) of the P.C. Act. The contention of Mr. Goja appearing for the petitioner is that petitioner having superannuated from Govt. service in the year 1992 is no longer public servant under S. 21 of the State Ranbir Penal Code. He therefore, could not be prosecuted for the offence committed by him as public servant. According to the learned counsel while a public person who has been under the employment of the Govt. can be prosecuted even after his retirement under the Prevention of Corruption Act, 2006, this cannot be so u/S. 11 of the Act of 1983. He further argued that offence u/S. 11 of Act of 1983 is not complete unless person has been provided an opportunity to show cause for his failure to submit annual return of his assets. Since no such opportunity was provided to the petitioner, his prosecution is misuse of the process of the Court.
(3.) Mr. Sharma, GA appearing for the respondent on the other hand argued that it is the date of commission of offence which determines the criminal liability and not the date of retirement of a public servant. With regard to the 2nd question, the argument of Mr. Sharma is that accused was provided an opportunity by the Vigilance Organisation to show cause why he failed to submit return and this satisfies the requirement of law.;
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