TMI Blog2007 (7) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... arge against the appellant in terms of Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short the 'Act'). 2. Background facts in a nutshell are as follows: A charge sheet was filed against the appellant by the Central Bureau of Investigation Authorities (in short the 'CBI') Chandigarh. After completion of the investigation in the case it was registered on 6.8.1990, in terms of Section 13(1)(e) read with Section 13(2) of the Act. An application under Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code') was filed for quashing the said FIR and the same was dismissed as withdrawn on 11.9.1996. Liberty was however given to take all the available plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was available to him. The plea did not find acceptance by the trial Court. Before the High Court also that plea was reiterated. But the High Court by the impugned judgment dismissed the same. The plea taken before the learned Special Judge and the High Court was reiterated in the appeal and it was submitted that since the order of dismissal was set aside for all practical purposes appellant continued to be in service and therefore the orders of the learned Special Judge and the High Court are not maintainable. Reliance was placed on State of U.P. v. Mohammad Nooh AIR 1958 SC 86 to buttress the plea. It was, therefore, submitted that if one is bidden to treat imaginary state of affairs as real, he will unless prohibited for doing so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 197 of the Code concerns a public servant who is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty , whereas the offence contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code. 5. Section 19(3) of the Act reads as follows: Notwithstanding anything contained in the Code of Criminal Procedure, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that explanation should be limited to the purposes the Constitution maker said and legal fiction has created for some definite purposes. 8. Again in The Commissioner of Income Tax, Bombay City, Bombay v. The Elphinstone Spinning and Weaving Mills Co. Ltd. [1960]40ITR142(SC) it was held that the fiction cannot be carried further for what it is intended for. The view was re- iterated in K.S. Dharmadatan v. Central Government and Ors. 1979CriLJ1127 where the factual situation is almost identical. The factual position was that the appellant in that case was being prosecuted for commission of offence punishable under Sections 120B, 420, 471 of the Indian Penal Code, 1860 (in short the 'IPC') and Section 5(1) of the Preventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.3.1947, with the object of making provisions for the prevention of bribery and corruption more effective. In 1952 a Committee headed by Dr. Bakshi Tek Chand was constituted. The said Committee examined the true intent and purpose of Section 6 of the Old Act. It was inter alia noted by the Committee as follows: Section 6 of the Act prescribes that no prosecution under Section 5(2) is to be instituted without the previous sanction of the authority competent to remove the accused officer from his office. The exact implications of this provision have on occasions given rise to a certain amount of difficulty. There have been cases where an offence has been disclosed after the officer concerned has ceased to hold office, e.g., by retire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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