judgement:
N: Criminal Appeal No. 239 of 1979.
Appeal by Special Leave from the Judgment and Order dated 3 11 78 of the Allahabad High Court in Criminal Revision Nos. 1064 and 1065/75.
section K. Sabharwal for the Appellants.
O. P. Rana for the Respondent.
The following Judgments were delivered: KRISHNA IYER, J. Concurrent convictions by both the courts below have, by a rule of restriction and circumspection which this Court often adopts under article 136, persuaded me to circumscribe the leave to appeal to the critical question of punishment, usually answered by courts untouched by current humane criteria and drowned in the superstition that the gravity of the crime and the tariff prescribed in the Penal Code have a monopolistic hold on the sentencing court.
Quackery in criminology is a deficiency in forensic justicing especially disastrous is sensitive areas like juvenile sentencing when unlettered punishment becomes unwitting crime.
The present case is an illustration of judicial habituation to prescribing sentences conditioned by the offence and its milieu, forgetting the fundamental fact that the human delinquent, not the criminal deviance, is the cynosure of punitive processing.
The further Gandhian axiom follows that crime is like disease, and correction, not cruelty, has dominance in the sentencing calculus.
The sadistic appeal to severity of infliction takes on a sublimated form in the judicial process, as has happened in the instant case.
The court has rightly been horrified by the crime of rape here but wrongly bid farewell to the reform of the vernal criminals.
770 Three boys.
between the ages of ten and fourteen with simmering sex urges amidst societal inhibitions, and infatuating stimulations, came by an eleven year old girl tending cattle in a village, and this, by happen stance, was near a neglected brick kiln which temptingly offered protective privacy for carnal assault.
This lascivious opportunity excited the three juveniles, otherwise engaged in cutting grass, into erotic experimentalism.
They advanced aggressively towards the artless victim, tied up by way of preventive detention a young cowherd who chanced to be near the scene and forcibly went through the adolescent exercise of rape.
The courts below have held the three petitioners guilty of an offence under s.376 I.P.C. and we do not feel it right to nibble at probabilities and disturb that conclusion.
Current Indian ethos and standards of punitive deterrence make rape a heinous offence.
The offenders, however, are children and the dilemmatic issue is to fix the sentencing guidelines when juvenile delinquents come before the court. 'Justice and the Child ' is a distinct jurisprudential criminological branch of socio legal speciality which is still in its infant status in India and many other countries.
the Children Act is a preliminary exercise, the Borstal School is an experiment in reformation and even s.360 Cr.
P.C. tends in the same direction.
Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of criminal justice.
Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental concern of the State for its child citizens including juvenile delinquents.
The penal pharmacopeia of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment.
This is the central problem of sentencing policy when juveniles are found guilty of delinquency.
A scientific approach may insist on a search for fuller material sufficient to individuate the therapy to suit the criminal malady.
As the United States Supreme Court stated in Williams vs New York,(1) present the reports: "have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guess work and inadequate information.
To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation.
" 771 Judge F. Rayan Duffy has written: "If the judge has before him a complete and accurate presentence investigation report which sets forth the conditions, circumstances, background, and surroundings of the defendant, and the circumstances underlying the offence which has been committed, the judge can then impose sentence with greater assurance that he has adopted the proper course.
He can do so with much greater peace of mind." "Regrettably, our juvenile justice system still thinks in terms of terror, not cure, of wounding, not healing, and a sort of blind man 's buff is the result.
This negative approach converts even the culture of juvenile homes into junior jails.
From the reformatory angle, the detainees are left to drift, there being no constructive programmes for the detainees nor correctional orientation and training for the institutional staff.
I highlight these drawbacks largely because the State 's response to punitive issues relating to juveniles has been stricken with 'illiteracy ' and must awaken to a new 'enlightenment ', at least prompted by the international year of the Child.
Patricia M. Wald has strengthened this perspective in a recent book on "Pursuing Justice for the Child".(1). "Juvenile detention needs a new focus and a new rationale.
The detention period ought to be used to begin to draw together resources necessary for constructive change, whether or not the juvenile is adjudicated.
There is abundant evidence that detention has failed as an isolated interlude between those more dramatic parts of the juvenile justice system arrest and trial or disposition.
The Juvenile judge still has a vital function to fulfil in detention.
The judge is charged with the solemn determination whether to deprive juveniles of liberty or whether they can be released in their parents ' custody or to a third party and, if so, what conditions should apply to the release.
In making such a decision the judge should follow due process hearing procedures and the legal presumption should favour release.
If the decision is to detain, the judge must make a record to support that decision.
The legality of preventive detention in the juvenile court needs to be tested.
If the power is upheld, the procedural safeguards should be as precise as they are for adults.
We should abandon the notion that secure detention is good for the child.
772 Some legal absolutes seem imperative; jail for juveniles should be outlawed; status offenders should not be put into secure detention; finite limits should be set on how long a child can be detained before or after adjudication; minimum standards for physical structure, staff, and program should be enforced by the courts.
Even then, we should not cease inquiring whether there are yet better and more enlightened ways to use the interlude after arrest to help juveniles so that, unless they are innocent, or so blighted that removal from the community before or after trial is an almost indisputable necessity, there may be no need for the rest of the progress at all." These general observations of futuristic import apart, we have to concretise the measures to be taken in the present case under the available law and the available facilities.
The mainstream of criminal justice has not been refined by restorative legislations.
We have the Uttar Pradesh Children Act, 1952 and 'approved schools ' of sorts under it.
We have provision for juvenile courts (section 60), Reformation Officers (section 34), and a flexible cluster of factors, social and personal, to be taken into consideration in passing orders when a tender aged delinquent is to be taken into custodial care by the court (section 68).
Reports by Reformation Officers have a helpful role in the sentencing process.
The finer focus of sentencing is not furious reaction to the offence but habilitative rescue of the youthful offender from moral material abandonment and careful reformation by kindling his creative potential.
Judicial responsibility is not mechanistic but humanistic, and the ritualistic magistrate is a misfit.
Section 70 of the U.P. Children Act highlights it: 70.
Principles to be observed by Courts in dealing with children and young persons.
Every Court in dealing with a child who is brought before it, either as needing care or as an offender or otherwise shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training.
Functionally, a judicial order on a child must be guided by this legislative value judgment.
Non custodial disposition of the young offender is permissible under section 30 of the Act which reads: 773 30.
Power to discharge youthful offender or to commit him to suitable custody. (1) A court may, if it thinks fit, instead of directing any youthful offender to be detained in an approved school, order him to be (a) discharged after due admonition; or (b) released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person, on such parent, guardian, relative or person executing a bond, with or without sureties, as the Court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and for the observance of such other conditions as the Court may impose for securing that the youthful offender may lead an honest and industrious life.
The Court may order that the youthful offender released under this clause may be placed under the supervision of a Reformation Officer or of some other person appointed for the purpose by the Court.
(2) If it appears to the Court on receiving a report from the Reformation Officer or otherwise that the offender has not been of good behaviour during the period of the probation, it may, after making such inquiry as it thinks fit, order the offender to be detained in an approved school.
Indeed, a conscientious judge may consider it of better service to society : "If the criminal 's past history gives good reason to believe that he is not of the naturally criminal type, that he is capable of real reform and of becoming a useful citizen, there is no doubt that probation, viewed from the selfish standpoint of protection to society alone, is the most efficient method that we have.
And yet it is the least understood, the least developed, the least appreciated of all our efforts to rid society of the criminal." "The basic idea underlying a sentence to probation is very simple.
Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against.
Probation proceeds on the theory that the best way to pursue 774 this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the other objectives of sentencing.
Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and a typical environment of an institution of confinement.
Banishment from society, in a word, is not the way to integrate someone into society.
Yet imprisonment involves just such banishment albeit for a temporary sojourn in most cases.
This is of course not to say that probation should be used in all cases, or that it will always produce better results.
There are many goals of sentencing, some of which in a given case may require the imposition of a sentence to imprisonment even in the face of a conclusion that probation is more likely to assure the public that the particular defendant will not offend again.
And there are defendants as to whom forced removal from the environment which may in some part have contributed to their offence may be the best beginning to a constructive and useful life.
"(1) Appeal and revision provided under section 79 of the Act involve the higher courts in the process.
We are sad that this crucial judicial task has been discharged with lesser awareness of its seriousness and complexity than necessary.
For instance the Sessions Court, oblivious of the offender and obsessed with the offence, in brief confirmation, spent one sentence on sentence.
"Due to seriousness of the crime there is no justification to release the appellants on probation.
" The High Court devoted a paragraph but was upset by the Criminal act and closed its mind to salvaging the sentence : "Lastly, it is urged that the sentence awarded to the revisionists be reduced in view of their ages.
I am reluctant to do so because they committed a crime which repels against moral conscience.
They chose a girl of 11 years to satisfy their lust.
They spoiled her life by committing this offence as her father would experience considerable difficulty in arranging her marriage.
They were so cruel that all the three committed rape on that minor child.
Such an act deserves to be deprecated.
The sentence awarded by the 775 learned lower courts does not at all err on the side of severity.
Moreover, the learned lower courts have already shown sympathy by keeping them in an approved school at Etawah.
" While the victim needs reparation, failure to pay heed to, which is a blind spot in our criminal justice system, the offender 's circumstances are material in sentencing, omission to notice which is a systemic, though traditional failing.
We find no emphasis on the age antecedents, parental and social circumstances and curative possibilities or Reformation Officer 's report bearing on the three children punished.
The Children Act makes meticulous provisions which slumber on the statute book and seek no visa into the court room.
We hope this elaborate discussion will activate sentencing wisdom vested in the criminal courts.
At this late stage, without prolonging the process, we can only direct some pragmatic steps.
No report from a Reformation Officer is available.
No consideration of the social milieu, personal antecedents, parental influences, educational status and other material factors is apparent in the judgments.
Nor, indeed, is there any serious advertence to the advantages of community oriented reformation or the disadvantages of institutional inter mix and quasi incarceration.
The juvenile detention system, it must be noted, has not fulfilled itself even in countries where it is heavily funded like in the U.S.A. where the young delinquents are "penned like cattle, demoralized by lack of activities and trained staff, often brutalized.
Over half the facilities in which juveniles are held have no psychiatric or social work staff.
A fourth have no school program.
The median age of detainees is fourteen; the novice may be sodomized within a matter of hours.
Many have not been charged with a crime at all.
From New York to California, the field reports repeat themselves depressingly.(1) Our `approved schools ' like our adult prisons sometimes remind us of animal farms, if only judges care to visit jails.
These blemishes, in far worse measure, have blighted our Homes and Schools and approved custodial institutions, although our correctional repertory, augmented by meditational, recreational and oriented Gandhian tools, may inexpensively expand and deepen the rehabi 776 litative potency of our sentencing strategies in this area.
Be that as it may, the U.P. Children Act appears to have been virtually given a go bye in the courts below, a phenomenon which frequently happens because practising lawyers and judicial officers have not yet given the deeper reflection that welfare oriented rehabilitative legislations of the mentally and morally retarded in the criminal justice field deserve.
The Criminal Procedure Code, 1973, has made provision in s.360 to deal with persons under 21 years of age convicted of offences, punishable with imprisonment for a term of seven years or less and section 376 I.P.C., cannot come within its purview.
But the U.P. Children Act defines a `youthful offender ' to mean "any child who has been found a to have committed an offence punishable with transportation or imprisonment".
Thus, life imprisonment for the offence does not take the delinquent out of the category of youthful offender as defined in section 2(13) of the said Act.
Section 30 authorises the Court, if it thinks fit, instead of directing any youthful offender to be detained in an approved school, order him to be released conditionally, as earlier indicated.
We think that the present case deserves action under section 30.
Rape is horrific True.
The victim is a pathetic child and deserves not merely commiseration but also compensation, an aspect which the State will take note of when a proper application is made to it.
Our immediate problem is the disposition of the appellants who are also very young.
They have served out some term in an `approved school ' which, making a realistic appraisal, is a `junior jail '.
It is not as if these little lads are incorrigible rapists or violent toughs running amok.
Parental neglect, tempting opportunity, sex perversionslibadences (sic) libidinous environs and a host of other factors where state in action is contributory to exciting adolescent erotica, count for vulgar, vicious or violent delinquency.
These boys can and should be rehabilitated, and that is done best by obligating the parent to take care of the children concerned and not by institutionalised custody.
Section 30 of the Act is attracted by the facts of this case to the extent we are able to glean from the meagre material on record.
We hope that when children are brought before court, the provisions of the Children Act will be remembered by the Bench and the Bar and its rehabilitative engineering set in motion.
In the present case, we direct the appellants to be released on probation of good conduct and committed to the care of their respective parents and if no surviving parent then their guardian executing a bond each, without sureties, to be responsible for the good behaviour 777 of the youthful offender for a period of two years from the date of release and for the observance of a condition, namely, that the child shall be put to school or continue its studies if it is already at school and attend any recreational or meditational centre if any, of the parent 's choice regularly.
Many systematic experiments, acknowledged in prison reports and judgments of trial courts have proved the therapeutic value of transcendental Meditation viz a viz juvenile delinquents.(1) The Reformation Officer having jurisdiction over the locality shall have supervision over each of the appellants and shall make a report once in three months to the trial court.
If the report shows laps into bad behaviour, the court may direct detention of the deviant appellant or appellants in an approved school.
The Reformation Officer will explain to the parents of the delinquents and the appellants the import of this order so that they may appreciate the necessity for compliance therewith and cooperate in the rehabiliatory process.
I may venture a view in conclusion that the revolutionary contribution Indian culture may make to criminology is apt to be the focus on human consciousness whose mutilation leads to sickness, crime and sorrow and whose restoration, collective and individual, is the insurance against psychic stress and its off shoots crime and related maladies.
The technology of sentencing must release man from distortions and pressures on lines ancient and modern.
This parenthesis, in a sense, argues for the new orientation in juvenile justice.
A copy of this order will be sent to the approved school, Etawah, and to the trial Judge for immediate compliance.
A copy of the order will also be served on the Advocate for the appellants for communication to and compliance by his clients and to the Home Department for correctional actions.
PATHAK, J.
The petitioners were convicted by the learned Assistant Sessions Judge, Aligarh for the offence under section 376 of the Indian Penal Code and sentenced to two years rigorous imprisonment.
He 778 directed their detention for the period of their sentence in an approved school at Etawah.
Their appeal was dismissed by the learned Additional Sessions Judge, Aligarh.
The High Court declined to interfere in revision, From the material on the record it is not possible to say that the finding of the courts below that the petitioners committed the offence is not substantiated by the evidence on the record and, in my opinion, no case has been made out for interfering with the conviction.
But so far as the sentence is concerned, I think that the High Court and the courts below have not sufficiently appreciated the need for a proper order.
Special leave granted on the question of sentence only.
Order on the appeal.
The appellants are children.
At the time of the offence the age of the three appellants ranged between 10 years and 14 years, the youngest, Satto, being 10 and the eldest, Bucha, being 14.
They were cutting Rizka in their village fields when Kumari Bismillah, who was then about 12 years old, passed by grazing her cattle.
Apparently, the three youngsters were seized with the temptation of having sex with her and borne on that impulse they forced the girl inside a brick kiln and committed rape on her, after securing a bystander, Baboo, who was also grazing his goats at the spot, to a tree.
There can be no doubt that the act cannot possibly be condoned.
It calls for severe condemnation by the plainest moral standards.
But on the question of sentence, the High Court and the courts below have, almost mechanically, affirmed a sentence of two years imprisonment to be served out by detention in an approved school.
They have failed to apply their mind to considerations which are relevant when a youthful offender is sentenced.
The U.P. Children Act, 1951 contains two provisions in that regard.
Section 29 provides that where a child is found to have committed an offence punishable with transportation or imprisonment, the court, if satisfied an inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for a stated period.
Section 30 provides. "30.
Power to discharge youthful offender or to Commit him to suitable custody.
(1) A court may, if it think fit, instead of directing any youthful offender to be detained in an approved school, order him to be (a) discharged after due admonition; or (b) released on probation of good conduct and committed to the 779 care of his parent, guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or without sureties, as the court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and for the observance of such other conditions as the court may impose for securing that the youthful offender may lead an honest and industrious life.
The Court may order that the youthful offender released under this clause may be placed under the supervision of a Reformation Officer or of some other person appointed for the purpose by the Court.
(2) If it appears to the Court on receiving a report from the Reformation Officer or otherwise that the offender has not been of good behavior during the period of the probation, it may after making such inquiry as it thinks fit order the offender to be detained in an approved school.
" Almost invariably the question will arise whether the youthful offender should be proceeded against under section 29 or section 30 The answer to the question lies in the judgment of the Court, which judgment must be made in the sound exercise of its discretion.
Among the considerations to which the court must apply its mind are the age of the child his family background, his general past conduct and antecedents, the circumstances in which he committed the offence, and which of the measures provided by the statute, section 29 or section 30, will more effectively and yet not harshly enable the child to develop into a responsible member of society.
It must be remembered that the U.P. Children Act deals with children, and a "child" is defined by s.2(4) as a person under the age of sixteen years.
The Statute is concerned with a person whose personality, judgment and discretion has not yet attained maturity.
The primary object then must be to place the child in an environment conducive to his rehabilitation and providing scope for corrective action.
That appears to be the basic criterion for determining the choice between section 29 and section 30.
In a case where the child has acted on impulse in committing an offence, and there is nothing to show the presence of any vicious streak of character, it would be more appropriate to leave him to the care and attention of parental authority rather than to send him to an approved school.
That will depend, however on whether parental attention is possible and forthcoming and whether it does not suffer from want 780 of sufficient effectiveness in moulding the proper moral development of the child.
In my opinion, having regard to the facts and circumstances of the present case the order contemplated by section 30(1) (b) of the Act would more appropriately meet the ends of justice and serve the object of the statute.
Accordingly, the appeal is allowed on the question of sentence.
The sentence imposed by the learned Assistant Sessions Judge and affirmed by the learned Additional Sessions Judge and the High Court, is set aside.
The appellants are ordered to be released on probation of good conduct and to be committed to the care of their respective parents, and if there are no surviving parents then their guardian, on such parents or guardian executing a bond each without sureties, to be responsible for the good behaviour of the youthful offender for period of two years from the date of the release and for the observance of a condition that the child should be put to school or continue his studies if he is already in school, and regularly attend any recreational centre or meditational centre (if any) of the parent 's choice.
The Reformation Officer enjoying jurisdiction in the locality will have supervision over each of the appellants and shall make a report once every three months to the trial court.
The Reformation Officer will explain to the appellants and their parents the import of this order.
A copy of this order will be sent to the approved school, Etawah, and to the trial court for immediate compliance.
A copy of the order will also be served on counsel for the appellants for communication to, and compliance by, the appellants.
N.K.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Three Petitioners between the ages of 10 & 14 came by an eleven year old girl, tending cattle in a village, near a neglected brick kiln which temptingly offered protective privacy for committing rape.
They advanced towards the victim and tied her up.
They forcibly went through the exercise of rape.
The courts below have held the three petitioners guilty of an offence under section 376 J.P.C. and sentenced each to two years ' rigorous imprisonment.
The offenders being children the dilemmatic issue is to fix the sentencing guide lines for juvenile delinquents.
It was argued that "Justice and the Child" is a distinct jurisprudential criminological branch of socio legal speciality which is still in its infant status in India and many other countries.
The children Act is a preliminary exercise, the Borstal School is an experiment in reformation and even Section 360 Criminal Procedure Code tends in the same direction.
In the absence of any report from the Reformation Officer nor any consideration of the social milieu, personal antecedents, parental influence, educational status and other material factors bearing on the three petitioners, the Court while accepting the appeal, ^ HELD: The appellants should be released on probation of good conduct and committed to the care of their respective parents and if no surviving parents, then their guardian, executing a bond each without sureties to be responsible for the good behaviour of the youthful offender for a period of two years from the date of release and for the observance of a condition namely that the child shall be put to school or continue its studies if it is already at school and attend any recreational or meditational centre, if any, of the parents ' choice regularly.
The Reformation Officer enjoying jurisdiction in the locality will have supervision over each of the appellants and shall make a report once every three months to the Trial Court.
The Reformation Officer will explain to the appellants and their parents the import of this order.
[776H, 777A C] Pathak, J. (concurring) On the question whether the youthful offender should be proceeded against under section 29 or Section 30 of the U.P. Children Act 1951, the court must apply its mind to certain considerations like the age of the child, his family background, his general past conduct and antecedents, the circumstances in which he committed the offence and which of the measures provided by section 29 or section 30 would more effectively and yet not harshly enable the child to develop into a responsible member of society.
The statute is concerned with a person whose personality, judgment and discretion had not yet attained maturity.
A "child" has been defined under Sec.
2(4) of the Act as a person under the age of sixteen years.
Therefore the primary object must be to place the child in an environment conducive to his rehabilita 769 tion and providing scope for corrective action which is the basic criteria for determining the choice between section 29 and section 30 of the Act.
Where a child has acted on an impulse in committing an offence and there is nothing to show the presence of any vicious streak of character, it would be more appropriate to leave him to the care and attention of parental authority under section 30(1) (b) of the Act rather than send him to an approved school.
On the facts of the present case, such an order would meet the ends of justice and serve the object of the statute.
[779E H, 780A B] William vs New York, ; , 249, Sentencing and probation National Collage of the State Judiciary Reno, Nevada, page 258 relied upon.


judgement:
N: Criminal Appeal No. 362 of 1975.
Appeal by Special Leave from the Judgment and order dated the 11th July, 1975 of the Kerala High Court in Criminal Revision Petition No. 73 of 1975.
section Govind Swaminadhan, E. V. Rangam and N. S Sivam for the Appellant.
Soli J. Sorabjee, Addl.
of India, R. N. Sachthey and E. C. Agarwala for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment and order of the High Court of Kerala dated 11th July, 1975 834 dismissing a criminal revision petition filed by the appellant before the High Court The point involved in the present appeal lies within a very narrow compass.
The appellant was being prosecuted for offences under sections 120 B, 420, 471 and 468 read with section 34 I.P.C., section 167 (72) of the sea of the Sea Customs Act and section 5 (2) read with section 5 (1)(d) of the Prevention of Corruption Act.
At the time when the chargesheet was filed and the Special Judge took cognizance against the appellant sometime in October, 1970 the appellant ceased to be a public servant and, therefore, no sanction under section 6 of the Prevention of Corruption Act (hereinafter referred to as the Act) was obtained.
It appears that in pursuance of a departmental enquiry held against the appellant he was charge sheeted and ultimately dismissed by the appointing authority.
Thereafter, the appellant filed an appeal before the President of India on 18 10 1967 against his removal from service.
After consulting the Union Public Service Commission the President by his order dated 25 9 1972 allowed the appeal and set aside the order of removal from service passed by the Collector of Customs against the appellant.
The order of the President further directed that the period of absence from 5 9 1967 till the date of reinstatement was to be treated as under suspension.
The appeal appears to have been allowed by the President mainly on the ground that there was some defect in the charge sheet served by the disciplinary authority.
The disciplinary authority was directed to institute de novo proceedings against the appellant after rectifying the defect in the charge sheet.
While these proceedings before the President were going on, the trial against the appellant proceeded to its logical end and we now understand that evidence has already been led and the arguments have to be heard.
The appellant on being reinstated by the President filed an application before the special Judge praying that all further proceedings be dropped inasmuch as the prosecution against the appellant was initiated in the absence of a proper and valid sanction having been obtained under section 6 of the Act.
The special Judge, however, rejected the petition as a result of which the appellant moved the High Court but was not successful there.
The only point raised by the appellant before the High Court as also before us was that in view of the order of the President reinstating the appellant retrospectively, the appellant must be deemed to be in service with effect from the date from which the departmental proceedings were started against him, and, therefore, he would be a public servant at the time when cognizance was taken by the special Judge, and 835 as no sanction under section 6 of the Act was obtained, the entire proceedings became void ab initio.
Mr. Sorabjee appearing for the respondents has submitted that admittedly and factually at the point of time when the special Judge took cognizance of the case on 14 10 1970 the appellant having been dismissed from service was no longer a public servant, and, therefore, section 6 of the Act had no application.
Section 6 of the Act runs thus: "6(1) No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or under sub section (2) or sub section (3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction.
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government or of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the Central Government or of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office.
" A perusal of this section would clearly disclose that the section applies only where at the time when the offence was committed the offender was acting as a public servant.
If the offender had ceased to be a public servant then section 6 would have no application at all.
Further more, it is also manifest from the perusal of section 6 that the point of time when the sanction has to be taken must be the time when the court takes cognizance of an offence and not before or after.
If at the relevant time, as indicated above, the offender was not a public servant no sanction under section 6 was necessary at all.
Construing section 6 of the Act this Court in the case of section A. Venkararaman vs The State(1) pointed out as follows: "When the provisions of section 6 of the Act are examined it is manifest that the two conditions must be fulfilled before its provisions become applicable.
One is that the offences mentioned therein must be committed by a public servant and the other is that that person is employed in connection with the affairs of the Union or a State and is not removable from his 836 office save by or with the sanction of the Central Government or the State Government or is a public servant who is removable from his office by any other competent authority.
Both these conditions must be present to prevent a court from taking cognizance of an offence mentioned in the section without the previous sanction of the Central Government or the State Government or the authority competent to remove the public servant from his office.
If either of these conditions is lacking, the essential requirements of the section are wanting and the provisions of the section do not stand in the way of a court taking cognizance without a, previous sanction . . . .
Conversely, if an offence under section 161 of the Indian Penal Code was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make section 6 of the Act applicable would be lacking and a previous sanction would be unnecessary.
The words in section 6(1) of the Act are clear enough and they must be given effect to".
To the same effect is a later decision of this Court in the case of C. R. Bansi vs State of Maharashtra(1) In view of the observations referred to above, it is manifest that as the appellant had ceased to be a public servant at the time when the cognizance of the case was taken against him by the Special Judge no sanction under section 6 of the Act was necessary.
It was, however, argued by Mr. Swaminadhan, learned counsel for the appellant that the logical consequence of the order of the President reinstating the appellant was that he would be deemed to have been put jack into service on the date the charge sheet was submitted against him, and, therefore, he must be deemed to be a public servant within the meaning of section 6 of the Act.
In other words, the learned counsel wanted us to import a legal fiction arising from the Presidential order by which even though factually the appellant may not have been a public servant at the time when the cognizance was taken, he would be deemed to be so by virtue of the Presidential order even though the Presidential order may have been passed years after the cognizance was taken.
We are however unable to agree with the somewhat broad arguments advanced by the learned counsel for the appellant.
837 To begin with, the dismissal of the appellant was not a nullity so as to vitiate all proceedings previous or subsequent.
It was merely an order passed by the President in an appeal and the appellant succeeded because of a manifest defect in the charge sheet.
The order passed by the President was therefore not an order on merits.
There is nothing to show that the President ever intended that the appellant should be deemed to have been reinstated even for the purpose of section 6 of the Act so as to nullify actions completed, consequences ensued or transactions closed.
In fact, when the President observed that the appellant shall be deemed to have been placed under suspension from the date of the original order of dismissal it merely meant that for the purpose of certain civil consequences flowing from the order of the President.
namely, the grant of subsistence allowance or other benefits the, order would be deemed to be retroactive in character.
It is well settled that a deeming provision cannot be pushed too far so as to result in a most anamolous or absurd position.
In the case of Commissioner of Sales Tax, Uttar Pradesh vs The Modi Sugar Mills Ltd. (1) while laying down the principles on the basis of which a deeming provision should be construed this Court observed as follows: "A legal fiction must be limited to the purposes for which it has been created and cannot be extended beyond its legitimate field".
Similarly in the case of Braithwaite & Co. (India) Ltd. vs Employees ' State Insurance Corporation(2) this Court further amplifying the principle of the construction of a deeming provision observed thus: "A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted".
In the Bengal Immunity Co. Ltd. vs State of Bihar and Ors.(3) this Court pointed out that "explanation should be limited to the purpose the Constitution makers had and legal fictions are created only for some definite purpose".
In the case of Commissioner of Income Tax Bombay City vs Elphinstone Spinning and Weaving Mills Co. Ltd.(4) this court observed as follows: 838 "As we have already stated, this fiction cannot be carried further than what it is intended for".
Thus, it is well settled that a deeming fiction should be confined only for the purpose for it is meant.
In the instant case, the order of the President reinstating the appellant and creating a legal fiction regarding the period of suspension must be limited only so far as the period of and the incidents of suspension were concerned and could not be carried too far so as to project it even in cases where actions had already been taken and closed.
In other words, the position seems to be that at the time when actual cognizance by the court was taken the appellant had ceased to be a public servant having been removed from service.
If some years later he had been reinstated that would not make the cognizance which was validly taken by the court in October, 1970 a nullity or render it nugatory so as to necessitate the taking of a fresh sanction.
We, therefore, entirely agree with the view taken by the High Court that in the facts and circumstances of the present case legal fiction arising out of the Presidential order cannot be carried to nullify the order of cognizance taken by the special Judge.
The argument of the learned counsel for the appellant is, therefore, overruled.
No other point was pressed before us.
The appeal being without merit is accordingly dismissed.
The special Judge would now hear the arguments of the parties and dispose of the case as expeditiously as possible.
Let the records be sent back to the special Judge immediately.
V.D.K. Appeal dismissed.

summary/full:
The appellant was being prosecuted for offences under sections 120 B, 420, 471 and 468 read with section 34 I P.C., Section 167 (72) of the Sea Customs Act and Section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act 1947.
At the time when the charge sheet was filed and the special judge took cognizance against the appellant sometime in October, 1970, the appellant ceased to be a public servant and, therefore, no sanction under Section 6 of the Prevention of Corruption Act, 1947 was obtained.
The departmental enquiry against the appellant ended in his dismissal but the President of India allowed his appeal and set aside the order of removal from service passed by the Collector of Customs against him with directions to treat the period of absence from 5 9 1967 till the date of reinstatement as under suspension, and to institute de novo proceedings against the appellant after rectifying the defect in the charge sheet.
While the departmental proceedings were going on, the trial against the appellant proceeded to its logical end except the arguments being heard.
The appellant on being reinstated filed an application before the special Judge praying that all further proceedings be dropped as the prosecution against the appellant was initiated in the absence of a proper and valid sanction having been obtained under Section 6 of the Prevention of Corruption Act.
The special Judge rejected it and the High Court confirmed the rejection.
Dismissing the appeal by special leave, the Court ^ HELD: 1.
Section 6(1) of the Prevention of Corruption Act, 1947 applies only where at the time when the offence was committed the offender was acting as a public servant.
If the offender had ceased to be a public servant then section 6 would have no application at all.
Furthermore, the point of time when the sanction has to be taken must be the time when the Court takes cognizance of an offence and not before or after.
If at the relevant time, the offender was a public servant no sanction under section 6 was necessary at all.
[835E F] In the instant case, no sanction under section 6 of the Act was necessary, as the appellant had ceased to be a public servant at the time when the cognizance of the case was taken against him by the special Judge.
[836E] section A. Venkataraman vs The State, ; C. R. Bansi vs State of Maharashtra, ; followed.
833 2.
A deeming provision cannot be pushed too far as to result in a most anomalous or absurd position.
A deeming provision should be confined only for the purpose for it is meant.
[837C, 838A] Commissioner of Sales Tax, U.P. vs The Modi Sugar Mills Ltd., ; ; Braithwaite & Co. India Ltd. vs Employees ' State Insurance Corporation; , ; Bengal Immunity Co. Ltd. vs State of Bihar and Ors., ; Commissioner of Income Tax, Bombay City vs Elphinstone Spinning and Weaving Mills Co. Ltd., 40 I.T.R. 142; applied.
In the instant case: (a) The order of the President reinstating the appellant and creating a legal fiction regarding the period of suspension must be limited only so far as time period of and the incidents of suspension were concerned and could not be carried too far as to project it even in cases where actions had already been taken.
[838A B] (b) The dismissal was not a nullity so as to vitiate all proceedings.
The order passed by the President was not an order on merits.
It was merely an order passed by the President in an appeal an a departmental enquiry and the appellant succeeded because of a manifest defect in the charge sheet.
The President never intended that the appellant should be deemed to have been reinstated even for the purpose of section 6 of the POCA, 1947 so as to nullify actions completed, consequences ensued or transactions closed.
In fact when the President observed that the appellant shall be deemed to have been placed under suspension from the date of the original order of dismissal it merely meant that for the purpose of certain civil consequences flowing from the order of the President namely the grant of subsistence allowance or other benefits the order would be deemed to be retroactive in character.
[837A C] (c) At the time when actual cognizance by the Court was taken the appellant ceased to be a public servant having been removed from service.
If some years later he had been reinstated that would not make the cognizance which was validly taken by the Court in October, 1970, a nullity or render it nugatory, so as to necessitate the taking of a fresh sanction.
[838B C]