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Government filed criminal case after 13 years of my retirement

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Criminal Law

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The Bihar Government has filed criminal case after 13 years of my retirement. Government has filed a criminal case against me under section 420/467/468/471/409/201/120-B IPC for granting illegal licenses to some traders of Bihar in the discharge of my official duties. It was the regime of Lalu Yadav when the government frequently changes rules and regulation for granting licenses. Now I am retired from the public post in the year 2002 March 12.

I have been availing all the retiral benefits and also enjoy pension. On November 3 of the year 2014, I received a letter from the PS of my department that Honorable Governor of state passed an order to recover all the loss, suffered to department from granting illegal licenses, from my pension. Sir, is it legitimate to file a criminal case and recover that amount out of my pension after 25 years from the date of occurrence and 13 years of my retirement?

Question asked from: Bihar

You had committed that offence in the discharge of your official duties. In Subramaniyam Swami vs Man Mohan Singh AIR 2012 SC; the Supreme Court has held that the trial court has a right to examine all the facts and evidence of the case. The court may take cognizance of the offence however, it has been filed after a long time. Thus, court can take cognisance however, the Government has filed criminal case after 13 years of your retirement.

Cognisance of offence after retirement

Section 468 Cr.P.C. provides a period of limitation in respect of taking cognizance of the criminal case. There is no limitation period of an offence punishable with more than three years of imprisonment. Hence, the court can take cognizance at any time after commencement of offence.

Offences under section 420/467/468/471/409/201/120-B IPC are punishable for the detention of more than three years, so no period of limitation applies to them. In Ram Chandra Rao vs State of Karnataka AIR 2002 SC; held by Supreme Court that there is no period of limitation for the continuation of trial of the criminal case.

The court cannot take cognisance against a retired government servant unless the government gives sanction for prosecution.

Sanction for prosecution

Section 197 of the code of criminal procedure makes it mandatory to get sanction from the government before taking cognisance against the government servant. Here, the word government servant includes both retired and serving officer. That sanction is mandatory 

  • If the accused is serving or ex-government servant. 
  • The alleged offence has been committed by a government servant in the discharge of his official duty. 
  • The government servant is removable from his office save by or with the sanction of the government (central or state government).

If criminal proceeding has been initiated against a retired government servant without taking sanction then such a proceeding is illegal. The High Court, in exercise of his inherent power under Section 482 of the code of criminal procedure (crpc), may quash such a criminal proceeding. 

Offence committed in discharge of official duty

It is mandatory for taking sanction from the government that the accused committed the alleged act in the discharge of his official duty. The alleged act must has a direct nexus with the official duty. If the accused committed different act which is not the part of his duty then sanction is not required for his prosecution.

In Punjab State Warehousing Corpn. v. Bhushan Chander, (2016) 13 SCC 44 the hon’ble Supreme Court has held that 

There has to be a reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the act(s), omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise.

But in your case the connection between official duty and alleged act is missing. The alleged offences are related to forgery, cheating and criminal conspiracy. Act of forgery and cheating are totally unconnected to the official duty of a government servant. 

It was not your official duty to fabricate false records, misappropriate government funds or indulge in criminal conspiracy in discharge of official duty. Therefore, sanction under Section 197 crpc is not required in your case. Hence, the criminal proceeding is valid and carried on in the conformity of settled principles of law.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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