Friday, July 8, 2011

SC allows prosecution of Abhay and Ajay Chautala in a disproportionate assets case

4.7.2011 (UNI) The Supreme Court today cleared the decks for prosecution of two Indian National Lok Dal leaders from Haryana -- Abhay Chautala and Ajay Chautala -- in a disproportionate assets case. 

A bench comprising Justices V S Sirpurkar and T S Thakur dismissed the plea of the two leaders, the sons of former Haryana Chief Minister Om Prakash Chautala, challenging their trial on the grounds that they cannot be prosecuted without the prior permission of the Haryana Assembly Speaker. 

One of the petitioners, Abhay Chautala, was MLA between 2000 and 2005 when his father was the Chief Minister of the state. 

The Chautala brothers are facing trial in Karkardooma court, Delhi, for acquiring assets beyond their known sources of income allegedly through corrupt means by misusing the status of their father as the Haryana Chief Minister. 

The apex court was not impressed by their contention and said those facing corruption charges do not enjoy any protection under the law and no prior permission or approval of the Speaker is needed. 

The Full case are as below:-

                           IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO.    1257         OF 2011

                    (Arising out of SLP (Crl.) No. 7384 of 2010)


Abhay Singh Chautala                                                        ... Appellant

                                             Versus


C.B.I.                                                                      ... Respondent

                                              WITH

                   CRIMINAL APPEAL NO.    1258         OF 2011

                    (Arising out of SLP (Crl.) No. 7428 of 2010)


Ajay Singh Chautala                                                         ... Appellant

                                             Versus

C.B.I.                                                                      ... Respondent

                                      J U D G M E N T


V.S. SIRPURKAR, J.



1.        This judgment will dispose of two Special Leave Petitions, they being SLP


(Crl.)  No. 7384 of 2010  and  SLP  (Crl.)  No.  7428  of 2010.   While Abhay Singh


Chautala is the petitioner in the first Special Leave Petition, the second one has


been filed by Shri Ajay Singh Chautala.  The question involved is identical in both


the SLPs and hence they are being disposed of by a common judgment.




2.        Leave granted in both the Special Leave Petitions.




3.        Whether  the  sanction   under   Section   19   of   The   Prevention   of  Corruption


Act   (hereinafter   called   "the   Act"   for   short)   was   necessary   against   both   the


appellants and, therefore, whether the trial which is in progress against both of


them,   a   valid   trial,   is   common   question.     This   question   was   raised   before   the


                                              2



Special Judge, CBI before whom the appellants are being tried for the offences


under Sections 13(1) (e) and 13(2) of the Prevention of Corruption Act read with


Section 109 of Indian Penal Code in separate trials.




4.     Separate   charge   sheets   were   filed   against   both   the   appellants   for   the


aforementioned offences by the CBI.  It was alleged that both the accused while


working   as   the   Members   of   Legislative   Assembly   had   accumulated   wealth


disproportionate  to  their  known sources  of income.     The charges were filed on


the basis of the investigations conducted by the CBI.   This was necessitated on


account of this Court's order in Writ Petition (Crl.) No.93 of 2003 directing the CBI


to   investigate   the   JBT   Teachers   Recruitment   Scam.     The   offences   were


registered on 24.5.2004.   The CBI conducted searches and seized incriminating


documents   which   revealed   that   Shri   Om   Prakash   Chautala   and   his   family   had


acquired movable and immovable properties valued at Rs.1,467 crores.  On this


basis a Notification came to be issued on 22.2.2006 under Sections 5 and 6 of


the DSPE Act with the consent of the Government of Haryana extending powers


and jurisdiction under the DSPE Act to the State of Haryana for investigation of


allegations   regarding   accumulation   of   disproportionate   assets   by   Shri   Om


Prakash   Chautala   and   his   family   members   under   the   Prevention   of   Corruption


Act.   A regular First Information Report then came to be registered against Shri


Om Prakash Chautala who is the father of both the appellants.  It is found that in


the check period of 7.6.2000 to 8.3.2005, appellant Abhay Singh Chautala had


amassed   wealth   worth   Rs.1,19,69,82,619/-   which   was   522.79   %   of   appellant


Abhay Singh Chautala's known sources of income.  During the check period, Shri


                                             3



Abhay   Singh   Chautala   was   the   Member   of   the   Legislative   Assembly   Haryana,


Rori  Constituency.   Similarly,  in case of Ajay Singh  Chautala,  his  check period


was taken as 24.5.1993 to 31.5.2006 during which he held the following offices:-




       1.      2.3.90 to 15.12.92              MLA Vidhan Sabha, Rajasthan


       2.      28.12.93 to 31.11.98            MLA Vidhan Sabha, Rajasthan


       3.      10.10.99 to 6.2.2004            Member of Parliament, Lok Sabha from

                                               Bhiwani Constituency


       4.      2.8.2004 to 03.11.09            Member of Parliament, Rajya Sabha




       He   was  later   on  elected  as  MLA  from  Dabwali  constituency, Haryana   in


November,   2009.     It   was   found   that   he   had   accumulated   wealth   worth


Rs.27,74,74,260/- which was 339.26 % of his known sources of income.   It was


on this basis that the charge sheet came to be filed.




5.     Admittedly, there is no sanction to prosecute under Section 19 of the Act


against both the appellants.




6.     An   objection   regarding   the   absence   of   sanction   was   raised   before   the


Special   Judge,   who   in   the   common   order   dated   2.2.2010,   held   that   the


allegations in the charge sheet did not contain the allegation that the appellants


had   abused   their   current   office   as   member   of   Legislative   Assembly   and,


therefore, no sanction was necessary.




7.     This order was challenged by way of a petition under Section 482 Cr.P.C.


before the High Court.   The High Court dismissed the said petition by the order


dated 8.7.2010.


                                                  4



8.      The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit


arguing for the appellants, urged that on the day when the charges were framed


or   on   any   date   when   the   cognizance   was   taken,   both   the   appellants   were


admittedly public servants and, therefore, under the plain language of Section 19


(1)   of   the   Act,   the   Court   could   not   have   taken   cognizance   unless   there   was   a


sanction.     The   learned   senior   counsel   analyzed   the  whole   Section   closely   and


urged that in the absence of a sanction, the cognizance of the offences under the


Prevention of Corruption Act could not have been taken.   In this behalf, learned


senior  counsel  further urged that the judgment of this  Court in  Prakash Singh


Badal v. State of Punjab [2007 (1) SCC 1] as also the relied on judgment in RS


Nayak   v.   A   R.   Antulay   [1984   (2)   SCC   183]  were   not   correct   and   required


reconsideration and urged for a reference to a Larger Bench.




9.      Against these two judgments as also the judgments in Balakrishnan Ravi


Menon   v.   Union   of   India   [2007   (1)   SCC   45],   K.   Karunakaran   v.   State   of


Kerala   [2007   (1)   SCC   59]  and  Habibullah   Khan   v.   State   of   Orissa   &   Anr.


[1995 (2) SCC 437], this Court had clearly laid down the law and had held that


where the public servant had abused the office which he held in the check period


but   had   ceased   to   hold   "that   office"   or   was   holding   a   different   office   then   a


sanction  would  not  be  necessary.     The  learned  Solicitor   General  appearing  for


the respondent urged that the law on the question of sanction was clear and the


whole   controversy   was   set   at   rest   in  AR   Antulay's   case   (cited   supra)  which


was   followed   throughout   till   date.     The   Solicitor   General   urged   that   the   said


position in law should not be disturbed in view of the principle of  staire decicis.


                                                 5



Extensive   arguments   were   presented   by   both   the   parties   requiring   us   now   to


consider the question.


        Section 19 runs as under:-


        "19.     Previous sanction necessary for prosecution.

       

                 (1)     No   court   shall   take   cognizance   of   an   offence

                         punishable   under   Sections   7,   10,   11,   13   and   15

                         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 Central Government, of that

                                 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   State   Government,   of   that

                                 Government;

       

                         (c)     In the case of any other person, of the authority

                                 competent to remove him from his office.

       

                 (2)     Where for any reason whatsoever any doubt arises as

                         to   whether   the   previous   sanction   as   required   under

                         sub-section   (1)   should   be   given   by   the   Central

                         Government   or   the   State   Government   or   any   other

                         authority,   such   sanction   shall   be   given   by   that

                         Government   or   authority   which   would   have   been

                         competent   to   remove   the   public   servant   from   his

                         office   at   the   time   when   the   offence   was   alleged   to

                         have been committed.

       

                 (3)     Notwithstanding   anything   contained   in   the   Code   of

                         Criminal Procedure, 1973-

       

                         (a)     No   finding,   sentence   or   order   passed   by   a

                                 Special Judge shall be reversed or altered by a

                                 Court in appeal, confirmation or revision on the

                                 ground   of   the   absence   of,   or   any   error,

                                 omission,   irregularity   in,   the   sanction   required


                                              6



                              under sub-section (1), unless in the opinion of

                              that court, a failure of justice has, in fact, been

                              occasioned thereby;

       

                      (b)     No court shall stay the proceedings under this

                              Act   on   the   ground   of   any   error,   omission   or

                              irregularity   in   the   sanction   granted   by   the

                              authority,  unless   it  is   satisfied  that   such   error,

                              omission or irregularity has resulted in a failure

                              of justice;

       

                      (c)     No court shall stay the proceedings under this

                              Act   on   any   other   ground   and   no   court   shall

                              exercise   the   powers   of   revision   in   relation   to

                              any   interlocutory  order  passed  in  inquiry,   trial,

                              appeal or other proceedings.

       

              (4)     In   determining   under   sub-section   (3)   whether   the

                      absence   of,   or   any   error,   omission   or   irregularity   in,

                      such sanction has occasioned or resulted in a failure

                      of   justice   the   Court   shall   have   regard   to   the   fact

                      whether   the   objection   could   and   should   have   been

                      raised at any earlier stage in the proceedings.

       

              Explanation: For the purposes of this Section, -

       

                      (a)     Error   includes   competency   of   the   authority   to

                              grant sanction;

       

                      (b)     A   sanction   required   for   prosecution   includes

                              reference   to   any   requirement   that   the

                              prosecution   shall   be   at   the   instance   of   a

                              specified   authority   or   with   the   sanction   of   a

                              specified   person   or   any   requirement   of   a

                              similar nature."




10.    Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing


on behalf of the appellants, firstly pointed out that the plain meaning of Section


19(1) of the Act is that when any public servant is tried for the offences under the


Act, a sanction is a must.  The learned senior counsel were at pains to point out


that in the absence of a sanction, no cognizance can be taken against the public


                                                  7



servant under Sections 7, 10, 11, 13 and 15 of the Act and thus, a sanction is a


must.     The   learned   senior   counsel   relied   on   the   decision   in  Abdul   Wahab


Ansari Vs. State of Bihar [2000 (8) SCC 500], more particularly, paragraph 7,


as also the decision in Baij Nath Prasad Tripathi Vs. State of Bhopal [1957 (1)


SCR 650].  The plain language of Section 19(1) cannot be disputed.  The learned


senior counsel argued that Section 19(1) of the Act creates a complete embargo


against taking cognizance of the offences mentioned in that Section against the


accused who is a public servant.  The learned senior counsel also argued that it


is   only   when  the  question   arises   as to  which  authority   should   grant   a  sanction


that the sub-Section (2) will have to be taken recourse to.  However, where there


is no duty of any such nature, the Court will be duty bound to ask for the sanction


before it takes cognizance of the offences mentioned under this Section.




11.     As   against   this,   Shri   Gopal   Subramanium,   learned   Solicitor   General,


pointed   out   the   decision   in  RS   Nayak   v.   A   R.   Antulay   (cited   supra)  and   the


subsequent   decisions   in  Balakrishnan   Ravi   Menon   v.   Union   of   India   (cited


supra), K. Karunakaran v. State of Kerala (cited supra), Habibullah Khan v.


State   of   Orissa   &   Anr.   (cited   supra)  and   lastly,   in  Prakash   Singh   Badal   v.


State of Punjab (cited supra).




12.     Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing


on  behalf  of  the appellants,  have  no  quarrel  with  the proposition  that in  all  the


above cases, it is specifically held that where the alleged misconduct is in some


different   capacity   than   the   one   which  is   held   at   the   time   of   taking   cognizance,


there will be no necessity to take the sanction.


                                                  8



13.     To get over this obvious difficulty, the learned senior counsel appearing on


behalf of the appellants contended that the basic decision in  RS Nayak v. A R.


Antulay (cited supra)  was not correctly decided, inasmuch as the decision did


not   consider   the   plain   language   of   the   Section   which   is   clear   and   without   any


ambiguity.     The   learned   senior   counsel   contended   that   where   the   language   is


clear   and   admits   of   no   ambiguity,   the   Court   cannot   reject   the   plain   meaning


emanating out of the provision.   Further, the learned senior counsel pointed out


that even in the judgments following the judgment in RS Nayak v. A R. Antulay


(cited supra) upto the judgment in the case of Prakash Singh Badal v. State of


Punjab  (cited   supra)  and   even   thereafter,   the   learned   Judges   have   not


considered   the   plain   meaning   and   on   that   count,   those   judgments   also   do   not


present correct law and require reconsideration.  Another substantial challenge to


the judgment in  RS Nayak v. A R. Antulay (cited supra)  is on account of the


fact that the law declared to the above effect in RS Nayak v. A R. Antulay (cited


supra)  was  obiter   dictum,   inasmuch   as   it   was   not   necessary   for   the   Court   to


decide the question, more particularly, decided by the Courts in paragraphs 23


to 26.  The learned senior counsel pointed out that, firstly, the Court in RS Nayak


v. A R. Antulay (cited supra), came to the conclusion that Shri Antulay who was


a Member of the Legislative Assembly, was not a public servant.  It is contended


that once that finding was arrived at, there was no question of further deciding as


to   whether,   the   accused   being   a   public   servant   in   a  different   capacity,  the   law


required   that   there   had   to   be   a   sanction   before   the   Court   could   take   the


cognizance.  Learned senior counsel further argued that where the Court makes


                                                  9



an observation which is either not necessary for the decision of the court or does


not relate to the material facts in issue, such observation must be held as obiter


dictum.   In support of this proposition, the learned senior counsel relied on the


decision in  Director of Settlement,  State of  A.P. Vs. M.R. Apparao [2002 (4)


SCC 638] (Paragraph 7), State of Haryana Vs. Ranbir @ Rana [2006 (5) SCC


167], Division Controller, KSRTC Vs. Mahadeva Shetty & Anr. [2003(7) SCC


197] (Paragraph 23), H.H. Maharajadhiraja  Mahdav  Rao Jiwaji Rao Scindia


Bahadur   Vs.   Union   of   India   [AIR   1971   SC   530]   (Paragraph   325   onwards),


State of Orissa Vs. Sudhansu Sekhar Misra [AIR 1968 SC 647]  [in which the


celebrated decision in Quinn Vs. Leathem 1901 AC 495] was relied on and ADM


Jabalpur etc. Vs. Shivkant Shukla [1976 (2) SCC 521] etc.  The learned senior


counsel also argued that the whole class of public servant would be deprived of


the   protection   if   the   decision   in  RS   Nayak   v.   A   R.   Antulay   (cited   supra)  is


followed.     For   this   purpose,   learned  senior   counsel   argued   that   in   such   case,


public   servants   would   be   exposed   to   frivolous   prosecutions   which   would   have


disastrous   effects   on   their   service   careers,   though   they   are   required   to   be


insulated against such false, frivolous and motivated complaints of wrong doing.


It is then argued that the decision in  K. Veeraswami Vs. Union of India [1991


(3)   SCC   655]  has   in   fact   removed   the   very   foundation   of   the   decision   in  RS


Nayak   v.   A.   R.   Antulay   (cited   supra)  in   respect   of   the   sanction.     It   is   also


argued that, in effect, the decision in  RS Nayak v. A R. Antulay (cited supra)


has added further proviso to the effect "provided that nothing in this sub-Section


shall   apply   to   a   case   where   at   the   time   of   cognizance,   the   public   servant   is


                                                 1



holding a different post with a different removing authority from the one in which


the   offence   is   alleged   to   have   been   committed".     It   is   argued   that   such   an


addition would be clearly impermissible as it would negate the very foundation of


criminal law which requires a strict interpretation in favour of the accused and not


an   interpretation   which   results   into   deprivation   of   the   accused   of   his   statutory


rights.  The decision in S.A. Venkataraman Vs. State [AIR 1958 SC 107] is also


very   heavily   relied   upon,   more   particularly,   the   observations   in   paragraphs   14


and 16 thereof.




14.     It will be, therefore, our task to see as to whether the judgment in  A. R.


Antulay's  case   (cited   supra)  and   the   law   decided   therein,   particularly   in


paragraphs 24, 25 and 26 is obiter.  Paragraphs 24, 25 and 26 are as under:


                 "24.    Now if the public servant holds two offices and he is

                         accused of having abused one and from which he is

                         removed   but   continues   to   hold   the   other   which   is

                         neither   alleged   to   have   been   used   nor   abused,   is   a

                         sanction   of   the   authority   competent   to   remove   him

                         from   the   office   which   is   neither   alleged   or   shown   to

                         have   been   abused   or   misused   necessary?   The

                         submission   is   that   if   the   harassment   of   the   public

                         servant by a frivolous prosecution and criminal waste

                         of   his   time   in   law   courts   keeping   him   away   from

                         discharging   public   duty,   are   the   objects   underlying

                         Section 6, the same would be defeated if it is held that

                         the   sanction   of   the   latter   authority   is   not   necessary.

                         The submission does not commend to use. We fail to

                         see   how   the   competent   authority   entitled   to   remove

                         the   public   servant   from   an   office   which   is   neither

                         alleged to have been used or abused would be able

                         to   decide   whether   the   prosecution   is   frivolous   or

                         tendentious. An illustration was posed to the learned

                         Counsel   that   a   Minister   who   is   indisputably   a   public

                         servant   greased   his   palms   by   abusing   his   office   as

                         Minister, and then ceased to hold the office before the

                         court   was   called   upon   to   take   cognizance   of   the

                         offence   against   him   and   therefore,   sanction   as


                                1



        contemplated   by   Section   6   would   not   be   necessary;

        but if after committing the offence and before the date

        of taking of cognizance of the offence, he was elected

        as a Municipal President in which capacity he was a

        public   servant   under   the  relevant  Municipal   law,   and

        was   holding   that   office   on   the   date   on   which   court

        proceeded   to   take   cognizance   of   the   offence

        committed by him as a Minister, would a sanction be

        necessary and that too of that authority competent to

        remove him from the office of the Municipal President.

        The   answer   was-   in   affirmative.   But   the   very

        illustration   would   show   that   such   cannot   be   the   law.

        Such an interpretation of Section 6 would render it as

        a shield to an unscrupulous public servant. Someone

        interested in protecting may shift him from one office

        of   public   servant   to   another   and   thereby   defeat   the

        process   of   law.   Ode   can   legitimately   envisage   a

        situation wherein a person may hold a dozen different

        offices,   each   one   clothing   him   with   the   status   of   a

        public   servant   under   Section  21  IPC   and   even   if   he

        has abused only one office for which either there is a

        valid sanction  to prosecute   him  or he  has  ceased  to

        hold  that office by the time  court  was called  upon to

        take cognizance, yet  on this  assumption, sanction  of

        11 different competent authorities each of which was

        entitled to remove him from 11 different public offices

        would   be   necessary   before   the   court   can   take

        cognizance   of   the   offence   committed   by   such   public

        servant/while  abusing  one  office   which  he  may  have

        ceased  to  hold.   Such  an   interpretation  in  contrary   to

        all canons of construction and leads to an absurd and

        product   which   of   necessity   must   be   avoided.

        Legislation must at all costs be interpreted in such a

        way   that   it   would   not   operate   as   a   rougue's   charter.

        (See Davis & Sons Ltd. v. Atkins [1977] ICR 662


25.     Support   was   sought   to   be   drawn   for   the   submission

        from the decision  of the  Andhra Pradesh High  Court

        in Air Commodore Kailash Chand v. The State (S.P.E.

        Hyderabad) (1973) 2 AWR 263 and the affirmance of

        that   decision   by   this   Court   in   The   State   (S.P.E.

        Hyderabad)   v.  Air   Commodore   Kailash   Chand  :

        1980CriLJ393  .   In  that   case   accused   Kailash  Chand

        was, a member of the Indian Air Force having entered

        the service on 17th November 1941. He retired from

        the service on 15th June , 1965, but was re-employed


                         1



for   a   period   of   2   years   with   effect   from   16th   June,

1965.  On  7th  September,   1966,  the  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   5   years.   On   13th   March,   1968,   the   re-

employment given to the respondent ceased and his

service was terminated with effect from April 1, 1968.

A charge-sheet was submitted against him for having

committed   an   offence   under   Section   5(2)   of   the

Prevention  of Corruption  Act, 1947 during the period

March 29, 1965 to March 16, 1967. A contention was

raised   on   behalf   of   the  accused   that   the   court   could

not take cognizance of the offence in the absence of a

valid   sanction   of   the   authority   competent   to   remove

him   from  the   office   held   by  him   as   a  public   servant.

The  learned  special  Judge  negatived  the contention.

In the revision petition filed by the accused in the High

Court, the learned Single Judge held that on the date

of taking cognizance of the offence, the accused was

a   member   of   the   Regular   Air   Force   Reserve   set   up

under the Reserve and Auxiliary Air Force, 1952 and

the rules made there under. Accordingly,  it was held

that a sanction to prosecute him was necessary and

in   the   absence   of   which   the   court   could   not   the

cognizance  of  the  offences  and  the  prosecution  was

quashed.   In   the   appeal   by   certificate,   this   Court

upheld the decision of the High Court. This Court held

following   the   decision   in   S.A.   Venkataraman's   case

that   if   the   public   servant   had   ceased   to   be   a   public

servant   at   the   time   of   taking   cognizance   of   the

offence,   Section   6   is   not   attracted.   Thereafter   the

court proceeded to examine whether the accused was

a   public   servant   on   the   date   when   the   court   took

cognizance   of   the   offence   and   concluded   that   once

the   accused   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.   The

court   further   held   that   as   such   the   accused   was   a

public servant as an active member of the Indian Air

Force and a sanction to prosecute him under Section

6 was necessary. This decision is of no assistance for

the   obvious   reason   that   nowhere   it   was   contended

before   the   court,   which   office   was   alleged   to   have

been   abused   by   the   accused   and   whether   the   two

offices were separate and distinct. It is not made clear


                                               1



                      whether   the   accused   continued   to   hold   the   office

                      which was  alleged  to have  been  abused  or misused

                      even at the time of taking cognizance of the offence.

                      But   that   could   not   be   so   because   the   service   of   the

                      accused   was   terminated   on   April   1,   1968   while   the

                      cognizance   was   sought   to   be   taken   in   June,   1969.

                      Indisputably,   the   accused   had   ceased   to   hold   that

                      office as public servant which he was alleged to have

                      misused   or   abused.   The   court   was   however,   not

                      invited   to   consider   the   contention   canvassed   before

                      us:   Nor   was   the   court   informed   specifically   whether

                      the   subsequent   office   held   by   the   accused   in   that

                      case   was   the   same   from   which   his   service   was

                      terminated   meaning   thereby   he   was   re-employed   to

                      the same office. The decision appears to proceed on

                      the facts of the case. We would however, like to make

                      it abundantly clear that if the two decisions purport to

                      lay down that even if a public servant has ceased to

                      hold that office as public servant which he is alleged

                      to have abused or misused for corrupt motives, but on

                      the date of taking cognizance of an offence alleged to

                      have   been   committed   by   him   as   a   public   servant

                      which he ceased to be and holds an entirely different

                      public   office   which   he   is   neither   alleged   to   have

                      misused   or   abused   for   corrupt   motives,   yet   the

                      sanction   of   authority   competent   to   remove   him   from

                      such   latter   office   would   be   necessary   before   taking

                      cognizance   of   the   offence   alleged   to   have   been

                      committed   by   the   public   servant   while   holding   an

                      office which he is alleged to have abused or misused

                      and which he has ceased to hold, the decisions in our

                      opinion,  do  not  lay  down  the correct  law  and  cannot

                      be   accepted   as   making   a   correct   interpretation   of

                      Section 6.


              26.     Therefore, upon a true construction of Section 6, it is

                      implicit   therein   that   Sanction   of   that   competent

                      authority   alone   would   be   necessary   which   is

                      competent   to   remove   the   public   servant   from   the

                      office which he is alleged to have misused or abused

                      for   corrupt   motive   and   for   which   a   prosecution   is

                      intended to be launched against him."


15.    It   is   clear   from   these   paragraphs   that   the   law   laid   down   in  Air


Commodore Kailash Chand v. The State (S.P.E. Hyderabad) [(1973) 2 AWR


                                                 1



263]  was   taken   into   consideration.     The   Court   has   also   quoted  S.A.


Venkataraman's case (cited supra) and the decision in Kailash Chand's case


(cited supra) was distinguished by holding thus:




                "This decision is of no assistance for the obvious reason that

                nowhere it was contended before the court, which office was

                alleged   to   have   been   abused   by  the   accused   and   whether

                the   two   offices   were   separate   and   distinct.   It   is   not   made

                clear whether the accused continued to hold the office which

                was   alleged   to   have   been   abused   or   misused   even   at   the

                time of taking cognizance of the offence. But that could not

                be so because the service of the accused was terminated on

                April 1, 1968 while the cognizance was sought to be taken in

                June,   1969.   Indisputably,   the   accused   had   ceased   to   hold

                that   office   as   public   servant   which   he   was   alleged   to   have

                misused   or   abused.   The   court   was   however,   not   invited   to

                consider   the   contention   canvassed   before   us:   Nor   was   the

                court   informed   specifically   whether   the   subsequent   office

                held by the accused in that case was the same from which

                his   service   was   terminated   meaning   thereby   he   was   re-

                employed   to   the   same   office.   The   decision   appears   to

                proceed on the facts of the case."





16.     The propositions argued by the learned Solicitor General have, therefore,


been totally accepted.  However, that does not solve the question.  The question


is whether these propositions amount to obiter.   The learned senior counsel for


the appellants insists that it was not at all necessary for the Court to make these


observations as the Court had answered the question whether A.R. Antulay in his


capacity   as   an   MLA,   was   a   public   servant,   in   negative.     The   learned   senior


counsel argued that once it was found that Antulay in his capacity as an MLA,


was not a public servant, it was not at all necessary for the Court to go further


and probe a further question as to whether a public servant who has abused a


particular office ceased to hold that office and held some other office on the date


                                                 1



of   cognizance   would   still   require   sanction   for   his   prosecution   for   the   offence


under  the  Act.   The  argument  is  extremely attractive   on the  face  of it because


indeed  in  Antulay's  case  (cited  supra)  such  a  finding  that Shri  Antulay in  his


capacity is an MLA was not a public servant was unequivocally given.  However,


we do not agree to the proposition that the Court could not have gone further and


recorded its finding in paragraphs 23 to 26 as they did.   It is necessary firstly to


note   paragraph   15   which   gives   a   clear   cut   idea   as   to   what   was   the   exact


controversy   therein   and   how   the   rival   parties   addressed   Courts   on   various


questions. Paragraph 15 is as under:-




                         "15.                                       The   appellant,   the

                         original   complainant,   contends   that   the   learned

                         special Judge was in error in holding that M.L.A. is a

                         public   servant   within   the   meaning   of   the   expression

                         under Section 21(12)(a). The second submission was

                         that if the first question is answered in the affirmative,

                         it would be necessary to examine whether a sanction

                         as   contemplated   by   Section   6   is   necessary.   If   the

                         answer to the second question is in the affirmative it.

                         would   be   necessary   to   identify   the   sanctioning

                         authority.  The broad sweep of the argument was that

                         the complainant in his complaint has alleged that the

                         accused   abused   his   office   of   Chief   Minister   and   not

                         his office, if any,  as M.L.A. and therefore, even if on

                         the   date   of   taking   cognizance   of   the   offence   the

                         accused   was   M.L.A,   nonetheless   no   sanction   to

                         prosecute him is necessary as envisaged by Section

                         6 of the 1947 Act. It was urged that as the allegation

                         against   the   accused   in   the   complaint   is   that   he

                         abused or misused his office as Chief Minister and as

                         by   the   time   the   complaint   was   filed   and   cognizance

                         was   taken,   he   had   ceased   to   hold   the   office   of   the

                         Chief   Minister   no   sanction   under   Section   6   was

                         necessary  to   prosecute   him   for   the   offences   alleged

                         to   have   been   committed   by   him   when   the   accused

                         was   admittedly   a   public   servant   in   his   capacity   as

                         Chief Minister." (Emphasis supplied).


                                                1



        Therefore,  it  will be  clear  that  the complainant's  main  argument  was the


abuse of the office of Chief Minister which the accused ceased to hold and hence


no sanction was necessary.   In that the complainant proceeded on the premise


that the accused as the MLA was a public servant.




17.     In   paragraph   16   the   contention   of   the   accused   is   noted   which   suggests


that he was a public  servant within  the contemplation of clauses (3) and  (7) of


Section 21 of IPC as also under section 21 (12) (a).  In fact it was the argument


of accused by way of the next claim that if the accused holds plurality of offices


each of which confers the status of a public servant and even if it is alleged that


he has abused or misused one office as a public servant notwithstanding the fact


that there was no allegation of the abuse or misuse of other office held as public


servant, the sanction of each authority competent to remove him from each of the


offices would be a  sine qua non  under Section 6 before a valid prosecution can


be launched against the accused.   Therefore, the question  of accused being a


public   servant   was   inextricably   mixed   with   the   question   of   the   office   which


accused   was  alleged   to  have   misused.     There   was  no   dichotomy  between  the


two questions.   Strangely enough, the accused claimed to be a public servant,


unlike the present case and it was on that premise that the accused had raised a


question   that   there   would   have   to   be   the   sanction   qua   each   office   that   he


continued to hold on the date when the cognizance was taken.   In the present


case, it is not disputed that the accused was a public servant.  Undoubtedly they


were public servants.   By the subsequent judgment in  P.V. Narsimha Rao Vs.


State   [1998   (4)   SCC   626]  it   has   been   clearly   held   now   that   the   Members   of


                                                  1



Legislative   Assembly   and   the   Members   of   Parliament   are   public   servants.


Therefore,   the   question   which   was   addressed   in   that   case   by   the   accused


claiming   himself   to   be   a   public   servant   is   an   identical   question   which   fell   for


consideration   before   the   High   Court   as   also   before   us.     In   paragraph   17,   the


Court   formulated   the   questions   to   be   decided   precisely   on   the   basis   of   the


contention raised by the accused in that case.  Following were those questions :


                 "(a)     What   is   the   relevant   date   with   reference   to   which   a

                          valid sanction is a pre-requisite for the prosecution of

                          a public servant for offences enumerated in Section 6

                          of the 1947 Act?


                 (b)      If   the   accused   holds   plurality   of   offices   occupying

                          each of which makes him a public servant, is sanction

                          of   each   one   of   the   competent   authorities   entitled   to

                          remove him from each one of the offices held by him

                          necessary and if anyone of the competent authorities

                          fails   or   declines   to   grant   sanction,   is   the   Court

                          precluded or prohibited from taking cognizance of the

                          offence with which the public servant is charged?


                 (c)      Is it implicit in Section 6 of the 1947 Act that sanction

                          of that competent authority alone is necessary, which

                          is entitled to remove the public servant from the office

                          which is alleged to have been abused for misused for

                          corrupt motives?


                 (d)      Is   M.L.A.   a   public   servant   within   the   meaning   of   the

                          expression in Section 21(12)(a) IPC?


                 (e)      Is   M.L.A.   a   public   servant   within   the   meaning   of   the

                          expression, in Section 21(3) and Section 21(7) IPC?


                 (f)      Is sanction as contemplated by Section 6 of the 1947

                          Act necessary for prosecution of M.L.A.?


                 (g)      If   the answer  to  (f)  is   in  the  affirmative,  which  is   the

                          Sanctioning   Authority   competent   to   remove   M.L.A.

                          from   the   office   of   Member   of   the   Legislative

                          Assembly?"


                                                  1



18.     It will be seen from the nature of the questions that the whole controversy


was  covered by those questions  particularly, the question  raised in  (b),  (c),  (d)


and (e) were nothing but the result of the contentions raised by the parties which


directly fell for consideration.




19.     The   Court   answered   the  first  question   that  the  relevant  date   of  sanction


would be the date on which the cognizance was taken of the offence.   Since in


paragraph 23 to 26 the Court found that the accused in that case did not continue


to hold the office that he had allegedly abused on the date of cognizance, there


was no necessity of granting any sanction.  The Court held so in paragraph 27 in


the most unequivocal terms.  The Court goes on to record "therefore, it is crystal


clear   that   the   complaint   filed   against   the   accused   charged   him   with   criminal


abuse or misuse of only his office as Chief Minister. By the time, the court was


called upon to take cognizance of the offences, so alleged in the complaint, the


accused had ceased to hold the office of the Chief Minister. On this short ground,


it can be held that no sanction to prosecute him was necessary as former Chief


Minister   of   Maharashtra   State.  The   appeal   can   succeed   on   this   short   ground."


(Emphasis supplied).




20.     However,   subsequently,   the   question   whether   an   MLA   was   a   public


servant was also canvassed at length.   The Court then went on to examine the


question in further paragraphs and came to the conclusion that MLA was not a


public   servant   which   law   was,   of   course   thereafter,   upset   in  Narsimha   Rao's


case   (cited   supra).    It   cannot   be   said   that   the   question   decided   by   the   Court


regarding   the   abuse   of   a   particular   office   and   the   effects   of   the   accused   not


                                                1



continuing with that office or holding an altogether different office was obiter.   In


fact   it   is   on   that   very   basis   that   the   judgment   of  A.R.Antulay  (cited   supra)


proceeded.   The question of MLA not being a public servant was decided as a


subsidiary question.




21.     This   finding   of   ours   is   buttressed   by   the   decision   reported   in


Balakrishnan   Ravi   Menon   v.   Union   of   India   (cited   supra)  which   decision


came almost immediately after Prakash Singh Badal v. State of Punjab (cited


supra)  case.     Whether   the   finding   given   in   the   judgment   of  Antulay's   case


(cited   supra)  was   obiter  was   the  question  that   directly fell   for   consideration   in


that case.   This Court quoted paragraph 24 of the judgment in  Antulay's case


(cited supra)  so also some portion of paragraph 25.   It is on the basis of these


two   paragraphs   that   the   Court   unequivocally   rejected   the   contention   that   the


finding   given   in  Antulay's   case   (cited   supra)  regarding   the   abuse   of   office   of


Chief Minister was obiter.  Therefore, it would not be possible for us to hold that


the finding given in Antualy's case (cited supra) was an obiter.  We must point


out at this juncture that in Antulay's case (cited supra) the Court first went on to


decide the basic question that if the accused did not continue with the office that


he had allegedly abused on the day cognizance was taken, then there was no


requirement of sanction.




22.     This finding was given as the complainant in that case had canvassed in


the backdrop of the judgment of the trial Court discharging the accused holding


him to be a public servant.  The trial Court had held that in the absence of such


sanction, the accused was entitled to be discharged.  The complainant filed a writ


                                                   2



petition   against   this   order.     This   court   had   permitted   to   file   a   criminal   revision


against the order of learned Special Judge perhaps being of the opinion that the


writ petition did not lie and ultimately this Court transferred the criminal revision


against   the   trial   Court's   judgment   here.     The   complainant,   therefore,   had


specifically and basically raised the point that since the accused had ceased to


hold the office of Chief Minister on the date of cognizance, there was no question


of   any  sanction   and   that   was   the   main   issue   which   was   decided   in  Antulay's


case (cited supra) as the basic issue by way of question No.(b)




23.     We,   therefore,   do   not   think   the   finding   given   in  Antulay's   case  (cited


supra)  was in any manner obiter and requires reconsideration.   Learned Senior


Counsel relied on the decision in  Marta Silva & Ors. Vs. Piedade Cardazo &


Ors. [AIR 1969 Goa 94], State of A.P. Vs. M.R. Apparao (cited supra], State


of Haryana Vs. Ranbir alias Rana (cited supra], Division Controller, KSRTC


Vs.   Mahadeva   Shetty   &   Anr.   (cited   supra),   H.H.   Maharajadhiraja   Madhav


Rao Jiwaji Rao Scindia Bahadur Vs. Union of India (cited supra), State of


Orissa  Vs.  Sudhansu  Sekhar  Misra  (cited  supra)  and  lastly  ADM,  Jabalpur


etc.   Vs.   Shivkant   Shukla   (cited   supra]  and   contended   that   the   principles   of


obiter   dicta  in   the   aforementioned   decisions   would   apply   to  Antulay's   case


(cited   supra)  also.     We  have   already   shown   that   the   principles   regarding   the


abuse of a particular office, decided in  Antulay's case (cited supra), could not


be termed as  Obiter dicta.   We have nothing to say about the principles in the


aforementioned   decisions.     However,   in   the   circumstances,   which   we   have


shown   above,   all   these   cases   would   be   of   no   help   to   the   appellants   herein,


                                                   2



particularly   in   the   light   of   our   conclusion   that   the   principles   arrived   at   in


Antulay's   case   (cited   supra)  could   not   be   termed   as  obiter   dicta.     We,


therefore, reject the argument on that count.




24.     There is one more reason, though not a major one, for not disturbing the


law settled in Antulay's case (cited supra).  That decision has stood the test of


time for last over 25 years and it is trite that going as per the maxim stare decisis


et   non   quieta   movere,   it   would   be   better   to   stand   by   that   decision   and   not   to


disturb what is settled.  This rule of interpretation was approved of by Lord Coke


who suggested - "those things which have been so often adjudged ought to rest


in peace".  This Court in Shanker Raju Vs. Union of India [2011 (2) SCC 132],


confirmed  this   view while  relying on  the decision   in  Tiverton  Estates  Ltd.   Vs.


Wearwell   Ltd.   [1974   (1)   WLR   176]  and   more   particularly,   the   observations   of


Scarman,   L.J.,   while   not   agreeing   with   the   view   of   Lord   Denning,   M.R.   about


desirability   of   not   accepting   previous   decisions.     The   observations   are   to   the


following effect:-




                 "..... I decline to accept his lead only because I think it damaging to

                 the law to the long term - though it would undoubtedly do justice in

                 the   present   case.     To   some   it   will   appear   that   justice   is   being

                 denied   by   a   timid,   conservative   adherence   to   judicial   precedent.

                 They would be wrong.  Consistency is necessary to certainty - one

                 of the great objectives of law."


        The Court also referred to the following other cases:-




                 Waman Rao Vs. Union of India [1981 (2) SCC 362], Manganese


                 Ore   (India)   Ltd.   Vs.   CST   [1976   (4)   SCC   124],   Ganga   Sugar


                 Corpn. Vs. State of U.P. [1980 (1) SCC 223], Union of India Vs.


                                                   2



                 Raguhbir Singh [1989 (2) SCC 754], Krishena Kumar Vs. Union


                 of India [1990 (4) SCC 207], Union of India Vs. Paras Laminates


                 (P)   Ltd.   [1990(4)   SCC   453]  and   lastly,  Hari   Singh   Vs.   State   of


                 Haryana [1993 (3) SCC 114].




        We respectfully agree with the law laid down in Shanker Raju Vs. Union


of   India   (cited   supra)  and   acting   on   that   decision,   desist   from   disturbing   the


settled law in  Antulay's case (cited supra).   We have in the earlier part of the


judgment,  pointed  out as to how the  decision  in  Antulay's  case (cited supra)


has been followed right up to the decision in  Prakash Singh Badal v. State of


Punjab (cited supra) and even thereafter.




25.     This leaves us with the other contention raised by learned Senior Counsel


Shri   Mukul   Rohtagi   as   well   as   Shri   U.U.   Lalit   arguing   for   the   appellants.     The


learned   senior   counsel   contended   that   the   decision   in  Antulay's   case   (cited


supra) is hit by the doctrine of per incuriam.  The learned senior counsel heavily


relied on the decision in Punjab Land Development Reclamation Corporation


Ltd. Vs. Presiding Officer [1990 (3) SCC 682] and Nirmal Jeet Kaur Vs. State


of M.P.  [2004  (7) SCC  558]  to explain the doctrine  of  per incuriam.    We  have


absolutely no quarrel with the principles laid down in those two cases.  However,


we feel that the resultant argument on the part of the learned senior counsel is


not correct.   In support of their argument, the learned senior counsel contended


that   in  Antulay's   case   (cited   supra),   Section   6(2)   of   the   Act,   as   it   therein


existed,   was   ignored.     In   short,   the   argument   was   that   Section   6(2)   which   is


parimateria   with   Section   19(2)   of   the   Act   provides   that   in   case   of   doubt   as   to


                                                    2



which authority should give the sanction, the time when the offence is alleged to


have been committed is relevant.  The argument further goes on to suggest that


if that is  so,  then  the  Act  expressly  contemplates that a  public  servant  may be


holding office in a different capacity from the one that he was holding when the


offence is alleged to have been committed at the time when cognizance is taken


so   as   to   cause   doubt   about   the   sanctioning   authority.     Thus,   there   would   be


necessity of a sanction on the date of cognizance and, therefore, in ignoring this


aspect, the decision in  Antulay's case (cited supra)  has suffered an illegality.


Same is the argument in the present case.




26.      This argument is basically incorrect.  In Antulay's case (cited supra), it is


not   as   if   Section   6(2)   of   the   Act   as   it   then   existed,   was   ignored   or   was   not


referred to, but the Constitution Bench had very specifically made a reference to


and had interpreted Section 6 as a whole.   Therefore, it cannot be said that the


Constitution   Bench   had   totally   ignored   the   provisions   of   Section   6   and   more


particularly, Section 6(2).  Once the Court had held that if the public servant had


abused a particular office and was not holding that office on the date of taking


cognizance, there would be no necessity to obtain sanction.  It was obvious that


it was not necessary for the Court to go up to Section 6(2) as in that case, there


would   be   no   question   of  doubt   about   the  sanctioning  authority.     In  our   opinion


also,   Section   6(2)   of   the   Act,   which   is   parimateria   to   Section   19(2),   does   not


contemplate  a situation  as is tried to be argued by the learned senior  counsel.


We do not agree with the proposition that the Act expressly contemplates that


a public servant may be holding office in a different capacity from the one


                                                  2



that he was holding when the offence is alleged to have been committed at


the time when cognizance is taken.  That is not, in our opinion, the eventuality


contemplated in Section 6(2) or Section 19(2), as the case may be.  In Antulay's


case (cited supra), the Court went on to hold that where a public servant holds a


different   capacity  altogether   from  the   one   which  he   is   alleged   to  have   abused,


there   would   be   no   necessity   of   sanction   at   all.     This   view   was   taken   on   the


specific   interpretation   of   Section   6   generally   and   more   particularly,   Section


6(1)(c), which is parimateria to Section 19(1)(c) of the Act.  Once it was held that


there   was   no   necessity  of   sanction   at   all,   there   would   be   no   question   of   there


being any doubt arising about the sanctioning authority.  The doubt expressed in


Section 19(2), in our opinion, is not a pointer to suggest that a public servant may


have   abused   any   particular   office,   but   when   he   occupies   any   other   office


subsequently, then the sanction is a must.   That will be the incorrect reading of


the   Section.     The   Section   simply   contemplates   a   situation   where   there   is   a


genuine   doubt   as   to   whether   sanctioning   authority   should   be   the   Central


Government or the State Government or any authority competent to remove him.


The words in Section 19(2) are to be read in conjunction with Sections 19(1)(a),


19(1)(b) and 19(1)(c).  These clauses only fix the sanctioning authority to be the


authority   which   is   capable   of   "removing   a   public   servant".     Therefore,   in   our


opinion, the argument based on the language of Section 6(2) or as the case may


be, Section 19(2), is not correct.   This eventuality has been considered, though


not directly, in paragraph 24 in the judgment in Antulay's case (cited supra), in


the following manner:-


                                                    2



                  "24                        ....An   illustration   was   posed   to   the   learned

                  Counsel   that   a   Minister   who   is   indisputably   a   public   servant

                  greased   his   palms   by   abusing   his   office   as   Minister,   and   then

                  ceased to hold the office before the court was called upon to take

                  cognizance   of   the   offence   against   him   and   therefore,   sanction   as

                  contemplated   by   Section   6   would   not   be   necessary;   but   if   after

                  committing the offence and before the date of taking of cognizance

                  of   the   offence,   he   was   elected   as   a   Municipal   President   in   which

                  capacity he was a public servant under the relevant Municipal law,

                  and was holding that office on the date on which court proceeded to

                  take   cognizance   of   the   offence   committed   by   him   as   a   Minister,

                  would   a   sanction   be   necessary   and   that   too   of   that   authority

                  competent to remove him from the office of the Municipal President.

                  The answer was- in affirmative. But the very illustration would show

                  that   such   cannot   be   the   law.  Such   an   interpretation   of   Section   6

                  would   render   it   as   a   shield   to   an   unscrupulous   public   servant.

                  Someone interested in protecting may shift him from one office of

                  public   servant   to   another   and   thereby   defeat   the   process   of   law.

                  One   can   legitimately   envisage   a   situation   wherein   a   person   may

                  hold a dozen different offices, each one clothing him with the status

                  of a public servant under Section 21 IPC and even if he has abused

                  only   one   office   for   which   either   there   is   a   valid   sanction   to

                  prosecute him or he has ceased to hold that office by the time court

                  was   called   upon   to   take   cognizance,   yet   on   this   assumption,

                  sanction   of   11   different   competent   authorities   each   of   which   was

                  entitled   to   remove   him   from   11   different   public   offices   would   be

                  necessary   before   the   court   can   take   cognizance   of   the   offence

                  committed by such public servant/while abusing one office which he

                  may have ceased to hold.  Such an interpretation in contrary to all

                  canons of construction and leads to an absurd and product which of

                  necessity   must   be   avoided.  Legislation   must   at   all   costs   be

                  interpreted   in  such   a  way  that  it  would   not  operate  as  a rougue's

                  charter".




                                             (emphasis supplied)


27.      It is in the light of this that the Court did not have to specify as to under


what circumstances would a duty arise for locating the authority to give sanction.


The   doubt   could   arise   in   more   manners   than   one   and   in   more   situations   than


one,   but   to   base   the   interpretation   of   Section   19(1)   of   the   Act   on   the   basis   of


Section   19(2)   would   be   putting   the   cart   before   the   horse.     The   two   Sections


                                                 2



would have to be interpreted in a rational manner.  Once the interpretation is that


the   prosecution   of   a   public   servant   holding   a   different   capacity   than   the   one


which he is alleged to have abused, there is no question of going to Section 6(2)


/ 19(2) at all in which case there will be no question of any doubt.  It will be seen


that this interpretation of Section 6(1) or, as the case may be, Section 19(1), is on


the basis of the expression "office"  in three sub-clauses of Section 6(1), or the


case   may   be,   Section   19(1).     For   all   these   reasons,   therefore,   we   are   not


persuaded   to   accept   the   contention   that  Antulay's   case   (cited   supra)  was


decided  per   incuriam  of   Section   6(2).     In   our   opinion,   the   decision   in  K.


Veeraswami   Vs.   Union   of   India   (cited   supra)  or,   as   the   case   may   be,  P.V.


Narsimha   Rao's  case  (cited  supra)  are  not  apposite  nor  do  they  support  the


contention   raised   by   the   learned   senior   counsel   as   regards  Antulay's   case


(cited supra) being per incuriam of Section 6(2).




28.     The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit


arguing   for   the   appellants,   in   support   of   their   argument   that  Antulay's   case


(cited supra)  require reconsideration, urged that that interpretation deprives the


entire class of public servants covered by the clear words of Section 6(1)/19(1) of


a valuable protection.  It was further urged that such interpretation would have a


disastrous  effect on the careers of the public  servants  and the object  of law to


insulate   a   public   servant   from   false,   frivolous,   malicious   and   motivated


complaints   of   wrong   doing   would   be   defeated.     It   was   also   urged   that   such


interpretation   would   amount   to   re-writing   of   Section   19(1)   and   as   if   a   proviso


would be added to Section 19(1) to the following effect:-


                                                  2



                 "Provided   that   nothing   in   this   sub-Section   shall   apply   to   a   case

                 where   at   the   time   of   cognizance,   the   public   servant   is   holding   a

                 different   post   with   a   different   removing   authority   from   the   one   in

                 which the offence is alleged to have been committed.


        Lastly,   it   was   urged   that   such   an   interpretation   would   negate   the   very


foundation of criminal law, which requires a strict interpretation in favour of the


accused.     Most   of   these   questions   are   already   answered,   firstly,   in  Antulay's


case (cited supra)  and secondly, in  Prakash Singh Badal v. State of Punjab


(cited   supra).     Therefore,   we   need   not   dilate   on   them.     We  specifically   reject


these arguments on the basis of  Antulay's case (cited supra)  itself which has


been   relied   upon   in  Prakash   Singh   Badal   v.   State   of   Punjab   (cited   supra).


The argument regarding the addition of the proviso must also fall as the language


of   the   suggested   proviso   contemplates   a   different   "post"   and   not   the   "office",


which   are   entirely   different   concepts.     That   is   apart   from   the   fact   that   the


interpretation regarding the abuse of a particular office and there being a direct


relationship   between   a   public   servant   and   the   office   that   he   has   abused,   has


already been approved of in  Antulay's case (cited supra)  and the other cases


following Antulay's case (cited supra) including Prakash Singh Badal v. State


of Punjab (cited supra).  We, therefore, reject all these arguments.




29.     It was also urged that a literal interpretation is a must, particularly, to sub-


Section   (1)   of   Section   19.     That   argument   also   must   fall   as   sub-Section   (1)   of


Section 19 has to be read with in tune with and in light of sub-Sections (a), (b)


and (c) thereof.   We, therefore, reject the theory of  litera regis  while interpreting


Section 19(1).  On the same lines, we reject the argument based on the word "is"


in sub-Sections (a), (b) and (c).  It is true that the Section operates  in praesenti;


                                                  2



however,   the   Section   contemplates   a   person   who   continues   to   be   a   public


servant on the date of taking cognizance.   However, as per the interpretation, it


excludes a person who has abused some other office than the one which he is


holding on the date of taking cognizance, by necessary implication.  Once that is


clear, the necessity of the literal interpretation would not be there in the present


case.  Therefore, while we agree with the principles laid down in Robert Wigram


Crawford Vs. Richard Spooner [4 MIA 179], Re Bedia Vs. Genreal Accident,


Fir and Life Assurance Corporation Ltd. [1948 (2) All ER 995]  and  Bourne


(Inspector of Taxes) Vs. Norwich Crematorium Ltd. [1967 (2) All ER 576], we


specifically hold that giving the literal interpretation to the Section would lead to


absurdity   and   some   unwanted   results,   as   had   already   been   pointed   out   in


Antulay's   case   (cited   supra)  (see   the   emphasis   supplied   to   para   24   of


Antulay's judgment).




30.     Another   novel   argument   was   advanced   basing   on   the   language   of


Sections 19(1) and (2).  It was pointed out that two different terms were used in


the   whole   Section,   one   term   being   "public   servant"   and   the   other   being   "a


person".  It was, therefore, urged that since the two different terms were used by


the Legislature,  they could  not  connote  the same  meaning  and  they  had  to  be


read   differently.     The   precise   argument   was   that   the   term   "public   servant"   in


relation   to   the   commission   of   an   offence   connotes   the   time   period   of   the   past


whereas the term "a person" in relation to the sanction connotes the time period


of   the   present.     Therefore,   it   was   urged   that   since   the   two   terms   are   not


synonymous   and   convey   different   meanings   in   respect   of   time/status   of   the


                                                 2



office,   the   term   "public   servant"   should   mean   the   "past   office"   while   "person"


should   mean   the   "present   status/present   office".     While   we   do   agree   that   the


different terms used in one provision would have to be given different meaning,


we   do   not   accept   the   argument   that   by  accepting   the   interpretation   of   Section


19(1) in Antulay's case, the two terms referred to above get the same meaning.


We  also   do   not   see   how   this   argument   helps   the   present   accused.     The   term


"public servant" is used in Section 19(1) as Sections 7, 10, 1 and 13 which are


essentially the offences to be committed by public servants only.   Section 15 is


the attempt by a public servant to commit offence referred to in Section 13(1)(c)


or 13(1)(d).  Section 19(1) speaks about the cognizance of an offence committed


by a public servant.  It is not a cognizance of the public servant.  The Court takes


cognizance of the offence, and not the accused, meaning, the Court decides to


consider the fact of somebody having committed that offence.  In case of this Act,


such   accused   is   only   a   public   servant.     Then   comes   the   next   stage   that   such


cognizance   cannot   be   taken   unless   there   is   a   previous   sanction   given.     The


sanction is in respect of the accused who essentially is a public servant.  The use


of the term "a person" in sub-Sections (a), (b) and (c) only denotes an "accused".


An "accused" means who is employed either with the State Government or with


the Central Government or in case of any other person, who is a public servant


but not employed with either the State Government or the Central Government.


It is only "a person" who is employed or it is only "a person" who is prosecuted.


His capacity as a "public servant" may be different but he is essentially "a person"


- an accused person, because the Section operates essentially qua an accused


                                                       3



person.   It is not a "public servant" who is employed; it is essentially "a person"


and after being employed, he becomes a "public servant" because of his position.


It is, therefore, that the term "a person" is used in clauses (a), (b) and (c).   The


key words in these three clauses are "not removable from his office save by or


with the sanction of ....".  It will be again seen that the offences under Sections 7,


10,   11   and   13   are   essentially   committed   by   those   persons   who   are   "public


servants".  Again, when it comes to the removal, it is not a removal of his role as


a "public servant", it is removal of "a person" himself who is acting as a "public


servant".   Once the Section is read in this manner, then there is no question of


assigning the same meaning to two different terms in the Section.  We reject this


argument.




31.      Another novel argument was raised on the basis of the definition of "public


servant"   as   given   in   Section   2(c)   of   the   Act.     The   argument   is   based   more


particularly on clause 2(c)(vi) which provides that an arbitrator, on account of his


position   as   such,   is     public   servant.     The   argument   is   that   some   persons,   as


contemplated in Sections 2(c)(vii), (viii), (ix) and (x), may adorn the character of a


public servant only for a limited time and if after renouncing that character of a


public servant on account of lapse of time or non-continuation of their office they


are   to   be   tried   for   the   abuse   on   their   part   of   the   offices   that   they  held,   then   it


would   be   a   very   hazardous   situation.     We   do   not   think   so.     If   the   person


concerned at the time when he is to be tried is not a public servant, then there


will be no necessity of a sanction at all.  Section 19(1) is very clear on that issue.


We do not see how it will cause any hazardous situation.   Similarly, it is tried to


                                                   3



be   argued   that   a   Vice-Chancellor   who   is   a   public   servant   and   is   given   a


temporary   assignment   of   checking   the   papers   or   conducting   examination   or


being invigilator by virtue of which he is a public servant in an entirely different


capacity as from that of a Professor or a Vice-Chancellor, commits an offence in


the temporary capacity, then he would not be entitled to the protection and that


will   be   causing   violence   to   such   public   servant   and,   therefore,   such   could   not


have been the intention of the Legislature.    We feel that the example is wholly


irrelevant   in   the   light   of   the   clearest   possible   dictum   in  Antulay's   case   (cited


supra)  and in  Prakash Singh Badal v. State of Punjab (cited supra).   If the


concerned  person  continues   to be  a Vice-Chancellor  and  if he  has  abused  his


office   as   Vice-Chancellor,   there   would   be   no   doubt   that   his   prosecution   would


require   a   sanction.     So,   it   will   be   a   question   of   examining   as   to   whether   such


person has abused his position as a Vice-Chancellor and whether he continues


to be a Vice-Chancellor on the date of taking of the cognizance.  If, however, he


has  not abused  his  position  as Vice-Chancellor  but  has  committed   some  other


offence   which  could   be   covered   by  the  sub-Sections   of   Section   19,   then   there


would be no necessity of any sanction.




32.     Same argument was tried to be raised on the question of plurality of the


offices held by the public servant and the doubt arising as to who would be the


sanctioning authority in such case.   In the earlier part of the judgment, we have


already explained the concept of doubt which is contemplated in the Act, more


particularly in Section 19(2).  The law is very clear in that respect.  The concept


of `doubt' or `plurality of office' cannot be used to arrive at a conclusion that on


                                                  3



that basis, the interpretation of Section 19(1) would be different from that given in


Antulay's   case   (cited   supra)  or  Prakash   Singh   Badal   v.   State   of   Punjab


(cited supra).   We have already explained the situation that merely because a


concept of doubt is contemplated in Section 19(2), it cannot mean that the public


servant who has abused some other office than the one he is holding could not


be   tried   without   a   sanction.     The   learned   senior   counsel   tried   to   support   their


argument on the basis of the theory of "legal fiction".   We do not see as to how


the theory of "legal fiction" can work in this case.  It may be that the appellants in


this   case   held   more   than   one   offices   during   the   check   period   which   they   are


alleged to have abused; however, there will be no question of any doubt if on the


date   when   the   cognizance   is   taken,   they   are   not   continuing   to   hold   that   very


office.     The   relevant   time,   as   held   in  S.A.   Venkataraman   Vs.   State   (cited


supra),   is   the   date   on   which   the   cognizance   is   taken.     If   on   that   date,   the


appellant is not a public servant, there will be no question of any sanction.  If he


continues to be a public servant but in a different capacity or holding a different


office than the one which is alleged to have been abused, still there will be no


question of sanction and in that case, there will also be no question of any doubt


arising   because   the   doubt   can   arise   only   when   the   sanction   is   necessary.     In


case of the present appellants, there was no question of there being any doubt


because basically there was no question of the appellants' getting any protection


by a sanction.




33.     We   do   not,   therefore,   agree   with  learned   Senior   Counsel   Shri   Mukul


Rohtagi as well as Shri U.U. Lalit arguing for the appellants, that the decision in


                                               3



Antulay's   case   (cited   supra)  and   the   subsequent   decisions   require   any


reconsideration for the reasons argued before us.   Even on merits, there is no


necessity of reconsidering the relevant ratio laid down in  Antulay's case (cited


supra).




34.     Thus, we are of the clear view that the High Court was absolutely right in


relying   on   the   decision   in  Prakash   Singh   Badal   v.   State   of   Punjab   (cited


supra)  to   hold   that   the   appellants   in   both   the   appeals   had   abused   entirely


different  office  or  offices  than  the  one  which  they  were holding  on the  date  on


which cognizance was taken and, therefore, there was no necessity of sanction


under Section 19 of the Act as held in K. Karunakaran v. State of Kerala (cited


supra) and the later decision in Prakash Singh Badal v. State of Punjab (cited


supra).  The appeals are without any merit and are dismissed.





                                                                ............................J.

                                                                [V.S. Sirpurkar]

                                                                                 

                                                                ..........................J.

                                                                 [T.S. THAKUR]




New Delhi;

July 4, 2011.

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