abhay singh chautala vs c.b.i on 4 july,...

Supreme Court of IndiaAbhay Singh Chautala vs C.B.I on 4 July, 2011Author: V SirpurkarBench: V.S. Sirpurkar, T.S. Thakur 1

Reportable

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


(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 2010and SLP (Crl.) No. 7428 of 2010. While Abhay Singh Chautala is the petitioner in the first SpecialLeave Petition, the second one has been filed by Shri Ajay Singh Chautala. The question involved isidentical in both the SLPs and hence they are being disposed of by a common judgment.

2. Leave granted in both the Special Leave Petitions.

Abhay Singh Chautala vs C.B.I on 4 July, 2011

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 1

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 whichis in progress against both of them, a valid trial, is common question. This question was raisedbefore the Special Judge, CBI before whom the appellants are being tried for the offences underSections 13(1) (e) and 13(2) of the Prevention of Corruption Act read with Section 109 of IndianPenal Code in separate trials.

4. Separate charge sheets were filed against both the appellants for the aforementioned offences bythe CBI. It was alleged that both the accused while working as the Members of Legislative Assemblyhad accumulated wealth disproportionate to their known sources of income. The charges were filedon the basis of the investigations conducted by the CBI. This was necessitated on account of thisCourt's order in Writ Petition (Crl.) No.93 of 2003 directing the CBI to investigate the JBT TeachersRecruitment Scam. The offences were registered on 24.5.2004. The CBI conducted searches andseized incriminating documents which revealed that Shri Om Prakash Chautala and his family hadacquired movable and immovable properties valued at Rs.1,467 crores. On this basis a Notificationcame to be issued on 22.2.2006 under Sections 5 and 6 of the DSPE Act with the consent of theGovernment of Haryana extending powers and jurisdiction under the DSPE Act to the State ofHaryana for investigation of allegations regarding accumulation of disproportionate assets by ShriOm Prakash Chautala and his family members under the Prevention of Corruption Act. A regularFirst Information Report then came to be registered against Shri Om Prakash Chautala who is thefather of both the appellants. It is found that in the check period of 7.6.2000 to 8.3.2005, appellantAbhay Singh Chautala had amassed wealth worth Rs.1,19,69,82,619/- which was 522.79 % ofappellant Abhay Singh Chautala's known sources of income. During the check period, Shri AbhaySingh 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 whichhe 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 wasfound that he had accumulated wealth worth Rs.27,74,74,260/- which was 339.26 % of his knownsources 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 theappellants.

6. An objection regarding the absence of sanction was raised before the Special Judge, who in thecommon order dated 2.2.2010, held that the allegations in the charge sheet did not contain theallegation that the appellants had abused their current office as member of Legislative Assemblyand, 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.

8. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for theappellants, urged that on the day when the charges were framed or on any date when the cognizancewas taken, both the appellants were admittedly public servants and, therefore, under the plainlanguage of Section 19 (1) of the Act, the Court could not have taken cognizance unless there was asanction. The learned senior counsel analyzed the whole Section closely and urged that in theabsence of a sanction, the cognizance of the offences under the Prevention of Corruption Act couldnot have been taken. In this behalf, learned senior counsel further urged that the judgment of thisCourt in Prakash Singh Badal v. State of Punjab [2007 (1) SCC 1] as also the relied on judgment inRS Nayak v. A R. Antulay [1984 (2) SCC 183] were not correct and required reconsideration andurged 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 thatwhere the public servant had abused the office which he held in the check period but had ceased tohold "that office" or was holding a different office then a sanction would not be necessary. Thelearned Solicitor General appearing for the respondent urged that the law on the question ofsanction 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 lawshould not be disturbed in view of the principle of staire decicis. Extensive arguments werepresented 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 15alleged 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 notremovable from his office save by or with the sanction of the Central Government, of thatGovernment;



(b) In the case of a person who is employed in connection with the affairs of a State and is notremovable 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 asrequired under sub-section (1) should be given by the Central Government or the State Governmentor any other authority, such sanction shall be given by that Government or authority which wouldhave been competent to remove the public servant from his office at the time when the offence wasalleged 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 inappeal, confirmation or revision on the ground of the absence of, or any error, omission, irregularityin, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justicehas, in fact, been occasioned thereby;

(b) No court shall stay the proceedings under this Act on the ground of any error, omission orirregularity in the sanction granted by the authority, unless it is satisfied that such error, omissionor 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 shallexercise the powers of revision in relation to any interlocutory order passed in inquiry, trial, appealor other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission orirregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall haveregard to the fact whether the objection could and should have been raised at any earlier stage in theproceedings.

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 prosecutionshall be at the instance of a specified authority or with the sanction of a specified person or anyrequirement of a similar nature."

10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on behalf of theappellants, firstly pointed out that the plain meaning of Section 19(1) of the Act is that when anypublic servant is tried for the offences under the Act, a sanction is a must. The learned seniorcounsel were at pains to point out that in the absence of a sanction, no cognizance can be takenagainst the public 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 PrasadTripathi Vs. State of Bhopal [1957 (1) SCR 650]. The plain language of Section 19(1) cannot bedisputed. The learned senior counsel argued that Section 19(1) of the Act creates a completeembargo against taking cognizance of the offences mentioned in that Section against the accusedwho is a public servant. The learned senior counsel also argued that it is only when the questionarises as to which authority should grant a sanction that the sub-Section (2) will have to be takenrecourse to. However, where there is no duty of any such nature, the Court will be duty bound to askfor 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 inRS 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 (citedsupra).

12. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on behalf of theappellants, have no quarrel with the proposition that in all the above cases, it is specifically held thatwhere the alleged misconduct is in some different capacity than the one which is held at the time oftaking cognizance, there will be no necessity to take the sanction.

13. To get over this obvious difficulty, the learned senior counsel appearing on behalf of theappellants contended that the basic decision in RS Nayak v. A R. Antulay (cited supra) was notcorrectly decided, inasmuch as the decision did not consider the plain language of the Section whichis clear and without any ambiguity. The learned senior counsel contended that where the language isclear and admits of no ambiguity, the Court cannot reject the plain meaning emanating out of theprovision. Further, the learned senior counsel pointed out that even in the judgments following thejudgment in RS Nayak v. A R. Antulay (cited supra) upto the judgment in the case of Prakash SinghBadal v. State of Punjab (cited supra) and even thereafter, the learned Judges have not consideredthe plain meaning and on that count, those judgments also do not present correct law and requirereconsideration. Another substantial challenge to the judgment in RS Nayak v. A R. Antulay (citedsupra) 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 thequestion, more particularly, decided by the Courts in paragraphs 23 to 26. The learned seniorcounsel pointed out that, firstly, the Court in RS Nayak v. A R. Antulay (cited supra), came to theconclusion that Shri Antulay who was a Member of the Legislative Assembly, was not a publicservant. It is contended that once that finding was arrived at, there was no question of furtherdeciding as to whether, the accused being a public servant in a different capacity, the law requiredthat there had to be a sanction before the Court could take the cognizance. Learned senior counselfurther argued that where the Court makes an observation which is either not necessary for thedecision of the court or does not relate to the material facts in issue, such observation must be heldas obiter dictum. In support of this proposition, the learned senior counsel relied on the decision inDirector of Settlement, State of A.P. Vs. M.R. Apparao [2002 (4) SCC 638] (Paragraph 7), State ofHaryana 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 ScindiaBahadur 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. Leathem1901 AC 495] was relied on and ADM Jabalpur etc. Vs. Shivkant Shukla [1976 (2) SCC 521] etc. Thelearned senior counsel also argued that the whole class of public servant would be deprived of theprotection 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 frivolousprosecutions which would have disastrous effects on their service careers, though they are requiredto be insulated against such false, frivolous and motivated complaints of wrong doing. It is thenargued that the decision in K. Veeraswami Vs. Union of India [1991 (3) SCC 655] has in fact removedthe very foundation of the decision in RS Nayak v. A. R. Antulay (cited supra) in respect of thesanction. It is also argued that, in effect, the decision in RS Nayak v. A R. Antulay (cited supra) hasadded further proviso to the effect "provided that nothing in this sub-Section shall apply to a casewhere at the time of cognizance, the public servant is holding a different post with a differentremoving authority from the one in which the offence is alleged to have been committed". It isargued that such an addition would be clearly impermissible as it would negate the very foundationof criminal law which requires a strict interpretation in favour of the accused and not aninterpretation which results into deprivation of the accused of his statutory rights. The decision inS.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 (citedsupra) and the law decided therein, particularly in paragraphs 24, 25 and 26 is obiter. Paragraphs24, 25 and 26 are as under:

"24. Now if the public servant holds two offices and he is accused of having abusedone and from which he is removed but continues to hold the other which is neitheralleged to have been used nor abused, is a sanction of the authority competent toremove him from the office which is neither alleged or shown to have been abused ormisused necessary? The submission is that if the harassment of the public servant bya frivolous prosecution and criminal waste of his time in law courts keeping him awayfrom discharging public duty, are the objects underlying Section 6, the same would bedefeated if it is held that the sanction of the latter authority is not necessary. Thesubmission does not commend to use. We fail to see how the competent authorityentitled to remove the public servant from an office which is neither alleged to havebeen used or abused would be able to decide whether the prosecution is frivolous ortendentious. An illustration was posed to the learned Counsel that a Minister who isindisputably a public servant greased his palms by abusing his office as Minister, andthen ceased to hold the office before the court was called upon to take cognizance ofthe offence against him and therefore, sanction as contemplated by Section 6 wouldnot be necessary; but if after committing the offence and before the date of taking ofcognizance of the offence, he was elected as a Municipal President in which capacityhe was a public servant under the relevant Municipal law, and was holding that officeon 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 authoritycompetent to remove him from the office of the Municipal President. The answerwas- 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 unscrupulouspublic servant. Someone interested in protecting may shift him from one office ofpublic servant to another and thereby defeat the process of law. Ode can legitimatelyenvisage a situation wherein a person may hold a dozen different offices, each oneclothing him with the status of a public servant under Section 21 IPC and even if hehas abused only one office for which either there is a valid sanction to prosecute himor he has ceased to hold that office by the time court was called upon to takecognizance, yet on this assumption, sanction of 11 different competent authoritieseach of which was entitled to remove him from 11 different public offices would benecessary before the court can take cognizance of the offence committed by suchpublic servant/while abusing one office which he may have ceased to hold. Such aninterpretation in contrary to all canons of construction and leads to an absurd andproduct which of necessity must be avoided. Legislation must at all costs beinterpreted 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 PradeshHigh 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 havingentered the service on 17th November 1941. He retired from the service on 15th June , 1965, but wasre-employed for a period of 2 years with effect from 16th June, 1965. On 7th September, 1966, therespondent was transferred to the Regular Air Force Reserve with effect from June 16, 1965 to June15, 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 Section5(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 theoffence in the absence of a valid sanction of the authority competent to remove him from the officeheld by him as a public servant.

The learned special Judge negatived the contention. In the revision petition filed by the accused inthe 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 AuxiliaryAir Force, 1952 and the rules made there under. Accordingly, it was held that a sanction to prosecutehim 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 theHigh Court. This Court held following the decision in S.A. Venkataraman's case that if the publicservant had ceased to be a public servant at the time of taking cognizance of the offence, Section 6 isnot attracted. Thereafter the court proceeded to examine whether the accused was a public servanton the date when the court took cognizance of the offence and concluded that once the accused wastransferred to the Auxiliary Air Force, he retained his character as a public servant because he wasrequired to undergo training and to be called up for service as and when required. The court furtherheld that as such the accused was a public servant as an active member of the Indian Air Force and asanction to prosecute him under Section 6 was necessary. This decision is of no assistance for theobvious reason that nowhere it was contended before the court, which office was alleged to havebeen abused by the accused and whether the two offices were separate and distinct. It is not madeclear whether the accused continued to hold the office which was alleged to have been abused ormisused 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 thecognizance was sought to be taken in June, 1969.

Indisputably, the accused had ceased to hold that office as public servant which he was alleged tohave misused or abused. The court was however, not invited to consider the contention canvassedbefore us: Nor was the court informed specifically whether the subsequent office held by the accusedin that case was the same from which his service was terminated meaning thereby he wasre-employed to the same office. The decision appears to proceed on the facts of the case. We wouldhowever, like to make it abundantly clear that if the two decisions purport to lay down that even if apublic servant has ceased to hold that office as public servant which he is alleged to have abused ormisused for corrupt motives, but on the date of taking cognizance of an offence alleged to have beencommitted by him as a public servant which he ceased to be and holds an entirely different publicoffice which he is neither alleged to have misused or abused for corrupt motives, yet the sanction ofauthority competent to remove him from such latter office would be necessary before takingcognizance of the offence alleged to have been committed by the public servant while holding anoffice which he is alleged to have abused or misused and which he has ceased to hold, the decisionsin our opinion, do not lay down the correct law and cannot be accepted as making a correctinterpretation of Section 6.

26. Therefore, upon a true construction of Section 6, it is implicit therein that Sanction of thatcompetent authority alone would be necessary which is competent to remove the public servantfrom the office which he is alleged to have misused or abused for corrupt motive and for which aprosecution 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. TheState (S.P.E. Hyderabad) [(1973) 2 AWR 263] was taken into consideration. The Court has alsoquoted S.A. Venkataraman's case (cited supra) and the decision in Kailash Chand's case (citedsupra) was distinguished by holding thus:



"This decision is of no assistance for the obvious reason that nowhere it wascontended before the court, which office was alleged to have been abused by theaccused and whether the two offices were separate and distinct. It is not made clearwhether the accused continued to hold the office which was alleged to have beenabused or misused even at the time of taking cognizance of the offence. But that couldnot be so because the service of the accused was terminated on April 1, 1968 while thecognizance was sought to be taken in June, 1969. Indisputably, the accused hadceased to hold that office as public servant which he was alleged to have misused orabused. The court was however, not invited to consider the contention canvassedbefore us: Nor was the court informed specifically whether the subsequent office heldby the accused in that case was the same from which his service was terminatedmeaning thereby he was re- employed to the same office. The decision appears toproceed 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 toobiter. The learned senior counsel for the appellants insists that it was not at all necessary for theCourt to make these observations as the Court had answered the question whether A.R. Antulay inhis capacity as an MLA, was a public servant, in negative. The learned senior counsel argued thatonce it was found that Antulay in his capacity as an MLA, was not a public servant, it was not at allnecessary for the Court to go further and probe a further question as to whether a public servantwho has abused a particular office ceased to hold that office and held some other office on the dateof cognizance would still require sanction for his prosecution for the offence under the Act. Theargument is extremely attractive on the face of it because indeed in Antulay's case (cited supra) sucha finding that Shri Antulay in his capacity is an MLA was not a public servant was unequivocallygiven. However, we do not agree to the proposition that the Court could not have gone further andrecorded its finding in paragraphs 23 to 26 as they did. It is necessary firstly to note paragraph 15which gives a clear cut idea as to what was the exact controversy therein and how the rival partiesaddressed Courts on various questions. Paragraph 15 is as under:-

"15. The appellant, the original complainant, contends that the learned special Judgewas in error in holding that M.L.A. is a public servant within the meaning of theexpression under Section 21(12)(a). The second submission was that if the firstquestion is answered in the affirmative, it would be necessary to examine whether asanction as contemplated by Section 6 is necessary. If the answer to the secondquestion is in the affirmative it. would be necessary to identify the sanctioningauthority. The broad sweep of the argument was that the complainant in hiscomplaint has alleged that the accused abused his office of Chief Minister and not hisoffice, if any, as M.L.A. and therefore, even if on the date of taking cognizance of theoffence the accused was M.L.A, nonetheless no sanction to prosecute him is necessaryas envisaged by Section 6 of the 1947 Act. It was urged that as the allegation againstthe accused in the complaint is that he abused or misused his office as Chief Ministerand as by the time the complaint was filed and cognizance was taken, he had ceasedto 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 theaccused was admittedly a public servant in his capacity as Chief Minister." (Emphasissupplied).

Therefore, it will be clear that the complainant's main argument was the abuse of the office of ChiefMinister which the accused ceased to hold and hence no sanction was necessary. In that thecomplainant 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 publicservant 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 holdsplurality of offices each of which confers the status of a public servant and even if it is alleged that hehas abused or misused one office as a public servant notwithstanding the fact that there was noallegation of the abuse or misuse of other office held as public servant, the sanction of each authoritycompetent to remove him from each of the offices would be a sine qua non under Section 6 before avalid prosecution can be launched against the accused. Therefore, the question of accused being apublic servant was inextricably mixed with the question of the office which accused was alleged tohave misused. There was no dichotomy between the two questions. Strangely enough, the accusedclaimed to be a public servant, unlike the present case and it was on that premise that the accusedhad raised a question that there would have to be the sanction qua each office that he continued tohold on the date when the cognizance was taken. In the present case, it is not disputed that theaccused was a public servant. Undoubtedly they were public servants. By the subsequent judgmentin P.V. Narsimha Rao Vs. State [1998 (4) SCC 626] it has been clearly held now that the Members ofLegislative Assembly and the Members of Parliament are public servants. Therefore, the questionwhich was addressed in that case by the accused claiming himself to be a public servant is anidentical question which fell for consideration before the High Court as also before us. In paragraph17, the Court formulated the questions to be decided precisely on the basis of the contention raisedby the accused in that case. Following were those questions :

"(a) What is the relevant date with reference to which a valid sanction is apre-requisite for the prosecution of a public servant for offences enumerated inSection 6 of the 1947 Act?

(b) If the accused holds plurality of offices occupying each of which makes him apublic servant, is sanction of each one of the competent authorities entitled to removehim from each one of the offices held by him necessary and if anyone of thecompetent authorities fails or declines to grant sanction, is the Court precluded orprohibited from taking cognizance of the offence with which the public servant ischarged?

(c) Is it implicit in Section 6 of the 1947 Act that sanction of that competent authorityalone is necessary, which is entitled to remove the public servant from the officewhich 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 Section21(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 prosecutionof M.L.A.?

(g) If the answer to (f) is in the affirmative, which is the Sanctioning Authoritycompetent to remove M.L.A. from the office of Member of the Legislative Assembly?"

18. It will be seen from the nature of the questions that the whole controversy was covered by thosequestions particularly, the question raised in (b), (c), (d) and (e) were nothing but the result of thecontentions 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 onwhich the cognizance was taken of the offence. Since in paragraph 23 to 26 the Court found that theaccused in that case did not continue to hold the office that he had allegedly abused on the date ofcognizance, there was no necessity of granting any sanction. The Court held so in paragraph 27 inthe most unequivocal terms. The Court goes on to record "therefore, it is crystal clear that thecomplaint filed against the accused charged him with criminal abuse or misuse of only his office asChief Minister. By the time, the court was called upon to take cognizance of the offences, so allegedin the complaint, the accused had ceased to hold the office of the Chief Minister. On this shortground, it can be held that no sanction to prosecute him was necessary as former Chief Minister ofMaharashtra 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 canvassedat length. The Court then went on to examine the question in further paragraphs and came to theconclusion that MLA was not a public servant which law was, of course thereafter, upset inNarsimha Rao's case (cited supra). It cannot be said that the question decided by the Courtregarding the abuse of a particular office and the effects of the accused not continuing with thatoffice or holding an altogether different office was obiter. In fact it is on that very basis that thejudgment of A.R.Antulay (cited supra) proceeded. The question of MLA not being a public servantwas decided as a subsidiary question.

21. This finding of ours is buttressed by the decision reported in Balakrishnan Ravi Menon v. Unionof India (cited supra) which decision came almost immediately after Prakash Singh Badal v. State ofPunjab (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 quotedparagraph 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 thatthe finding given in Antulay's case (cited supra) regarding the abuse of office of Chief Minister wasobiter. 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 theoffice that he had allegedly abused on the day cognizance was taken, then there was no requirementof sanction.

22. This finding was given as the complainant in that case had canvassed in the backdrop of thejudgment of the trial Court discharging the accused holding him to be a public servant. The trialCourt had held that in the absence of such sanction, the accused was entitled to be discharged. Thecomplainant filed a writ petition against this order. This court had permitted to file a criminalrevision against the order of learned Special Judge perhaps being of the opinion that the writpetition did not lie and ultimately this Court transferred the criminal revision against the trialCourt's judgment here. The complainant, therefore, had specifically and basically raised the pointthat since the accused had ceased to hold the office of Chief Minister on the date of cognizance, therewas 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 mannerobiter 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. MahadevaShetty & 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 lastlyADM, Jabalpur etc. Vs. Shivkant Shukla (cited supra] and contended that the principles of obiterdicta in the aforementioned decisions would apply to Antulay's case (cited supra) also. We havealready shown that the principles regarding the abuse of a particular office, decided in Antulay'scase (cited supra), could not be termed as Obiter dicta. We have nothing to say about the principlesin the aforementioned decisions. However, in the circumstances, which we have shown above, allthese cases would be of no help to the appellants herein, particularly in the light of our conclusionthat 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'scase (cited supra). That decision has stood the test of time for last over 25 years and it is trite thatgoing as per the maxim stare decisis et non quieta movere, it would be better to stand by thatdecision and not to disturb what is settled. This rule of interpretation was approved of by Lord Cokewho suggested - "those things which have been so often adjudged ought to rest in peace". This Courtin Shanker Raju Vs. Union of India [2011 (2) SCC 132], confirmed this view while relying on thedecision in Tiverton Estates Ltd. Vs. Wearwell Ltd. [1974 (1) WLR 176] and more particularly, theobservations of Scarman, L.J., while not agreeing with the view of Lord Denning, M.R. aboutdesirability 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 longterm - though it would undoubtedly do justice in the present case. To some it willappear that justice is being denied by a timid, conservative adherence to judicial



precedent. They would be wrong. Consistency is necessary to certainty - one of thegreat 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. Raguhbir Singh [1989 (2) SCC 754], Krishena Kumar Vs. Union ofIndia [1990 (4) SCC 207], Union of India Vs. Paras Laminates (P) Ltd. [1990(4) SCC453] 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 inAntulay's case (cited supra). We have in the earlier part of the judgment, pointed outas to how the decision in Antulay's case (cited supra) has been followed right up tothe decision in Prakash Singh Badal v. State of Punjab (cited supra) and eventhereafter.

25. This leaves us with the other contention raised by learned Senior Counsel Shri Mukul Rohtagi aswell as Shri U.U. Lalit arguing for the appellants. The learned senior counsel contended that thedecision in Antulay's case (cited supra) is hit by the doctrine of per incuriam. The learned seniorcounsel 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 downin those two cases. However, we feel that the resultant argument on the part of the learned seniorcounsel is not correct. In support of their argument, the learned senior counsel contended that inAntulay's case (cited supra), Section 6(2) of the Act, as it therein existed, was ignored. In short, theargument was that Section 6(2) which is parimateria with Section 19(2) of the Act provides that incase of doubt as to which authority should give the sanction, the time when the offence is alleged tohave been committed is relevant. The argument further goes on to suggest that if that is so, then theAct expressly contemplates that a public servant may be holding office in a different capacity fromthe one that he was holding when the offence is alleged to have been committed at the time whencognizance is taken so as to cause doubt about the sanctioning authority. Thus, there would benecessity of a sanction on the date of cognizance and, therefore, in ignoring this aspect, the decisionin 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) ofthe Act as it then existed, was ignored or was not referred to, but the Constitution Bench had veryspecifically made a reference to and had interpreted Section 6 as a whole. Therefore, it cannot besaid that the Constitution Bench had totally ignored the provisions of Section 6 and moreparticularly, Section 6(2). Once the Court had held that if the public servant had abused a particularoffice and was not holding that office on the date of taking cognizance, there would be no necessityto obtain sanction. It was obvious that it was not necessary for the Court to go up to Section 6(2) asin 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 situationas is tried to be argued by the learned senior counsel. We do not agree with the proposition that theAct expressly contemplates that a public servant may be holding office in a different capacity fromthe one that he was holding when the offence is alleged to have been committed at the time whencognizance is taken. That is not, in our opinion, the eventuality contemplated in Section 6(2) orSection 19(2), as the case may be. In Antulay's case (cited supra), the Court went on to hold thatwhere a public servant holds a different capacity altogether from the one which he is alleged to haveabused, there would be no necessity of sanction at all. This view was taken on the specificinterpretation of Section 6 generally and more particularly, Section 6(1)(c), which is parimateria toSection 19(1)(c) of the Act. Once it was held that there was no necessity of sanction at all, therewould be no question of there being any doubt arising about the sanctioning authority. The doubtexpressed in Section 19(2), in our opinion, is not a pointer to suggest that a public servant may haveabused any particular office, but when he occupies any other office subsequently, then the sanctionis a must. That will be the incorrect reading of the Section. The Section simply contemplates asituation where there is a genuine doubt as to whether sanctioning authority should be the CentralGovernment or the State Government or any authority competent to remove him. The words inSection 19(2) are to be read in conjunction with Sections 19(1)(a), 19(1)(b) and 19(1)(c). Theseclauses only fix the sanctioning authority to be the authority which is capable of "removing a publicservant". Therefore, in our opinion, the argument based on the language of Section 6(2) or as thecase 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:-

"24 ....An illustration was posed to the learned Counsel that a Minister who is indisputably a publicservant greased his palms by abusing his office as Minister, and then ceased to hold the office beforethe court was called upon to take cognizance of the offence against him and therefore, sanction ascontemplated by Section 6 would not be necessary; but if after committing the offence and beforethe date of taking of cognizance of the offence, he was elected as a Municipal President in whichcapacity he was a public servant under the relevant Municipal law, and was holding that office onthe 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 theoffice of the Municipal President. The answer was- in affirmative. But the very illustration wouldshow that such cannot be the law. Such an interpretation of Section 6 would render it as a shield toan unscrupulous public servant. Someone interested in protecting may shift him from one office ofpublic servant to another and thereby defeat the process of law. One can legitimately envisage asituation wherein a person may hold a dozen different offices, each one clothing him with the statusof a public servant under Section 21 IPC and even if he has abused only one office for which eitherthere is a valid sanction to prosecute him or he has ceased to hold that office by the time court wascalled upon to take cognizance, yet on this assumption, sanction of 11 different competentauthorities each of which was entitled to remove him from 11 different public offices would benecessary before the court can take cognizance of the offence committed by such publicservant/while abusing one office which he may have ceased to hold. Such an interpretation incontrary to all canons of construction and leads to an absurd and product which of necessity must beavoided. Legislation must at all costs be interpreted in such a way that it would not operate as arougue's charter".



(emphasis supplied)

27. It is in the light of this that the Court did not have to specify as to under what circumstanceswould a duty arise for locating the authority to give sanction. The doubt could arise in moremanners than one and in more situations than one, but to base the interpretation of Section 19(1) ofthe Act on the basis of Section 19(2) would be putting the cart before the horse. The two Sectionswould have to be interpreted in a rational manner. Once the interpretation is that the prosecution ofa public servant holding a different capacity than the one which he is alleged to have abused, there isno question of going to Section 6(2) / 19(2) at all in which case there will be no question of anydoubt. It will be seen that this interpretation of Section 6(1) or, as the case may be, Section 19(1), ison 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 thatAntulay's case (cited supra) was decided per incuriam of Section 6(2). In our opinion, the decision inK. 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 seniorcounsel 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 theappellants, 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 wordsof Section 6(1)/19(1) of a valuable protection. It was further urged that such interpretation wouldhave a disastrous effect on the careers of the public servants and the object of law to insulate apublic servant from false, frivolous, malicious and motivated complaints of wrong doing would bedefeated. It was also urged that such interpretation would amount to re-writing of Section 19(1) andas if a proviso would be added to Section 19(1) to the following effect:-

"Provided that nothing in this sub-Section shall apply to a case where at the time ofcognizance, the public servant is holding a different post with a different removingauthority 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 alreadyanswered, firstly, in Antulay's case (cited supra) and secondly, in Prakash Singh Badal v. State ofPunjab (cited supra). Therefore, we need not dilate on them. We specifically reject these argumentson the basis of Antulay's case (cited supra) itself which has been relied upon in Prakash Singh Badalv. State of Punjab (cited supra). The argument regarding the addition of the proviso must also fall asthe language of the suggested proviso contemplates a different "post" and not the "office", which areentirely different concepts. That is apart from the fact that the interpretation regarding the abuse ofa particular office and there being a direct relationship between a public servant and the office thathe has abused, has already been approved of in Antulay's case (cited supra) and the other casesfollowing Antulay's case (cited supra) including Prakash Singh Badal v. State of Punjab (citedsupra). We, therefore, reject all these arguments.



29. It was also urged that a literal interpretation is a must, particularly, to sub- Section (1) of Section19. That argument also must fall as sub-Section (1) of Section 19 has to be read with in tune with andin light of sub-Sections (a), (b) and (c) thereof. We, therefore, reject the theory of litera regis whileinterpreting Section 19(1). On the same lines, we reject the argument based on the word "is" insub-Sections (a), (b) and (c). It is true that the Section operates in praesenti; however, the Sectioncontemplates 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 theone which he is holding on the date of taking cognizance, by necessary implication. Once that isclear, 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 [4MIA 179], Re Bedia Vs. Genreal Accident, Fir and Life Assurance Corporation Ltd. [1948 (2) All ER995] and Bourne (Inspector of Taxes) Vs. Norwich Crematorium Ltd. [1967 (2) All ER 576], wespecifically hold that giving the literal interpretation to the Section would lead to absurdity andsome unwanted results, as had already been pointed out in Antulay's case (cited supra) (see theemphasis 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 waspointed 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 usedby 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 offenceconnotes the time period of the past whereas the term "a person" in relation to the sanctionconnotes the time period of the present. Therefore, it was urged that since the two terms are notsynonymous and convey different meanings in respect of time/status of the office, the term "publicservant" should mean the "past office" while "person" should mean the "present status/presentoffice". While we do agree that the different terms used in one provision would have to be givendifferent meaning, we do not accept the argument that by accepting the interpretation of Section19(1) in Antulay's case, the two terms referred to above get the same meaning. We also do not seehow this argument helps the present accused. The term "public servant" is used in Section 19(1) asSections 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) or13(1)(d). Section 19(1) speaks about the cognizance of an offence committed by a public servant. It isnot a cognizance of the public servant. The Court takes cognizance of the offence, and not theaccused, meaning, the Court decides to consider the fact of somebody having committed thatoffence. In case of this Act, such accused is only a public servant. Then comes the next stage thatsuch cognizance cannot be taken unless there is a previous sanction given. The sanction is in respectof 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 StateGovernment or with the Central Government or in case of any other person, who is a public servantbut 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 bedifferent but he is essentially "a person"



- an accused person, because the Section operates essentially qua an accused person. It is not a"public servant" who is employed; it is essentially "a person" and after being employed, he becomesa "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 orwith the sanction of ....". It will be again seen that the offences under Sections 7, 10, 11 and 13 areessentially committed by those persons who are "public servants". Again, when it comes to theremoval, it is not a removal of his role as a "public servant", it is removal of "a person" himself whois acting as a "public servant". Once the Section is read in this manner, then there is no question ofassigning 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 inSection 2(c) of the Act. The argument is based more particularly on clause 2(c)(vi) which providesthat an arbitrator, on account of his position as such, is public servant. The argument is that somepersons, as contemplated in Sections 2(c)(vii), (viii), (ix) and (x), may adorn the character of apublic servant only for a limited time and if after renouncing that character of a public servant onaccount of lapse of time or non-continuation of their office they are to be tried for the abuse on theirpart of the offices that they held, then it would be a very hazardous situation. We do not think so. Ifthe person concerned at the time when he is to be tried is not a public servant, then there will be nonecessity of a sanction at all. Section 19(1) is very clear on that issue. We do not see how it will causeany hazardous situation. Similarly, it is tried to be argued that a Vice-Chancellor who is a publicservant and is given a temporary assignment of checking the papers or conducting examination orbeing invigilator by virtue of which he is a public servant in an entirely different capacity as fromthat of a Professor or a Vice-Chancellor, commits an offence in the temporary capacity, then hewould 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 iswholly irrelevant in the light of the clearest possible dictum in Antulay's case (cited supra) and inPrakash Singh Badal v. State of Punjab (cited supra). If the concerned person continues to be aVice-Chancellor and if he has abused his office as Vice-Chancellor, there would be no doubt that hisprosecution would require a sanction. So, it will be a question of examining as to whether suchperson has abused his position as a Vice-Chancellor and whether he continues to be aVice-Chancellor on the date of taking of the cognizance. If, however, he has not abused his positionas Vice-Chancellor but has committed some other offence which could be covered by thesub-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 thepublic servant and the doubt arising as to who would be the sanctioning authority in such case. Inthe earlier part of the judgment, we have already explained the concept of doubt which iscontemplated in the Act, more particularly in Section 19(2). The law is very clear in that respect. Theconcept of `doubt' or `plurality of office' cannot be used to arrive at a conclusion that on 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 situationthat merely because a concept of doubt is contemplated in Section 19(2), it cannot mean that thepublic servant who has abused some other office than the one he is holding could not be triedwithout 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. Itmay be that the appellants in this case held more than one offices during the check period whichthey are alleged to have abused; however, there will be no question of any doubt if on the date whenthe cognizance is taken, they are not continuing to hold that very office. The relevant time, as held inS.A. Venkataraman Vs. State (cited supra), is the date on which the cognizance is taken. If on thatdate, the appellant is not a public servant, there will be no question of any sanction. If he continuesto be a public servant but in a different capacity or holding a different office than the one which isalleged to have been abused, still there will be no question of sanction and in that case, there willalso be no question of any doubt arising because the doubt can arise only when the sanction isnecessary. In case of the present appellants, there was no question of there being any doubt becausebasically 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 Antulay's case (cited supra) and the subsequentdecisions require any reconsideration for the reasons argued before us. Even on merits, there is nonecessity 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 decisionin Prakash Singh Badal v. State of Punjab (cited supra) to hold that the appellants in both theappeals had abused entirely different office or offices than the one which they were holding on thedate on which cognizance was taken and, therefore, there was no necessity of sanction under Section19 of the Act as held in K. Karunakaran v. State of Kerala (cited supra) and the later decision inPrakash Singh Badal v. State of Punjab (cited supra). The appeals are without any merit and aredismissed.

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

[V.S. Sirpurkar] ..........................J.

[T.S. THAKUR] New Delhi;

July 4, 2011.



REPORTABLE

IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1077-1081 OF 2013

Central Bureau of Investigation,Bank Securities & Fraud Cell .....Appellant

Versus

Ramesh Gelli and Others ...Respondents

WITH

WRIT PETITION (CRL.) NO. 167 OF 2015

Ramesh Gelli ...Writ Petitioner

Versus

Central Bureau of Investigation throughSuperintendent of Police, BS & FC & Anr. ...Respondents

J U D G M E N T

PER RANJAN GOGOI, J.

1. I have had the privilege of going through the judgment of

my learned brother Prafulla C. Pant, J. Though I am in full

agreement with the conclusions reached by my learned

brother, I would like to give my own reasons for the same.

1

2. The question arising has to be answered firstly within the

four corners of the definition of “public servant” as contained

in Section 2(c) of the Prevention of Corruption Act, 1988

(hereinafter referred to as ‘the PC Act’), particularly, those

contained in Section 2(c)(viii), which is extracted below.

2. “Definitions.-In this Act, unless the context otherwise

requires,-

(c) “Public Servant” means,-

(i) xxxx xxxxx(ii) xxxx xxxxx(iii) xxxx xxxxx(iv) xxxx xxxxx(v) xxxx xxxxx(vi) xxxx xxxxx(vii) xxxx xxxxx

(viii) any person who holds an office by virtue of which he

is authorized or required to perform any public duty;”

(ix) xxxx xxxxx(x) xxxx xxxxx(xi) xxxx xxxxx(xii) xxxx xxxxx”

3. While understanding the true purport and effect of the

aforesaid provision of the PC Act, the meaning of the

2

expression “office” appearing therein as well as “public duty”

which is defined by Section 2(b) has also to be understood.

4. A reference to Section 2(b) of the PC Act which defines

“public duty” may at this stage be appropriate to be made.

“2.(b) “public duty” means a duty in discharge of whichthe State, the public or the community at large has aninterest.”Explanation.- In this clause “State” includes acorporation established by or under a Central, Provincialor State Act, or an authority or a body owned or controlledor aided by the Government or a Government company asdefined in Section 617 of the Companies Act, 1956 (1 of1956);”

5. The definition of public duty in Section 2(b) of the PC Act,

indeed, is wide. Discharge of duties in which the State, the

public or the community at large has an interest has been

brought within the ambit of the expression ‘public duty’.

Performance of such public duty by a person who is holding

an office which requires or authorize him to perform such duty

is the sine qua non of the definition of the public servant

contained in Section 2(c)(viii) of the PC Act. The expressions

‘office’ and ‘public duty’ appearing in the relevant part of the

PC Act would therefore require a close understanding.

3

6. In P.V. Narasimha Rao Vs. State (CBI/SPE)1 the

meaning of the expression ‘office’ appearing in the relevant

provision of the PC Act has been understood as “a position or

place to which certain duties are attached specially one of a

more or less public character.” Following the views expressed

by Lord Atkin in McMillan Vs. Guest2, this Court had

approved the meaning of the expression ‘office’ to be referable

to a position which has existence independent of the person

who fills up the same and which is required to be filled up in

succession by successive holders.

7. While there can be no manner of doubt that in the

Objects and Reasons stated for enactment of the Prevention of

Corruption Act, 1988 it has been made more than clear that

the Act, inter alia, envisages widening of the scope of the

definition of public servant, nevertheless, the mere

performance of public duties by the holder of any office cannot

bring the incumbent within the meaning of the expression

‘public servant’ as contained in Section 2(c) of the PC Act. The

broad definition of ‘public duty’ contained in Section 2(b)

1 (1998) 4 SCC 6262 (1942) AC 561

4

would be capable of encompassing any duty attached to any

office inasmuch as in the contemporary scenario there is

hardly any office whose duties cannot, in the last resort, be

traced to having a bearing on public interest or the interest of

the community at large. Such a wide understanding of the

definition of public servant may have the effect of obliterating

all distinctions between the holder of a private office or a

public office which, in my considered view, ought to be

maintained. Therefore, according to me, it would be more

reasonable to understand the expression “public servant” by

reference to the office and the duties performed in connection

therewith to be of a public character.

8. Coming to the next limb of the case, namely, the

applicability of the provisions of Section 46A of the Banking

Regulation Act, 1949 (hereinafter referred to as the ‘BR Act’)

what is to be found is that a chairman appointed on a whole

time basis, managing director, director, auditor, liquidator,

manager and any other employee of a banking company is

deemed to be a public servant for the purposes of Chapter IX

of the Indian Penal Code. Section 46A, was amended by Act

5

20 of 1994 to bring within its fold a larger category of

functionaries of a banking company. Earlier, only the

chairman, director and auditor had come within the purview

of the aforesaid Section 46A.

9. Sections 161 to 165A contained in Chapter IX of the

Indian Penal Code have been repealed by Section 31 of the

Prevention of Corruption Act, 1947 and the said offences have

been engrafted in Sections 7, 8, 9, 10, 11 and 12 of the

Prevention of Corruption Act, 1988. Section 166(as originally

enacted), Section 167 (with amendment), Sections 168, 169,

170 and 171 (as originally enacted) continue to remain in

Chapter IX of the Indian Penal Code even after enactment of

the Prevention of Corruption Act, 1988.

10. By virtue of Section 46A of the BR Act office

bearers/employees of a Banking Company (including a Private

Banking Company) were “public servants” for the purposes of

Chapter IX of the I.P.C. with the enactment of the PC Act the

offences under Section 161 to 165A included in Chapter IX of

Code came to be deleted from the said Chapter IX and

engrafted under Sections 7 to 12 of the PC Act. With the

6

deletion of the aforesaid provisions from Chapter IX of the

I.P.C. and inclusion of the same in the PC Act there ought to

have been a corresponding insertion in Section 46A of the BR

Act with regard to the deeming provision therein being

continued in respect of officials of a Banking Company insofar

as the offences under Sections 7 to 12 of the PC Act are

concerned. However, the same was not done. The Court need

not speculate the reasons therefor, though, perhaps one

possible reason could be the wide expanse of the definition of

“public servant” as made by Section 2(c) of the PC Act. Be that

as it may, in a situation where the legislative intent behind the

enactment of the PC Act was, inter alia, to expand the

definition of “public servant”, the omission to incorporate the

relevant provisions of the PC Act in Section 46A of the BR Act

after deletion of Sections 161 to 165A of the I.P.C. from

Chapter IX can be construed to be a wholly unintended

legislative omission which the Court can fill up by a process of

interpretation. Though the rule of casus omissus i.e. “what

has not been provided for in the statute cannot be supplied by

the Courts” is a strict rule of interpretation there are certain

well known exceptions thereto. The following opinion of Lord

7

Denning in Seaford Court Estates Ltd. Vs. Asher3 noticed

and approved by this Court may be taken note of.

“The English language is not an instrument ofmathematical precision. Our literature would bemuch the poorer if it were ....He (The Judge) mustset to work in the constructive task of finding theintention of Parliament, and he must do this notonly from the language of the statute, but alsofrom a consideration of the social conditionswhich gave rise to it, and of the mischief which itwas passed to remedy, and then he mustsupplement the written word so as to give “forceand life” to the intention of the legislature.....Ajudge should ask himself the question, how, ifthe makers of the Act had themselves comeacross this ruck in the texture of it, they wouldhave straightened it out? He must then do asthey would have done. A judge must not alter thematerial of which the Act is woven, but he canand should iron out the creases.”

In Magor & St. Mellons Rural District Council Vs.

Newport Corporation4 the learned judge restated the above

principles in a somewhat different form to the following effect :

“We sit here to find out the intention ofParliament and of ministers and carry it out,and we do this better by filling in the gaps andmaking sense of the enactment than by openingit up to destructive analysis.”

11. Though the above observations of Lord Denning had

invited sharp criticism in his own country we find reference to3 (1949) 2AllER 155 at page 1644 (1950)2AllER 1226

8

the same and implicit approval thereof in the judicial quest to

define the expression “industry” in Bangalore Water Supply

& Sewerage Board Vs. A Rajappa and Others5. Paragraphs

147 and 148 of the opinion of Chief Justice M.H. Beg in

Bangalore Water Supply & Sewerage Board (supra), which

are quoted below, would clearly indicate the acceptance of this

Court referred to earlier.

“147. My learned Brother has relied on whatwas considered in England a somewhatunorthodox method of construction in SeafordCourt Estates Ltd. v. Asher [(1949 2 ALL ER 155,164], where Lord Denning, L.J., said :

When a defect appears a Judge cannotsimply fold his hands and blame thedraftsman. He must set to work on theconstructive task of finding the intention ofParliament — and then he mustsupplement the written words so as togive ‘force and life’ to the intention oflegislature. A Judge should ask himselfthe question how, if the makers of the Acthad themselves come across this ruck inthe texture of it, they would havestraightened it out? He must then do asthey would have done. A Judge must notalter the material of which the Act iswoven, but he can and should iron out thecreases.

When this case went up to the House of Lords itappears that the Law Lords disapproved of the

5 (1978) 2 SCC 213

9

bold effort of Lord Denning to make ambiguouslegislation more comprehensible. Lord Simondsfound it to be “a naked usurpation of thelegislative function under the thin disguise ofinterpretation”. Lord Morton (with whom LordGoddard entirely agreed) observed: “Theseheroics are out of place” and Lord Tucker said“Your Lordships would be acting in a legislativerather than a judicial capacity if the view putforward by Denning, L.J., were to prevail.”

148. Perhaps, with the passage of time, whatmay be described as the extension of a methodresembling the “arm-chair rule” in theconstruction of wills. Judges can more franklystep into the shoes of the legislature where anenactment leaves its own intentions in much toonebulous or uncertain a state. In M. Pentiah v.Muddala Veeramallappa [(1961) 2 SCR 295],Sarkar, J., approved of the reasoning, set outabove, adopted by Lord Denning. And, I must saythat, in a case where the definition of “industry”is left in the state in which we find it, thesituation perhaps calls for some judicial heroics tocope with the difficulties raised. (Underlining ismine)

12. There are other judicial precedents for the view that I

have preferred to take and reach the same eventual conclusion

that my learned brother Prafulla C. Pant, J. has reached. I

would like to refer to only one of them specifically, namely, the

decision of a Constitution Bench of this Court in Dadi

Jagannadham Vs. Jammulu Ramulu and others6.

6 (2001) 7 SCC 71

10

Order XXI Rule 89 read with Rule 92(2) of the CPC

provided for filing of an application to set aside a sale. Such an

application was required to be made after deposit of the

amounts specified within 30 days from the date of the sale.

While the said provision did not undergo any amendment,

Article 127 of the Limitation Act, 1963 providing a time limit of

30 days for filing of the application to set aside the sale was

amended and the time was extended from 30 days to 60 days.

Taking note of the objects and reasons for the amendment of

the Limitation Act, namely, that the period needed to be

enlarged from 30 to 60 days as the period of 30 days was

considered to be too short, a Constitution Bench of this Court

in Dadi Jagannadham (supra) harmonised the situation by

understanding Order XXI rule 89 to be casting an obligation

on the Court to set aside the sale if the application for setting

aside along with deposit is made within 30 days. However, if

such an application along with the deposit is made after 30

days but before the period of 60 days as contemplated by

Article 127 of the Limitation Act, 1963, (as amended) the

Court would still have the discretion to set aside the same.

The period of 30 days in Order 21 Rule 89/92(2) CPC referred

11

to hereinabove was subsequently (by Act 22 of 2002) amended

to 60 days also.

13. Turing to the case in hand there can be no dispute that

before enactment of the PC Act, Section 46A of the BR Act had

the effect of treating the concerned employees/office bearers of

a Banking Company as public servants for the purposes of

Chapter IX of the IPC by virtue of the deeming provision

contained therein. The enactment of the PC Act with the clear

intent to widen the definition of ‘public servant’ cannot be

allowed to have the opposite effect by expressing judicial

helplessness to rectify or fill up what is a clear omission in

Section 46A of the BR Act. The omission to continue to extend

the deeming provisions in Section 46A of the BR Act to the

offences under Sections 7 to 12 of the PC Act must be

understood to be clearly unintended and hence capable of

admitting a judicial exercise to fill up the same. The

unequivocal legislative intent to widen the definition of “public

servant” by enacting the PC Act cannot be allowed to be

defeated by interpreting and understanding the omission in

12

Section 46A of the BR Act to be incapable of being filled up by

the court.

14. In the above view of the matter, I also arrive at the same

conclusion as my learned Brother Prafulla C. Pant, J. has

reached, namely, that the accused respondents are public

servants for the purpose of the PC Act by virtue of the

provisions of Section 46A of the Banking Regulation Act, 1949

and the prosecutions launched against the accused

respondents are maintainable in law. Consequently, the

criminal appeals filed by the C.B.I. are allowed and Writ

Petition (Criminal) No. 167 of 2015 is dismissed.

........................................J. [RANJAN GOGOI]

NEW DELHIFEBRUARY 23, 2016

13



CRIMINAL APPEAL NOS. 1077-1081 OF 2013

Central Bureau of Investigation,Bank Securities & Fraud Cell … Appellant

Versus

Ramesh Gelli and others …Respondents

WITH

WRIT PETITION (CRL.) NO. 167 OF 2015

Ramesh Gelli … Writ Petitioner

Versus

Central Bureau of Investigation throughSuperintendent of Police, BS & FC & Anr. …Respondents

J U D G M E N T

Prafulla C. Pant, J.

Appellant Central Bureau of Investigation (C.B.I)

has challenged the judgment and order dated

13.07.2009, passed by the High Court of Judicature at

1

Bombay whereby Criminal Revision Application No. 131

of 2007 (filed by CBI) has been dismissed, and Criminal

Writ Petition Nos. 2400, 2401, 2402 and 2403 of 2008,

filed by the accused/respondent are allowed in part, and

upheld the order dated 05.02.2007 passed by the trial

court i.e. Special Judge/Additional Sessions Judge,

Mumbai. The courts below have held that cognizance

cannot be taken against the accused namely Ramesh

Gelli Chairman and Managing Director, and Sridhar

Subasri, Executive Director of Global Trust Bank, on the

ground that they are not public servants.

2. Writ Petition (Criminal) No. 167 of 2015 has been

filed before this Court by accused Ramesh Gelli praying

quashing of charge sheet filed by CBI in connection with

FIR No. RC BD.1/ 2005/E/0003 dated 31.03.2005

relating to offences punishable under Section 120B read

with Sections 420, 467, 468, 471 of Indian Penal Code

(IPC) and offence punishable under Section 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act,

2

1988 (for short “the P.C. Act, 1988”), pending before

Special Judge, CBI, Patiala House Courts, New Delhi.

3. Briefly stated prosecution case is that the Global

Trust Bank (hereinafter referred as “GTB”) was

incorporated on 29.10.1993 as banking company under

Companies Act, 1956. Said Bank was issued licence

dated 06.09.1994 under Banking Regulation Act, 1949

by Reserve Bank of India (for short “RBI”). Ramesh Gelli

(writ petitioner before this Court) was Chairman and

Managing Director, and Sridhar Subasri (writ petitioner

before the High Court) was Executive Director of the

Bank. The two were also promoters of GTB. For raising

their contribution to the capital, the two accused

(Ramesh Gelli and Sridhar Subasri) obtained loans from

various individuals and companies, including M/s.

Beautiful Group of Companies of accused Rajesh Mehta

and Vijay Mehta, and M/s. Trinity Technomics Services

Pvt. Ltd., of which accused Vijay Mehta and his

employees were directors. M/s. Beautiful Group of

Companies opened their first account in the name of

3

Beautiful Diamonds Ltd. with G.T.B. in the year 1994-95.

Investigation revealed that various credit facilities were

allowed to said company by Ramesh Gelli and Sridhar

Subasri, and they fraudulently instructed the branch

heads, without following norms for sanctioning the credit

facilities. The duo (Ramesh Gelli and Sridhar Subasri),

abusing their official positions, sanctioned higher credit

limits to M/s. Beautiful Diamonds Ltd. against

regulations. According to CBI, the investigation further

revealed that in pursuance to the alleged conspiracy of

the accused the funds of GTB were diverted, and release

of Rs.5.00 crores was made in the name of M/s.

Beautiful Realtors Ltd. on the request of Directors of

M/s. Beautiful Diamonds Ltd. Said amount was further

transferred to already overdrawn account of M/s.

Beautiful Diamonds Ltd. In April, 2001, Directors of

Beautiful Group of Companies in pursuance of

conspiracy with other accused submitted another

application for sanction of Rs.3.00 crores as diamond

loan in the name of M/s. Crystal Gems. Ramesh Gelli,

Sridhar Subasri and other accused, who were Directors

4

of Beautiful Group of Companies, said to have caused

total wrongful loss of about Rs.41.00 crores to GTB. The

accounts of Beautiful Diamonds Ltd. and other

companies, which availed funds from GTB, should have

been declared Non Performing Assets (NPA), but accused

Ramesh Gelli and Sridhar Subasri allegedly manipulated

and showed the accounts of Beautiful Realtors Ltd. and

Crystal Gems as higher profit yielding accounts. The

scam did not come to the light till 2005.

4. On 14.08.2004 GTB merged/amalgamated with

Oriental Bank of Commerce (for brevity “OBC”). An FIR

dated 31.03.2005 in respect of offences punishable under

Sections 420, 467, 468, 471 IPC and under Section 13(2)

read with Section 13(1)(d) of the P.C. Act of 1988 was

registered by C.B.I on the complaint made by the Chief

Vigilance Officer, OBC, wherein the allegations were

made that Ramesh Gelli and others, including Directors

of M/s. World Tex Limited (for short “WTL”) entered into a

criminal conspiracy to cheat GTB causing wrongful loss

to the tune of Rs.17.46 crores, and thereby earned

5

corresponding wrongful gain. After investigation, charge

sheet was filed in said matter before the Special Judge,

CBI, Patiala House Courts, New Delhi.

5. Another First Information Report No.

RC.12(E)/2005/ CBI/BS & FC/Mumbai was registered

by C.B.I. on 09.08.2005 for offences punishable under

Section 120B read with Sections 409 and 420 IPC,

initially against two employees of GTB and two private

persons Rajesh Mehta and Prashant Mehta on the

complaint dated 26.07.2005 lodged by the Chief Vigilance

Officer, OBC. It is relevant to mention here that GTB was

a private sector bank, before its amalgamation in August

2004 with OBC, a public sector bank. In the FIR No. RC

12E/2005/CBI/B.S & FC/Mumbai Dt. 09.08.2005, it

was alleged that GTB sanctioned and disbursed loans by

throwing all prudent banking norms to winds and thus

created a large quantum of Non Performing Assets (NPA)

jeopardizing the interests of thousands of depositors, but

painted a rosy financial picture. These loan transactions

came to the light during audit after amalgamation of GTB

6

with OBC, and it was noted that two accounts, namely

that of M/s. Beautiful Diamonds Ltd. and M/s. Crystal

Gems were used to siphon out funds of the Bank. After

investigation, charge sheets were filed in this matter

before Special Judge, Mumbai in respect of offences

punishable under Section 120B read with Sections 409

and 420 IPC and under Section 13(2) read with Section

13(1)(d) of the P.C. Act, 1988. However, on 05.02.2007

the Special Judge, Mumbai declined to take cognizance of

offence punishable under Section 13(2) read with S.3(1)

(d) P.C Act, 1988, on the ground that accused No. 1

Ramesh Gelli and accused No. 2 Sridhar Subasri were

not public servants on the dates transactions said to

have taken place, i.e. before amalgamation, and the

Special Judge directed that the charge sheet may be

returned for being submitted to appropriate Metropolitan

Magistrate for taking cognizance in respect of offences

punishable under IPC, i.e. for offence other than

punishable under the P.C. Act, 1988.

7

6. Since the High Court of Judicature at Bombay has

upheld the order dated 05.02.2007 by the impugned

order, the CBI has approached this Court through

Special Leave. Further, since W.P.(Crl.) No. 167/2015

filed by accused Ramesh Gelli also involves similar

question of law in the case at Delhi, as such both the

connected matters are being disposed of by this common

order.

7. The common question of law involved in these

criminal appeals and connected writ petition, filed before

us, is:

Whether the Chairman, Directors and Officers ofGlobal Trust Bank Ltd. (a private bank before itsamalgamation with the Oriental Bank ofCommerce), can be said to be public servants forthe purposes of their prosecution in respect ofoffences punishable under Prevention of CorruptionAct, 1988 or not ?

8. It is admitted fact that GTB was a private sector

bank operating under banking licence dated 06.09.1994,

issued by RBI under Banking Regulation Act, 1949. It is

also not disputed that on 14.08.2004 GTB

merged/amalgamated with OBC. The transactions of

8

alleged fraud, cheating, misappropriation and corruption

relate to the period between 1994 to 2001, i.e. prior to

amalgamation with public sector bank (OBC). The

dispute relates as to whether the then

Chairman-cum-Managing Director and Executive

Director of GTB come under definition of ‘public servant’

or not, for the purposes of the P.C. Act, 1988.

9. It is vehemently argued by Shri Mohan Parasaran

and Shri Sidharth Luthra, senior advocates appearing for

the accused that the accused are not public servants,

and cognizance cannot be taken against the writ

petitioner Ramesh Gelli and accused/respondent Sridhar

Subasri, who were said to be the

Chairman-cum-Managing Director and Executive

Director respectively of GTB before its amalgamation. It is

further argued that a person cannot be said to have been

performing a public duty unless he holds some public

office, and in this connection it is submitted that the

accused did not hold any public office during the period

offences said to have been committed. It is also

9

contended that since Sections 161 to 165A in Chapter IX

of IPC are repealed by Section 31 of P.C. Act, 1988,

Section 46A of Banking Regulation Act, 1949 is of little

help to the prosecution. Mr. Luthra, learned senior

counsel, further submitted that the relationship between

the customer of a bank, and the bank is that of a creditor

and debtor, and the transactions between the two are

commercial in nature, as such, no public duty is

involved.

10. On the other hand, Shri Tushar Mehta, learned

senior counsel for CBI argued that accused Ramesh Gelli

and Sridhar Subasri were public servants in view of

definition contained in Section 2(c) of P.C. Act, 1988.

Our attention is also drawn to Section 46A of Banking

Regulation Act, 1949, which provides that a whole time

Chairman, Managing Director, or Director of a banking

company shall be deemed to be a public servant. It is

also contended that a banking company as defined under

Section 5(b) read with Section 35(A) of Banking

Regulation Act, 1949 is nothing but extended arm of

10

Reserve Bank of India. In support of arguments

advanced on behalf of CBI, reliance is placed on the

principle of law laid down by this Court in Govt. of

Andhra Pradesh and Others vs. P.Venku Reddy7.

Lastly, it is submitted that a private body discharging

public duty or positive obligation of public nature

actually performs public function. In this connection,

reference was made to the observations made by this

court in paragraph 18, in Federal Bank Ltd. vs. Sagar

Thomas and others8.

11. We have considered the arguments and the counter

arguments and also gone through the relevant case laws

on the issue.

12. Before further discussion it is just and proper to

examine the object for which the Prevention of

Corruption Act, 1988 was enacted by the Parliament.

The Statement of Objects and Reasons of the Bill is

reproduced below: -

7 (2002) 7 SCC 631)8 (2003) 10 SCC 733

11

“1. The bill is intended to make theexisting anti-corruption laws more effective bywidening their coverage and by strengtheningthe provisions.

2. The Prevention of Corruption Act,1947, was amended in 1964 based on therecommendations of the SanthananCommittee. There are provisions in Chapter IXof the Indian Penal Code to deal with publicservants and those who abet them by way ofcriminal misconduct. There are alsoprovisions in the Criminal Law AmendmentOrdinance, 1944, to enable attachment ofill-gotten wealth obtained through corruptmeans, including from transferees of suchwealth. The bill seeks to incorporate all theseprovisions with modifications so as to makethe provisions more effective in combatingcorruption among public servants.

3. The bill, inter alia, envisageswidening the scope of the definition of theexpression ‘public servant’, incorporation ofoffences under sections 161 to 165A of theIndian Penal Code, enhancement of penaltiesprovided for these offences and incorporationof a provision that the order of the trial courtupholding the grant of sanction forprosecution would be final if it has not alreadybeen challenged and the trial has commenced.In order to expedite the proceedings,provisions for day-to-day trial of cases andprohibitory provisions with regard to grant ofstay and exercise of powers of revision orinterlocutory orders have also been included.

4. Since the provisions of section 161Aare incorporated in the proposed legislationwith an enhanced punishment, it is notnecessary to retain those sections in the

12

Indian Penal Code. Consequently, it isproposed to delete those sections with thenecessary saving provision.

5. The notes on clauses explain indetail the provisions of the Bill.”

(Emphasis supplied)

From the Statement of Objects and Reasons of the

P.C. Bill it is clear that the Act was intended to make the

anti corruption law more effective by widening its

coverage. It is also clear that the Bill was introduced to

widen the scope of the definition of ‘public servant’.

Before P.C. Act, 1988, it was the Prevention of Corruption

Act, 1947 and Sections 161 to 165A in Chapter IX of IPC

which were governing the field of law relating to

prevention of corruption. The Parliament repealed the

Prevention of Corruption Act, 1947 and also omitted

Section 161 to 165A of I.P.C as provided under Sections

30 and 31 of P.C. Act, 1988. Since a new definition of

‘public servant’ is given under P.C. Act, 1988, it is not

necessary here to reproduce the definition of ‘public

servant’ given in Section 21 of IPC.

13

13. Section 2(c) of P.C. Act, 1988, which holds the field,

defines ‘public servant’ as under: -

“2.(c) "public servant" means-

(i) any person in the service or pay ofthe Government or remunerated bythe Government by fees orcommission for the performance ofany public duty;

(ii) any person in the service or pay of alocal authority ;

(iii) any person in the service or pay of acorporation established by or undera Central, Provincial or State Act, oran authority or a body owned orcontrolled or aided by theGovernment or a Governmentcompany as defined in section 617of the Companies Act, 1956;

(iv) any Judge, including any personempowered by law to discharge,whether by himself or as a memberof any body of persons, anyadjudicatory functions;

(v) any person authorised by a court ofjustice to perform any duty, inconnection with the administrationof justice, including a liquidator,receiver or commissioner appointedby such court;

14

(vi) any arbitrator or other person towhom any cause or matter has beenreferred for decision or report by acourt of justice or by a competentpublic authority;

(vii) any person who holds an office byvirtue of which he is empowered toprepare, publish, maintain or revisean electoral roll or to conduct anelection or part of an election;

(viii) any person who holds an office byvirtue of which he is authorised orrequired to perform any public duty;

(ix) any person who is the president,secretary or other office-bearer of aregistered cooperative societyengaged in agriculture, industry,trade or banking, receiving orhaving received any financial aidfrom the Central Government or aState Government or from anycorporation established by or undera Central, Provincial or State Act, orany authority or body owned orcontrolled or aided by theGovernment or a Governmentcompany as defined in section 617of the Companies Act, 1956;

(x) any person who is a chairman,member or employee of any ServiceCommission or Board, by whatevername called, or a member of anyselection committee appointed by

15

such Commission or Board for theconduct of any examination ormaking any selection on behalf ofsuch Commission or Board;

(xi) any person who is a Vice-Chancelloror member of any governing body,professor, reader, lecturer or anyother teacher or employee, bywhatever designation called, of anyUniversity and any person whoseservices have been availed of by aUniversity or any other publicauthority in connection with holdingor conducting examinations;

(xii) any person who is an office-beareror an employee of an educational,scientific, social, cultural or otherinstitution, in whatever mannerestablished, receiving or havingreceived any financial assistancefrom the Central Government or anyState Government, or local or otherpublic authority.

Explanation 1.-Persons falling underany of the above sub-clauses are publicservants, whether appointed by theGovernment or not.

Explanation 2.-Wherever the words"public servant" occur, they shall beunderstood of every person who is inactual possession of the situation of apublic servant, whatever legal defect

16

there may be in his right to hold thatsituation.”

14. Above definition shows that under Clause (viii)

contained in Section 2(c) of P.C. Act, 1988 a person who

holds an office by virtue of which he is authorized or

required to perform any public duty, is a public servant.

Now, for the purposes of the present case this court is

required to examine as to whether the

chairman/managing director or executive director of a

private bank operating under licence issued by RBI

under Banking Regulation Act, 1949, held/holds an

office and performed /performs public duty so as to

attract the definition of ‘public servant’ quoted above.

15. Section 2(b) of P.C. Act, 1988 defines ‘public duty’

as under:

“public duty” means a duty in the discharge ofwhich the State, the public or the communityat large has an interest”.

16. But, what is most relevant for the purpose of this

case is Section 46A of Banking Regulation Act, 1949,

which reads as under: -

17

“46A. Chairman, director etc., to be publicservants for the purposes of Chapter IX ofthe Indian Penal Code. – Every chairman whois appointed on a whole-time basis, managingdirector, director, auditor, liquidator, managerand any other employee of a banking companyshall be deemed to be a public servant for thepurposes of Chapter IX of the Indian PenalCode (45 of 1860).”

(Emphasis supplied)

17. Section 46A was inserted in Banking Regulation

Act, 1949 by Act No. 95/56 with effect from 14.01.1957.

The expression “every chairman who is appointed on a

whole time basis, managing director, director, auditor”

was substituted by Act No. 20/94 with effect from

31.01.1994 in place of “every chairman, director,

auditor”. As such managing director of a banking

company is also deemed to be a public servant. In the

present case transactions in question relate to the period

subsequent to 31.01.1994.

18. In Federal Bank Ltd. v. Sagar Thomas and

others (supra) this Court has held that a private

company carrying banking business as a scheduled bank

cannot be termed as a company carrying any statutory or

18

public duty. However, in said case the Court was

examining as to whether writ can be issued under Article

226 of the Constitution of India against a scheduled bank

or not. There was no issue before the Court relating to

deeming fiction contained in Section 46A of Banking

Regulation Act, 1949 in respect of a chairman/managing

director or director of a banking company against whom

a crime relating to anti-corruption was registered.

19. In a recent case of State of Maharashtra & ors. v.

Brijlal Sadasukh Modani9, this Court has observed as

under: -

“21. As we notice, the High Court has reallybeen swayed by the concept of Article 12 of theConstitution, the provisions contained in the1949 Act and in a mercurial manner takingnote of the fact that the multi-state society isnot controlled or aided by the Government hasarrived at the conclusion. In our consideredopinion, even any grant or any aid at the timeof establishment of the society or in anyconstruction or in any structural concept orany aspect would be an aid. We are inclined tothink so as the term ‘aid’ has not been defined.A sprinkle of aid to the society will also bringan employee within the definition of ‘publicservant’. The concept in entirety has to beobserved in the backdrop of corruption…….”

9 2015 SCC Online SC 1403

19

20. In P.V. Narasimha Rao vs. State (CBI/SPE)10, this

Court has explained the word “office” in following

manner: -

“61. ……..The word “office” is normallyunderstood to mean “a position to whichcertain duties are attached, especially a placeof trust, authority or service under constitutedauthority”. (See: Oxford Shorter EnglishDictionary, 3rd Edn., p. 1362.) In McMillan v.Guest (1942 AC 561) Lord Wright has said:

“The word ‘office’ is of indefinite content.Its various meanings cover four columnsof the New English Dictionary, but I takeas the most relevant for purposes of thiscase the following:

‘A position or place to which certainduties are attached, especially oneof a more or less public character.’ ”

In the same case Lord Atkin gave the followingmeaning:

“… an office or employment which wassubsisting, permanent, substantiveposition, which had an existenceindependent of the person who filled it,which went on and was filled insuccession by successive holders.”

In Statesman (P) Ltd. v. H.R. Deb (AIR 1968 SC1495) and Mahadeo v. Shantibhai [(1969) 2SCR 422] this Court has adopted the meaninggiven by Lord Wright when it said:

“An office means no more than a positionto which certain duties are attached.”

10 (1998) 4 SCC 626

20

21. Attention of this court is drawn on behalf of the

accused to the case of Housing Board of Haryana v.

Haryana Housing Board Employees’ Union and

others11, wherein this Court has held that when

particular words pertaining to a class of genus are

followed by general words, the latter, namely, the general

words are construed as limited to the things of the same

kind as those specified, and this is known as the rule of

ejusdem generis reflecting an attempt to reconcile

incompatibility between the specified and general words.

This case is of little help to the accused in the present

case as managing director and director are specifically

mentioned in Section 46A of Banking Regulation Act,

1949.

22. In Manish Trivedi v. State of Rajasthan12, which

pertains to a case registered against a councillor under

Prevention of Corruption Act, 1988, this Court, while

11 (1996) 1 SCC 95

12 (2014) 14 SCC 420

21

interpreting the word “public servant”, made following

observations: -

“14. Section 87 of the RajasthanMunicipalities Act, 1959 makes every Memberto be public servant within the meaning ofSection 21 of the Penal Code, 1860 and thesame reads as follows:

“87. Members, etc. to be deemedpublic servants.—(1) Every member,officer or servant, and every lessee of thelevy of any municipal tax, and everyservant or other employee of any suchlessee shall be deemed to be a publicservant within the meaning of Section 21of the Penal Code, 1860 (Central Act 45 of1860).

(2) The word ‘Government’ in thedefinition of ‘legal remuneration’ inSection 161 of that Code shall, for thepurposes of sub-section (1) of thissection, be deemed to include aMunicipal Board.”

From a plain reading of the aforesaid provisionit is evident that by the aforesaid section thelegislature has created a fiction that everyMember shall be deemed to be a public servantwithin the meaning of Section 21 of the PenalCode. It is well settled that the legislature iscompetent to create a legal fiction. A deemingprovision is enacted for the purpose ofassuming the existence of a fact which doesnot really exist. When the legislature creates alegal fiction, the court has to ascertain forwhat purpose the fiction is created and afterascertaining this, to assume all those facts andconsequences which are incidental or

22

inevitable corollaries for giving effect to thefiction. In our opinion, the legislature, whileenacting Section 87 has, thus, created a legalfiction for the purpose of assuming that theMembers, otherwise, may not be publicservants within the meaning of Section 21 ofthe Penal Code but shall be assumed to be soin view of the legal fiction so created. In view ofthe aforesaid, there is no escape from theconclusion that the appellant is a publicservant within the meaning of Section 21 ofthe Penal Code.

xxx xxx xxx

16. Under the scheme of the RajasthanMunicipalities Act it is evident that theappellant happens to be a Councillor and aMember of the Board. Further in view oflanguage of Section 87 of the RajasthanMunicipalities Act, he is a public servantwithin the meaning of Section 21 of the PenalCode. Had this been a case of prosecutionunder the Prevention of Corruption Act, 1947then this would have been the end of thematter. Section 2 of this Act defines “publicservant” to mean public servant as definedunder Section 21 of the Penal Code. However,under the Prevention of Corruption Act, 1988,with which we are concerned in the presentappeal, the term “public servant” has beendefined under Section 2(c) thereof. In ouropinion, prosecution under this Act can takeplace only of such persons, who come withinthe definition of public servant therein. Thedefinition of “public servant” under thePrevention of Corruption Act, 1947 andSection 21 of the Penal Code is of noconsequence. The appellant is sought to beprosecuted under the Prevention of CorruptionAct, 1988 and, hence, to determine his status

23

it would be necessary to look into itsinterpretation under Section 2( c ) thereof, readwith the provisions of the RajasthanMunicipalities Act.

xxx xxx xxx

19. The present Act (the 1988 Act) envisageswidening of the scope of the definition of theexpression “public servant”. It was brought inforce to purify public administration. Thelegislature has used a comprehensivedefinition of “public servant” to achieve thepurpose of punishing and curbing corruptionamong public servants. Hence, it would beinappropriate to limit the contents of thedefinition clause by a construction whichwould be against the spirit of the statute.Bearing in mind this principle, when weconsider the case of the appellant, we have nodoubt that he is a public servant within themeaning of Section 2(c) of the Act. Clause (viii)of Section 2(c) of the present Act makes anyperson, who holds an office by virtue of whichhe is authorised or required to perform anypublic duty, to be a public servant. The word“office” is of indefinite connotation and, in thepresent context, it would mean a position orplace to which certain duties are attached andhas an existence which is independent of thepersons who fill it. Councillors and Members ofthe Board are positions which exist under theRajasthan Municipalities Act. It is independentof the person who fills it. They perform variousduties which are in the field of public duty.From the conspectus of what we have observedabove, it is evident that appellant is a publicservant within Section 2(c)(viii) of thePrevention of Corruption Act, 1988.”

24

(Emphasis supplied)

23. At the end it is relevant to mention that in the case

of Govt. of A.P. and others vs. Venku Reddy (supra), in

which while interpreting word ‘public servant’ this court

has made following observations:

“12. In construing the definition of “publicservant” in clause (c) of Section 2 of the 1988 Act,the court is required to adopt a purposiveapproach as would give effect to the intention ofthe legislature. In that view the Statement ofObjects and Reasons contained in the Bill leadingto the passing of the Act can be taken assistanceof. It gives the background in which the legislationwas enacted. The present Act, with a much widerdefinition of “public servant”, was brought in forceto purify public administration. When thelegislature has used such a comprehensivedefinition of “public servant” to achieve thepurpose of punishing and curbing growingcorruption in government and semi-governmentdepartments, it would be appropriate not to limitthe contents of the definition clause byconstruction which would be against the spirit ofthe statute. The definition of “public servant”,therefore, deserves a wide construction. (See State

of M.P. v. Shri Ram Singh (2000) 5 SCC 88)”

24. In the light of law laid down by this court as above,

it is clear that object of enactment of P.C. Act, 1988, was

to make the anti corruption law more effective and widen

its coverage. In view of definition of public servant in

25

Section 46A of Banking Regulation Act, 1949 as amended

the Managing Director and Executive Director of a

Banking Company operating under licence issued by

Reserve Bank Of India, were already public servants, as

such they cannot be excluded from definition of ‘public

servant’. We are of the view that over the general

definition of ‘public servant’ given in Section 21 of IPC, it

is the definition of ‘public servant’ given in the P.C. Act,

1988, read with Section 46-A of Banking Regulation Act,

which holds the field for the purposes of offences under

the said Act. For banking business what cannot be

forgotten is Section 46A of Banking Regulation Act, 1949

and merely for the reason that Sections 161 to 165A of

IPC have been repealed by the P.C. Act, 1988, relevance

of Section 46A of Banking Regulation Act, 1949, is not

lost.

25. Be it noted that when Prevention of Corruption Act,

1988 came into force, Section 46 of Banking Regulation

Act, 1949 was already in place, and since the scope of

P.C. Act, 1988 was to widen the definition of “public

26

servant”. As such, merely for the reason that in 1994,

while clarifying the word “chairman”, legislature did not

substitute words “for the purposes of Prevention of

Corruption Act, 1988” for the expression “for the

purposes of Chapter IX of the Indian Penal Code (45 of

1860)” in Section 46A of Banking Regulation Act, 1949,

it cannot be said, that the legislature had intention to

make Section 46A inapplicable for the purposes of P.C.

Act, 1988, by which Sections 161 to 165A of IPC were

omitted, and the offences stood replaced by Sections 7 to

13 of P.C. Act, 1988.

26. A law which is not shown ultravires must be given

proper meaning. Section 46-A of Banking Regulation

Act, 1949, cannot be left meaningless and requires

harmonious construction. As such in our opinion, the

Special Judge (CBI) has erred in not taking cognizance of

offence punishable under Section 13(2) read with Section

13(1)(d) of P.C. Act, 1988. However, we may make it

clear that in the present case the accused cannot be said

to be public servant within the meaning of Section 21

27

IPC, as such offence under Section 409 IPC may not get

attracted, we leave it open for the trial court to take

cognizance of other offences punishable under Indian

Penal Code, if the same get attracted.

27. Therefore, having considered the submissions made

before us, and after going through the papers on record,

and further keeping in mind the Statement of Objects

and Reasons of the Bill relating to Prevention of

Corruption Act, 1988 read with Section 46A of Banking

Regulation Act, 1949, we are of the opinion that the

courts below have erred in law in holding that accused

Ramesh Gelli and Sridhar Subasri, who were

Chairman/Managing Director and Executive Director of

GTB respectively, were not public servants for the

purposes of Prevention of Corruption Act, 1988. As such,

the orders impugned are liable to be set aside.

Accordingly, without expressing any opinion on final

merits of the cases before the trial courts in Mumbai and

Delhi, Criminal Appeal Nos. 1077-1081 of 2013 filed by

28

CBI, are allowed, and Writ Petition (Crl.) No. 167 of 2015

stands dismissed.

……………………………..J. [PRAFULLA C. PANT]

New Delhi;February 23, 2016.

29

Supreme Court of IndiaChittaranjan Das vs State Of Orissa on 4 July, 2011Bench: G.S. Singhvi, Chandramauli Kr. Prasad REPORTABLE



CRIMINAL APPEAL NO.820 OF 2007

CHITTARANJAN DAS ... APPELLANT

VERSUS

STATE OF ORISSA ...RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Bereft of unnecessary details the facts giving rise to the present appeal are that the appellant, amember of the Orissa Administrative Service, at the relevant time was serving as a Deputy Secretaryto the Government of Orissa in the Irrigation Department. The officers of the Vigilance Departmentsearched his house after obtaining a search warrant from the Court, on 17th March, 1992.

It led to registration of a first information report against the appellant. During the investigation, itwas found that the appellant possessed disproportionate assets of Rs.5,58,752.40. As the appellantwas removable from service by the State Government, the Vigilance Department sought its sanctionfor prosecution of the appellant. The State Government by its letter dated 13th May, 1997, declinedto grant sanction and advised that the proposal for prosecuting the appellant be dropped. Theappellant superannuated from service on 30th June, 1997. It seems that even after the retirement ofthe appellant, the Vigilance Department wrote on 25th of March, 1998 for reconsideration of theearlier order refusing the sanction for prosecution of the appellant. The State Government by itsletter dated 31st July, 1998 wrote back to the Vigilance Department and declined to grant sanctionfor prosecution, as in its opinion there was no prima facie case against the appellant and the assetsheld by him were not disproportionate to the known sources of his income. Accordingly, the StateGovernment reiterated that there is "no justification for reconsideration of the earlier ordersrefusing the sanction of prosecution" of the appellant.

Chittaranjan Das vs State Of Orissa on 4 July, 2011


Notwithstanding the aforesaid refusal of the Government, the Vigilance Department on 10thSeptember, 1998 filed charge-sheet against the appellant under Section 5(2) read with Section5(1)(e) of the Prevention of Corruption Act, 1947 alleging acquisition of disproportionate assets ofRs.1.44.234.78 between 1st January, 1980 and 31st December, 1985. The charge-sheet was laidbefore the Special Judge (Vig.), Bhubneshwar who by its order dated 2nd August, 1999 tookcognizance of the aforesaid offence and issued non-bailable warrant against the appellant.

2. Appellant, aggrieved by the above order taking Cognizance of offence and issuance of the non-

bailable warrant of arrest, filed petition under Section 482 of the Code of Criminal Procedureseeking quashing of the aforesaid order inter alia on the ground that his prosecution withoutsanction of the State Government is bad in law but the High Court by its Order dated 22ndSeptember, 2003 disposed of the application with liberty to the appellant to raise this contentionbefore Special Judge (Vig.) at the time of the framing of the charge.

3. Appellant, thereafter filed an application for discharge before the trial court which dismissed thesame by order dated 9th June, 2004 inter alia on the ground that the appellant having retired fromservice, prior sanction is not necessary.

Appellant challenged the aforesaid order before the High Court which by the impugned orderrejected the challenge and while doing so observed as follows:

"6. On a conspectus of the facts and circumstances involved in the case and theposition of law in the matter of sanction vis-`-vis the impugned order, this Court doesnot find any illegality in that order so as to invoke the inherent power with a view toquash the impugned order. Be that is it may, it is made clear that the disputedquestion as to whether in the present case a sanction order is necessary and whetherthat was refused by the State Government and what is the consequence thereof, maybe gone into at the time of trial if raised by the accused-petitioner notwithstandingrejection of his application by the impugned order inasmuch as the foregoingdiscussion by this Court in any manner does not interfere with that right of theaccused to be pursued, if so legally advised at the time of trial."

4. Mr. Vinoo Bhagat appearing on behalf of the appellant submits that the State Government havingrefused to grant sanction for prosecution and thereafter declined to reconsider this decision andfurther having declined to grant sanction for the prosecution of the appellant his prosecution isillegal and an abuse of the process of the Court.

5. Mr. S.C. Tripathy, however, appearing on behalf of the respondents submits that the charge-sheetwas filed after the retirement of the appellant and in fact on that basis cognizance of the offence wastaken and process issued thereafter and hence, the appellant cannot challenge his prosecution onthe ground of want of sanction. According to him, as the appellant ceased to be a public servant onthe date when the Court took cognizance of the offence and issued process, sanction for hisprosecution is not necessary at all.



6. We do not have the slightest hesitation in accepting the broad submission of Mr. Tripathi thatonce the public servant ceases to be so on the date when the Court takes cognizance of the offence,there is no requirement of sanction under the Prevention of Corruption Act. However, the positionis different in a case where Section 197 of the Code of Criminal Procedure has application.

In fact, the submission advanced finds support from the judgment of this Court in the case of N.

Bhargavan Pillai (dead) by LRs. & Anr. vs. State of Kerala AIR 2004 SC 2317 where it has been heldas follows :

"8. The correct legal position, therefore, is that an accused facing prosecution foroffences under the Old Act or New Act cannot claim any immunity on the ground ofwant of sanction, if he ceased to be a public servant on the date when the Court tookcognizance of the said offences. But the position is different in cases where Section197 of the Code has application."

7. However, in the present case, we are faced with the situation in which Vigilance Departmentasked the State Government to grant sanction while the appellant herein was in service which itrefused.

Not only that Vigilance Department sought for reconsideration of the decision by the StateGovernment which prayer was also rejected. In fact the State Government reiterated that there is noprima facie case against the appellant and the assets held by him were not disproportionate to theknown sources of his income. Mr. Tripathy points out that refusal to grant sanction under Section 19of the Prevention of corruption Act, 1947 while the appellant was in service is of no consequence asundisputedly charge-sheet against the appellant was filed and further the Court had takencognizance of the offence and issued process after his retirement. He points out in the case of N.

Bhargavan Pillai (Supra) sanction sought for was refused but this Court did not find any illegality inthat.

8. We do not find any substance in the submission of Mr. Tripathy and the decision relied on isclearly distinguishable. Sanction is a devise provided by law to safeguard public servants fromvexatious and frivolous prosecution. It is to give them freedom and liberty to perform their dutywithout fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon atthe hands of the sanctioning authority to protect the innocent public servants from uncalled forprosecution but not intended to shield the guilty. Here in the present case while the appellant was inservice sanction sought for his prosecution was declined by the State Government.

Vigilance Department did not challenge the same and allowed the appellant to retire from service.

After the retirement, Vigilance Department requested the State Government to reconsider itsdecision, which was not only refused but the State Government while doing so clearly observed thatno prima-facie case of disproportionate assets against the appellant is made out. Notwithstanding



that Vigilance Department chose to file charge-sheet after the retirement of the appellant and onthat Special Judge had taken cognizance and issued process. We are of the opinion that in a case inwhich sanction sought is refused by the competent authority, while the public servant is in service,he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction forprosecution under the Prevention of Corruption Act is necessary after the retirement of PublicServant. Any other view will render the protection illusory. Situation may be different when sanctionis refused by the competent authority after the retirement of the public servant as in that casesanction is not at all necessary and any exercise in this regard would be action in futility.

9. Now we revert to the decision of this Court in the case of N. Bhargavan Pillai (Supra) relied on bythe respondents. True, it is that in paragraph 5 of the said judgment, it has been observed that "it isa case where the sanction which was sought for was refused" but from this paragraph, it is not clearwhether it was sought before or after the retirement of the public servant. However, while readingthe judgment as a whole, it is apparent that in this case Charge-sheet against the public servant wasfiled after retirement. Further, sanction for his prosecution was sought and refused thereafter. Thiswould be evident from the following narration of facts in the said judgment:

"3............The managing Director of the Corporation wrote to the Director of Vigilance(Investigation) along with a copy of Ext.P-I report. The Director of Vigilance(Investigation) sanctioned registration of a case. On the basis of the direction thethen Deputy Superintendent of Police, Vigilance, Kollam (PW-10) registered a case asper Ext. P-39. He entrusted the investigation to Inspector of the Kollam VigilanceUnit- I (PW-11), who conducted the investigation and sent a report to his higherauthorities. In the meantime, the accused retired from service on 28-2-1992. Since hehad retired from service sanction for prosecution became unnecessary. The case wastransferred to the newly established Pathanamthitta Vigilance Unit. PW-12, theDeputy Superintendent of Police, Vigilance, Pathanamthitta Unit who was put incharge of this case also verified the records and filed the charge sheet."

(underlining ours) Thus in the case relied on, the sanction for prosecution was not necessary andtherefore its refusal had no bearing on the Trial of the public servant. However, in the present casesanction was sought and refused while the appellant was in service. Hence, this judgment does notlend any support to the contention of the respondents and is clearly distinguishable.

10. Otherwise also, the facts of the case are so telling that we are of the opinion that the prosecutionof the appellant shall be an abuse of the process of the Court. According to the First InformationReport, appellant possessed disproportionate assets worth Rs.5.58 lakhs.

However, according to the charge-sheet, the disproportionate assets were to the extent of Rs.1.44lakhs only. State Government while declining to grant sanction for prosecution observed that assetspossessed by the appellant are not disproportionate to his known source of income.

11. We are further of the opinion that no disputed question being involved, the High Court instead ofmaking observation as to "whether in present case sanction order is necessary and whether that was



refused by the State Government and what would be the consequence thereof" to be decided by thetrial court, ought to have decided the issues itself.

The facts being not in dispute the High Court erred in not deciding these issues.

12. In the result, we allow this appeal, set aside the order of the High Court and quash theappellant's prosecution in TR No. 113 of 1999, pending in the Court of Special Judge (Vig.)Bhubaneshwar.

..........................................................J. (G.S. SINGHVI) ...... ................................................J.(CHANDRAMAULI KR. PRASAD) NEW DELHI, JULY 4, 2011.



Supreme Court of IndiaDr. Subramanian Swamy vs Dr. Manmohan Singh And Anr on 31 January, 2012Author: G S SinghviBench: G.S. Singhvi, Asok Kumar Ganguly 1

REPORTABLE


CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1193 OF 2012

(Arising out of SLP(C) No. 27535 of 2010)

Dr. Subramanian Swamy ... Appellant

versus

Dr. Manmohan Singh and another ... Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Leave granted.

2. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence underthe Prevention of Corruption Act, 1988 (for short, `the 1988 Act') and whether the authoritycompetent to sanction prosecution of a public servant for offences under the 1988 Act is required totake an appropriate decision within the time specified in clause I(15) of the directions contained inparagraph 58 of the judgment of this Court in Vineet Narain v.

Dr. Subramanian Swamy vs Dr. Manmohan Singh And Anr on 31 January, 2012


Union of India (1998) 1 SCC 226 and the guidelines issued by the Central Government, Departmentof Personnel and Training and the Central Vigilance Commission (CVC) are the question whichrequire consideration in this appeal.

3. For the last more than three years, the appellant has been vigorously pursuing, in public interest,the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due toarbitrary and illegal grant of licences at the behest of Mr. A. Raja (respondent No. 2) who wasappointed as Minister for Communication and Information Technology on 16.5.2007 by thePresident on the advice of Dr. Manmohan Singh (respondent No. 1). After collecting informationabout the grant of licences, the appellant made detailed representation dated 29.11.2008 torespondent No. 1 to accord sanction for prosecution of respondent No. 2 for offences under the 1988Act.

In his representation, the appellant pointed out that respondent No. 2 had allotted new licences in2G mobile services on `first come, first served' basis to novice telecom companies, viz., SwanTelecom and Unitech, which was in clear violation of Clause 8 of the Guidelines for United AccessServices Licence issued by the Ministry of Communication and Information Technology vide letterNo.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and, thereby, caused loss of over Rs. 50,000crores to the Government.

The appellant gave details of the violation of Clause 8 and pointed out that the two officers, viz.,R.J.S. Kushwaha and D. Jha of the Department of Telecom, who had opposed the showing of unduefavour to Swan Telecom, were transferred just before the grant of licences and Bharat SancharNigam Limited (BSNL) which had never entered into a roaming agreement with any operator, wasforced to enter into such an agreement with Swan Telecom. The appellant further pointed out thatimmediately after acquiring 2G spectrum licences, Swan Telecom and Unitech sold their stakes toforeign companies, i.e., Etisalat, a telecom operator from UAE and Telenor of Norway respectivelyand, thereby, made huge profits at the expense of public revenue. He claimed that by 2G spectrumallocation under respondent No. 2, the Government received only one-sixth of what it would havereceived if it had opted for an auction. The appellant pointed out how respondent No. 2 ignored therecommendations of the Telecom Regulatory Authority of India (TRAI) and gave totallyunwarranted benefits to the two companies and thereby caused loss to the Public Exchequer. Someof the portions of the appellant's representation are extracted below:

"Clause 8 has been violated as follows: While Anil Dhirubhai Ambani Group (ADAG), the promotersof Reliance Communications (R Com), had more than 10 per cent stake in Swan Telecom, the figureswere manipulated and showed as 9.99 per cent holding to beat the said Clause. The documentsavailable disclose that on March 2, 2007, when Swan Telecom applied for United Access ServicesLicences, it was owned 100 per cent by Reliance Communications and its associates viz. RelianceTelecom, and by Tiger Trustees Limited, Swan Infonet Services Private Limited, and Swan AdvisoryServices Private Limited (see Annexure I). At one or the other point of time, employees of ADAG(Himanshu Agarwal, Ashish Karyekar, Paresh Rathod) or its associate companies have beenacquiring the shares of Swan Telecom itself. But still the ADAG manipulated the holdings in Swan toreduce it to only 9.99 per cent. Ambani has now quietly sold his shares in Swan to Delphi



Investments, a Mauritius based company owned by Ahmed O. Alfi, specializing in automobile spareparts. In turn, Swan has sold 45% of its shares to UAE's Emirates Telecom Corporation (Etisalat) forRs.9000 crores! All this is highly suspicious and not normal business transactions.

Swan company got 60% of the 22 Telecom licenced areas at a throw away price of Rs.1650 crores,when it was worth Rs.60,000 crores total.

Room has operations in the same circles where the application for Swan Telecom was filed.Therefore, under Clause 8 of the Guidelines, Swan should not have been allotted spectrum by theTelecommunication Ministry. But the company did get it on Minister's direction, which is an unduefavour from him (Raja).

There was obviously a quid pro quo which only a CBI enquiry can reveal, after an FIR is registered.There is no need for a P/E, because the CVC has already done the preliminary enquiry.

Quite surprisingly, the 2G spectrum licences were priced at 2001 levels to benefit these privateplayers.

That was when there were only 4 million cellphone subscribers; now it is 350 million. Hence 2001price is not applicable today.

Immediately after acquiring 2G spectrum licences both Swan and Unitech sold their stakes toforeign companies at a huge profits. While Swan Telecom sold its stakes to UAE telecom operatorEtisalat, Unitech signed a deal with Telenor of Norway for selling its share at huge premiums.

In the process of this 2G spectrum allocation, the government received only one-sixth of what itwould have got had it gone through a fresh auction route.

The total loss to the exchequer of giving away 2G GSM spectrum in this way - including to theCDMA operators - is over Rs.50,000 crores and is said to be one of the biggest financial scams of alltimes in the country.

While approving the 2G licences, Minister Raja turned a blind eye to the fact that these twocompanies do not have any infrastructure to launch their services.

Falsely claiming that the Telecom Regulatory Authority of India had approved the first-cum-firstserved rule, Raja went ahead with the 2G spectrum allocation to two debutants in the Telecomsector. In fact earlier TRAI had discussed the spectrum allocation issue with existing servicesproviders and suggested to the Telecom Ministry that spectrum allocation be made through atransparent tender and auction process.

This is confirmed by what the TRAI Chairman N. Misra told the CII organized conference onNovember 28, 2008 (Annexure 2). But Raja did not bother to listen to the TRAI either and pursuedthe process on `first come, first served' basis, benefiting those who had inside information, causing



a loss of Rs.50,000 crores to the Government. His dubious move has been to ensure benefit toothers at the cost of the national exchequer."

The request made in the representation, which was relied upon by the learned Attorney General forshowing that the appellant had himself asked for an investigation, is also extracted below:

"According to an uncontradicted report in CNN-IBN news channel of November 26,2008, you are said to be "very upset with A. Raja over the spectrum allocation issue".This confirms that an investigation is necessary, for which I may be given sanction sothat the process of law can be initiated.

I, therefore, writ to demand the grant of sanction to prosecute Mr. A. Raja, Ministerfor Telecom of the Union of India for offences under the Prevention of CorruptionAct. The charges in brief are annexed herewith (Annexure 3)."

4. Since the appellant did not receive any response from respondent No.1, he sent letters dated30.5.2009, 23.10.2009, 31.10.2009, 8.3.2010 and 13.3.2010 and reiterated his request/demand forgrant of sanction to prosecute respondent No.2. In his letter dated 31.10.2009, the appellantreferred to the fact that on being directed by the CVC, the Central Bureau of Investigation (CBI) hadregistered a first information report, and claimed that prima facie case is established againstrespondent No. 2 for his prosecution under Sections 11 and 13(1)(d) of the 1988 Act. The appellantalso claimed that according to various Supreme Court judgments it was not necessary to carry out adetailed inquiry, and he had produced sufficient evidence for grant of sanction to initiate criminalprosecution against respondent No. 2 for the misuse of authority and pecuniary gains from corruptpractices. In his subsequent letters, the appellant again asserted that the nation had suffered loss ofnearly Rs.65,000 crores due to arbitrary, unreasonable and mala fide action of respondent No.2. Inletter dated 13.3.2010, the appellant referred to the proceedings of the case in which this Courtrefused to interfere with the order of the Delhi High Court declaring that the decision of respondentNo.2 to change the cut off date fixed for consideration of applications made for grant of licences wasarbitrary and mala fide.

5. After 1 year and 4-1/2 months of the first letter written by him, Secretary, Department ofPersonnel and Training, Ministry of Personnel sent letter dated 19.3.2010 to the appellantmentioning therein that the CBI had registered a case on 21.10.2009 against unknown officers of theDepartment of Telecommunications (DoT), unknown private persons/companies and others andthat the issue of grant of sanction for prosecution would arise only after perusal of the evidencecollected by the investigating agency and other material provided to the Competent Authority andthat it would be premature to consider sanction for prosecution at that stage.

6. On receipt of the aforesaid communication, the appellant filed Civil Writ Petition No. 2442/2010in the Delhi High Court and prayed for issue of a mandamus to respondent No.1 to pass an order forgrant of sanction for prosecution of respondent No. 2.



The Division Bench of the Delhi High Court referred to the submission of the learned SolicitorGeneral that when respondent No. 1 has directed investigation by the CBI and the investigation is inprogress, it is not permissible to take a decision on the application of the appellant either to grant orrefuse the sanction because that may affect the investigation, and dismissed the writ petition byrecording the following observations:

"The question that emanates for consideration is whether, at this stage, when theinvestigation by the CBI is in progress and this Court had earlier declined to monitorthe same by order dated 25th May, 2010, which has been pressed into service by thelearned Solicitor General of India, it would be appropriate to direct the respondentno. 1 to take a decision as regards the application submitted by the petitioner seekingsanction to prosecute.

In our considered opinion, when the matter is being investigated by the CBI, and theinvestigation is in progress, it would not be in fitness of things to issue a mandamusto the first respondent to take a decision on the application of the petitioner."

7. The special leave petition filed by the appellant, out of which this appeal arises, was initially takenup for consideration along with SLP(C) No. 24873/2010 filed by the Center for Public InterestLitigation against order dated 25.5.2010 passed by the Division Bench of the High Court in WritPetition (Civil) No. 3522/2010 to which reference had been made in the impugned order. During thecourse of hearing of the special leave petition filed by the appellant, the learned Solicitor General,who had appeared on behalf of respondent No. 1, made a statement that he has got the record and isprepared to place the same before the Court.

However, keeping in view the fact that the record sought to be produced by the learned SolicitorGeneral may not be readily available to the appellant, the Court passed order dated 18.11.2010requiring the filing of an affidavit on behalf of respondent No. 1. Thereafter, Shri V. Vidyavati,Director in the PMO filed affidavit dated 20.11.2010, which reveals the following facts:

"(i) On 1.12.2008, the Prime Minister perused the letter and noted "Please examineand let me know the facts of this case". This was marked to the Principal Secretary tothe Prime Minister who in turn marked it to the Secretary. The Secretary marked it tome as Director in the PMO. I prepared a note dated 5.12.2008 factually summarizingthe allegations and seeking approval to obtain the factual position from the sectoralside (in the PMO dealing with Telecommunications).

(ii) On 11.12.2008, a copy of appellant's letter dated 29.11.2008 was sent to the Secretary,Department of Telecommunication for submitting a factual report.

The Department of Telecommunication sent reply dated 13.02.2009 incorporating his comments.

(iii) In the meanwhile, letters dated 10.11.2008 and 22.11.2008 were received from Shri GurudasGupta and Shri Suravaran Sudhakar Reddy respectively (copies of these letters have not been



produced before the Court). The same were forwarded to the Department of Telecommunication on25.03.2009 for sending an appropriate reply to the appellant.

(iv) On 01.06.2009, letter dated 30.05.2009 received from the appellant was placed beforerespondent No.1, who recorded the following endorsement "please examine and discuss".

(v) On 19.06.2009, the Director of the concerned Sector in the PMO recorded that the Minister ofTelecommunications and Information Technology has sent D.O. letter dated 18.06.2009 to theappellant.

When letter dated 23.10.2009 of the appellant was placed before respondent No.1, he recorded anendorsement on 27.10.2009 "please discuss".

(vi) In response to letter dated 31.10.2009 of the appellant, respondent No.1 made an endorsement"please examine".

(vii) On 18.11.2009, respondent No.1 stated that Ministry of Law and Justice should examine andadvice. The advice of Ministry of Law and Justice was received on 8.2.2010. Para 7 thereof was asfollows:

"From the perusal of letter dated 23.10.2009 and 31.10.2009, it is noticed that ShriSwamy wants to rely upon the action and investigation of the CBI to collaborate andstrengthen the said allegation leveled by him against Shri A. Raja, Minister forCommunication and Information Technology. It is specifically mentioned in Para 2 ofthe letter dated 31.10.2009 of Shri Swamy that the FIR was registered by the CBI and"the substance of the allegation made by me in the above cited letters to you arealready under investigation". If it is so, then it may be stated that decision to accordof sanction of prosecution may be determined only after the perusal of the evidence(oral or documentary) collected by the investigation agency, i.e., CBI and othermaterials to be provided to the competent authority."

(viii) On 05.03.2010, the deponent prepared a note that an appropriate reply be sentto the appellant in the light of the advice given by the Law Department and final replywas sent to the appellant after respondent No.1 had approved note dated 17.03.2010."

8. The appellant filed rejoinder affidavit on 22.11.2010 along with a copy of letter dated 18.6.2009written to him by respondent No. 2 in the context of representation dated 29.11.2008 submitted byhim to respondent No.1.

9. Although, respondent No.2 resigned from the Council of Ministers on 14.11.2010, the appellantsubmitted that the issues relating to his right to file a complaint for prosecution of respondent No.2and grant of sanction within the time specified in the judgment in Vineet Narain's case should bedecided.



10. During the course of hearing, the learned Attorney General filed written submissions. After thehearing concluded, the learned Attorney General filed supplementary written submissions alongwith a compilation of 126 cases in which the sanction for prosecution is awaited for periods rangingfrom more than one year to few months

11. Final order in this case was deferred because it was felt that the directions given by this Court inVineet Narain's case may require further elaboration in the light of the order passed in Civil AppealNo. 10660/2010 (arising out of SLP(C) No. 24873/2010) and the fact that decision on the questionof grant of sanction under the 1988 Act and other statutes is pending for a sufficiently long time in126 cases. However, as the investigation with regard to some of the facets of what has come to betermed as 2G case is yet to be completed, we have considered it appropriate to pass final order in thematter.

12. Appellant Dr. Subramanian Swamy argued that the embargo contained in Section 19(1) of the1988 Act operates only against the taking of cognizance by the Court in respect of offencespunishable under Sections 7, 10, 11, 13 and 15 committed by a public servant, but there is no bar tothe filing of a private complaint for prosecution of the concerned public servant and grant ofsanction by the Competent Authority, and that respondent No. 1 was duty bound to take appropriatedecision on his representation within the time specified in clause I(15) of the directions contained inparagraph 58 of Vineet Narain's case, more so because he had placed sufficient evidence to showthat respondent No.2 had committed offences under the 1988 Act.

13. The learned Attorney General argued that the question of grant of sanction for prosecution of apublic servant charged with any of the offences enumerated in Section 19(1) arises only at the stagewhen the Court decides to take cognizance and any request made prior to that is premature. Hesubmitted that the embargo contained in Section 19(1) of the Act is applicable to the Court which iscompetent to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged tohave been committed by a public servant and there is no provision for grant of sanction at a stagebefore the competent Court applies its mind to the issue of taking cognizance. Learned AttorneyGeneral relied upon the judgment of the Calcutta High Court in Superintendent and Remembrancerof Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal. 437 as also the judgments of this Court inR.R. Chari v.

State of Uttar Pradesh 1951 SCR 312, Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy(1976) 3 SCC 252, Ram Kumar v. State of Haryana (1987) 1 SCC 476, Krishna Pillai v. T.A.Rajendran, 1990 (Supp) SCC 121, State of West Bengal v.

Mohd. Khalid (1995) 1 SCC 684, State through C.B.I. v. Raj Kumar Jain (1998) 6 SCC 551, K.Kalimuthu v. State (2005) 4 SCC 512, Centre for Public Interest Litigation v. Union of India (2005)8 SCC 202 and State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 and argued that letter dated29.11.2008 sent by the appellant for grant of sanction to prosecute respondent No.2 for the allegedoffences under the 1988 Act was wholly misconceived and respondent No.1 did not commit anyillegality or constitutional impropriety by not entertaining his prayer, more so because the appellanthad himself asked for an investigation into the alleged illegal grant of licences at the behest of



respondent No.2. Learned Attorney General further argued that the appellant does not have thelocus standi to file a complaint for prosecuting respondent No.2 because the CBI is alreadyinvestigating the allegations of irregularity committed in the grant of licences for 2G spectrum andthe loss, if any, suffered by the Public Exchequer.

14. We have considered the respective submissions. Section 19 of the 1988 Act reads as under:

"19. Previous sanction necessary for prosecution. - (1) No court shall take cognizanceof an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have beencommitted 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 theUnion and is not removable from his office save by or with the sanction of the CentralGovernment, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a Stateand is not removable from his office save by or with the sanction of the StateGovernment, of that Government;

(c) in the case of any other person, of the authority competent to remove him fromhis office.

(2) Where for any reason whatsoever any doubt arises as to whether the previoussanction as required under sub-section (1) should be given by the CentralGovernment or the State Government or any other authority, such sanction shall begiven by that Government or authority which would have been competent to removethe public servant from his office at the time when the offence was alleged to havebeen committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of 1974),-

(a) no finding, sentence or order passed by a special Judge shall be reversed oraltered by a court in appeal, confirmation or revision on the ground of the absence of,or any error, omission or irregularity in, the sanction required under sub- section (1),unless in the opinion of that court, a failure of justice has in fact been occasionedthereby;

(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 satisfiedthat 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 nocourt shall exercise the powers of revision in relation to any interlocutory order



passed in any 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 ofjustice the court shall have regard to the fact whether the objection could and shouldhave 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 thatthe prosecution shall be at the instance of a specified authority or with the sanction ofa specified person or any requirement of a similar nature."

15. The question whether sanction for prosecution of respondent No.2 for the offences allegedlycommitted by him under the 1988 Act is required even after he resigned from the Council ofMinisters, though he continues to be a Member of Parliament, need not detain us because the samehas already been answered by the Constitution Bench in R. S. Nayak v. A. R. Antulay (1984) 2 SCC183 the relevant portions of which are extracted below:

"Now if the public servant holds two offices and he is accused of having abused oneand from which he is removed but continues to hold the other which is neitheralleged to have been used (sic misused) nor abused, is a sanction of the authoritycompetent to remove him from the office which is neither alleged or shown to havebeen abused or misused necessary? The submission is that if the harassment of thepublic servant by a frivolous prosecution and criminal waste of his time in law courtskeeping 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 notnecessary. The submission does not commend to us. We fail to see how thecompetent authority entitled to remove the public servant from an office which isneither alleged to have been used (sic misused) or abused would be able to decidewhether the prosecution is frivolous or tendentious. An illustration was posed to thelearned counsel that a minister who is indisputably a public servant greased hispalms by abusing his office as minister, and then ceased to hold the office before thecourt 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 aftercommitting the offence and before the date of taking of cognizance of the offence, hewas elected as a Municipal President in which capacity he was a public servant underthe relevant municipal law, and was holding that office on the date on which courtproceeded to take cognizance of the offence committed by him as a minister, would asanction be necessary and that too of that authority competent to remove him fromthe office of the Municipal President. The answer was in affirmative. But the veryillustration 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 interestedin protecting may shift him from one office of public servant to another and therebydefeat the process of law. One can legitimately envisage a situation wherein a personmay hold a dozen different offices, each one clothing him with the status of a publicservant under Section 21 IPC and even if he has abused only one office for whicheither there is a valid sanction to prosecute him or he has ceased to hold that office bythe time court was called upon to take cognizance, yet on this assumption, sanction of11 different competent authorities each of which was entitled to remove him from 11different public offices would be necessary before the court can take cognizance of theoffence committed by such public servant, while abusing one office which he mayhave ceased to hold. Such an interpretation is contrary to all canons of constructionand leads to an absurd end product which of necessity must be avoided. Legislationmust at all costs be interpreted in such a way that it would not operate as a rogue'scharter.

We would however, like to make it abundantly clear that if the two decisions purportto lay down that even if a public servant has ceased to hold that office as publicservant which he is alleged to have abused or misused for corrupt motives, but on thedate of taking cognizance of an offence alleged to have been committed by him as apublic servant which he ceased to be and holds an entirely different public officewhich he is neither alleged to have misused or abused for corrupt motives, yet thesanction of authority competent to remove him from such latter office would benecessary before taking cognizance of the offence alleged to have been committed bythe public servant while holding an office which he is alleged to have abused ormisused and which he has ceased to hold, the decision in our opinion, do not laydown the correct law and cannot be accepted as making a correct interpretation ofSection 6."

16. The same view has been taken in Habibullsa Khan v. State of Orissa (1995) 2 SCC 437 (para 12),State of H.P. v. M. P. Gupta (2004) 2 SCC 349 (paras 17 and 19), Parkash Singh Badal v.

State of Punjab (2007) 1 SCC 1 and Balakrishnan Ravi Menon v.

Union of India (2007) 1 SCC 45. In Balakrishnan Ravi Menon's case, it was argued that theobservations made in para 25 of the judgment in Antulay's case are obiter. While negating thissubmission, the Court observed :

"Hence, it is difficult to accept the contention raised by Mr. U.R. Lalit, the learnedSenior Counsel for the petitioner that the aforesaid finding given by this Court inAntulay case is obiter.

Further, under Section 19 of the PC Act, sanction is to be given by the Government orthe authority which would have been competent to remove the public servant fromhis office at the time when the offence was alleged to have been committed. The



question of obtaining sanction would arise in a case where the offence has beencommitted by a public servant who is holding the office and by misusing or abusingthe powers of the office, he has committed the offence. The word "office" repeatedlyused in Section 19 would mean the "office" which the public servant misuses orabuses by corrupt motive for which he is to be prosecuted. Sub-sections (1) and (2) ofSection 19 are 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 theprevious sanction,--

(a) in the case of a person who is employed in connection with the affairs of theUnion and is not removable from his office save by or with the sanction of the CentralGovernment, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a Stateand is not removable from his office save by or with the sanction of the StateGovernment, of that Government;

(c) in the case of any other person, of the authority competent to remove him fromhis office. (2) Where for any reason whatsoever any doubt arises as to whether theprevious sanction as required under sub-section (1) should be given by the CentralGovernment or the State Government or any other authority, such sanction shall begiven by that Government or authority which would have been competent to removethe public servant from his office at the time when the offence was alleged to havebeen committed."

C lauses ( a ) and ( b ) of sub-section (1) specifically provide that in case of a person who is employedand is not removable from his office by the Central Government or th e State Government, as thecase may be, sa nction to prosecute is required to be obtained either from the Central Governmentor the State Government. The emphasis is on the words "who is employed" in connection with theaffairs of the Union or the State Government. If he is not employed then Section 19 nowhereprovides for obtaining such sanction. Further, under sub-section (2), the question of obtainingsanction is relatable to the time of holding the office when the offence was alleged to have beencommitted.

In case where the person is not holding the said office as he might have retired, superannuated, bedischarged or dismissed then the question of removing would not arise. Admittedly, when thealleged offence was committed, the petitioner was appointed by the Central Government. Hedemitted his office after completion of five years' tenure. Therefore, at the relevant time when thecharge-sheet was filed, the petitioner was not holding the office of the Chairman of Goa ShipyardLtd.



Hence, there is no question of obtaining any previous sanction of the Central Government."

(emphasis supplied)

17. The same view was reiterated in Parkash Singh Badal's case and the argument that even thoughsome of the accused persons had ceased to be Ministers, they continued to be the Members of theLegislative Assembly and one of them was a Member of Parliament and as such cognizance couldnot be taken against them without prior sanction, was rejected.

18. The next question which requires consideration is whether the appellant has the locus standi tofile a complaint for prosecution of respondent No.2 for the offences allegedly committed by himunder the 1988 Act. There is no provision either in the 1988 Act or the Code of Criminal Procedure,1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who isalleged to have committed an offence.

Therefore, the argument of the learned Attorney General that the appellant cannot file a complaintfor prosecuting respondent No.2 merits rejection. A similar argument was negatived by theConstitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500. The facts of thatcase show that on a private complaint filed by the respondent, the Special Judge took cognizance ofthe offences allegedly committed by the appellant.

The latter objected to the jurisdiction of the Special Judge on two counts, including the one that theCourt set up under Section 6 of the Criminal Law Amendment Act, 1952 (for short, `the 1952 Act')was not competent to take cognizance of any of the offences enumerated in Section 6(1)(a) and (b)upon a private complaint.

His objections were rejected by the Special Judge. The revision filed by the appellant was heard bythe Division Bench of the High Court which ruled that a Special Judge is competent and is entitledto take cognizance of offences under Section 6(1)(a) and

(b) on a private complaint of the facts constituting the offence.

The High Court was of the opinion that a prior investigation under Section 5A of the Prevention ofCorruption Act, 1947 (for short, `the 1947 Act') by a police officer of the designated rank is not sinequa non for taking cognizance of an offence under Section 8(1) of the 1952 Act. Before the SupremeCourt, the argument against the locus standi of the respondent was reiterated and it was submittedthat Section 5A of the 1947 Act is mandatory and an investigation by the designated officer is acondition precedent to the taking of cognizance by the Special Judge of an offence or offencescommitted by a public servant. While dealing with the issue relating to maintainability of a privatecomplaint, the Constitution Bench observed:

"It is a well recognised principle of criminal jurisprudence that anyone can set or putthe criminal law into motion except where the statute enacting or creating an offenceindicates to the contrary. The scheme of the Code of Criminal Procedure envisages



two parallel and independent agencies for taking criminal offences to court. Even forthe most serious offence of murder, it was not disputed that a private complaint can,not only be filed but can be entertained and proceeded with according to law. Locusstandi of the complainant is a concept foreign to criminal jurisprudence save andexcept that where the statute creating an offence provides for the eligibility of thecomplainant, by necessary implication the general principle gets excluded by suchstatutory provision. Numerous statutory provisions, can be referred to in support ofthis legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 ofGold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv)Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the ForeignExchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii)Section 77 of the Electricity Supply Act. This list is only illustrative and notexhaustive. While Section 190 of the Code of Criminal Procedure permits anyone toapproach the Magistrate with a complaint, it does not prescribe any qualification thecomplainant is required to fulfil to be eligible to file a complaint. But where aneligibility criterion for a complainant is contemplated specific provisions have beenmade such as to be found in Sections 195 to 199 of the CrPC. These specific provisionsclearly indicate that in the absence of any such statutory provision, a locus standi of acomplainant is a concept foreign to criminal jurisprudence. In other words, theprinciple that anyone can set or put the criminal law in motion remains intact unlesscontra-indicated by a statutory provision. This general principle of nearly universalapplication is founded on a policy that an offence i.e. an act or omission madepunishable by any law for the time being in force is not merely an offence committedrelation to the person who suffers harm but is also an offence against society. Thesociety for its orderly and peaceful development is interested in the punishment ofthe offender. Therefore, prosecution for serious offences is undertaken in the name ofthe State representing the people which would exclude any element of privatevendetta or vengeance. If such is the public policy underlying penal statutes, whobrings an act or omission made punishable by law to the notice of the authoritycompetent to deal with it, is immaterial and irrelevant unless the statute indicates tothe contrary. Punishment of the offender in the interest of the society being one ofthe objects behind penal statutes enacted for larger good of the society, right toinitiate proceedings cannot be whittled down, circumscribed or fettered by putting itinto a strait- jacket formula of locus standi unknown to criminal jurisprudence, saveand except specific statutory exception. To hold that such an exception exists that aprivate complaint for offences of corruption committed by public servant is notmaintainable, the court would require an unambiguous statutory provision and atangled web of argument for drawing a far fetched implication, cannot be a substitutefor an express statutory provision."

(emphasis supplied) The Constitution Bench then considered whether the SpecialJudge can take cognizance only on the basis of a police report and answered the samein negative in the following words:



"In the matter of initiation of proceeding before a Special Judge under Section 8(1), the Legislaturewhile conferring power to take cognizance had three opportunities to unambiguously state its mindwhether the cognizance can be taken on a private complaint or not. The first one was an opportunityto provide in Section 8(1) itself by merely stating that the Special Judge may take cognizance of anoffence on a police report submitted to it by an investigating officer conducting investigation ascontemplated by Section 5-

A. While providing for investigation by designated police officers of superior rank, the Legislaturedid not fetter the power of Special Judge to take cognizance in a manner otherwise than on policereport. The second opportunity was when by Section 8(3) a status of a deemed public prosecutorwas conferred on a private complainant if he chooses to conduct the prosecution.

The Legislature being aware of a provision like the one contained in Section 225 of the CrPC, couldhave as well provided that in every trial before a Special Judge the prosecution shall be conducted bya Public Prosecutor, though that itself would not have been decisive of the matter. And the thirdopportunity was when the Legislature while prescribing the procedure prescribed for warrant casesto be followed by Special Judge did not exclude by a specific provision that the only procedure whichthe Special Judge can follow is the one prescribed for trial of warrant cases on a police report. Thedisinclination of the Legislature to so provide points to the contrary and no canon of constructionpermits the court to go in search of a hidden or implied limitation on the power of the Special Judgeto take cognizance unfettered by such requirement of its being done on a police report alone.

In our opinion, it is no answer to this fairly well-

established legal position that for the last 32 years no case has come to the notice of the court inwhich cognizance was taken by a Special Judge on a private complaint for offences punishable underthe 1947 Act."

(emphasis supplied) The Court then referred to Section 5A of the 1947 Act, the provisions of the1952 Act, the judgments in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150, Stateof M.P. v.

Mubarak Ali 1959 Supp. (2) SCR 201, Union of India v. Mahesh Chandra AIR 1957 M.B. 43 andheld:

"Having carefully examined these judgments in the light of the submissions made,the only conclusion that unquestionably emerges is that Section 5-A is a safeguardagainst investigation of offences committed by public servants, by petty or lower rankpolice officer. It has nothing to do directly or indirectly with the mode and method oftaking cognizance of offences by the Court of Special Judge. It also follows as anecessary corollary that provision of Section 5-A is not a condition precedent toinitiation of proceedings before the Special Judge who acquires power under Section8(1) to take co gnizance of offences enumerated in Section 6(1)( a ) a nd ( b ), withthis limitation alone that it shall not be upon commitment to him by the Magistrate.



Once the contention on behalf of the appellant that investigation under Section 5-A isa condition precedent to the initiation of proceedings before a Special Judge andtherefore cognizance of an offence cannot be taken except upon a police report, doesnot commend to us and has no foundation in law, it is unnecessary to refer to thelong line of decisions co mmencing from Ta ylor v. Ta ylor ; N azir Ahmad v.

Kin g-Emperor and ending with C hettiam Veettil

A mmad v. Ta luk Land Board , laying down hitherto

uncontroverted legal principle that where a statute requires to do a certain thing in acertain way, the thing must be done in that way or not at all. Other methods ofperformance are necessarily forbidden.

Once Section 5-A is out of the way in the matter of taking cognizance of offences committed bypublic servants by a Special Judge, the power of the Special Judge to take cognizance of suchoffences conferred by Section 8(1) with only one limitation, in any one of the known methods oftaking cognizance of offences by courts of original jurisdiction remains undented. One suchstatutorily recognised well-known method of taking cognizance of offences by a court competent totake cognizance is upon receiving a complaint of facts which constitutes the offence. And Section8(1) says that the Special Judge has the power to take cognizance of offences enumerated in Section6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is uponcommitment. It therefore, follows that the Special Judge can take cognizance of offences committedby public servants upon receiving a complaint of facts constituting such offences.

It was, however, submitted that even if it be held that the Special Judge is entitled to entertain aprivate complaint, no further steps can be taken by him without directing an investigation underSection 5-A so that the safeguard of Section 5-A is not whittled down.

This is the selfsame argument under a different apparel. Accepting such a submission wouldtantamount to saying that on receipt of the complaint the Special Judge must direct an investigationunder Section 5-A, There is no warrant for such an approach.

Astounding as it appeared to us, in all solemnity it was submitted that investigation of an offence bya superior police officer affords a more solid safeguard compared to a court. Myopic as this is, itwould topsy turvy the fundamental belief that to a person accused of an offence there is no bettersafeguard than a court. And this is constitutionally epitomised in Article 22 that upon arrest bypolice, the arrested person must be produced before the nearest Magistrate within twenty-



four hours of the arrest. Further, numerous provisions of the Code of Criminal Procedure such asSection 161, Section 164, and Section 25 of the Indian Evidence Act would show the Legislature'shesitation in placing confidence on police officers away from court's gaze.

And the very fact that power is conferred on a Presidency Magistrate or Magistrate of the first classto permit police officers of lower rank to investigate these offences would speak for the mind of theLegislature that the court is a more reliable safeguard than even superior police officers."

(emphasis supplied)

19. In view of the aforesaid judgment of the Constitution Bench, it must be held that the appellanthas the right to file a complaint for prosecution of respondent No.2 in respect of the offencesallegedly committed by him under the 1988 Act.

20. The argument of the learned Attorney General that the question of granting sanction forprosecution of a public servant charged with an offence under the 1988 Act arises only at the stage oftaking cognizance and not before that is neither supported by the plain language of the section northe judicial precedents relied upon by him. Though, the term `cognizance' has not been definedeither in the 1988 Act or the CrPC, the same has acquired a definite meaning and connotation fromvarious judicial precedents. In legal parlance cognizance is "taking judicial notice by the court oflaw, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there isany basis for initiating proceedings and determination of the cause or matter judicially". In R. R.Chari v. State of U.P. (1951) SCR 312, the three Judge Bench approved the following observationsmade by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, WestBengal v. Abni Kumar Banerjee (supra):

"What is taking cognizance has not been defined in the Criminal Procedure Code andI have no desire to attempt to define it. It seems to me clear however that before itcan be said that any magistrate has taken cognizance of any offence under section190(1)(a), Criminal Procedure Code, he must not only have applied his mind to thecontents of the petition but he must have done so for the purpose of proceeding in aparticular way as indicated in the subsequent provisions of this Chapter - proceedingunder section 200 and thereafter sending it for inquiry and report under section 202.When the magistrate applies his mind not for the purpose of proceeding under thesubsequent sections of this Chapter, but for taking action of some other kind, e.g.ordering investigation under section 156(3), or issuing a search warrant for thepurpose of the investigation, he cannot be said to have taken cognizance of theoffence."

21. In Mohd. Khalid's case, the Court referred to Section 190 of the CrPC and observed :

"In its broad and literal sense, it means taking notice of an offence. This wouldinclude the intention of initiating judicial proceedings against the offender in respectof that offence or taking steps to see whether there is any basis for initiating judicial



proceedings or for other purposes. The word `cognizance' indicates the point when aMagistrate or a Judge first takes judicial notice of an offence. It is entirely a differentthing from initiation of proceedings; rather it is the condition precedent to theinitiation of proceedings by the Magistrate or the Judge. Cognizance is taken of casesand not of persons."

22. In Pastor P. Raju's case, this Court referred to the provisions of Chapter XIV and Sections 190and 196 (1-A) of the CrPC and observed :

"There is no bar against registration of a criminal case or investigation by the policeagency or submission of a report by the police on completion of investigation, ascontemplated by Section 173 CrPC. If a criminal case is registered, investigation ofthe offence is done and the police submits a report as a result of such investigationbefore a Magistrate without the previous sanction of the Central Government or ofthe State Government or of the District Magistrate, there will be no violation ofSection 196(1-A) CrPC and no illegality of any kind would be committed."

The Court then referred to some of the precedents including the judgment in Mohd. Khalid's caseand observed :

"It is necessary to mention here that taking cognizance of an offence is not the samething as issuance of process. Cognizance is taken at the initial stage when theMagistrate applies his judicial mind to the facts mentioned in a complaint or to apolice report or upon information received from any other person that an offence hasbeen committed. The issuance of process is at a subsequent stage when afterconsidering the material placed before it the court decides to proceed against theoffenders against whom a prima facie case is made out."

23. In Kalimuthu's case, the only question considered by this Court was whether in the absence ofrequisite sanction under Section 197 CrPC, the Special Judge for CBI cases, Chennai did not havethe jurisdiction to take cognizance of the alleged offences. The High Court had taken the view thatSection 197 was not applicable to the appellant's case. Affirming the view taken by the High Court,this Court observed :

"The question relating to the need of sanction under Section 197 of the Code is notnecessarily to be considered as soon as the complaint is lodged and on the allegationscontained therein. This question may arise at any stage of the proceeding. Thequestion whether sanction is necessary or not may have to be determined from stageto stage. Further, in cases where offences under the Act are concerned, the effect ofSection 197, dealing with the question of prejudice has also to be noted."

24. In Raj Kumar Jain's case, this Court considered the question whether the CBI was required toobtain sanction from the prosecuting authority before approaching the Court for accepting thereport under Section 173(2) of the CrPC. This question was considered in the backdrop of the fact



that the CBI, which had investigated the case registered against the respondent under Section 5(2)read with Section 5(1)(e) of the 1947 Act found that the allegation made against the respondentcould not be substantiated. The Special Judge declined to accept the report submitted under Section173(2) CrPC by observing that the CBI was required to place materials collected during investigationbefore the sanctioning authority and it was for the concerned authority to grant or refuse sanction.The Special Judge opined that only after the decision of the sanctioning authority, the CBI couldsubmit the report under Section 173(2). The High Court dismissed the petition filed by the CBI andconfirmed the order of the Special Judge. This Court referred to Section 6(1) of the 1947 Act andobserved:

"From a plain reading of the above section it is evidently clear that a court cannottake cognizance of the offences mentioned therein without sanction of theappropriate authority. In enacting the above section, the legislature thought ofproviding a reasonable protection to public servants in the discharge of their officialfunctions so that they may perform their duties and obligations undeterred byvexatious and unnecessary prosecutions. Viewed in that context, the CBI was underno obligation to place the materials collected during investigation before thesanctioning authority, when they found that no case was made out against therespondent. To put it differently, if the CBI had found on investigation that a primafacie case was made out against the respondent to place him on trial and accordinglyprepared a charge-sheet (challan) against him, then only the question of obtainingsanction of the authority under Section 6(1) of the Act would have arisen for withoutthat the Court would not be competent to take cognizance of the charge-sheet. Itmust, therefore, be said that both the Special Judge and the High Court were patentlywrong in observing that the CBI was required to obtain sanction from the prosecutingauthority before approaching the Court for accepting the report under Section 173(2)CrPC."

25. In our view, the decisions relied upon by the learned Attorney General do not have any bearingon the moot question whether respondent No.1, being the Competent Authority to sanctionprosecution of respondent No.2, was required to take appropriate decision in the light of thedirection contained in Vineet Narain's case.

26. Before proceeding further, we would like to add that at the time of taking cognizance of theoffence, the Court is required to consider the averments made in the complaint or the charge sheetfiled under Section 173. It is not open for the Court to analyse the evidence produced at that stageand come to the conclusion that no prima facie case is made out for proceeding further in thematter. However, before issuing the process, it that it is open to the Court to record the evidence andon consideration of the averments made in the complaint and the evidence thus adduced, find outwhether an offence has been made out. On finding that such an offence has been made out the Courtmay direct the issue of process to the respondent and take further steps in the matter.

If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in thecharge-sheet, on the basis of the evidence collected during investigation, would disclose the offence



for which cognizance would be taken by the Court. Thus, it is not the province of the Court at thatstage to embark upon and sift the evidence to come to the conclusion whether or not an offence hasbeen made out.

27. We may also observe that grant or refusal of sanction is not a quasi judicial function and theperson for whose prosecution the sanction is sought is not required to be heard by the CompetentAuthority before it takes a decision in the matter. What is required to be seen by the CompetentAuthority is whether the facts placed before it which, in a given case, may include the materialcollected by the complainant or the investigating agency prima facie disclose commission of anoffence by a public servant.

If the Competent Authority is satisfied that the material placed before it is sufficient for prosecutionof the public servant, then it is required to grant sanction. If the satisfaction of the CompetentAuthority is otherwise, then it can refuse sanction. In either case, the decision taken on thecomplaint made by a citizen is required to be communicated to him and if he feels aggrieved by suchdecision, then he can avail appropriate legal remedy.

28. In Vineet Narain's case, the Court entertained the writ petitions filed in public interest forensuring investigation into what came to be known as `Hawala case'. The writ petition remainedpending for almost four years. During that period, several interim orders were passed which arereported as Vineet Narain v. Union of India 1996 (1) SCALE (SP) 42, Vineet Narain v.

Union of India (1996) 2 SCC 199, Vineet Narain v. Union of India (1997) 4 SCC 778 and VineetNarain v. Union of India (1997) 5 SCALE 254. The final order was passed in Vineet Narain v. Unionof India (1998) 1 SCC 226. In (1996) 2 SCC 199, the Court referred to the allegations made in thewrit petition that Government agencies like the CBI and the revenue authorities have failed toperform their duties and legal obligations inasmuch as they did not investigate into the mattersarising out of seizure of the so-called "Jain Diaries" in certain raids conducted by the CBI. The Courttook note of the allegation that the arrest of some terrorists led to the discovery of financial supportto them by clandestine and illegal means and a nexus between several important politicians,bureaucrats and criminals, who were recipients of money from unlawful sources, and proceeded toobserve:

"The facts and circumstances of the present case do indicate that it is of utmost publicimportance that this matter is examined thoroughly by this Court to ensure that allgovernment agencies, entrusted with the duty to discharge their functions andobligations in accordance with law, do so, bearing in mind constantly the concept ofequality enshrined in the Constitution and the basic tenet of rule of law: "Be you everso high, the law is above you." Investigation into every accusation made against eachand every person on a reasonable basis, irrespective of the position and status of thatperson, must be conducted and completed expeditiously. This is imperative to retainpublic confidence in the impartial working of the government agencies."



29. After examining various facets of the matter in detail, the three Judge Bench in its final orderreported in (1998) 1 SCC 226 observed :

"These principles of public life are of general application in every democracy and oneis expected to bear them in mind while scrutinising the conduct of every holder of apublic office. It is trite that the holders of public offices are entrusted with certainpowers to be exercised in public interest alone and, therefore, the office is held bythem in trust for the people. Any deviation from the path of rectitude by any of themamounts to a breach of trust and must be severely dealt with instead of being pushedunder the carpet. If the conduct amounts to an offence, it must be promptlyinvestigated and the offender against whom a prima facie case is made out should beprosecuted expeditiously so that the majesty of law is upheld and the rule of lawvindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, toguard against erosion of the rule of law. The adverse impact of lack of probity inpublic life leading to a high degree of corruption is manifold. It also has adverse effecton foreign investment and funding from the International Monetary Fund and theWorld Bank who have warned that future aid to underdeveloped countries may besubject to the requisite steps being taken to eradicate corruption, which preventsinternational aid from reaching those for whom it is meant. Increasing corruptionhas led to investigative journalism which is of value to a free society. The need tohighlight corruption in public life through the medium of public interest litigationinvoking judicial review may be frequent in India but is not unknown in othercountries: R. v. Secy. of State for Foreign and Commonwealth Affairs."

In paragraph 58 of the judgment, the Court gave several directions in relation to the CBI, the CVCand the Enforcement Directorate. In para 58 (I)(15), the Court gave the following direction:

"Time-limit of three months for grant of sanction for prosecution must be strictlyadhered to. However, additional time of one month may be allowed whereconsultation is required with the Attorney General (AG) or any other law officer inthe AG's office."

30. The CVC, after taking note of the judgment of the Punjab and Haryana High Court in JagjitSingh v. State of Punjab (1996) Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp.

1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225, framedguidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clausesof the guidelines are extracted below:

"2(i) Grant of sanction is an administrative act. The purpose is to protect the publicservant from harassment by frivolous or vexatious prosecution and not to shield thecorrupt. The question of giving opportunity to the public servant at that stage doesnot arise. The sanctioning authority has only to see whether the facts wouldprima-facie constitutes the offence.



(ii) The competent authority cannot embark upon an inquiry to judge the truth of theallegations on the basis of representation which may be filed by the accused personbefore the Sanctioning Authority, by asking the I.O. to offer his comments or tofurther investigate the matter in the light of representation made by the accusedperson or by otherwise holding a parallel investigation/enquiry by calling for therecord/report of his department.

(vii) However, if in any case, the Sanctioning Authority after consideration of theentire material placed before it, entertains any doubt on any point the competentauthority may specify the doubt with sufficient particulars and may request theAuthority who has sought sanction to clear the doubt. But that would be only to clearthe doubt in order that the authority may apply its mind proper, and not for thepurpose of considering the representations of the accused which may be filed whilethe matter is pending sanction.

(viii) If the Sanctioning Authority seeks the comments of the IO while the matter ispending before it for sanction, it will almost be impossible for the SanctioningAuthority to adhere to the time limit allowed by the Supreme Court in VineetNarain's case."

31. The aforementioned guidelines are in conformity with the law laid down by this Court that whileconsidering the issue regarding grant or refusal of sanction, the only thing which the CompetentAuthority is required to see is whether the material placed by the complainant or the investigatingagency prima facie discloses commission of an offence. The Competent Authority cannot undertakea detailed inquiry to decide whether or not the allegations made against the public servant are true.

32. In the light of the above discussion, we shall now consider whether the High Court was justifiedin refusing to entertain the writ petition filed by the appellant. In this context, it is apposite toobserve that the High Court had proceeded under a wholly erroneous assumption that respondentNo.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant oflicences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences byrespondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted aninquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy ofthe report to the Director, CBI for making an investigation into the matter to establish the criminalconspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to bookall the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009against unknown officials of the DoT, unknown private persons/companies and others for offencesunder Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next aboutone year, the matter remained dormant and the CBI took steps for vigorous investigation only whenthis Court intervened in the matter. The material placed on record does not show that the CBI hadregistered a case or started investigation at the instance of respondent No.1.

33. On his part, the appellant had submitted representation to respondent No. 1 almost one yearprior to the registration of the first information report by the CBI and highlighted the grave



irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupeesto the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that thematter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer toexamine and apprise him with the facts of the case.

Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officersent the appellant's representation to the DoT which was headed by none other than respondentNo.2 against whom the appellant had made serious allegations of irregularities in the grant oflicences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sentletter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in thePMO then referred the matter to the Ministry of Law and Justice for advice.

It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondentNo.1 highlighting the seriousness of the allegations made in his first representation and the fact thathe had already supplied the facts and documents which could be made basis for grant of sanction toprosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailedinquiry was not required to be made into the allegations, the concerned officers in the PMO kept thematter pending and then took the shelter of the fact that the CBI had registered the case and theinvestigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice,were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellantand the judgments of this Court including the directions contained in paragraph 58(I) of thejudgment in Vineet Narain's case as also the guidelines framed by the CVC so as to enable him totake appropriate decision in the matter. By the very nature of the office held by him, respondent No.1 is not expected to personally look into the minute details of each and every case placed before himand has to depend on his advisers and other officers. Unfortunately, those who were expected to giveproper advice to respondent No. 1 and place full facts and legal position before him failed to do so.We have no doubt that if respondent No.1 had been apprised of the true factual and legal positionregarding the representation made by the appellant, he would have surely taken appropriatedecision and would not have allowed the matter to linger for a period of more than one year.

34. In the result, the appeal is allowed. The impugned order is set aside. It is declared that theappellant had the right to file a complaint for prosecuting respondent No.2. However, keeping inview the fact that the Court of Special Judge, CBI has already taken cognizance of the offencesallegedly committed by respondent No.2 under the 1988 Act, we do not consider it necessary to giveany other direction in the matter. At the same time, we deem it proper to observe that in futureevery Competent Authority shall take appropriate action on the representation made by a citizen forsanction of the prosecution of a public servant strictly in accordance with the direction contained inVineet Narain v. Union of India (1998) 1 SCC 226 and the guidelines framed by the CVC.

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

[G.S. Singhvi] ...........................................J.



[Asok Kumar Ganguly] New Delhi, January 31, 2012.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVILAPPEAL NO.1193 OF 2012 (Arising out of SLP (C) No.27535/2010) Dr. Subramanian Swamy....Appellant(s)

- Versus -

Dr. Manmohan Singh & another ....Respondent(s) J U D G M E N T GANGULY, J.

1. After going through the judgment rendered by my learned brother G.S. Singhvi, J., I am inagreement with the various conclusions reached by His Lordship. However, I have added my ownviews on certain important facts of the questions raised in this case.

2. Brother Singhvi, J., has come to a finding that having regard to the very nature of the office heldby respondent No.1, it may not be expected of respondent No.1 to personally look into the minutedetails of each and every matter and the respondent No.1, having regard to the burden of his veryonerous office, has to depend on the officers advising him. At the same time it may be noted that inthe course of submission, the appellant, who argued in person, did not ever allege any malafide orlack of good faith against the respondent No.1. The delay which had taken place in the office of therespondent No.1 is unfortunate but it has not even been alleged by the appellant that there was anydeliberate action on the part of the respondent No.1 in causing the delay. The position of respondentNo.1 in our democratic polity seems to have been summed up in the words of Shakespeare "Uneasylies the head that wears a crown" (Henry, The Fourth, Part 2 Act 3, scene 1).

3. I also agree with the conclusions of bother Singhvi, J., that the appellant has the locus to file thecomplaint for prosecution of the respondent No.2 in respect of the offences alleged to have beencommitted by him under the 1988 Act.

Therefore, I agree with the finding of brother Singhvi, J., that the argument of the learned AttorneyGeneral to the contrary cannot be accepted. Apart from that the learned Attorney General in thecourse of his submission proceeded on the basis that the question of sanction has to be consideredwith reference to Section 19 of the Prevention of Corruption Act (hereinafter "the P.C. Act") or withreference to Section 197 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), and thescheme of both the sections being similar (Vide paragraph 3 of the supplementary writtensubmission filed by the learned Attorney General). In fact, the entire submission of the learnedAttorney General is structured on the aforesaid assumption. I fail to appreciate the aforesaidargument as the same is contrary to the scheme of Section 19 of the P.C. Act and also Section 197 ofthe Code. In Kalicharan Mahapatra vs. State of Orissa reported in (1998) 6 SCC 411, this Courtcompared Section 19 of P.C. Act with Section 197 of the Code. After considering several decisions onthe point and also considering Section 6 of the old P.C. Act, 1947 which is almost identical withSection 19 of the P.C. Act, 1988 and also noting Law Commission's Report, this Court in paragraph13 of Kalicharan (supra) came to the following conclusions:



"13. The sanction contemplated in Section 197 of the Code concerns a public servant who "is accusedof any offence alleged to have been committed by him while acting or purporting to act in thedischarge of his official duty", whereas the offences contemplated in the PC Act are those whichcannot be treated as acts either directly or even purportedly done in the discharge of his officialduties. Parliament must have desired to maintain the distinction and hence the wording in thecorresponding provision in the former PC Act was materially imported in the new PC Act, 1988without any change in spite of the change made in Section 197 of the Code."

4. The above passage in Kalicharan (supra) has been quoted with approval subsequently by thisCourt in Lalu Prasad vs. State of Bihar reported in 2007 (1) SCC 49 at paragraph 9, page 54. Inparagraph 10, (page 54 of the report) this Court held in Lalu Prasad (supra) that "Section 197 of theCode and Section 19 of the Act operate in conceptually different fields".

5. In view of such consistent view by this Court the basic submission of the learned Attorney Generalto the contrary is, with respect, untenable.

6. I also entirely agree with the conclusion of learned brother Singhvi, J., that the argument of thelearned Attorney General that question for granting sanction for prosecution of a public servantcharged with offences under the 1988 Act arises only at the stage of cognizance is also notacceptable.

7. In formulating this submission, the learned Attorney General substantially advanced twocontentions. The first contention is that an order granting sanction is not required to be filed alongwith a complaint in connection with a prosecution under Section 19 of the P.C. Act. The aforesaidsubmission is contrary to the settled law laid down by this Court in various judgments.

Recently a unanimous three-judge Bench decision of this Court in the case of State of Uttar Pradeshvs. Paras Nath Singh, [(2009) 6 SCC 372], speaking through Justice Pasayat and construing therequirement of sanction, held that without sanction:

"......The very cognizance is barred. That is, the complaint cannot be taken notice of. According toBlack's Law Dictionary the word `cognizance' means `jurisdiction' or `the exercise of jurisdiction' or`power to try and determine causes'. In common parlance, it means taking notice of. A court,therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdictionif it is in respect of a public servant who is accused of an offence alleged to have been committedduring discharge of his official duty."

(Para 6, page 375 of the report)

8. The other contention of the learned Attorney General is that in taking cognizance under the P.C.Act the Court is guided by the provisions under Section 190 of the Code and in support of thatcontention the learned Attorney General relied on several judgments. However, the aforesaidsubmissions were made without noticing the judgment of this Court in the case of Dilawar Singh vs.Parvinder Singh alias Iqbal Singh and Another (2005) 12 SCC 709. Dealing with Section 19 of P.C.



Act and Section 190 of the Code, this Court held in paragraph 8 at page 713 of the report as follows:

"......The Prevention of Corruption Act is a special statute and as the preamble shows, this Act hasbeen enacted to consolidate and amend the law relating to the prevention of corruption and formatters connected therewith. Here, the principle expressed in the maxim generalia specialibus nonderogant would apply which means that if a special provision has been made on a certain matter,that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P.,State of Bihar v. Dr. Yogendra Singh and Maharashtra State Board of Secondary and HigherSecondary Education v. Paritosh Bhupeshkumar Sheth.) Therefore, the provisions of Section 19 ofthe Act will have an overriding effect over the general provisions contained in Section

190......"

9. Therefore, concurring with brother Singhvi, J., I am unable to uphold the submission of thelearned Attorney General.

10. As I am of the humble opinion that the questions raised and argued in this case are ofconsiderable constitutional and legal importance, I wish to add my own reasoning on the same.

11. Today, corruption in our country not only poses a grave danger to the concept of constitutionalgovernance, it also threatens the very foundation of Indian democracy and the Rule of Law. Themagnitude of corruption in our public life is incompatible with the concept of a socialist, seculardemocratic republic. It cannot be disputed that where corruption begins all rights end.

Corruption devalues human rights, chokes development and undermines justice, liberty, equality,fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is thatany anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen thefight against corruption. That is to say in a situation where two constructions are eminentlyreasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeksto perpetuate it.

12. Time and again this Court has expressed its dismay and shock at the ever growing tentacles ofcorruption in our society but even then situations have not improved much. [See Sanjiv Kumar v.State of Haryana & ors., (2005) 5 SCC 517; State of A.P.

v. V. Vasudeva Rao, (2004) 9 SCC 319; Shobha Suresh Jumani v. Appellate Tribunal ForfeitedProperty & another, (2001) 5 SCC 755; State of M.P. & ors. v. Ram Singh, (2000) 5 SCC 88; J.

Jayalalitha v. Union of India & another, (1999) 5 SCC 138; Major S.K. Kale v. State of Maharashtra,(1977) 2 SCC 394.]

13. Learned Attorney General in the course of his submission fairly admitted before us that out oftotal 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, inmore than 1/3rd cases of request for prosecution in corruption cases against public servants,



sanctions have not been accorded. The aforesaid scenario raises very important constitutional issuesas well as some questions relating to interpretation of such sanctioning provision and also the rolethat an independent judiciary has to play in maintaining rule of law and common man's faith in thejustice delivering system.

14. Both rule of law and equality before law are cardinal questions in our Constitutional Laws as alsoin International law and in this context the role of the judiciary is very vital. In his famous treatiseon Administrative Law, Professor Wade while elaborating the concept of rule of law referred to theopinion of Lord Griffith's which runs as follows:

"the judiciary accept a responsibility for the maintenance of the rule of law that embraces awillingness to oversee executive action and to refuse to countenance behaviour that threatens eitherbasic human rights or the rule of law."

[See R. v. Horseferry Road Magistrates' Court ex p. Bennett {1994) 1 AC 42 at 62]

15. I am in respectful agreement with the aforesaid principle.

16. In this connection we might remind ourselves that courts while maintaining rule of law muststructure its jurisprudence on the famous formulation of Lord Coke where the learned Law Lordmade a comparison between "the golden and straight metwand of law" as opposed to "the uncertainand crooked cord of discretion".

17. The right of private citizen to file a complaint against a corrupt public servant must be equatedwith his right to access the Court in order to set the criminal law in motion against a corrupt publicofficial. This right of access, a Constitutional right should not be burdened with unreasonablefetters. When a private citizen approaches a court of law against a corrupt public servant who ishighly placed, what is at stake is not only a vindication of personal grievance of that citizen but alsothe question of bringing orderliness in society and maintaining equal balance in the rule of law. Itwas pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Biharand Others, (1987) 1 SCC 288 at page 315:

"......It is now settled law that a criminal proceeding is not a proceeding for vindication of a privategrievance but it is a proceeding initiated for the purpose of punishment to the offender in theinterest of the society. It is for maintaining stability and orderliness in the society that certain actsare constituted offences and the right is given to any citizen to set the machinery of the criminal lawin motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulayv. R.S. Nayak this Court pointed out that (SCC p. 509, para 6) "punishment of the offender in theinterest of the society being one of the objects behind penal statutes enacted for larger good of thesociety, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting itinto a strait jacket formula of locus standi......"

18. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which barsa Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10,



11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, hasaccorded sanction, virtually imposes fetters on private citizens and also on prosecutors fromapproaching Court against corrupt public servants. These protections are not available to othercitizens. Public servants are treated as a special class of persons enjoying the said protection so thatthey can perform their duties without fear and favour and without threats of malicious prosecution.However, the said protection against malicious prosecution which was extended in public interestcannot become a shield to protect corrupt officials. These provisions being exceptions to the equalityprovision of Article 14 are analogous to provisions of protective discrimination and these protectionsmust be construed very narrowly. These procedural provisions relating to sanction must beconstrued in such a manner as to advance the causes of honesty and justice and good governance asopposed to escalation of corruption. Therefore, in every case where an application is made to anappropriate authority for grant of prosecution in connection with an offence under P.C. Act it is thebounden duty of such authority to apply its mind urgently to the situation and decide the issuewithout being influenced by any extraneous consideration. In doing so, the authority must make aconscious effort to ensure the rule of law and cause of justice is advanced. In considering thequestion of granting or refusing such sanction, the authority is answerable to law and law alone.Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such asituation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, thepurpose of a speedy trial with the requirement to bring the culprit to book.

Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing togrant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is atstake is the public confidence in the maintenance of rule of law which is fundamental in theadministration of justice.

Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in publicmind that in the name of considering a prayer for sanction, a protection is given to a corrupt publicofficial as a quid pro quo for services rendered by the public official in the past or may be in thefuture and the sanctioning authority and the corrupt officials were or are partners in the samemisdeeds. I may hasten to add that this may not be factual position in this but the generaldemoralizing effect of such a popular perception is profound and pernicious. By causing delay inconsidering the request for sanction, the sanctioning authority stultifies judicial scrutiny anddetermination of the allegations against corrupt official and thus the legitimacy of the judicialinstitutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to getjustice by setting the criminal law in motion and thereby frustrates his right to access judicialremedy which is a constitutionally protected right. In this connection, if we look at Section 19 of theP.C.

Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioningauthority with unbridled power which has often resulted in protecting the guilty and perpetuatingcriminality and injustice in society.

19. There are instances where as a result of delayed grant of sanction prosecutions under the P.C.Act against a public servant has been quashed. See Mahendra Lal Das vs. State of Bihar and Others,



(2002) 1 SCC 149, wherein this Court quashed the prosecution as the sanctioning authority grantedsanction after 13 years. Similarly, in the case of Santosh De vs. Archna Guha and Others, (1994)Supp.3 SCC 735, this Court quashed prosecution in a case where grant of sanction was undulydelayed.

There are several such cases. The aforesaid instances show a blatant subversion of the rule of law.Thus, in many cases public servants whose sanction proposals are pending before authorities forlong periods of time are being allowed to escape criminal prosecution.

20. Article 14 must be construed as a guarantee against uncanalized and arbitrary power.

Therefore, the absence of any time limit in granting sanction in Section 19 of the P.C. Act is not inconsonance with the requirement of the due process of law which has been read into ourConstitution by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of Indiaand Another, (1978) 1 SCC 248.

21. I may not be understood to have expressed any doubt about the constitutional validity of Section19 of the P.C. Act, but in my judgment the power under Section 19 of the P.C. Act must be reasonablyexercised. In my judgment the Parliament and the appropriate authority must considerrestructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason,justice and fair play.

22. In my view, the Parliament should consider the Constitutional imperative of Article 14enshrining the rule of law wherein `due process of law' has been read into by introducing a timelimit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may,in my opinion, consider the following guidelines:

a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanctionfor the prosecution of a public servant under section 19 of the P.C. Act must be decided within aperiod of three months of the receipt of the proposal by the concerned authority.

b) Where consultation is required with the Attorney General or the Solicitor General or the AdvocateGeneral of the State, as the case may be, and the same is not possible within the three monthsmentioned in clause (a) above, an extension of one month period may be allowed, but the requestfor consultation is to be sent in writing within the three months mentioned in (a) above. A copy ofthe said request will be sent to the prosecuting agency or the private complainant to intimate themabout the extension of the time limit.

c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed tohave been granted to the proposal for prosecution, and the prosecuting agency or the privatecomplainant will proceed to file the chargesheet/complaint in the court to commence prosecutionwithin 15 days of the expiry of the aforementioned time limit.



23. With these additional reasons, as indicated, I agree with Brother Singhvi, J., and allow theappeal and the judgment of the High Court is set aside. No costs.

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

(ASOK KUMAR GANGULY) New Delhi January 31, 2012 *********



Rajasthan High CourtJaitdan vs State Of Rajasthan And Ors. on 18 August, 2006Equivalent citations: RLW 2006 (4) Raj 3180Author: R BaliaBench: R Balia, G K VyasJUDGMENT Rajesh Balia, J.

1. Heard learned Counsel for the parties.

2. This appeal is directed against the judgment of learned Single Judge dated 26.4.2006 dismissingthe appellant's writ petition seeking mandamus for staying the further proceedings in thedepartmental enquiry regarding the charges levelled in the memo of charge-sheet dated 12.1.06.

3. Learned Single Judge has rejected the writ petition solely on the ground that the petitioner wasnot able to explain as to what happened in the criminal trial pending against him and it is not shownby the learned Counsel as to whether compromise has been arrived at or not and as to whether theevidence of these witnesses has been recorded or not for which the petitioner was granted time bythe court.

4. In order to understand the controversy we take notice of the facts that a complaint was lodged bydaughter-in-law of the petitioner under Section 498 A IPC alleging that he has demanded dowry andhe harassed her for demand of dowry. In respect to the said complaint the matter was investigatedand the charge-sheet was filed in the trial Court.

5. In the memo of charge sheet dated 12.1.06 the following charges were levelled:

vki Jh tSrnku dkfu- 306 fjtoZ iqfyl ykbZu tks/kiqj kgj esa inLFkkfir gS vki ij fuEu vkjksi gS% ;g fdvkids fo:) vijk/k la[;k 130 fnukad 36-6-03 /kkjk 498 ,] 406]323 Hkknl Fkkuk xqMk ,Unyk ftyk ikyhesa iaftc) gqvk ftlesa okn vuqla/kku vkids fo:) /kkjk 498,] 406 Hkknl dk vijk/k izekf.kr ik;k tkus ijpktZkhV U;k;ky; esa izLrqr dh xbZA ;g fd vki }kjk iqfyl foHkkx esa gksrs gq, dkuwu dh tkudkjh gksrsgq, Hkh vkijkf/kd d`R; fd;k tks jktLFkku flfoy lsok vkpj.k fu;e 1971 ds fu;e 4 dk mYya?ku gSA vkidkmDr d`zR; vuqkklughurk ,oa vkijkf/kd ekufldrk dk ifjpk;d gksdj foHkkxh; fu;ekuqlkj n.Muh; gSA

6. A bare reading of the aforesaid charges shows that no misconduct is alleged to have beencommitted by the petitioner-appellant. The subject matter of the charge is that since investigationhas been made by the police and a charge-sheet has been filed under Section 498A & 406 which is aserious misconduct under Rule 4 of the Rajasthan Civil Services Conduct Rule 1971 which ispunishable under the Rajasthan Civil Services (Classification Control and Appeal) Rule 1958.

7. Apparently, Rule 4 does not include that filing of the charge and the pendency of the criminal trialitself is misconduct. Apparently, filing of the complaint and subsequent investigation andprosecution on that complaint are the acts which are not and which cannot be attributed to civilservant. Unless the disciplinary authority is satisfied about the fact that prima facie, act or omissionattributed to Civil servants are substantiable that he can have recourse to disciplinary proceedings to

Jaitdan vs State Of Rajasthan And Ors. on 18 August, 2006


hold enquiry into the alleged acts of commission or commission of the civil servant which mayconstitute misconduct. But mere fact of pendency of the trial by itself cannot be misconduct of thecivil servant which can be enquired into.

8. As a matter of fact memorandum of charge on its perusal reveals that it is not founded orsatisfaction for the Disciplinary Authority about omission or commission of the alleged acts by thecivil servant but the fact of pendency of the criminal case in the court at Pali itself has been found tobe misconduct. Pendency of a criminal trial by Itself is not a misconduct under Rule 4 of theConduct Rules, in respect of which any inquiry can be conducted. Infact during the pendency ofinvestigation or trial into alleged offence committed by the Civil Servant, the CCA Rules envisagesuspension of Civil Servant during such pendency, if the Disciplinary Authority thinks It to bedesirable.

9. Enquiry can only lie be held into acts of omission of commission of Civil Servant himself and amemorandum of charge can only be in respect of specific acts/omission or commission in suchmemorandum.

10. No specific acts of commission or omission has been stated in memorandum of charges. This isan apparent error.

11. As a matter of fact, the charge stated in the memorandum of the charges itself suggests that proofof such charges is subject to ultimate out come of the trial on the findings of which depends the finalresult of the pending trial. In such event even if the charge is not quashed as no prayer for such reliefis made in the writ petition. Since the outcome of the enquiry depends on the outcome of thecriminal trial that is to say the charge is proved against him, dismissal on the basis of the conviction,may follow and if he is acquitted then the enquiry will result in exoneration. Therefore it was a fitcase in which in our opinion, the further inquiry in to memorandum of charges ought to remainstayed during the pendency of the trial of the criminal case.

12. Accordingly the appeal is allowed. The judgment under appeal is set aside. Consequent to theaforesaid discussion, the further proceedings in pursuance of Annex. 4 dated 12.1.06 in thedepartmental enquiry should remain stayed until criminal trial is over.

Jaitdan vs State Of Rajasthan And Ors. on 18 August, 2006


Supreme Court of IndiaKusheshwar Dubey vs Bharat Coking Coal Ltd. & Ors on 6 September, 1988Equivalent citations: 1988 AIR 2118, 1988 SCR Supl. (2) 821Author: M RangnathBench: Misra Rangnath PETITIONER:KUSHESHWAR DUBEY

Vs.

RESPONDENT:BHARAT COKING COAL LTD. & ORS.

DATE OF JUDGMENT06/09/1988

BENCH:MISRA RANGNATHBENCH:MISRA RANGNATHVENKATACHALLIAH, M.N. (J)

CITATION: 1988 AIR 2118 1988 SCR Supl. (2) 821 1988 SCC (4) 319 JT 1988 (3) 576 1988 SCALE (2)641

ACT: Disciplinary and criminal proceedings--Holding of--Simultaneously--Whether legal bar--Not advisable to evolve ahard and fast rule valid for all cases.

HEADNOTE: The appellant, an employee of Respondent No. 1, wassubjected to disciplinary proceedings as also a criminalprosecution simultaneously on the allegation that hephysically assaulted a supervising officer. He filed a civilaction in the trial court asking for injunction against thedisciplinary action pending criminal trial. The trial courtstayed further proceedings in the disciplinary action tilldisposal of the criminal case. In appeal, the appellatecourt affirmed the aforesaid order. However, the High Courtallowed the Revision Application of the Respondent and setaside the impugned order on the ground that there is no barfor an employer to proceed with the departmental proceedingwith regard to the same allegation for which a criminal caseis pending. Allowing the appeal to this Court, HELD: l. The order of the High Court is vacated andthat of the trial court as affirmed in appeal is restored.

Kusheshwar Dubey vs Bharat Coking Coal Ltd. & Ors on 6 September, 1988


The criminal action and the disciplinary proceedings weregrounded upon the same set of facts. The disciplinaryproceedings should have been stayed and the High Court wasnot right in interfering with the trial court's order ofinjunction which had been affirmed in appeal. [826A-B] 2(i) While there could be no legal bar for simultaneousproceedings being taken, yet, there may be cases where itwould be appropriate to defer disciplinary proceedingsawaiting disposal of the criminal case. In the latter classof cases it would be open to the delinquent-employee to seeksuch an order of stay or injunction from the court. [825E-F] 2(ii) Whether, in the facts and circumstances of aparticular case, there should or should not be suchsimultaneity of the proceedings would then receive judicialconsideration and the Court will decide in the givencircumstances of a particular case as to whether the PG NO 821 PG NO 822disciplinary proceedings should be interdicted, pendingcriminal trial. [825F-G] The Delhi Cloth and General Mills Ltd. v. Kushal Bhan ,[1960] 3 SCR 227; Tata Oil Mills Co. Ltd. v. Its Workmen,[1964] 7 SCR 555 and Jung Bahadur Singh v. Baij Nath Tiwari,[1969] 1 SCR 134, relied upon.

Rama P. C. v. Superintendent of Police, Kolar & Anr.,AIR 1967 54 Mysore 220; Ali Mohd. & Ors. v. Chairman T.A. &C. Udhampur, [1981] 2 SLR 225; Moulindra Singh v. The DeputyCommissioner & Ors ., [1973] LIC 6 1564; Shaikh Kasim v.Superintendent of Post Office, Chingletut, AIR 1965 Mad.502; Khusi Ram v. Union of India, [1974] LIC 553 and ProjectManager, ONGC v. Lal Chand Wazir Chand Chandna, [1982] 1 SLR654, referred to. 3. It is neither possible nor advisable to evolve a hardand fast, straight-jacket formula valid for all cases and ofgeneral application without regard to the particularities ofthe individual-situation.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3129of From the Judgment and Order dated7.7.1987 of the Patna High Court in Civil Revision No. 128 of 1987 (R). R.K. Jain, Rakesh K. Khannaand R.P. Singh for the Appellant.

R.N. Sachthey and Anip Sachthey for the Respondents. The following Order of the Court wasdelivered:

ORDER Special leave granted.



The appellant is an employee in the Balihari Colliery of the Respondent No. 1 and in 1986 wasworking as an electrical helper. On the allegation that he physically assaulted a supervising officer byname S.K. Mandal, he was subjected to disciplinary proceedings as also a criminal prosecution.Since the disciplinary proceeding as also the criminal trial were taken simultaneously, the appellantfiled a civil action in the court of Munsif at Dhanbad asking for injunction against the disciplinaryaction PG NO 823 pending criminal trial. On 6.12.1986, the Munsif made an order staying furtherproceedings in the disciplinary action till disposal of the criminal case. The appeal of theRespondent No. 1 against the order of learned Munsif was dismissed on 31st March, 1987, by theappellate court. Thereupon the Respondent No. 1 moved the High Court in its revisionaljurisdiction. The High Court by its order dated 7.7.1987 held:

"First information report was lodged against the opposite party (appellant) and the same waspending before the competent court. Meanwhile the petitioners (respondents) started departmentalproceeding against the opposite party. The opposite party filed a suit before the trial court fordeclaration that appointment of the Enquiry Officer was illegal and for restraining the petitionerspermanently from continuing with the departmental proceeding during the pendency of thecriminal case. That was allowed by the trial court and confirmed by the lower court. There is no barfor an employer to proceed with the departmental proceeding with regard to the same allegation forwhich a criminal case is pending.

I am, therefore, of the opinion that the courts below were wrong in granting injunction in favour ofthe opposite party.

In the result, this application is allowed and the order impugned is set aside."

According to Mr. Jain for the appellant, the legal position settled by this Court supported the standthat the disciplinary action had to be stayed till the criminal case was over. He relied upon thedecisions in The Delhi Cloth and General Mills Ltd. v. Kushal Bhan, [1960] 3 SCR 227 and Tata OilMills Co. Ltd. v. Its Workmen, [1964l 7 SCR 555. He also referred in the course of his submission tothe decisions of different High Courts in support of his propositions. Two cases out of the severalones of the High Courts he relied upon are Khusi Ram v. Union of India, [1974] LIC 553 and ProjectManager, ONGC v. Lal Chand Wazir Chand Chandna, [1982] 1 SLR 654. Pathak CJ., as he then was,In the Himachal case indicated that fair play required the postponing of the criminal trial andThakkar J. as our learned brother then was in the Gujarat case had also taken a similar view.

PG NO 824 We would like to point out that there are also authorities in support of the position thatthere is nothing wrong in parallel proceedings being taken--one by way of the disciplinaryproceeding and the other in the criminal court. Reference may be made to decision of this Court inJang Bahadur Singh v. Baij Nath Tiwari, [1969] I SCR 134 and some decisions of High Courts suchas Rama P.C. v. Superintendent of Police, Kolar & Anr., AIR 1967 54 Mysore 220; Ali Mohd. & Ors.v. Chairman T.A. & C. Udhampur, [1981] 2 SLR 225; Moulindra Singh v. The Deputy Commissioner& Ors., [1973] LIC 6 l564 and Shaikh Kasim v. Superintendent of Police Office, Chingletut, AIR 1965Mad. 502.



Mr. Jain contended that we should settle the law in a straight jacket formula as judicial opinionappeared to be conflicting. We do not propose to hazard such a step as that would create greaterhardship and individual situations may not be available to be met and thereby injustice is likely toensue.

In the Delhi Cloth & General Mills' case (supra), it was pointed out by this Court:

"It is true that very often employers stay enquiries pending the decision of the criminal trial courtsand that is fair; but we cannot say that principles of natural justice require that an employer mustwait for the decision at least of the criminal trial court before taking action against an employee. InShri Bimal Kanta Mukherjee v. M/s. News man`s Printing Works, [l956l LAC 188, this was the viewtaken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave natureor involves questions of fact or law, which are not simple, it would be advisable for the employer toawait the decision of the trial court, so that the defence of the employee in the criminal case may notbe prejudiced .... " .

In Tata Oil Mills' case (supra), Gajendragadkar, CJ, spoke for a three Judge Bench thus:

"There is yet another point which remains to be considered. The Industrial Tribunal appears to havetaken the view that since criminal proceedings had been started against Raghavan, the domesticenquiry should have been stayed pending the final disposal of the said criminal PG NO 825proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, it isdesirable that if the incident giving rise to a charge framed against a workman in a domestic enquiryis being tried in a criminal court, the employer, should stay the domestic enquiry pending the finaldisposal of the criminal case .....". In Jang Bahadur's case (supra) this Court said: "The issue in thedisciplinary proceedings is whether the employee is guilty of the charges on which it is proposed totake action against him. The same issue may arise for decision in a civil or criminal proceedingpending in a court. But the pendency of the court proceeding does not bar the taking of disciplinaryaction. The power of taking such action is vested in the disciplinary authority. The civil or criminalcourt has no such power. The initiation and continuation of disciplinary proceedings in good faith isnot calculated to obstruct or interfere with the course of justice in the pending court proceeding. Theemployee is free to move the court for an order restraining the continuance of the disciplinaryproceedings. If he obtains a stay order, a wilful violation of the order would of course amount tocontempt of court. In the absence of a stay order the disciplinary authority is free to exercise itslawful powers.

The view expressed in the three cases of this Court seem to support the position that while therecould be no legal bar for simultaneous proceedings being taken. yet, there may be cases where itwould be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case In thelatter class of cases it would be open to the delinquent- employee to seek such an order of stay orinjunction from the Court. Whether in the facts and circumstances of a particular case there shouldor should not be such simultaneity of the proceedings would then receive judicial consideration andthe Court will decide in the given circumstances of a particular case as to whether the disciplinaryproceedings should be interdicted, pending criminal trial As we have already stated that it is neither



possible nor advisable to evolve a hard and fast, straight- jacket formula valid for all cases and ofgeneral application without regard to the particularities of the individual-situation. For the disposalof the present case, we do not think it necessary to say, anything more, particularly when we do notintend to lay down any general guideline.

PG NO 826 In the instant case, the criminal action and the disciplinary proceedings are groundedupon the same set of facts. We are of the view that the disciplinary proceedings should have beenstayed and the High Court was not right in interfering with the trial court's order of injunctionwhich had been affirmed in appeal.

The appeal is allowed and the order of the High Court is vacated and that of the trial court asaffirmed in appeal is restored. The appellant shall be entitled to costs. Hearing fee is assessed atRs.2,000.

We would like to point out that for the first time in this Court, the enquiry report in the disciplinaryproceedings was produced. We express no view about it.

M.L.A. Appeal allowed.



Supreme Court of IndiaLalu Prasad @ Lalu Prasad Yadav vs State Of Bihar Through Cbi (Ahd) ... on 6 December, 2006Author: . Arijit PasayatBench: Dr. Arijit Pasayat, S.H. Kapadia CASE NO.:Appeal (crl.) 1276 of 2006

PETITIONER:Lalu Prasad @ Lalu Prasad Yadav

RESPONDENT:State of Bihar Through CBI (AHD) Patna

DATE OF JUDGMENT: 06/12/2006

BENCH:Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.) No. 5865 of 2005) WITH CRIMINAL APPEAL NO. 1278OF 2006 (Arising out of SLP (Crl.) No. 5866 of 2005) Dr. ARIJIT PASAYAT, J Leave granted.

In both these appeals the basic question raised relates to the validity of sanction to prosecute theappellants for offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention ofCorruption Act, 1988 (in short the 'Act'). Sanction has been accorded both under the provisions ofSection 19(1)(b) of the Act and Section 197 of the Code of Criminal Procedure, 1973 (in short the'Code').

Plea relating to cognizance of the offence is that previous sanction is necessary under the Act if thepublic servant does not hold the same office which he allegedly abused on the date when thecognizance was taken by the Court. Stand of the appellants is that even though a public servant doesnot hold the same office and holds some other office, then also sanction is necessary. It is stated inthat context that the decision in R.S. Nayak v A.R. Antulay (1984 (2) SCC 183) is per incuriambecause the effect of Section 19(2) of the Act had not been considered. It is also submitted that theeffect of the recommendations made by the Law Commission in its 41st report which necessitatedsanction in terms of Section 197 of the Code extending the protection of sanction for a retired publicservant as well should have been also extended under Section 6(1) of the Prevention of CorruptionAct, 1947 (in short the '1947 Act') corresponding to Section 19(1) of the Act. This according to us is acase of causus omissus. The decision in R. S. Nayak's case (supra) cannot be regarded as a bindingprecedent in respect of the issues which did not relate to the three questions which were required tobe decided in that case. The order rejecting the plea of lack of sanction and the jurisdiction isrequired to be passed by a speaking order. The Secretary to the Government had no jurisdiction tosign the sanction order on the instructions of the Governor. Therefore, the so-called sanction of theGovernor has no sanctity in the eye of law. There is no material to show that the allegeddis-proportionate assets were relatable to a period when Smt. Rabri Devi was the Chief Minister. Atthat time she was also either holding the office of MLC or MLA and, therefore, the sanction granted

Lalu Prasad @ Lalu Prasad Yadav vs State Of Bihar Through Cbi (Ahd) ... on 6 December, 2006


has no validity.

It is to be noted that in Lalu Prasad Yadav's case the sanction had been given by the Governor. Theprosecution did not obtain the sanction separately so far as the appellant Rabri Devi is concerned asshe was only a house wife and not a public servant during the relevant period. In the sanctionaccorded in respect of the appellant- Lalu Prasad Yadav, it has been expressly mentioned that theacts of Smt. Rabri Devi amounted to aiding and abetting of commission of offence under Section13(1)(e) by her husband Lalu Prasad Yadav and she was thus liable to be prosecuted for offencepunishable under Sections 107 and 109 of the Indian Penal Code, 1860 (in short the 'IPC').

One of the submissions made by Shri P.P. Rao, learned senior counsel appearing for the appellantsis that the courts below had erroneously come to the conclusion that both in the case of dischargeand for framing of charge no reasons are necessarily to be recorded. It is submitted that report ofDr. Bakshi Tekchand Committee which formed the basis of inserting Sub-section (2) of Section 6 of1947 Act admits of no doubt and the same envisages two offices being held by the public servantsone at the time of alleged offence and other at the time of taking cognizance.

Learned counsel for the respondent-State submitted that none of the pleas raised have anysubstance in law.

So far as the plea relating to causus omissus is concerned the position in law is as follows:

Two principles of construction � one relating to causus omissus and the other in regard to readingthe statute as a whole � appear to be well settled. Under the first principle a causus omissus cannotbe supplied by the Court except in the case of clear necessity and when reason for it is found in thefour corners of the statute itself but at the same time a causus omissus should not be readily inferredand for that purpose all the parts of a statute or section must be construed together and every clauseof a section should be construed with reference to the context and other clauses thereof so that theconstruction to be put on a particular provision makes a consistent enactment of the whole statute.This would be more so if literal construction of a particular clause leads to manifestly absurd oranomalous results which could not have been intended by the Legislature. "An intention to producean unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not tobe imputed to a statute if there is some other construction available". Where to apply words literallywould "defeat the obvious intention of the legislature and produce a wholly unreasonable result" wemust "do some violence to the words" and so achieve that obvious intention and produce a rationalconstruction. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he also observed: "this isnot a new problem, though our standard of drafting is such that it rarely emerges".

It is then true that, "when the words of a law extend not to an inconvenience rarely happening, butdue to those which often happen, it is good reason not to strain the words further than they reach,by saying it is causus omissus, and that the law intended quae frequentius accidunt." "But," on theother hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldomhappening, that they should not extend to it as well as if it happened more frequently, because ithappens but seldom" (See Fenton v. Hampton (1858) XI Moore, P.C. 347. A causus omissus ought



not to be created by interpretation, save in some case of strong necessity. Where, however, a caususomissus does really occur, either through the inadvertence of the legislature, or on the principlequod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus leftunprovided for, must be disposed of according to the law as it existed before such statute - Caususomissus et oblivioni datus dispositioni communis juris relinquitur; "a causus omissus," observedBuller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that wouldbe to make laws." The principles were examined in detail in Maulavi Hussein Haji Abraham Umarjiv. State of Gujarat and Anr. (JT 2004(6) SC 227).

The golden rule for construing all written instruments has been thus stated: "The grammatical andordinary sense of the words is to be adhered to unless that would lead to some absurdity or somerepugnance or inconsistency with the rest of the instrument, in which case the grammatical andordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but nofurther" (See Grey v. Pearson (1857 (6) H.L. Cas. 61). The latter part of this "golden rule" must,however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plainand unambiguous in our judgment, we are bound to construe them in their ordinary sense, eventhough it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modifiedor varied where their import is doubtful or obscure. But we assume the functions of legislators whenwe depart from the ordinary meaning of the precise words used, merely because we see, or fancy wesee, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale11, C.B. 378).

The plea that the effect of Law Commission's report and Dr. Bakshi Tekchand report has not beenconsidered by the Legislature and therefore this is a case of "causus omissus" is clearly without anysubstance. This Court had occasion to deal with a similar plea in Kalicharan Mahapatra v. State ofOrissa (1998 (6) SCC 411). It has been noted as follows:

"13. It must be remembered that in spite of bringing such a significant change to Section 197 of theCode in 1973, Parliament was circumspect enough not to change the wording in Section 19 of the Actwhich deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of theCode concerns a public servant who "is accused of any offence alleged to have been committed byhim while acting or purporting to act in the discharge of his official duty", whereas the offencescontemplated in the PC Act are those which cannot be treated as acts either directly or evenpurportedly done in the discharge of his official duties. Parliament must have desired to maintainthe distinction and hence the wording in the corresponding provision in the former PC Act wasmaterially imported in the new PC Act, 1988 without any change in spite of the change made inSection 197 of the Code."

It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptuallydifferent fields. In cases covered under the Act, in respect of public servants the sanction is ofautomatic nature and thus factual aspects are of little or no consequence. Conversely, in a caserelatable to Section 197 of the Code, the substratum and basic features of the case have to beconsidered to find out whether the alleged act has any nexus to the discharge of duties. Position isnot so in case of Section 19 of the Act.



The plea of causus omissus as raised by learned counsel is at variance with the stand taken inrespect of a similar plea in Parkash Singh Badal's case. In that case the stand of learned counsel forthe appellant was that the provision does not exist and has to be read into the statute and since theeffect of Section 19(2) of the Act has not been considered in R.S. Nayak's case (supra) therefore it isa case of per incuriam. We have examined the issue in the said case and have turned out the plea.

In Shivendra Kumar v. State of Maharashtra (2001 (9) SCC

303) it was inter alia observed as follows:

"11. On a perusal of Section 6 of the Act, it is clear that previous sanction is mandatorily required forlaunching prosecution against a public servant who is alleged to have committed an offencepunishable under Section 161 or 164 or 165 IPC or under sub- section (2) or sub-section (3-A) ofSection 5 of the Act. Indeed the language of the section is in the form of a prohibition against anycourt taking cognizance of such offences except with previous sanction. The authority/authorities togrant such sanction are specified in clauses

(a), (b) and (c) of sub-section (1). Under clause

(a) it is laid down that in the case of a person who is employed in connection with the affairs of theUnion and is not removable from his office save by or with sanction of the Central Government, ofthe Central Government. Under clause (b), it is provided that in the case of a person who isemployed in connection with the affairs of a State and is not removable from his office save by orwith the sanction of the State Government, of the State Government; and under clause (c) in thecase of any other person, of the authority competent to remove him from his office. The difference inthe language used in clauses (a) and (b) on the one hand and clause (c) on the other, cannot be lostsight of. While in the former, the Central Government or the State Government, as the case may be,is to grant the sanction, under clause (c) it is specifically provided that the authority competent toremove the delinquent public servant from office is one who is competent to grant the sanction. Asnoted earlier, Section 6(1)(b) is applicable in the present case. The said provision does not specifyany particular officer as the competent authority to grant sanction. It only states that the StateGovernment, without whose sanction the delinquent officer cannot be removed from office/post, isthe competent authority to pass the order of sanction. From the sanction order, which is available onthe record, it is clear that the Secretary, Medical Education Department passed/signed the order ofsanction of prosecution against the appellant on behalf of the Governor. It is not the case of theappellant that the Secretary had no authority to act on behalf of the State Government. It followsthat the order of sanction in the present case was passed by the Secretary of the Medical EducationDepartment with the authority of the Governor of the State Government. No material on record hasbeen brought to our notice to show that the Governor had issued any order authorising an officerother than the Secretary of the Department to pass order of sanction in the case. If that was the case,then the appellant should have produced the order or at least raised the contention that an officerother than the Secretary had been authorised for that purpose. No such material appears to havebeen produced. When the Secretary was being examined in support of the sanction order passed byhim such question was also put to him. Reliance is placed on a sentence in his deposition that he is



not the authority to remove the appellant. This statement, without further material, cannot form thebasis of the contention that the Secretary, Medical Education Department was not competent topass the order of sanction on behalf of the State Government. The Government functions through itsofficers. The Secretary is the Head of the Department and the principal officer representing the StateGovernment in the Department concerned. Unless specific material is produced to show that someother officer was competent to deal with the matter of sanction of prosecution against the appellantit can be reasonably assumed that the Secretary of the Department is the competent authority topass the order of sanction. The object of Section 6 or for that matter Section 197 of the CriminalProcedure Code, which is a pari materia provision, is that there should be no unnecessaryharassment of a public servant; the idea is to save the public servant from the harassment whichmay be caused to him if each and every aggrieved or disgruntled person is allowed to institute acriminal complaint against him. The protection is not intended to be an absolute and unqualifiedimmunity against criminal prosecution. In a case where it is seen that a sanction order has beenpassed by an authority who is competent under the law to represent the State Government, theburden is heavy on the party who challenges the authority of such order to show that the authoritycompetent to pass the order of sanction is somebody else and not the officer who has passed thesanction order in question."

(underlined for emphasis) That brings us to another question which though may not have anyrelevance after the rejection of the principal plea, has to be considered because such issuesfrequently come up for consideration.

The question raised relating to recording of reasons at the time of framing of charge is different froma case of opinion on the basis of which an order of discharge of the accused is passed. Sections 227and 228 of the Code with regard to discharge of accused and framing of charges against the accusedrespectively in a case triable by Court of Session; Sections 239 and 240 concern discharge andframing of charge in case of warrant, triable by the Magistrate whereas Section 245 deals withdischarge and framing of charges in cases instituted other than on the police report, indicates thedifference. The relevant provisions read as follows:

"227-Discharge: If upon consideration of the record of the case and the documents submittedtherewith, and after hearing the submissions of the accused and the prosecution in this behalf, theJudge considers that there is no sufficient ground for proceeding against the accused, he shalldischarge the accused and record his reasons for so doing."

"228.-Framing of Charge-(1) If, after such consideration and hearing as aforesaid, the Judge is ofopinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and,by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrateof the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the casemay be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon suchMagistrate shall try the offence in accordance with the procedure for the trial of warrant-casesinstituted on a police report;



(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be readand explained to the accused and the accused shall be asked whether he pleads guilty of the offencecharged or claims to be tried."

"239. When accused shall be discharged.�(l) If, upon considering the police report and thedocuments sent with it under Section 173 and making such examination, if any, of the accused as theMagistrate thinks necessary and after giving the prosecution and the accused an opportunity ofbeing heard, the Magistrate considers the charge against the accused to be groundless, he shalldischarge the accused, and record his reasons for so doing."

"240. Framing of charge.�(l) If, upon such consideration examination, if any, and hearing, theMagistrate is of opinion that there is ground for presuming that the accused has committed anoffence triable under this Chapter, which such Magistrate is competent to try and which, in hisopinion, could be adequately punished by him, he shall frame in writing a charge against theaccused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether hepleads guilty of the offence charged or claims to be tried."

"245: When accused shall be discharged(1) If upon taking all the evidence referred to in Section 244the Magistrate considers, for reasons to be recorded, that no case against the accused has been madeout which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused atany previous stage of the case if, for reasons to be recorded by such Magistrate, he considers thecharge to be groundless."

This Court in State of Bihar v. Ramesh Singh (AIR 1977 SC 2018) observed as follows:

"Reading the two provisions together in juxtaposition, as they have got to be, it would be clear thatat the beginning and the initial stage of the trial the truth, veracity and effect of the evidence whichthe prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to beattached to the probable defence of the accused. It is not obligatory for the Judge at that stage of thetrial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would beincompatible with the innocence of the accused or not. The standard of test and judgment, which isto be finally applied before recording a finding regarding the guilt or otherwise of the accused notexactly to be applied at the stage of deciding the matter under Sections 227 or Section 228 of theCode. At that stage the Court is not to see whether there is sufficient ground for conviction of theaccused or whether the trial is sure to end in his conviction."

In Kanti Bhadra Shah and Anr. v. State of West Bengal (2000 (1) SCC 722) again the question wasexamined. It was held that the moment the order of discharge is passed it is imperative to record the



reasons. But for framing of charge the Court is required to form an opinion that there is ground forpresuming that the accused has committed the offence. In case of discharge of the accused the use ofthe expression "reasons" has been inserted in Sections 227, 239 and 245 of the Code. At the stage offraming of a charge the expression used is "opinion". The reason is obvious. If the reasons arerecorded in case of framing of charge, there is likelihood of prejudicing the case of the accused puton trial. It was inter alia held as follows:

"It is pertinent to note that this section required a Magistrate to record his reasons for dischargingthe accused but there is no such requirement if he forms the opinion that there is ground forpresuming that the accused had committed the offence which he is competent to try. In such asituation he is only required to frame a charge in writing against the accused.

Even in cases instituted otherwise than on a police report the Magistrate is required to write anorder showing the reasons only if he is to discharge the accused. This is clear from Section 245. Asper the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers thatno case against the accused has been made out which if unrebutted would warrant his conviction, heshall discharge the accused. As per sub- section (2) the Magistrate is empowered to discharge theaccused at any previous stage of the case if he considers the charge to be groundless. Under bothsub-sections he is obliged to record his reasons for doing so. In this context, it is pertinent to pointout that even in a trial before a Court of Session, the Judge is required to record reasons only if hedecides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge hemay do so without recording his reasons for showing why he framed the charge."

But where the question of jurisdiction is raised and the trial Court is required to adjudicate thatissue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to questionof jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasonsdealing with a plea relating to jurisdiction have to be recorded.

In the ultimate, analysis in these appeals is that they are without merit and are dismissed.



Supreme Court of IndiaM.C. Mehta vs Union Of India & Ors on 10 October, 2007Author: S.B. SinhaBench: S.B. Sinha, S.H. Kapadia, D.K. Jain CASE NO.:Writ Petition (civil) 13381 of 1984

PETITIONER:M.C. Mehta

RESPONDENT:Union of India & Ors

DATE OF JUDGMENT: 10/10/2007

BENCH:S.B. Sinha,S.H. Kapadia & D.K. Jain

JUDGMENT:

J U D G M E N T I.A. NO. 465 OF 2007 IN WRIT PETITION (CIVIL) NO. 13381 OF 1984 S.B.SINHA, J :

1. Whether this Bench should consider the correctness of an order passed by the Governor of UttarPradesh refusing to grant sanction for prosecution of Ms. Mayawati and Shri Naseemuddin Siddiquiis the prime question involved in this application.

2. A public interest litigation was entertained by this Court in a writ application filed by the writpetitioner. This Court with a view to ensure proper maintenance of cultural heritage of India as alsothe ecology has been passing orders in the writ petition from time to time.

3. A project known as �Taj Heritage Corridor Project� was initiated by the Government of UttarPradesh. One of the main purpose for which the same was undertaken was to divert the RiverYamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimedland for constructing food plazas, shops and amusement activities. The said activities on the part ofthe Government of Uttar Pradesh was brought to the notice of this Court. An exception thereto wastaken. A detailed inquiry was directed to be made by the Central Bureau of Investigation (CBI).Upon consideration of the report submitted before it by CBI, this Court in its order dated18.09.2003 directed it to register a First Information Report and make further investigation inaccordance with law. CBI investigated into the matter, including the roles played by Ms. Mayawati,the then Chief Minister, and Mr. Naseemuddin Siddiqui, the then Minister for Environment,Government of Uttar Pradesh. Investigations were also carried out against some officers.

CBI was later on asked to furnish a self-contained note as regards its findings against the erringofficers and holders of public posts. A detailed report was submitted by it. A question arose as towhat directions, if any, should be issued by this Court having regard to the conflict in opinionsexpressed by different authorities of CBI in regard to Ms. Mayawati and Mr. Naseemuddin Siddiqui.

M.C. Mehta vs Union Of India & Ors on 10 October, 2007


The said question was considered by this Court in its judgment and order dated 27.11.2006 in M.C.Mehta (Taj Corridor Scam) v. Union of India and Others [(2007) 1 SCC 110].

4. Indisputably, the said order of this Court has been complied with. It now appears that the learnedSpecial Judge directed CBI to obtain sanction of the Governor of Uttar Pradesh. By reason of anorder dated 03.06.2007 the Governor of Uttar Pradesh has refused to accord the same.

5. Mr. Krishan Mahajan, learned Amicus Curiae, who has been assisting this Court very ably in thematter, filed an application, inter alia, praying for :

�In the light of the facts and circumstances mentioned above it is most humbly prayed that thisHon�ble court may kindly be pleased to issue an appropriate writ, direction or order :

(i) Concerning the legal validity of the CBI seeking a sanction for the prosecution of Uttar PradeshChief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui under Section 197 Cr. P.C. bycalling for the records of the materials it placed before the Governor for seeking such sanction.

(ii) Directing the CBI to produce a copy of the June 3, 2007 sanction order of His Excellency theGovernor of U.P. passed in connection with the case pending before the Special Judge/competentcourt based on FIR RC 0062003A0018.

(iii) Passing appropriate directions on the legal validity or otherwise of the June 3, 2007 order of HisExcellency the U.P. Governor refusing under Section 197 (1) Cr. P.C.

sanction for the prosecution of Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui inrelation to FIR RC 0062003A0018 registered against them by the CBI pursuant to the September18, 2003 order ofthis Hon�ble Court in I.A. 376 in CWP 13381/1984 and the investigation on whichwith the opinion of the CBI Superintendent of Police was directed by this Hon�ble Court on Nov. 27,2006 to be placed before the concerned court/Special Judge for deciding the matter in accordancewith law.

(iv) Declaring that the sanction orders passed under Section 197(1) Cr. P.C. are in the public domainand hence cannot be classified as secret.�

6. Mr. Mahajan, in support of the said application, would submit that the task of protection ofcultural heritage having been undertaken by this Court and keeping in view the provisions of Article49 of the Constitution of India, the Court should interfere in the matter and set aside the order ofthe Governor of Uttar Pradesh refusing to accord sanction to prosecute Ms. Mayawati and Mr.Naseemuddin Siddqui, keeping in view the political scenario in the country, as CBI may not showany further interest in the matter at all.

It was urged that in a case of this nature, sanction in terms of Section 197 of the Code of CriminalProcedure is not imperative.



7. No doubt it is an unique case. In exercise of its jurisdiction under Article 32 of the Constitution ofIndia and having regard to Article 49 and clause (g) of Article 51A of the Constitution of India, thisCourt while entertaining the public interest litigation at the instance of the writ petitioner had beentaking all steps which have been thought necessary and proper in the matter. The question which,however, has arisen for our consideration is, should we undertake such an exercise. No doubt, aFirst Information Report has been lodged at the instance of this Court. Yet again this Court thoughtit fit to issue requisite directions in its order dated 27.11.2006 directing the learned Special Judge toapply its mind on the materials collected during investigation by CBI and pass appropriate ordersthereupon. This Court has been exercising its jurisdiction in public interest. It has been exercisingits jurisdiction to issue a writ of continuous mandamus in the light of the decision of this Court inVineet Narain and Others v. Union of India [(1998) 1 SCC 226].

8. We have no doubt in our mind that judiciary may step in where it finds the actions on the part ofthe Legislature or the Executive are illegal or unconstitutional but the same by itself would not meanthat public interest litigation, in a case of this nature, should be converted into an adversariallitigation. The jurisdiction of the court to issue a writ of continuous mandamus is only to see thatproper investigation is carried out. Once the court satisfies itself that a proper investigation has beencarried out, it would not venture to take over the functions of the Magistrate or pass any order whichwould interfere with its judicial functions. Constitutional scheme of this country envisages disputeresolution mechanism by an independent and impartial tribunal. No authority, save and except asuperior court in the hierarchy of judiciary, can issue any direction which otherwise take away thediscretionary jurisdiction of any court of law. Once a final report has been filed in terms ofsub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistratealone who can take appropriate decision in the matter one way or the other. If it errs while passing ajudicial order, the same may be a subject matter of appeal or judicial review. There may a possibilityof the prosecuting agencies not approaching the higher forum against an order passed by thelearned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in.We should not entertain the application of the learned Amicus Curiae on such presupposition. Ajudicial order passed by a Magistrate may be right or wrong, but having regard to the hierarchy ofthe courts, the matter which would fall for consideration before the higher court should not be asubject matter of a decision of this bench. In an unlikely event of the interested parties in notquestioning such orders before the higher forum, an independent public interest litigation may befiled. Instances are not unknown where this Court has entertained public interest litigation in casesinvolving similar question under Article 32 of the Constitution of India. [See Rajiv Ranjan Singh�Lalan� VIII v. Union of India [(2006) 6 SCC 613].

9. It will not be out of place to mention that in Vineet Narain (supra), this Court categorically statedthat unless a proper investigation is made followed by a proper prosecution under the general lawapplicable to such investigation, the rule of law will lose its significance. This Court in its order dated27.11.2006 upon noticing Vineet Narain (supra) and Union of India v. Prakash P. Hinduja andAnother [(2003) 6 SCC 195] held : �6. Analysis of the above judgments shows that there is aclear-cut and well-demarcated sphere of activities in the field of crime detection and crimepunishment. Investigation of an offence is the field reserved for the executive through the PoliceDepartment, the superintendence over which vests in the State Government. The executive is



charged with a duty to keep vigilance over the law and order situation. It is obliged to prevent crime.If an offence is committed allegedly, it is the State�s duty to investigate into the offence and bringthe offender to book. Once it investigates through the Police Department and finds an offencehaving been committed, it is its duty to collect evidence for the purposes of proving the offence.Once that is completed, the investigating officer submits report to the court requesting the court totake cognizance of the offence under Section 190 CrPC and his duty comes to an end. Therefore,there are well-defined and well- demarcated functions in the field of crime detect ion and theirsubsequent adjudication by the court. Lastly, the term �investigation� under Section 173(2) of theCriminal Procedure Code includes opinion of the officer in charge of the police station as to whetherthere is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case tothe court concerned or not. This opinion is not legal evidence. At the stage of Section 173(2) thequestion of interpretation of legal evidence does not arise. In any event, that function is that of thecourts.�

10. The parameters within which this Court should function in such matters are, therefore,well-defined.

11. It is one thing to say that this Court will not refrain from exercising its jurisdiction from issuingany direction for protection of cultural heritage and the ecology and environment; but then indischarge of the said duty, this Court should not take upon itself the task of determining the guilt orotherwise of an individual involved in the criminal proceeding. It should not embark upon anenquiry in regard to the allegations of criminal misconduct so as to form an opinion one way or theother so as to prima facie determine guilt of a person or otherwise. Any direction which could beissued, in our opinion, has already been issued by us on 27.11.2006, stating : �4. We, accordingly,direct CBI to place the evidence/material collected by the investigating team along with the report ofthe SP as required under Section 173(2) CrPC before the court/Special Judge concerned who willdecide the matter in accordance with law. It is necessary to add that, in this case, we were concernedwith ensuring proper and honest performance of duty by CBI and our above observations andreasons are confined only to that aspect of the case and they should not be understood as ouropinion on the merits of accusation being investigated. We do not wish to express any opinion onthe recommendations of the SP. It is made clear that none of the other opinions/recommendationsincluding that of the Attorney General for India, CVC shall be forwarded to the court/Special Judgeconcerned.�

12. We do not think that we should go beyond the same.

13. We may observe that while entertaining a public interest litigation in a given case, this Court mayexercise a jurisdiction to set aside the decision of a constitutional authority, but we are notconcerned with such a situation. We, therefore, are of the view that we need not go further thanwhat we have already said in our order dated 27.11.2006 to go into the correctness or otherwise ofthe order of the Governor. If no sanction of the Governor was required or if he has committed anerror in passing the said order, the appropriate court, in our opinion, would be entitled to dealtherewith, but not this Bench.



14. We, therefore, are of the opinion that this Bench should not entertain the application filed by thelearned Amicus Curiae. The said application is dismissed with the aforesaid observations.



Supreme Court of IndiaState Of Maharashtra Tr.C.B.I vs Mahesh G.Jain on 28 May, 2013Author: D MisraBench: B.S. Chauhan, Dipak Misra IN THE SUPREME COURT OF INDIA



State of Maharashtra Through C.B.I. ...Appellant

Versus

Mahesh G. Jain ...Respondent

J U D G M E N T

Dipak Misra, J.

The singular question that emanates for consideration in this appeal is whether the High Court ofJudicature at Bombay in Criminal Application No. 2648 of 2007 is justified in refusing to grantleave to file an appeal by the Central Bureau of Investigation, Anti Corruption Branch, Mumbai (forshort the CBI) to assail the judgment and order dated 8th September, 2006 in Special Case No. 62 of2000 by the Court of Special Judge for Greater Bombay whereby the learned Special Judge hadacquitted the respondent No. 1 under Sections 7, 13 (1) (d) read with 2 of the Prevention ofCorruption Act, 1988 (For brevity the Act) principally on the foundation that the sanction grantedby the competent authority was defective and illegal as there was non-application of mind whichwould show lack of satisfaction.

2. At the very outset, it is condign to state that as we are only dealing with a singular issue it is notnecessary to state the facts in detail. Suffice it to state one Satish P. Doshi, proprietor of ShreeTravels, the complainant, had given his vehicles to State Bank of India on contract basis and wasentitled to receive hire charges for his vehicles periodically. The complainant experienced certaindifficulties in getting his cheques and Tax Deducted at Source certificates. When he approached theaccused-respondent, he demanded illegal gratification which was not acceded to by thecomplainant. Despite consistent refusal by the complainant, the demand of the accused waspersistent which constrained the complainant to approach the CBI with a written complaint. TheCBI took up the investigation and the raiding party carried out a trap operation, seized the bribe

State Of Maharashtra Tr.C.B.I vs Mahesh G.Jain on 28 May, 2013


amount of Rs.1000/-, sent the seized article to the CFSL, obtained the sanction order and ultimatelyon 5.10.2000 filed the charge-sheet before the learned Special Judge. After the trial was over thelearned Special Judge adverted to all the issues and answered all of them in the affirmative againstthe accused but acquitted him solely on the base that the sanction order was defective and illegaland that went to the very root of jurisdiction of the court.

3. Grieved by the aforesaid judgment of acquittal, the CBI filed an application for grant of leave andthe learned single Judge of the High Court of Bombay declined to grant leave on the ground that itwas doubtful whether the sanctioning authority had, in fact, actually applied its mind while grantingsanction. The High Court further opined that the view taken by the learned Special Judge in thatregard was a plausible one being not contrary to material on record and hence, it did not require anyinterference.

4. We have heard Mr. Sidharth Luthra, learned Additional Solicitor General appearing for theappellant, and Mr. V.N. Bachawat, learned senior counsel appearing for the respondent.

5. Section 19(1) of the Act postulates that no court shall take cognizance of an offence punishableunder Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except withthe previous sanction. The said provision enumerates about the competent authorities. In the case athand, the competence of the authority who has granted sanction is not in question. The only aspectthat is required to be scrutinized whether the order granting sanction is valid in law.

6. Grant of sanction is irrefragably a sacrosanct act and is intended to provide safeguard to publicservant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority isessential to validate an order granting sanction. This Court in Jaswant Singh v. State of Punjab[1]was considering the validity and effect of the sanction given under Section 6(1) of the Prevention ofCorruption Act, 1947. After referring to the decisions in Basdeo Agarwala v. Emperor[2] andGokulchand Dwarkadas Morarka v. The King[3], the Court opined as follows: -

It should be clear from the form of the sanction that the sanctioning authority considered theevidence before it and after a consideration of all the circumstances of the case sanctioned theprosecution, and therefore unless the matter can be proved by other evidence, in the sanction itselfthe facts should be referred to indicate that the sanctioning authority had applied its mind to thefacts and circumstances of the case. In the said case, the two-Judge Bench had reproduced the orderof sanction and opined that if the same, strictly construed, indicated the consideration by thesanctioning authority of the facts relating to the receiving of the illegal gratification by the accused.We think it apt to reproduce the order of sanction in that case: -

Whereas I am satisfied that Jaswant Singh Patwari son of Gurdial Singh Kamboh ofvillage Ajaibwali had accepted an illegal gratification of Rs.50 in 5 currency notes ofRs.10 denomination each from one Pal Singh son of S. Santa Singh of villageFatehpur Rajputan, Tehsil Amritsar for making a favourable report on an applicationfor allotment of an ahata to S. Santa Singh father of the said S. Pal Singh.



And whereas the evidence available in this case clearly discloses that the said S.Jaswant Singh Patwari had committed an offence under S. 5 of the Prevention ofCorruption Act.

Now therefore, I, N.N. Kashyap, Esquire I.C.S. Deputy Commissioner, Asr, as required by S. 6 of thePrevention of Corruption Act of 1947, hereby sanction the prosecution of the said S. Jaswant SinghPatwari under S. 5 of the said Act. We have quoted the aforesaid order only to highlight theapproach of this Court pertaining to application of mind that is reflected in the order.

7. In Mohd. Iqbal Ahmed v. State of Andhra Pradesh[4] this Court lucidly registered the view that itis incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioningauthority after being satisfied that a case for sanction has been made out constituting an offence andthe same should be done in two ways; either (i) by producing the original sanction which itselfcontains the facts constituting the offence and the grounds of satisfaction and

(ii) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and thesatisfaction arrived at by it. It is well settled that any case instituted without a proper sanction mustfail because this being a manifest defect in the prosecution, the entire proceedings are rendered voidab initio.

8. In Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others[5] it has been ruled that thegrant of sanction is only an administrative function, though it is true that the accused may besaddled with the liability to be prosecuted in a court of law. What is material at that time is that thenecessary facts collected during investigation constituting the offence have to be placed before thesanctioning authority and it has to consider the material. Prima facie, the authority is required toreach the satisfaction that the relevant facts would constitute the offence and then either grant orrefuse to grant sanction.

9. In C.S. Krishnamurthy v. State of Karnataka[6] it has been held as follows: -

...sanction order should speak for itself and in case the facts do not so appear, it should be proved byleading evidence that all the particulars were placed before the sanctioning authority for dueapplication of mind. In case the sanction speaks for itself then the satisfaction of the sanctioningauthority is apparent by reading the order.

10. In R. Sundararajan v. State by DSP, SPE, CBI, Chennai[7], while dealing with the validity of theorder of sanction, the two learned Judges have expressed thus: -

it may be mentioned that we cannot look into the adequacy or inadequacy of the material before thesanctioning authority and we cannot sit as a court of appeal over the sanction order. The ordergranting sanction shows that all the available materials were placed before the sanctioning authoritywho considered the same in great detail. Only because some of the said materials could not beproved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this casethere was abundant material before the sanctioning authority, and hence we do not agree that the



sanction order was in any way vitiated.

11. In State of Karnata v. Ameerjan[8] it has been opined that an order of sanction should not beconstrued in a pedantic manner. But, it is also well settled that the purpose for which an order ofsanction is required to be passed should always be borne in mind. Ordinarily, the sanctioningauthority is the best person to judge as to whether the public servant concerned should receive theprotection under the Act by refusing to accord sanction for his prosecution or not.

12. In Kootha Perumal v. State through Inspector of Police, Vigilance and Anti-Corruption[9], it hasbeen opined that the sanctioning authority when grants sanction on an examination of thestatements of the witnesses as also the material on record, it can safely be concluded that thesanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.

13. From the aforesaid authorities the following principles can be culled out: -

a) It is incumbent on the prosecution to prove that the valid sanction has been granted by thesanctioning authority after being satisfied that a case for sanction has been made out.

b) The sanction order may expressly show that the sanctioning authority has perused the materialplaced before him and, after consideration of the circumstances, has granted sanction forprosecution.

c) The prosecution may prove by adducing the evidence that the material was placed before thesanctioning authority and his satisfaction was arrived at upon perusal of the material placed beforehim.

d) Grant of sanction is only an administrative function and the sanctioning authority is required toprima facie reach the satisfaction that relevant facts would constitute the offence.

e) The adequacy of material placed before the sanctioning authority cannot be gone into by the courtas it does not sit in appeal over the sanction order.

f) If the sanctioning authority has perused all the materials placed before him and some of themhave not been proved that would not vitiate the order of sanction.

g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servantagainst frivolous and vexatious litigants, but simultaneously an order of sanction should not beconstrued in a pedantic manner and there should not be a hyper-technical approach to test itsvalidity.

14. Keeping in view the aforesaid principles it is to be seen whether the order of sanction granted bythe sanctioning authority withstands scrutiny or not. For the aforesaid purpose it is necessitous toreproduce the order of sanction in entirety: -



WHEREAS, it is alleged that Shri Mahesh Gandmal Jain, Accounts Clerk working in OfficeAdministration Department, State Bank of India, Corporate Centre, Mumbai while working as suchon 03.04.2000, abused his official position, in as much as demanded and accepted illegalgratification from Satish P. Doshi, Proprietor of Shree Travels, Matunga, Mumbai for handling overTDS Certificates in the form of 16A of Income Tax Act, in respect of Shree Travels.

WHEREAS, it is alleged that in pursuance of aforesaid demand, Shri Mahes Gandmal Jain, AccourtClerk, on 03.04.2000 accepted the illegal gratification of Rs. 1000/- from Shri Satish P. Doshi forthe aforesaid purpose at the office of Shree Travels situated at 445, Mahilashram Road, SomayaBuilding No. 2, Matunga Central Railway, Mumbai-19, before the panch witness when MaheshGandmal Jain was caught red handed by the officers of CBI, ACB, Mumbai.

AND WHEREAS, the said acts on the part of Shre Mahesh Gandmal Jain constitute offencespunishable under Section 7, 13 (2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988.

AND WHEREAS, I, Shri Yeshwant Balkrishna Kelkar, Asst. General Manager, Office AdministrationDept., State Bank of India, Corporate Centre, Mumbai, being the authority competent to remove thesaid Shri Mahesh Gandmal Jain, Accounts Clerk, Office Administration Dept., State Bank of India,Corporate Centre, Mumbai from office after fully examining the material, documents i.e. Statementof witnesses under the provisions of Section 161 of Criminal Procedure Code 1973, FIR, CFSLOpinion and other relevant documents placed before me in regard to the said above allegations andthe facts and circumstances of the case, consider that the said Shri Mahesh Gandmal Jain hascommitted the offences and he should be prosecuted in the court of law for the said offences.

NOW, therefore, I, Shri Yeshwant Balkrishna Kelakar, Asst. General Manager, Office AdministrationDept., State of Bank of India, Corporate Centre, Mumbai, do hereby accord sanction under Section19(1)(c) of the Prevention of Corruption Act, 1988 for the prosecution of the said Shri MaheshGandmal Jain for the said offences and any other offences punishable under the provisions of anylaw in respect of the acts aforesaid and for taking cognizance of the said offences by the court ofcompetent jurisdiction.

Date : 04.10.2000 (Illegible) (SHRI Y.B. KELKAR) ASST. GENERAL MANAGER (OAD) &APPOINTING AUTHORITY

15. Reserving our opinion on the same for the present we shall proceed to deal with the reasons fortreating the said order of sanction as invalid and improper by the learned trial Judge. The learnedtrial Judge has referred to the sanction order Ext.13 and the forwarding letter Ext. 14 and,thereafter, proceeded to observe that the order of sanction is completely bereft of elementarydetails; that though the date is not mentioned in the FIR, the authority has mentioned the date inthe sanction order; that the order of sanction is delightfully vague; that the amount of bribe thatfinds place in the sanction order was told to him and he had no personal knowledge about it; thatthe minimum discussion is absent in the order of sanction; that grant of sanction being not an idleformality it was incumbent on the competent authority to ascribe proper reasons on perusal of thematerials; that there is no material to show the existence of objective material to formulate the



subjective satisfaction; that the authority has granted sanction in an absolute mechanical manner;and that the order of sanction does not reflect sincerity of approach. The High Court, while dealingwith the said reason, has really not discussed anything except stating that a possible view has beentaken by the learned trial Judge and in appeal it cannot substitute the findings merely because anyother contrary opinion can be rendered in the facts of the case.

16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioningauthority has referred to the demand of the gratification for handing over TDS certificate in Form16A of the Income-tax Act, the acceptance of illegal gratification by the accused before the panchwitnesses and how the accused was caught red handed. That apart, as the order would reveal, he hasfully examined the material documents, namely, the FIR, CFSL report and other relevant documentsplaced in regard to the allegations and the statements of witnesses recorded under Section 161 of theCode and, thereafter, being satisfied he has passed the order of sanction. The learned trial Judge, asit seems, apart from other reasons has found that the sanctioning authority has not referred to theelementary facts and there is no objective material to justify a subjective satisfaction. Thereasonings, in our considered opinion, are absolutely hyper- technical and, in fact, can always beused by an accused as a magic trick to pave the escape route. The reasons ascribed by the learnedtrial Judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanctionis a sacrosanct and sacred act and is intended to provide a safeguard to the public servant againstvexatious litigation but simultaneously when there is an order of sanction by the competentauthority indicating application of mind, the same should not be lightly dealt with. The flimsytechnicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factualmatrix, we must say without any iota of hesitation that the approach of the learned trial Judge aswell as that of the learned single Judge is wholly incorrect and does not deserve acceptance.

17. At this stage, we think it apposite to state that while sanctity attached to an order of sanctionshould never be forgotten but simultaneously the rampant corruption in society has to be kept inview. It has come to the notice of this Court how adjournments are sought in a maladroit manner tolinger the trial and how at every stage ingenious efforts are made to assail every interim order. It isthe duty of the court that the matters are appropriately dealt with on proper understanding of law ofthe land. Minor irregularities or technicalities are not to be given Everestine status. It should beborne in mind that historically corruption is a disquiet disease for healthy governance. It has thepotentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust.Corruption fundamentally is perversion and infectious and an individual perversity can become asocial evil. We have said so as we are of the convinced view that in these kind of matters there has tobe reflection of promptitude, abhorrence for procrastination, real understanding of the law and tofurther remain alive to differentiate between hyper-technical contentions and the acceptable legalproponements.

18. We shall presently deal with the course of action that is required to be undertaken in the case athand. Had the High Court dealt with the appeal on merits, we would have proceeded to deal withjustifiability of the same. The High Court has declined to grant leave solely on the ground that theconclusion reached by the learned trial Judge pertaining to validity of sanction being justified, thejudgment of acquittal did not warrant interference. There has been no deliberation on the merits of



the case.

19. At this juncture, we may note that Mr. Luthra submitted that the matter should be remitted tothe High Court to deal with the application for grant of leave as per law. Per contra, Mr. Bachawat,learned senior counsel, submitted that if this Court would think of remitting the entire matter itshould be remanded to the learned trial Judge as he has not appropriately dealt with the real issues,for he has been guided by the impropriety and validity of sanction. On a perusal of the judgment ofthe learned trial Judge we find that he had recorded his conclusions on every aspect. He has notrested his conclusion exclusively on sanction. True it is, he has acquitted the accused on the groundthat the order of sanction is invalid in law but simultaneously he has dealt with other facets. Thus,remitting the matter to the trial court is not warranted. If the High Court thinks it apt to grant leave,it has ample power to deal with the appeal from all the spectrums. It is well settled in law that it isobligatory on the part of the appellate court to scrutinize the evidence and further its power iscoextensive with the trial court. It has power to consider all the matters which weighed with the trialcourt and the reasons ascribed by it for disbelieving or accepting the witnesses. This has been soheld in Laxman Kalu v. State of Maharashtra[10] and Keshav Ganga Ram Navge v. The State ofMaharashtra[11]. Needless to emphasise that the High Court, while hearing an appeal againstconviction, can scan the evidence and weigh the probabilities. It is incumbent on the High Court toanalyse the evidence, deal with the legal issues and deliver a judgment. Thus, there is no merit in thesubmission that it should be remanded to the learned trial Judge. Apart from the aforesaid reason,we are also not inclined to remit the matter to the learned trial Judge as there would be anotherround of hearing before the learned trial Judge which is avoidable. It has to be kept uppermost inmind that remit to the trial court has to be done in very rare circumstances, for it brings inprocrastination in the criminal justice dispensation system which is not appreciated.

20. Consequently, the appeal is allowed, the judgment of the High Court and the conclusion of thelearned trial Judge pertaining to the validity of sanction are set aside and the matter is remitted tothe High Court. As we have not dealt with any other finding recorded by the learned trial Judge, ithas to be construed that there has been no expression of opinion on the merits of the case on thosecounts. The High Court shall be well advised to consider all the aspects barring what has been dealtwith in this appeal while dealing with the application for grant of leave.

.J.

[Dr. B.S. Chauhan] ..J.

[Dipak Misra] New Delhi;

May 28, 2013.

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[1] AIR 1958 SC 124[2] AIR 1945 FC 18[3] AIR 1948 PC 84



[4] AIR 1979 SC 677[5] (1995) 6 SCC 225[6] (2005) 4 SCC 81[7] (2006) 12 SCC 749[8] (2007) 11 SCC 273[9] (2011) 1 SCC 491[10] AIR 1968 SC 1390[11] AIR 1971 SC 953

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Supreme Court of IndiaSurinderjit Singh Mand & Anr vs State Of Punjab & Anr on 5 July, 2016Author: ..........................J.Bench: Jagdish Singh Khehar, C. Nagappan REPORTABLE



CRIMINAL APPEAL No.565 OF 2016 (Arising out of SLP(Crl.)No.3406 of 2008)

SURINDERJIT SINGH MAND & ANR. .......APPELLANTS

VERSUS

STATE OF PUNJAB & ANR. .......RESPONDENTS

J U D G M E N T

Jagdish Singh Khehar, J.

1. Leave granted.

2. Surinderjit Singh Mand and P.S. Parmar, the appellants before this Court, while holding the rankof Deputy Superintendent of Police, were posted in District Kapurthala, in the State of Punjab,during the relevant period in 1999. Piara Lal (holding the rank of Assistant Sub-Inspector), was alsoposted at Kapurthala, at the same time. The above mentioned Piara Lals son - Neeraj Kumar wasofficially arrested on 28.06.1999. The arrest of Neeraj Kumar, was made in furtherance of a FirstInformation Report bearing No.30, which was registered at Police Station City, Kapurthala on03.03.1999. Before the arrest of Neeraj Kumar, his father Piara Lal was placed under suspension on10.06.1999. The aforesaid FIR No.30, we were informed, was in respect of complaints made byresidents of Kapurthala, pertaining to theft of motorcycles and other vehicles in the city.

3. It was pointed out, that while investigating into the allegations contained in the complaint dated03.03.1999, three persons including Neeraj Kumar were arrested on 28.06.1999. Neeraj Kumar wasgranted bail on 30.06.1999. In the above view of the matter, it is apparent that Neeraj Kumar hadremained in jail for just about two/three days (from 28.06.1999 to 30.06.1999). Usha Rani - motherof Neeraj Kumar (detained during the investigation of FIR No. 30), filed a representation asserting,that her son had been detained on 24.06.1999 (and not on 28.06.1999, as alleged). That would makethe duration of his arrest as of six/seven days. The present controversy pertains to the additionalfour/five days of the arrest of Neeraj Kumar. Her complaint highlighted, that her son Neeraj Kumarwas apprehended illegally and unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., forfour/five days.

Surinderjit Singh Mand & Anr vs State Of Punjab & Anr on 5 July, 2016


4. Investigation into the complaint made by Usha Rani, was directed to be conducted in the firstinstance, by Munish Chawla, IPS. In the report submitted by him, it was concluded, that the chargelevelled by the mother of Neeraj Kumar, could not be substantiated. Yet again, based on theaccusations levelled by Usha Rani, another investigation was ordered. This time, it was required tobe conducted by M.F. Farooqi, IPS. Yet again, in the second enquiry, it was concluded, that therewas no material to establish that Neeraj Kumar had been in police detention from 24.06.1999onwards, till his formal arrest on 28.06.1999. Despite the two reports submitted by two senior policeofficers, wherein it was found that there was no substance in the allegations levelled by Usha Rani,Gurpreet Deo, IPS, at her own, investigated into the matter. She too arrived at the same conclusion,that there was no substance in the claim of Usha Rani, that her son had been illegally andunauthorisedly detained by police personnel, prior to his formal arrest on 28.06.1999.

5. Usha Rani (mother of Neeraj Kumar) made another written complaint, this time to the Hon'bleAdministrative Judge (a sitting Judge of the Punjab and Haryana High Court) having charge ofSessions Division, Kapurthala, on 01.10.1999. In her complaint, she reiterated, that her son NeerajKumar had been illegally detained by police personnel, on 24.06.1999. The Hon'ble AdministrativeJudge marked the complaint, dated 01.10.1999, to an Additional District and Sessions Judge, postedin the Sessions Division of Kapurthala, requiring him to look into the matter. On 25.09.2000, theconcerned Additional District and Sessions Judge, Kapurthala, submitted a report concluding, thatNeeraj Kumar had been falsely implicated, because he and some other accused had been dischargedby a Court, from the proceedings initiated against them. Based on the aforesaid report dated25.09.2000, First Information Report bearing No.46, came to be registered at Police Station CityKapurthala, on 22.10.2002.

6. After completion of police investigation in the above FIR No.46, a chargesheet was filed againstsix police officials, in the Court of the Chief Judicial Magistrate, Kapurthala, on 25.05.2003. Beforethe aforesaid chargesheet was filed, the prosecution had obtained sanction under Section 197 of theCode of Criminal Procedure (hereinafter referred to as, the Code) for prosecuting the six concernedpolice officials. It is also relevant to mention, that it was the express contention of the appellants,that on the conclusion of investigation, no involvement of the appellants had emerged, andtherefore, their names were recorded in Column No.2. It was submitted, that the aforesaid depictionof the names of the appellants in Column No.2 by itself, demonstrates their innocence (withreference to the allegations made by Usha Rani, that her son Neeraj Kumar had been illegallydetained from 24.06.1999).

7. It is not a matter of dispute, that after the statements of three prosecution witnesses wererecorded by the trial Court, Usha Rani moved an application under Section 319 of the Code beforethe trial Judge the Chief Judicial Magistrate, Kapurthala, for taking cognizance against theappellants herein. The aforesaid application was allowed by the trial Court, on 06.09.2003.Thereupon, the appellants were summoned by the Chief Judicial Magistrate, Kapurthala, to facetrial. The appellants contested their summoning before the trial Court by asserting, that theirprosecution was unsustainable in law, because no sanction had been obtained by the prosecutionunder Section 197 of the Code, before cognizance was taken against them.



8. Consequent upon the appellants having been summoned by the trial Court, charges were framedagainst them on 23.12.2006. The order passed by the trial Court framing charges against theappellants on 23.12.2006 was assailed by the appellants, through Criminal Revision No.348 of2007. The primary submission advanced on behalf of the appellants before the High Court was, thatthe Chief Judicial Magistrate, Kapurthala, could not have proceeded against them, in the absence ofsanction of prosecution, under Section 197 of the Code. The High Court, by its order dated09.01.2008, dismissed the Criminal Revision filed by the appellants. The above order dated09.01.2008 is subject matter of challenge through the instant appeal.

9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf of the appellants, in order tosupport the claim of the appellants, has drawn our attention to Section 197 of the Code, which isextracted hereunder:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from hisoffice save by or with the sanction of the Government is accused of any offence alleged to have beencommitted by him while acting or purporting to act in the discharge of his official duty, no Courtshall take cognizance of such offence except with the previous sanction (save as otherwise providedin the Lokpal and Lokayuktas Act, 2013)-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission ofthe alleged offence employed, in connection with the affairs of the Union, of the CentralGovernment;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission ofthe alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause (b) duringthe period while a Proclamation issued under clause (1) of article 356 of the Constitution was inforce in a State, clause (b) will apply as if for the expression "State Government" occurring therein,the expression "Central Government" were substituted.

XXX XXX XXX (4) The Central Government or the State Government, as the case may be, maydetermine the person by whom, the manner in which, and the offence or offences for which, theprosecution of such Judge, Magistrate or public servant is to be conducted, and may specify theCourt before which the trial is to be held. (emphasis is ours) The learned senior counsel highlighted,that sanction under Section 197 of the Code is mandatory, where the concerned public servant isalleged to have committed an offence while acting or purporting to act in the discharge of his officialduty.

10. In order to demonstrate the ambit and scope of the term while acting or purporting to act in thedischarge of his official duty, learned senior counsel placed reliance on Dr. Hori Ram Singh vs.Emperor, AIR (1939) FC 43, wherein the Court has observed as under:



But Sec.477-A in express terms covers the case of an officer, who willfully falsifies accounts whichmay be his duty to maintain. They have apparently put theft, embezzlement, or breach of trust onexactly the same footing as falsification of accounts, and have not considered the charge of falsifyingthe accounts separately from that of criminal breach of trust. This is ignoring the significance of thewords purporting to be done which are no less important. They have thought that an act done orpurporting to be done in the execution of his duty as a servant of the Crown cannot by any stretchingof the English language be made to apply to an act which is clearly a dereliction of his duty as such.But if an act has purported to be done in execution of duty, it may be done so, only ostensibly andnot really, and if done dishonestly may still be a dereliction of duty. The High Court Bench havetaken the view that the Section is clearly meant to apply to an act by a public servant which could bedone in good faith, but which possibly might also be done in bad faith.....The Section cannot bemeant to apply to cases where there could be no doubt that the act alleged must be in bad faith.

So far as sub-s. (1) is concerned, the question of good faith or bad faith cannot strictly arise, for thewords used are not only any act done in the execution of his duty but also any act purporting to bedone in the execution of his duty. When an act is not done in the execution of his duty, but purportsto have been done in the execution of his duty, it may very well be done in bad faith; and even an actwhich cannot at all be done in execution of duty if another is made to believe wrongly that it wasbeing done in execution of duty. It is therefore not possible to restrict the applicability of the Sectionto only such cases where an act could possibly have been done both in good and bad faith. Of course,the question of good or bad faith cannot be gone into at the early stage at which objection may betaken. Making false entries in a register may well be an act purported to be done in execution ofduty, which would be an offence, although it can never be done in good faith. It is sub-sec. (2) onlywhich introduces the element of good faith, which relieves the Court of its obligation to dismiss theproceedings. But that sub-section relates to cases even previously instituted and in which there maynot be a defect of want of consent, and is therefore quite distinct and separate, and not merelyancillary to sub-s.(1), as the learned Sessions Judge supposed. Having regard to the ordinary andnatural meaning of the words purporting to be done, it is difficult to say that it necessarily impliespurporting to be done in good faith, for a person who ostensibly acts in execution of his duty stillpurports so to act, although he may have a dishonest intention. (emphasis is ours) Reliance was alsoplaced on Sankaran Moitra vs. Sadhna Das, (2006) 4 SCC 584, wherefrom our attention was drawnto the following paragraph: 25. The High Court has stated that killing of a person by use of excessiveforce could never be performance of duty. It may be correct so far as it goes. But the question iswhether that act was done in the performance of duty or in purported performance of duty. If it wasdone in performance of duty or purported performance of duty, Section 197(1) of the Code cannot bebypassed by reasoning that killing a man could never be done in an official capacity andconsequently Section 197(1) of the Code could not be attracted. Such a reasoning would be againstthe ratio of the decisions of this Court referred to earlier. The other reason given by the High Courtthat if the High Court were to interfere on the ground of want of sanction, people will lose faith inthe judicial process, cannot also be a ground to dispense with a statutory requirement or protection.Public trust in the institution can be maintained by entertaining causes coming within itsjurisdiction, by performing the duties entrusted to it diligently, in accordance with law and theestablished procedure and without delay. Dispensing with of jurisdictional or statutoryrequirements which may ultimately affect the adjudication itself, will itself result in people losing



faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient toenable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code ofCriminal Procedure. We are therefore satisfied that the High Court was in error in holding thatsanction under Section 197(1) was not needed in this case. We hold that such sanction was necessaryand for want of sanction the prosecution must be quashed at this stage. It is not for us now toanswer the submission of learned counsel for the complainant that this is an eminently fit case forgrant of such sanction. (emphasis is ours) In order to substantiate the proposition being canvassed,the learned senior counsel, also invited our attention to R. Balakrishna Pillai vs. State of Kerala,(1996) 1 SCC 478, wherein this Court has held as under: 6. The next question is whether the offencealleged against the appellant can be said to have been committed by him while acting or purportingto act in the discharge of his official duty. It was contended by the learned counsel for the State thatthe charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is nopart of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy.In support of his contention, he placed strong reliance on the decision of this Court in HariharPrasad vs. State of Bihar, (1972) 3 SCC 89. He drew our attention to the observations in paragraph74 of the judgment where the Court, while considering the question whether the acts complained ofwere directly concerned with the official duties of the public servants concerned, observed that itwas no duty of a public servant to enter into a criminal conspiracy and hence want of sanction underSection 197 of the Code was no bar to the prosecution. The question whether the acts complained ofhad a direct nexus or relation with the discharge of official duties by the public servant concernedwould depend on the facts of each case. There can be no general proposition that whenever there is acharge of criminal conspiracy levelled against a public servant in or out of office the bar of Section197(1) of the Code would have no application. Such a view would render Section 197(1) of the Codespecious. Therefore, the question would have to be examined in the facts of each case. Theobservations were made by the Court in the special facts of that case which clearly indicated that thecriminal conspiracy entered into by the three delinquent public servants had no relation whatsoeverwith their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also beremembered that the said decision was rendered keeping in view Section 197(1), as it then stood, butwe do not base our decision on that distinction. Our attention was next invited to a three- Judgedecision in B. Saha vs. M.S. Kochar, (1979) 4 SCC 177. The relevant observations relied upon are tobe found in paragraph 17 of the judgment. It is pointed out that the words any offence alleged tohave been committed by him while acting or purporting to act in the discharge of his official dutyemployed Section 197(1) of the code, are capable of both a narrow and a wide interpretation buttheir Lordships pointed out that if they were construed too narrowly, the section will be renderedaltogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". At thesame time, if they were too widely construed, they will take under their umbrella every actconstituting an offence committed in the course of the same transaction in which the official duty isperformed or is purported to be performed. The right approach, it was pointed out, was to see thatthe meaning of this expression lies between these two extremes. While on the one hand, it is notevery offence committed by a public servant while engaged in the performance of his official duty,which is entitled to the protection. Only an act constituting an offence directly or reasonablyconnected with his official duty will require sanction for prosecution. To put it briefly, it is thequality of the act that is important, and if it falls within the scope of the aforequoted words, theprotection of Section 197 will have to be extended to the public servant concerned. This decision,



therefore, points out what approach the Court should adopt while construing Section 197(1) of theCode and its application to the facts of the case on hand.

7. In the present case, the appellant is charged with having entered into a criminal conspiracy withthe co-accused while functioning as a Minister. The criminal conspiracy alleged is that he soldelectricity to an industry in the State of Karnataka without the consent of the Government of Keralawhich is an illegal act under the provisions of the Electricity (Supply) Act, 1948 and the KeralaElectricity Board Rules framed thereunder. The allegation is that he in pursuance of the said allegedconspiracy abused his official position and illegally sold certain units to the private industry inBangalore (Karnataka) which profited the private industry to the tune of Rs.19,58,630.40 or moreand it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that whilefunctioning as the Minister for Electricity he without the consent of the Government of Keralasupplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in thedischarge of his duties as a Minister. The allegation is that it was an illegal act inasmuch as theconsent of the Government of Kerala was not obtained before this arrangement was entered intoand the supply was effected. For that reason, it is said that he had committed an illegality and hencehe was liable to be punished for criminal conspiracy under Section 120-B, I.P.C. It is, therefore, clearfrom the charge that the act alleged is directly and reasonably connected with his official duty as aMinister and would, therefore, attract the protection of Section 197(1) of the Act. (emphasis is ours)Reliance was finally placed on P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704, and our attentionwas drawn, to the following observations recorded therein:

5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from takingcognizance of an offence except with the previous sanction of the Government concerned in a casewhere the acts complained of are alleged to have been committed by a public servant in discharge ofhis official duty or purporting to be in the discharge of his official duty and such public servant is notremovable from office save by or with the sanction of the Government, touches the jurisdiction ofthe court itself. It is a prohibition imposed by the Statute from taking cognizance. Different testshave been laid down in decided cases to ascertain the scope and meaning of the relevant wordsoccurring in Section 197 of the Code, "any offence alleged to have been committed by him whileacting or purporting to act in the discharge of his official duty." The offence alleged to have beencommitted must have something to do, or must be related in some manner, with the discharge ofofficial duty. No question of sanction can arise under Section 197, unless the act complained of is anoffence; the only point for determination is whether it was committed in the discharge of officialduty. There must be a reasonable connection between the act and the official duty. It does notmatter even if the act exceeds what is strictly necessary for the discharge of the duty, as this questionwill arise only at a later stage when the trial proceeds on the merits. What a court has to find out iswhether the act and the official duty are so inter-related that one can postulate reasonably that itwas done by the accused in the performance of official duty, though, possibly in excess of the needsand requirements of situation.

XXX XXX XXX



15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protectionunder Section 197 of the Code, it has to be shown by the accused that there is reasonable connectionbetween the act complained of and the discharge of official duty. An official act can be performed inthe discharge of official duty as well as in dereliction of it. For invoking protection under Section 197of the Code, the acts of the accused complained of must be such that the same cannot be separatedfrom the discharge of official duty, but if there was no reasonable connection between them and theperformance of those duties, the official status furnishes only the occasion or opportunity for theacts, then no sanction would be required. If the case as put forward by the prosecution fails or thedefence establishes that the act purported to be done is in discharge of duty, the proceedings willhave to be dropped. It is well settled that question of sanction under Section 197 of the Code can beraised any time after the cognizance; maybe immediately after cognizance or framing of charge oreven at the time of conclusion of trial and after conviction as well. But there may be certain caseswhere it may not be possible to decide the question effectively without giving opportunity to thedefence to establish that what he did was in discharge of official duty. In order to come to theconclusion whether claim of the accused, that the act that he did was in course of the performance ofhis duty was a reasonable one and neither pretended nor fanciful, can be examined during thecourse of trial by giving opportunity to the defence to establish it. In such an eventuality, thequestion of sanction should be left open to be decided in the main judgment which may be deliveredupon conclusion of the trial. (emphasis is ours) All in all, based on the judgments referred to above,it was contended, that even if it was assumed that Neeraj Kumar had been detained with effect from24.06.1999, his detention by the appellants was while acting or purporting to act in the discharge ofthe appellants official duties. And as such, the Chief Judicial Magistrate, Kapurthala, could not havetaken cognizance, without sanction under Section 197 of the Code.

11. Mr. Varinder S. Rana, learned counsel, who entered appearance on behalf of respondent no. 2,seriously contested the submissions advanced on behalf of the appellants. Learned counselrepresenting respondent no. 2, placed reliance on the following observations recorded by the HighCourt, in the impugned order :

As far as question of sanction for prosecution of petitioners is concerned, the contentions raised bylearned counsel for the petitioners could possibly be applicable for the detention period since28.06.1999 when Neeraj Kumar was shown to have been arrested in FIR No.30 dated 03.03.1999.However, the petitioners are not entitled to protection of Section 197 of the Code for illegaldetention and torture of Neeraj Kumar since 24.06.1999 till 28.06.1999 when his arrest was shownin FIR No.30 dated 03.03.1999. The said period of illegal detention and torture has no nexus muchless reasonable nexus with the discharge or purported discharge of the official duty of thepetitioners. Consequently, the impugned order cannot be said to be illegal because sanction forprosecution of the petitioners is not required for illegal detention and torture of Neeraj Kumarduring the aforesaid period. (emphasis is ours) In order to support the conclusions drawn by theHigh Court, learned counsel for respondent no. 2, also drew our attention to, Om Prakash vs. Stateof Jharkhand, (2012) 12 SCC 72, wherein this Court held as under : 32. The true test as to whether apublic servant was acting or purporting to act in discharge of his duties would be whether the actcomplained of was directly connected with his official duties or it was done in the discharge of hisofficial duties or it was so integrally connected with or attached to his office as to be inseparable



from it (K. Satwant Singh v. State of Punjab, AIR 1960 SC 266). The protection given under Section197 of the Code has certain limits and is available only when the alleged act done by the publicservant is reasonably connected with the discharge of his official duty and is not merely a cloak fordoing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is areasonable connection between the act and the performance of the official duty, the excess will notbe a sufficient ground to deprive the public servant of the protection (State of Orissa vs. GaneshChandra Jew, (2004) 8 SCC 40). If the above tests are applied to the facts of the present case, thepolice must get protection given under Section 197 of the Code because the acts complained of are sointegrally connected with or attached to their office as to be inseparable from it. It is not possible forus to come to a conclusion that the protection granted under Section 197 of the Code is used by thepolice personnel in this case as a cloak for killing the deceased in cold blood. (emphasis is ours)Reliance was then placed on Usharani vs. The Commissioner of Police, (2015) 2 KarLJ 511 (ajudgment rendered by the Karnataka High Court), to highlight the importance and significance ofpersonal liberty, specially with reference to unlawful detention wherein it has been observed asunder:

10. In Constitutional and Administrative Law by Hood Phillips and Jackson, it is stated thus:

The legality of any form of detention may be challenged at common law by an application for thewrit of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King againsthis officers to compel them to exercise their functions properly. The practical importance of habeascorpus as providing a speedy judicial remedy for the determination of an applicants claim forfreedom has been asserted frequently by judies and writers. Nonetheless, the effectiveness of theremedy depends in many instances on the width of the statutory power under which a publicauthority may be acting and the willingness of the Courts to examine the legality of decision made inreliance on wideranging statutory provision. It has been suggested that the need for the bluntremedy of habeas corpus has diminished as judicial review has developed into an ever more flexiblejurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight ofsubstantive differences between habeas corpus and remedies under judicial review. The latter arediscretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right,granted ex debito justitiae.

11. The ancient prerogative writ of habeas corpus takes its name from the two mandatory wordshabeas and corpus. Habeas Corpus literally means have his body. The general purpose of these writsas their name indicates was to obtain the production of the individual before a Court or a Judge.This is a prerogative process for securing the liberty of the subject by affording an effective relief ofimmediate release from unlawful or unjustifiable detention, whether in prison or in private custody.This is a writ of such a sovereign and transcendent authority that no privilege of power or place canstand against it. It is a very powerful safeguard of the subject against arbitrary acts not only ofprivate individuals but also of the Executive, the greatest safeguard for personal liberty, according toall constitutional jurists. The writ is a prerogative one obtainable by its own procedure. In England,the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended bystatute. It is well established in England that the writ of habeas corpus is as of right and that theCourt has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is as of



right to every man who is unlawfully detained. In India, it is this prerogative writ which has beengiven a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is anextraordinary remedy available to a citizen of this Country, which he can enforce under Article 226or under Article 32 of the Constitution of India. (emphasis is ours)

12. The first task, which a Court is obliged to embark upon, when confronted with a proposition ofthe nature in hand, is to ascertain as to whether the alleged offence, attributed to the accused, hadbeen committed by an accused while acting or purporting to act in the discharge of his official duty.In the facts and circumstances of the present case, the alleged action constituting the allegationslevelled against the appellants, is based on the arrest and detention of Neeraj Kumar from24.06.1999 upto 28.06.1999 (before, he was admitted to have been formally arrested on28.06.1999).

13. Insofar as the power of arrest and detention by police officials/officers is concerned, referencemay be made to Section 36 of the Code which postulates, that all police officers superior in rank toan officer in charge of a police station, are vested with an authority to exercise the same powers(throughout the local area, to which they are appointed), which can be exercised by the officer incharge of a police station. Section 49 of the Code postulates, the manner in which a police officer isto act, while taking an individual in custody. Section 49 of the Code, cautions the person making thearrest to ensure, that the individual taken into custody, is not subjected to more restraint than isnecessary, to prevent his escape. Section 50 of the Code mandates, that every police officer arrestinga person without a warrant (as is the position, alleged in the present case), is mandated to forthwithdisclose to the person taken in custody, full particulars of the offence for which he is arrested, asalso, the grounds for such arrest. Section 50A obliges the police officer making the arrest, toimmediately inform friends/relatives of the arrested person (on obtaining particulars from thearrested person), regarding his detention. And an entry of the arrest, and the communication of theinformation of the arrest to the person nominated by the detenu, has to be recorded in a registermaintained at the police station, for the said purpose. Section 50A of the Code also mandates, thatthe Magistrate before whom such an arrested person is produced, would satisfy himself that theobligations to be discharged by the arresting officer, had been complied with.

14. Based on the aforesaid provisions of the Code, there cannot be any serious doubt about the fact,that Surinderjit Singh Mand and P.S. Parmar, were holding the rank of Deputy Superintendent ofPolice, at the relevant time (from 24.06.199 to 28.06.1999). Both the appellants were ...officerssuperior in rank to an officer in charge of a police station.... Both the appellants were thereforepossessed with the authority to detain and arrest, Neeraj Kumar at the relevant time (from24.06.1999 to 28.06.1999). The question for complying with the requirements in Sections 49, 50and 50A does not arise for the period under reference (from 24.06.1999 to 28.06.1999), becauseNeeraj Kumar according to official police records, was arrested only on 28.06.1999. The positionadopted by the appellants was, that Neeraj Kumar was not under detention for the period from24.06.1999 to 28.06.1999.

15. Keeping the legal position emerging from the provisions of the Code referred to in the foregoingparagraphs in mind, it was the contention of learned counsel for the respondents, that in order to



require sanction under Section 197 of the Code, it needs to be further established, that the appellantshad acted in the manner provided for under the provisions of the Code, during the period NeerajKumar was allegedly arrested (from 24.06.1999 to 28.06.1999), i.e., before his admitted formalarrest on 28.06.1999. And only if they had done so, the requirement of seeking sanction underSection 197 would arise, because in that situation, the offence allegedly committed would be taken tohave been committed while acting or purporting to act in the discharge of their official duties. In thepresent case, the arrest and detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, is denied.The formalities postulated under the Code, on the alleged arrest of Neeraj Kumar on 24.06.1999,were admittedly not complied with, as according to the appellants, Neeraj Kumar was not arrestedon that date. It was therefore submitted, that any arrest or detention prior to 28.06.1999, if true,was obviously without following the mandatory conditions of arrest and detention, contemplatedunder the provisions (referred to above). And therefore, would not fall within the realm of acting orpurporting to act in the discharge of their official duties.

16. In order to support the submissions recorded in the foregoing paragraphs, learned counsel forthe respondents placed reliance on P.P. Unnikrishnan vs. Puttiyottil Alikutty, (2000) 8 SCC 131, andinvited our attention to the following observations recorded therein: 21. If a police officer dealingwith law and order duty uses force against unruly persons, either in his own defence or in defence ofothers and exceeds such right it may amount to an offence. But such offence might fall within theamplitude of Section 197 of the Code as well as Section 64(3) of the KP Act. But if a police officerassaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge ofhis authority or exercise of his duty unless he establishes that he did such acts in his defence or indefence of others or any property. Similarly, if a police officer wrongfully confines a person in thelock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court itwould be an offence for which he cannot claim any protection in the normal course, nor can he claimthat such act was done in exercise of his official duty. A policeman keeping a person in the lock-upfor more than 24 hours without authority is not merely abusing his duty but his act would be quiteoutside the contours of his duty or authority. (emphasis is ours) Based on the provisions of the Code,pertaining to arrest and detention of individuals at the hands of police personnel (referred to above),it was submitted, that the arrest of Neeraj Kumar from 28.06.1999 to 30.06.1999 wouldunquestionably fall within the purview of acting or purporting to act in the discharge of his officialduties (of the concerned police officers/officials who arrested Neeraj Kumar). It was howeverasserted, that if the arrest of Neeraj Kumar from 24.06.1999 to 28.06.1999 (before he was formallydetained on 28.06.1999) is found to be factually correct, such arrest of Neeraj Kumar cannot beaccepted to have been made by the appellants Surinderjit Singh Mand and P.S.Parmar, while actingor purporting to act in the discharge of their official duties. It was therefore submitted, that anyalleged criminality, in connection with the detention of Neeraj Kumar from 24.06.1999 to28.06.1999, would not require to be sanctioned under Section 197, before the concerned Court, tookcognizance of the matter, against the concerned public servants.

17. Having given our thoughtful consideration to the contention advanced at the hands of learnedcounsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P.Unnikrishnan case (supra) is clear and emphatic. The same does not leave any room for making anychoice. It is apparent, that the official arrest of Neeraj Kumar in terms of the provisions of the Code,



referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The aboveperiod of apprehension can legitimately be considered as, having been made while acting orpurporting to act in the discharge of their official duties. The factual position expressed by theappellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999.His detention during the above period, if true, in our considered view, would certainly not emergefrom the action of the accused while acting or purporting to act in the discharge of their officialduties. If it emerges from evidence adduced before the trial Court, that Neeraj Kumar was actuallydetained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken tohave been made by the accused while acting or purporting to act in the discharge of their officialduties. More so, because it is not the case of the appellants, that they had kept Neeraj Kumar in jailduring the period from 24.06.1999 to 28.06.1999. If they had not detained him during the aboveperiod, it is not open to anyone to assume the position, that the detention of Neeraj Kumar, duringthe above period, was while acting or purporting to act in the discharge of their official duties.Therefore, in the peculiar facts and circumstances of this case, based on the legal position declaredby this Court in the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction forprosecution of the accused in relation to the detention of Neeraj Kumar for the period from24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takescognizance with reference to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse theconclusions drawn by the High Court, to the above effect.

18. It was also the contention of learned counsel for the appellants, that the protection afforded topublic servants under Section 197 of the Code, postulating sanction prior to prosecution, on accountof the acts committed while discharging their official duties, is to shield public servants fromfrivolous harassment of prosecution, at the hands of private individuals. It was therefore, thesubmission of learned counsel for the respondents, that the scope and purview of Section 197 of theCode, should be limited to the initiation of criminal proceedings under Chapter- XIV of the Code,wherein such initiation is postulated under Section 190 (upon receipt of a complaint, wherein factsdisclose the commission of an offence, or upon a police report of such facts, or upon informationreceived from any person other than a police officer, that such offence had been committed). In allthe above situations, it is open to a Magistrate to take cognizance of such offence subject to thecondition, that the same falls within the jurisdictional competence of the said Magistrate. TheMagistrate would however proceed against a public servant, after sanction has been granted by theconcerned Government. And in case, the same does not fall within the competence of a Magistrate,to commit it to a Court of Session, which can take cognizance of the same, as provided for by Section193 of the Code. Whereupon, the Court to which the matter is committed may proceed against apublic servant, after sanction has been granted by the concerned Government under Section 197 ofthe Code. In emphasizing on the above scope of sanction, it was pointed out, that Section 197 of theCode being a part of Chapter-XIV of the Code, its applicability would extend to the provisions underChapter-XIV alone. It was submitted, that Section 319 of the Code is contained in Chapter XXIV,over which Section 197 can have no bearing.

19. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted bylearned counsel representing the respondents, that the prosecution contemplated under Section 197of the Code, and the action of the Court in taking cognizance, pertain to actions initiated on the basis



of complaints, which disclose the commission of an offence, or on a police report of such facts, orupon receipt of information from a person other than the police officer, that such offence had beencommitted. It was asserted, that the above action of taking cognizance by a Court, is based onalleged facts and not on evidence recorded by a Court. The above distinction was drawn by referringto Section 190 of the Code which contemplates initiation of action on the basis of facts allegedagainst an accused, as against, Section 319 of the Code whereunder action is triggered against theconcerned person only if it appears from the evidence recorded during the trial, that the said personwas involved in the commission of an offence. While making a reference to Section 319 of the Code,it was submitted on behalf of the respondents, that cognizance taken under Section 319 of the Code,was by the Court itself, and therefore, the same having been based on evidence, as also, thesatisfaction of the Court itself, that such person needed to be tried together with the other accused, itseemed unreasonable, that sanction postulated under Section 197 of the Code should still berequired. It was pointed out, that the protection contemplated under Section 197 of the Code, wasnot a prerequisite necessity, when cognizance was based on the evaluation of evidence by a Courtitself. Learned counsel emphasized, that when a Court itself had determined, that cognizance wasrequired to be taken, based on evidence which had been recorded by the same Court, it would beundermining the authority of the concerned Court, if its judicial determination, was consideredsubservient to the decision taken by the authorities contemplated under Section 197 of the Code.Based on the submissions noticed above, it was the vehement contention of learned counsel for therespondents, that the mandate of Section 197 would not extend to cases where cognizance had beentaken under Section 319 of the Code.

20. While dealing with the first contention, we have already recorded our conclusions, which aresufficient to dispose of the matter under consideration. But, an important legal proposition has beencanvassed, as the second submission, on behalf of the respondents (which we have recorded in theforegoing paragraph). Since it squarely arises in the facts and circumstances of this case, weconsider it our bounden duty, to render our determination thereon, as well. In the succeedingparagraphs, we will deal with the second contention.

21. Insofar as the second contention advanced at the hands of learned counsel for the respondents isconcerned, we are of the view that there is sufficient existing precedent, to draw a conclusion inrespect of the proposition canvassed. Reference in the first instance may be made to Dilawar Singhvs. Parvinder Singh alias Iqbal Singh, (2005) 12 SCC 709. The following observations in the abovecited judgment are of relevance to the present issue:

2. It is necessary to mention the basic facts giving rise to the present appeals. On the complaintmade by the wife, a case was registered against Parvinder Singh @ Iqbal Singh under Section406/498-A IPC. On 27.1.2000 Parvinder Singh @ Iqbal Singh gave a complaint to the SSP, Barnalaalleging that on 23.1.2000, Jasbir Singh, ASI and a Home Guard came to his house on a scooter andforcibly took him to the Police Station Barnala. He was beaten and tortured and was subjected tothird-degree methods. Some of his relatives, namely, Jarnail Singh, Sukhdev Singh, Sadhu SinghGrewal and Sukhdev Singh Virk came to the police station and requested the police personnel not tobeat or torture him. It was further alleged in the complaint that Jasbir Singh, ASI, told them thatthey should talk to Dilawar Singh, S.H.O., who was sitting there on a chair. Dilawar Singh then



demanded an amount of Rs.20,000/- for releasing Parvinder Singh. His relations then brought theamount, out of which Rs.15,000/- was offered to Dilawar Singh but he said that the money may behanded over to ASI Jasbir Singh. The amount of Rs.15,000/- was then given to ASI Jasbir Singh,who kept the same in the pocket of his coat. Parvinder Singh was medically examined on 28.1.2000and a case was registered under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafterreferred to as "the Act"). After investigation, charge-sheet was submitted only against ASI JasbirSingh. A closure report was submitted against Dilawar Singh, S.H.O. as in the opinion of theinvestigating officer he had not committed any offence. It may be mentioned here that forprosecution of ASI Jasbir Singh, necessary sanction had been obtained from the competentauthority under Section 19 of the Act. After the statement of the complainant Parvinder Singh hadbeen recorded, he moved an application under Section 319 Cr.P.C. for summoning Dilawar Singh,S.H.O. as a co-accused in the case. After hearing the counsel for the parties, the learned SpecialJudge dismissed the application by the order dated 7.1.2002. Parvinder Singh filed a revisionpetition against the aforesaid order which has been allowed by the High Court by the impugnedorder dated 3.7.2002 and a direction has been issued to summon Dilawar Singh and try him inaccordance with law.

XXX XXX XXX

4. In our opinion, the contention raised by the learned counsel for the appellant is well founded.Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads asunder :

"19. Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offencepunishable 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 notremovable from his office save by or with the sanction of the Central Government, of thatGovernment;

(b) in the case of a person who is employed in connection with the affairs of a State and is notremovable from his office save by or with 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."

This section creates a complete bar on the power of the Court to take cognizance of an offencepunishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant,except with the previous sanction of the competent authority enumerated in clauses (a) to

(c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction forprosecution has to be granted with respect to a specific accused and only after sanction has beengranted that the Court gets the competence to take cognizance of an offence punishable underSections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible



to read the section in the manner suggested by the learned counsel for the respondent that ifsanction for prosecution has been granted qua one accused, any other public servant for whoseprosecution no sanction has been granted, can also be summoned to face prosecution.

5. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the Court was examining the scope of Section 6(1)of the Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 ofthe Act. After quoting the provisions of Section 6(1) of the Prevention of Corruption Act, 1947, it washeld as under in para 5 of the Report: (SCC pp. 552-53) "5. From a plain reading of the above sectionit is evidently clear that a Court cannot take cognizance of the offences mentioned therein withoutsanction of the appropriate authority. In enacting the above section, the legislature thought ofproviding a reasonable protection to public servants in the discharge of their official functions sothat they may perform their duties and obligations undeterred by vexatious and unnecessaryprosecutions."

6. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecutionof the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but nosanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held thatno cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Preventionof Corruption Act, 1947, as no sanction had been granted with regard to the said offence, but theaccused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction forprosecution under the aforesaid provision.

7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it washeld that in the absence of a valid sanction on the date when the Special Judge took cognizance ofthe offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being thesettled position of law, the impugned order of the High Court directing summoning of the appellantand proceeding against him along with Jasbir Singh, ASI is clearly erroneous in law.

(emphasis is ours) The above issue was also examined by this Court in Paul Varghese vs. State ofKerala, (2007) 14 SCC 783, wherein this Court observed as under : 2. Challenge in this appeal is tothe order passed by a learned Single Judge of the Kerala High Court allowing the revision filed bythe Respondent 2 in the present appeal who was the petitioner before the High Court. He hadquestioned correctness of the order passed by the Inquiry Commissioner and Special Judge,Trichoor, by which the prayer for his impleadment as the accused in terms of Section 319 of theCode of Criminal Procedure, 1973 (in short the Code) was accepted. By the said order the Trial Courthad held that Section 319 of the Code overrides the provisions of Section 19 of the Prevention ofCorruption Act, 1988 (in short the Act) and for exercise of power under the former provision, theonly conditions required to be fulfilled are set out in sub-section (4) of Section 319 itself. The HighCourt felt that the view was not sustainable in view of what has been stated by this Court in DilawarSingh v. Parvinder Singh alias Iqbal Singh and Anr. (2005 (12) SCC 709). Accordingly, the order wasset aside.

XXX XXX XXX



4. As has been rightly held by the High Court in view of what has been stated in Dilawar Singh's case(supra), the Trial Court was not justified in holding that Section 319 of the Code has to getpreference/primacy over Section 19 of the Act, and that matter stands concluded..... (emphasis isours) Last of all, reference may be made to a recent decision of this Court in Subramanian Swamyvs. Manmohan Singh, (2012) 3 SCC 64. For the issue under reference, the following observationsrecorded in the above judgment are relevant:

74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which barsa Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10,11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, hasaccorded sanction, virtually imposes fetters on private citizens and also on prosecutors fromapproaching Court against corrupt public servants. These protections are not available to othercitizens. Public servants are treated as a special class of persons enjoying the said protection so thatthey can perform their duties without fear and favour and without threats of malicious prosecution.However, the said protection against malicious prosecution which was extended in public interestcannot become a shield to protect corrupt officials. These provisions being exceptions to the equalityprovision of Article 14 are analogous to the provisions of protective discrimination and theseprotections must be construed very narrowly. These procedural provisions relating to sanction mustbe construed in such a manner as to advance the causes of honesty and justice and good governanceas opposed to escalation of corruption.

75. Therefore, in every case where an application is made to an appropriate authority for grant ofprosecution in connection with an offence under the P.C. Act it is the bounden duty of suchauthority to apply its mind urgently to the situation and decide the issue without being influencedby any extraneous consideration. In doing so, the authority must make a conscious effort to ensurethe Rule of Law and cause of justice is advanced. In considering the question of granting or refusingsuch sanction, the authority is answerable to law and law alone. Therefore, the requirement to takethe decision with a reasonable dispatch is of the essence in such a situation. Delay in grantingsanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with therequirement to bring the culprit to book. Therefore, in this case the right of the sanctioningauthority, while either sanctioning or refusing to grant sanction, is coupled with a duty. (emphasis isours)

22. The law declared by this Court emerging from the judgments referred to hereinabove, leaves noroom for any doubt, that under Section 197 of the Code and/or sanction mandated under a specialstatute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessarypre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whetherunder the Indian Penal Code, or under the concerned special statutory enactment). The procedurefor obtaining sanction would be governed by the provisions of the Code and/or as mandated underthe special enactment. The words engaged in Section 197 of the Code are, ...no court shall takecognizance of such offence except with previous sanction.... Likewise sub-section (1) of Section 19 ofthe Prevention of Corruption Act provides, No Court shall take cognizance.. except with the previoussanction.... The mandate is clear and unambiguous, that a Court shall not take cognizance withoutsanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance,



without sanction by the appropriate authority. Thus viewed, we find no merit in the secondcontention advanced at the hands of learned counsel for the respondents, that where cognizance istaken under Section 319 of the Code, sanction either under Section 197 of the Code (or under theconcerned special enactment) is not a mandatory pre-requisite.

23. According to learned counsel representing respondent no. 2, the position concluded above,would give the impression, that the determination rendered by a Court under Section 319 of theCode, is subservient to the decision of the competent authority under Section 197. No, not at all. Thegrant of sanction under Section 197, can be assailed by the accused by taking recourse to judicialreview. Likewise, the order declining sanction, can similarly be assailed by the complainant or theprosecution.

24. For the reasons recorded hereinabove, and in view of the conclusions recorded by us inparagraph 17, we are of the view that there is no merit in the instant appeal and the same deserves tobe dismissed. Ordered accordingly.

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

(JAGDISH SINGH KHEHAR) ..........................J.

(C.NAGAPPAN) NEW DELHI;

JULY 05, 2016.

ITEM NO.1A COURT NO.3 SECTION IIB

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s).565/2016 @ SLP(Crl.) No.3406/2008 SURINDERJIT SINGH MAND &ANR. Appellant(s) VERSUS STATE OF PUNJAB & ANR. Respondent(s) [HEARD BY HON'BLEJAGDISH SINGH KHEHAR AND HON'BLE C.NAGAPPAN, JJ.] Date : 05/07/2016 This appeal wascalled on for pronouncement of judgment today.

For Appellant(s) Mr. Yash Pal Dhingra,Adv.

For Respondent(s) Mr. Kuldip Singh,Adv.

Mr. Rajat Sharma, Adv. for Mr. Subhasish Bhowmick,AOR



Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of the Bench comprising HisLordship and Hon'ble Mr. Justice C. Nagappan.

For the reasons recorded in the Reportable judgment, which is placed on the file, the appeal isdismissed.

(Renuka Sadana) (Parveen Kumar) Court Master AR-cum-PS



Reportable




Vivek Batra … Appellant

Versus

Union of India and others … Respondents

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated

29.10.2013, passed by the High Court of Judicature at

Bombay in Criminal Writ Petition No. 3654 of 2012, whereby

the petition challenging the sanction dated 09.10.2012 for

prosecution of the appellant under Section 13 of the

Prevention of Corruption Act, 1988 is dismissed.

2. Brief facts of the case are that the appellant is an officer

of cadre of Indian Revenue Service (for short “IRS”), who

entered into the service through 1992 batch. It is stated that

an FIR RC No. BA1/2005/A0017 was registered on

04.04.2005 by Central Bureau of Investigation (CBI)

Page 2 of 11

(Respondent No. 4) in respect of disproportionate assets to the

known sources of the appellant. The prosecution case is that

the appellant has amassed the assets valued at

Rs.1,27,38,353/- in his name and in the names of his wife

and minor son during the check period 04.01.1993 to

31.03.2004, which is disproportionate to the known sources

of his income. The investigation took almost six years to get

completed, which revealed that a sum of Rs.56,30,296/- was

invested by the appellant through Benami transactions in the

names of his wife and son in two companies, namely, M/s.

ARJ Impex Private Limited and M/s. Malik Hospitality Services

Private Limited. According to CBI, the appellant’s wife

Priyanka Batra incorporated a company, M/s. ARJ Impex

Limited, to engage in import-export business, and then sold

her shares in the company to her two uncles, namely, Karan

Singh and Vijay Kumar. The company’s main source of

income was unsecured loans obtained from various companies

and individuals, many of which were never paid back, several

of these loans were from Priyanka Batra herself. Further,

though the sale of income of the company was minimal, it

Page 3 of 11

acquired assets of Rs.85,70,770/- during the check period. It

appears that Karan Singh and Vijay Kumar had incorporated

another company called M/s. Malik Hospitality Services,

whose main source of income was unsecured loans from

various individuals and companies. The company had

acquired assets of Rs.20,52,013/- and had unrepaid loans of

Rs.26,77,000/- during the check period. Priyanka Batra was

connected to Malik Hospitality Services as a public notice

appeared in Nav Bharat Times, showing her as the intended

purchaser of a property that was to be bought for the

company.

3. The appellant was arrested on 02.09.2010, and after

about three days released on bail. He was placed under

suspension by the authority concerned. The CBI sought

sanction for prosecution of the appellant from the competent

authority on which the file was processed, and at the first

stage on 03.05.2011 advice of Central Vigilance Commission

(CVC) was sought by the Finance Department. On

01.09.2011, the CVC recommended that the sanction for

prosecution be granted. The department concerned (Finance

Page 4 of 11

Department) endorsed the matter again on 01.11.2011 for

fresh opinion of the CVC. But the CVC, through its Office

Memorandum dated 02.11.2011, reiterated its opinion. The

Finance Department thereafter referred the matter to

Department of Personnel and Training (for short “DOPT”) for

its views. The DOPT did not appreciate the stand of the

Finance Department that the sanction should be accorded

only if the CBI provides sufficient evidence and communicated

the same through letter dated 29.03.2012. However, it

observed that administrative warning could be issued to the

appellant for not intimating the transactions to Finance

Department. Through letter dated 28.05.2012, the DOPT

conveyed that insufficiency of evidence can be tested in the

court of law and sanction for prosecution can be granted.

Finally, the competent authority, vide its order dated

09.10.2012, granted sanction for prosecution of the appellant,

who challenged the same before the High Court in the writ

petition, which was dismissed by the impugned order.

4. Mr. K.K. Venugopal, learned senior counsel appearing on

behalf of the appellant, argued that there was categorical

Page 5 of 11

opinion of the Finance Department that the evidence laid

before it was not sufficient to grant sanction for prosecution.

It is pointed out that there was difference of opinion between

Finance Ministry and the CVC. Not only this, even DOPT

opined that warning to the officer could be sufficient. It is

further submitted that the earlier competent authority

(Finance Minister, Government of India) had referred the

matter back to the CVC, as such, the sanction for prosecution

stood declined, and grant of the sanction by the successor

Finance Minister cannot be said to be a valid sanction for

prosecution. It is further argued that the Rules of Business

are not followed, as such, it cannot be said that the sanction

was accorded by the competent authority. In support of his

argument learned senior counsel placed reliance on Nazir

Ahmad v. King-Emperor1, and argued that where a power is

given to do a certain thing in a certain way, the thing must be

done in that way or not at all.

5. We have considered the submissions of learned senior

counsel, and perused the record.

1 AIR 1936 PC 253

Page 6 of 11

6. Before further discussion, we thing it just and proper to

quote relevant part of Government of India (Allocation of

Business) Rules, 1961. Sub-rules (3) and (4) of Rule 3 of the

Rules read as under: -

“(3) Where sanction for the prosecution of anyperson for any offence is required to beaccorded –

a) If he is a Government servant, by theDepartment which is the CadreControlling authority for the service ofwhich he is a member, and in any othercase, by the Department in which he wasworking at the time of commission of thealleged offence;

b) If he is a public servant other than aGovernment servant, appointed by theCentral Government, by the Departmentadministratively concerned with theorganization in which he was working atthe time of commission of the allegedoffence; and

c) In any other case, by the Departmentwhich administers the Act under whichthe alleged offence is committed;

Provided that where, for offences allegedto have been committed, sanction is requiredunder more than one Act, it shall be competentfor the Department which administers any ofsuch Acts to accord sanction under all suchActs.

Page 7 of 11

(4) Notwithstanding anything contained insub-rule (3), the President may, by general orspecial order, direct that in any case or class ofcase, the sanction shall be by the Departmentof Personnel and Training.”

7. There is no dispute that for an IRS officer Cadre

Controlling Authority is the Finance Minister of the

Government of India. In Bachhittar Singh v. The State of

Punjab2, Constitution Bench of this Court has held that the

business of the State is a complicated one and has necessarily

to be conducted through the agency of large number of

officials and authorities.8. In Jasbir Singh Chhabra and others v. State of

Punjab and others3, this Court held as under: -

“35. It must always be remembered that in ademocratic polity like ours, the functions of theGovernment are carried out by different individualsat different levels. The issues and policy matterswhich are required to be decided by the Governmentare dealt with by several functionaries some ofwhom may record notings on the files favouring aparticular person or group of persons. Someonemay suggest a particular line of action, which maynot be conducive to public interest and others maysuggest adoption of a different mode in larger publicinterest. However, the final decision is required tobe taken by the designated authority keeping in

2 [1962] Supp. 3 SCR 7133 (2010) 4 SCC 192

Page 8 of 11

view the larger public interest. The notings recordedin the files cannot be made basis for recording afinding that the ultimate decision taken by theGovernment is tainted by mala fides or is influencedby extraneous considerations……”

9. In Sethi Auto Service Station and another v. Delhi

Development Authority and others4, this Court observed as

under: -“14. It is trite to state that notings in adepartmental file do not have the sanction of law tobe an effective order. A noting by an officer is anexpression of his viewpoint on the subject. It is nomore than an opinion by an officer for internal useand consideration of the other officials of thedepartment and for the benefit of the finaldecision-making authority. Needless to add thatinternal notings are not meant for outside exposure.Notings in the file culminate into an executableorder, affecting the rights of the parties, only whenit reaches the final decision-making authority in thedepartment, gets his approval and the final order iscommunicated to the person concerned.”

10. In view of the law laid down by this Court, as above, we

are of the opinion that the sanction cannot be held invalid only

for the reason that in the administrative notings different

authorities have opined differently before the competent

authority took the decision in the matter. It is not a case

where the Finance Minister was not the competent authority

4 (2009) 1 SCC 180

Page 9 of 11

to grant the sanction. What is required under Section 19 of

the Prevention of Corruption Act, 1988 is that for taking the

cognizance of an offence, punishable under Sections 7, 10, 11,

13 and 15 of the Act committed by the public servant, is

necessary by the Central Government or the State

Government, as the case may be, and in the case of a public

servant, who is neither employed in connection with affairs of

the Union or the State, from the authority competent to

remove him. Sub-section (2) of Section 19 of the Act provides

that 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 authority, such sanction shall be given by

that Government or authority which could have been

competent to remove the public servant from his office at the

time when the offence was alleged to have been committed.

Sub-section (3) of Section 19 of the Prevention of Corruption

Act, 1988 provides as under: -

“(3) Notwithstanding anything contained in theCode of Criminal Procedure, 1973 (2 of 1974), -

Page 10 of 11

(a) no finding, sentence or order passed by aspecial Judge shall be reversed or altered by acourt in appeal, confirmation or revision on theground of the absence of, or any error,omission or irregularity in, the sanctionrequired under sub-section (1), unless in theopinion of that court, a failure of justice has infact been occasioned thereby;

(b) no court shall stay the proceedings under thisAct on the ground of any error, omission orirregularity in the sanction granted by theauthority, unless it is satisfied that such error,omission or irregularity has resulted in afailure of justice;

(c) no court shall stay the proceedings under thisAct on any other ground and no court shallexercise the powers of revision in relation toany interlocutory order passed in any inquiry,trial, appeal or other proceedings.”

11. Having gone through the copy of note-sheets relating to

sanction in question placed before us as part of rejoinder

affidavit, it is evident that there had been proper application of

mind on the part of the competent authority before the

sanction was accorded. Our perusal of the said record does

not indicate that any decision was taken by the competent

authority, at any point of time, not to grant sanction so as to

give the decision to grant sanction the colour of a review of any

such earlier order, as has been contended before us. The

Page 11 of 11

opinion of CVC, which was reaffirmed and ultimately prevailed

in according the sanction, cannot be said to be irrelevant for

the reason that clause (g) of Section 8 of the Central Vigilance

Commission Act, 2003 provides that it is one of the functions

of the CVC to tender advice to the Central Government on

such matters as may be referred to it by the Government.

12. For the reasons, as discussed above, we find no reason to

interfere with the impugned order passed by the High Court

dismissing the writ petition. Accordingly, the appeal is

dismissed. The interim order dated 25.11.2014, passed by

this Court, is hereby vacated. The trial court is directed to

conclude the trial expeditiously. However, we clarify that we

have not given any opinion as to the merits of the case. There

shall be no order as to costs.

……………………………..J.[Ranjan Gogoi]

……………………………..J.[Prafulla C. Pant]

New Delhi;October 18, 2016.

abhay singh chautala vs c.b.i on 4 july,...

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