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
CRIMINAL APPEAL NO. 1258 OF 2011
(Arising out of SLP (Crl.) No. 7428 of 2010)
Ajay Singh Chautala ... Appellant
Versus
C.B.I. ... Respondent
J U D G M E N T
V.S. SIRPURKAR, J.
1. This judgment will dispose of two Special Leave Petitions, they being SLP
(Crl.) No. 7384 of 2010 and SLP (Crl.) No. 7428 of 2010. While Abhay Singh
Chautala is the petitioner in the first Special Leave Petition, the second one has
been filed by Shri Ajay Singh Chautala. The question involved is identical in both
the SLPs and hence they are being disposed of by a common judgment.
2. Leave granted in both the Special Leave Petitions.
3. Whether the sanction under Section 19 of The Prevention of Corruption
Act (hereinafter called "the Act" for short) was necessary against both the
appellants and, therefore, whether the trial which is in progress against both of
them, a valid trial, is common question. This question was raised before the
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Special Judge, CBI before whom the appellants are being tried for the offences
under Sections 13(1) (e) and 13(2) of the Prevention of Corruption Act read with
Section 109 of Indian Penal Code in separate trials.
4. Separate charge sheets were filed against both the appellants for the
aforementioned offences by the CBI. It was alleged that both the accused while
working as the Members of Legislative Assembly had accumulated wealth
disproportionate to their known sources of income. The charges were filed on
the basis of the investigations conducted by the CBI. This was necessitated on
account of this Court's order in Writ Petition (Crl.) No.93 of 2003 directing the CBI
to investigate the JBT Teachers Recruitment Scam. The offences were
registered on 24.5.2004. The CBI conducted searches and seized incriminating
documents which revealed that Shri Om Prakash Chautala and his family had
acquired movable and immovable properties valued at Rs.1,467 crores. On this
basis a Notification came to be issued on 22.2.2006 under Sections 5 and 6 of
the DSPE Act with the consent of the Government of Haryana extending powers
and jurisdiction under the DSPE Act to the State of Haryana for investigation of
allegations regarding accumulation of disproportionate assets by Shri Om
Prakash Chautala and his family members under the Prevention of Corruption
Act. A regular First Information Report then came to be registered against Shri
Om Prakash Chautala who is the father of both the appellants. It is found that in
the check period of 7.6.2000 to 8.3.2005, appellant Abhay Singh Chautala had
amassed wealth worth Rs.1,19,69,82,619/- which was 522.79 % of appellant
Abhay Singh Chautala's known sources of income. During the check period, Shri
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Abhay Singh Chautala was the Member of the Legislative Assembly Haryana,
Rori Constituency. Similarly, in case of Ajay Singh Chautala, his check period
was taken as 24.5.1993 to 31.5.2006 during which he held the following offices:-
1. 2.3.90 to 15.12.92 MLA Vidhan Sabha, Rajasthan
2. 28.12.93 to 31.11.98 MLA Vidhan Sabha, Rajasthan
3. 10.10.99 to 6.2.2004 Member of Parliament, Lok Sabha from
Bhiwani Constituency
4. 2.8.2004 to 03.11.09 Member of Parliament, Rajya Sabha
He was later on elected as MLA from Dabwali constituency, Haryana in
November, 2009. It was found that he had accumulated wealth worth
Rs.27,74,74,260/- which was 339.26 % of his known sources of income. It was
on this basis that the charge sheet came to be filed.
5. Admittedly, there is no sanction to prosecute under Section 19 of the Act
against both the appellants.
6. An objection regarding the absence of sanction was raised before the
Special Judge, who in the common order dated 2.2.2010, held that the
allegations in the charge sheet did not contain the allegation that the appellants
had abused their current office as member of Legislative Assembly and,
therefore, no sanction was necessary.
7. This order was challenged by way of a petition under Section 482 Cr.P.C.
before the High Court. The High Court dismissed the said petition by the order
dated 8.7.2010.
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8. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit
arguing for the appellants, urged that on the day when the charges were framed
or on any date when the cognizance was taken, both the appellants were
admittedly public servants and, therefore, under the plain language of Section 19
(1) of the Act, the Court could not have taken cognizance unless there was a
sanction. The learned senior counsel analyzed the whole Section closely and
urged that in the absence of a sanction, the cognizance of the offences under the
Prevention of Corruption Act could not have been taken. In this behalf, learned
senior counsel further urged that the judgment of this Court in Prakash Singh
Badal v. State of Punjab [2007 (1) SCC 1] as also the relied on judgment in RS
Nayak v. A R. Antulay [1984 (2) SCC 183] were not correct and required
reconsideration and urged for a reference to a Larger Bench.
9. Against these two judgments as also the judgments in Balakrishnan Ravi
Menon v. Union of India [2007 (1) SCC 45], K. Karunakaran v. State of
Kerala [2007 (1) SCC 59] and Habibullah Khan v. State of Orissa & Anr.
[1995 (2) SCC 437], this Court had clearly laid down the law and had held that
where the public servant had abused the office which he held in the check period
but had ceased to hold "that office" or was holding a different office then a
sanction would not be necessary. The learned Solicitor General appearing for
the respondent urged that the law on the question of sanction was clear and the
whole controversy was set at rest in AR Antulay's case (cited supra) which
was followed throughout till date. The Solicitor General urged that the said
position in law should not be disturbed in view of the principle of staire decicis.
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Extensive arguments were presented by both the parties requiring us now to
consider the question.
Section 19 runs as under:-
"19. Previous sanction necessary for prosecution.
(1) No court shall take cognizance of an offence
punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant,
except with the previous sanction, -
(a) In the case of a person who is employed in
connection with the affairs of the Union and is
not removable from his office save by or with
the sanction of the Central Government, of that
Government;
(b) In the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the
sanction of the State Government, of that
Government;
(c) In the case of any other person, of the authority
competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as
to whether the previous sanction as required under
sub-section (1) should be given by the Central
Government or the State Government or any other
authority, such sanction shall be given by that
Government or authority which would have been
competent to remove the public servant from his
office at the time when the offence was alleged to
have been committed.
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973-
(a) No finding, sentence or order passed by a
Special Judge shall be reversed or altered by a
Court in appeal, confirmation or revision on the
ground of the absence of, or any error,
omission, irregularity in, the sanction required
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under sub-section (1), unless in the opinion of
that court, a failure of justice has, in fact, been
occasioned thereby;
(b) No court shall stay the proceedings under this
Act on the ground of any error, omission or
irregularity in the sanction granted by the
authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure
of justice;
(c) No court shall stay the proceedings under this
Act on any other ground and no court shall
exercise the powers of revision in relation to
any interlocutory order passed in inquiry, trial,
appeal or other proceedings.
(4) In determining under sub-section (3) whether the
absence of, or any error, omission or irregularity in,
such sanction has occasioned or resulted in a failure
of justice the Court shall have regard to the fact
whether the objection could and should have been
raised at any earlier stage in the proceedings.
Explanation: For the purposes of this Section, -
(a) Error includes competency of the authority to
grant sanction;
(b) A sanction required for prosecution includes
reference to any requirement that the
prosecution shall be at the instance of a
specified authority or with the sanction of a
specified person or any requirement of a
similar nature."
10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing
on behalf of the appellants, firstly pointed out that the plain meaning of Section
19(1) of the Act is that when any public servant is tried for the offences under the
Act, a sanction is a must. The learned senior counsel were at pains to point out
that in the absence of a sanction, no cognizance can be taken against the public
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servant under Sections 7, 10, 11, 13 and 15 of the Act and thus, a sanction is a
must. The learned senior counsel relied on the decision in Abdul Wahab
Ansari Vs. State of Bihar [2000 (8) SCC 500], more particularly, paragraph 7,
as also the decision in Baij Nath Prasad Tripathi Vs. State of Bhopal [1957 (1)
SCR 650]. The plain language of Section 19(1) cannot be disputed. The learned
senior counsel argued that Section 19(1) of the Act creates a complete embargo
against taking cognizance of the offences mentioned in that Section against the
accused who is a public servant. The learned senior counsel also argued that it
is only when the question arises as to which authority should grant a sanction
that the sub-Section (2) will have to be taken recourse to. However, where there
is no duty of any such nature, the Court will be duty bound to ask for the sanction
before it takes cognizance of the offences mentioned under this Section.
11. As against this, Shri Gopal Subramanium, learned Solicitor General,
pointed out the decision in RS Nayak v. A R. Antulay (cited supra) and the
subsequent decisions in Balakrishnan Ravi Menon v. Union of India (cited
supra), K. Karunakaran v. State of Kerala (cited supra), Habibullah Khan v.
State of Orissa & Anr. (cited supra) and lastly, in Prakash Singh Badal v.
State of Punjab (cited supra).
12. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing
on behalf of the appellants, have no quarrel with the proposition that in all the
above cases, it is specifically held that where the alleged misconduct is in some
different capacity than the one which is held at the time of taking cognizance,
there will be no necessity to take the sanction.
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13. To get over this obvious difficulty, the learned senior counsel appearing on
behalf of the appellants contended that the basic decision in RS Nayak v. A R.
Antulay (cited supra) was not correctly decided, inasmuch as the decision did
not consider the plain language of the Section which is clear and without any
ambiguity. The learned senior counsel contended that where the language is
clear and admits of no ambiguity, the Court cannot reject the plain meaning
emanating out of the provision. Further, the learned senior counsel pointed out
that even in the judgments following the judgment in RS Nayak v. A R. Antulay
(cited supra) upto the judgment in the case of Prakash Singh Badal v. State of
Punjab (cited supra) and even thereafter, the learned Judges have not
considered the plain meaning and on that count, those judgments also do not
present correct law and require reconsideration. Another substantial challenge to
the judgment in RS Nayak v. A R. Antulay (cited supra) is on account of the
fact that the law declared to the above effect in RS Nayak v. A R. Antulay (cited
supra) was obiter dictum, inasmuch as it was not necessary for the Court to
decide the question, more particularly, decided by the Courts in paragraphs 23
to 26. The learned senior counsel pointed out that, firstly, the Court in RS Nayak
v. A R. Antulay (cited supra), came to the conclusion that Shri Antulay who was
a Member of the Legislative Assembly, was not a public servant. It is contended
that once that finding was arrived at, there was no question of further deciding as
to whether, the accused being a public servant in a different capacity, the law
required that there had to be a sanction before the Court could take the
cognizance. Learned senior counsel further argued that where the Court makes
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an observation which is either not necessary for the decision of the court or does
not relate to the material facts in issue, such observation must be held as obiter
dictum. In support of this proposition, the learned senior counsel relied on the
decision in Director of Settlement, State of A.P. Vs. M.R. Apparao [2002 (4)
SCC 638] (Paragraph 7), State of Haryana Vs. Ranbir @ Rana [2006 (5) SCC
167], Division Controller, KSRTC Vs. Mahadeva Shetty & Anr. [2003(7) SCC
197] (Paragraph 23), H.H. Maharajadhiraja Mahdav Rao Jiwaji Rao Scindia
Bahadur Vs. Union of India [AIR 1971 SC 530] (Paragraph 325 onwards),
State of Orissa Vs. Sudhansu Sekhar Misra [AIR 1968 SC 647] [in which the
celebrated decision in Quinn Vs. Leathem 1901 AC 495] was relied on and ADM
Jabalpur etc. Vs. Shivkant Shukla [1976 (2) SCC 521] etc. The learned senior
counsel also argued that the whole class of public servant would be deprived of
the protection if the decision in RS Nayak v. A R. Antulay (cited supra) is
followed. For this purpose, learned senior counsel argued that in such case,
public servants would be exposed to frivolous prosecutions which would have
disastrous effects on their service careers, though they are required to be
insulated against such false, frivolous and motivated complaints of wrong doing.
It is then argued that the decision in K. Veeraswami Vs. Union of India [1991
(3) SCC 655] has in fact removed the very foundation of the decision in RS
Nayak v. A. R. Antulay (cited supra) in respect of the sanction. It is also
argued that, in effect, the decision in RS Nayak v. A R. Antulay (cited supra)
has added further proviso to the effect "provided that nothing in this sub-Section
shall apply to a case where at the time of cognizance, the public servant is
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holding a different post with a different removing authority from the one in which
the offence is alleged to have been committed". It is argued that such an
addition would be clearly impermissible as it would negate the very foundation of
criminal law which requires a strict interpretation in favour of the accused and not
an interpretation which results into deprivation of the accused of his statutory
rights. The decision in S.A. Venkataraman Vs. State [AIR 1958 SC 107] is also
very heavily relied upon, more particularly, the observations in paragraphs 14
and 16 thereof.
14. It will be, therefore, our task to see as to whether the judgment in A. R.
Antulay's case (cited supra) and the law decided therein, particularly in
paragraphs 24, 25 and 26 is obiter. Paragraphs 24, 25 and 26 are as under:
"24. Now if the public servant holds two offices and he is
accused of having abused one and from which he is
removed but continues to hold the other which is
neither alleged to have been used nor abused, is a
sanction of the authority competent to remove him
from the office which is neither alleged or shown to
have been abused or misused necessary? The
submission is that if the harassment of the public
servant by a frivolous prosecution and criminal waste
of his time in law courts keeping him away from
discharging public duty, are the objects underlying
Section 6, the same would be defeated if it is held that
the sanction of the latter authority is not necessary.
The submission does not commend to use. We fail to
see how the competent authority entitled to remove
the public servant from an office which is neither
alleged to have been used or abused would be able
to decide whether the prosecution is frivolous or
tendentious. An illustration was posed to the learned
Counsel that a Minister who is indisputably a public
servant greased his palms by abusing his office as
Minister, and then ceased to hold the office before the
court was called upon to take cognizance of the
offence against him and therefore, sanction as
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contemplated by Section 6 would not be necessary;
but if after committing the offence and before the date
of taking of cognizance of the offence, he was elected
as a Municipal President in which capacity he was a
public servant under the relevant Municipal law, and
was holding that office on the date on which court
proceeded to take cognizance of the offence
committed by him as a Minister, would a sanction be
necessary and that too of that authority competent to
remove him from the office of the Municipal President.
The answer was- in affirmative. But the very
illustration would show that such cannot be the law.
Such an interpretation of Section 6 would render it as
a shield to an unscrupulous public servant. Someone
interested in protecting may shift him from one office
of public servant to another and thereby defeat the
process of law. Ode can legitimately envisage a
situation wherein a person may hold a dozen different
offices, each one clothing him with the status of a
public servant under Section 21 IPC and even if he
has abused only one office for which either there is a
valid sanction to prosecute him or he has ceased to
hold that office by the time court was called upon to
take cognizance, yet on this assumption, sanction of
11 different competent authorities each of which was
entitled to remove him from 11 different public offices
would be necessary before the court can take
cognizance of the offence committed by such public
servant/while abusing one office which he may have
ceased to hold. Such an interpretation in contrary to
all canons of construction and leads to an absurd and
product which of necessity must be avoided.
Legislation must at all costs be interpreted in such a
way that it would not operate as a rougue's charter.
(See Davis & Sons Ltd. v. Atkins [1977] ICR 662
25. Support was sought to be drawn for the submission
from the decision of the Andhra Pradesh High Court
in Air Commodore Kailash Chand v. The State (S.P.E.
Hyderabad) (1973) 2 AWR 263 and the affirmance of
that decision by this Court in The State (S.P.E.
Hyderabad) v. Air Commodore Kailash Chand :
1980CriLJ393 . In that case accused Kailash Chand
was, a member of the Indian Air Force having entered
the service on 17th November 1941. He retired from
the service on 15th June , 1965, but was re-employed
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for a period of 2 years with effect from 16th June,
1965. On 7th September, 1966, the respondent was
transferred to the Regular Air Force Reserve with
effect from June 16, 1965 to June 15, 1970 i.e. for a
period of 5 years. On 13th March, 1968, the re-
employment given to the respondent ceased and his
service was terminated with effect from April 1, 1968.
A charge-sheet was submitted against him for having
committed an offence under Section 5(2) of the
Prevention of Corruption Act, 1947 during the period
March 29, 1965 to March 16, 1967. A contention was
raised on behalf of the accused that the court could
not take cognizance of the offence in the absence of a
valid sanction of the authority competent to remove
him from the office held by him as a public servant.
The learned special Judge negatived the contention.
In the revision petition filed by the accused in the High
Court, the learned Single Judge held that on the date
of taking cognizance of the offence, the accused was
a member of the Regular Air Force Reserve set up
under the Reserve and Auxiliary Air Force, 1952 and
the rules made there under. Accordingly, it was held
that a sanction to prosecute him was necessary and
in the absence of which the court could not the
cognizance of the offences and the prosecution was
quashed. In the appeal by certificate, this Court
upheld the decision of the High Court. This Court held
following the decision in S.A. Venkataraman's case
that if the public servant had ceased to be a public
servant at the time of taking cognizance of the
offence, Section 6 is not attracted. Thereafter the
court proceeded to examine whether the accused was
a public servant on the date when the court took
cognizance of the offence and concluded that once
the accused was transferred to the Auxiliary Air
Force, he retained his character as a public servant
because he was required to undergo training and to
be called up for service as and when required. The
court further held that as such the accused was a
public servant as an active member of the Indian Air
Force and a sanction to prosecute him under Section
6 was necessary. This decision is of no assistance for
the obvious reason that nowhere it was contended
before the court, which office was alleged to have
been abused by the accused and whether the two
offices were separate and distinct. It is not made clear
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whether the accused continued to hold the office
which was alleged to have been abused or misused
even at the time of taking cognizance of the offence.
But that could not be so because the service of the
accused was terminated on April 1, 1968 while the
cognizance was sought to be taken in June, 1969.
Indisputably, the accused had ceased to hold that
office as public servant which he was alleged to have
misused or abused. The court was however, not
invited to consider the contention canvassed before
us: Nor was the court informed specifically whether
the subsequent office held by the accused in that
case was the same from which his service was
terminated meaning thereby he was re-employed to
the same office. The decision appears to proceed on
the facts of the case. We would however, like to make
it abundantly clear that if the two decisions purport to
lay down that even if a public servant has ceased to
hold that office as public servant which he is alleged
to have abused or misused for corrupt motives, but on
the date of taking cognizance of an offence alleged to
have been committed by him as a public servant
which he ceased to be and holds an entirely different
public office which he is neither alleged to have
misused or abused for corrupt motives, yet the
sanction of authority competent to remove him from
such latter office would be necessary before taking
cognizance of the offence alleged to have been
committed by the public servant while holding an
office which he is alleged to have abused or misused
and which he has ceased to hold, the decisions in our
opinion, do not lay down the correct law and cannot
be accepted as making a correct interpretation of
Section 6.
26. Therefore, upon a true construction of Section 6, it is
implicit therein that Sanction of that competent
authority alone would be necessary which is
competent to remove the public servant from the
office which he is alleged to have misused or abused
for corrupt motive and for which a prosecution is
intended to be launched against him."
15. It is clear from these paragraphs that the law laid down in Air
Commodore Kailash Chand v. The State (S.P.E. Hyderabad) [(1973) 2 AWR
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263] was taken into consideration. The Court has also quoted S.A.
Venkataraman's case (cited supra) and the decision in Kailash Chand's case
(cited supra) was distinguished by holding thus:
"This decision is of no assistance for the obvious reason that
nowhere it was contended before the court, which office was
alleged to have been abused by the accused and whether
the two offices were separate and distinct. It is not made
clear whether the accused continued to hold the office which
was alleged to have been abused or misused even at the
time of taking cognizance of the offence. But that could not
be so because the service of the accused was terminated on
April 1, 1968 while the cognizance was sought to be taken in
June, 1969. Indisputably, the accused had ceased to hold
that office as public servant which he was alleged to have
misused or abused. The court was however, not invited to
consider the contention canvassed before us: Nor was the
court informed specifically whether the subsequent office
held by the accused in that case was the same from which
his service was terminated meaning thereby he was re-
employed to the same office. The decision appears to
proceed on the facts of the case."
16. The propositions argued by the learned Solicitor General have, therefore,
been totally accepted. However, that does not solve the question. The question
is whether these propositions amount to obiter. The learned senior counsel for
the appellants insists that it was not at all necessary for the Court to make these
observations as the Court had answered the question whether A.R. Antulay in his
capacity as an MLA, was a public servant, in negative. The learned senior
counsel argued that once it was found that Antulay in his capacity as an MLA,
was not a public servant, it was not at all necessary for the Court to go further
and probe a further question as to whether a public servant who has abused a
particular office ceased to hold that office and held some other office on the date
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of cognizance would still require sanction for his prosecution for the offence
under the Act. The argument is extremely attractive on the face of it because
indeed in Antulay's case (cited supra) such a finding that Shri Antulay in his
capacity is an MLA was not a public servant was unequivocally given. However,
we do not agree to the proposition that the Court could not have gone further and
recorded its finding in paragraphs 23 to 26 as they did. It is necessary firstly to
note paragraph 15 which gives a clear cut idea as to what was the exact
controversy therein and how the rival parties addressed Courts on various
questions. Paragraph 15 is as under:-
"15. The appellant, the
original complainant, contends that the learned
special Judge was in error in holding that M.L.A. is a
public servant within the meaning of the expression
under Section 21(12)(a). The second submission was
that if the first question is answered in the affirmative,
it would be necessary to examine whether a sanction
as contemplated by Section 6 is necessary. If the
answer to the second question is in the affirmative it.
would be necessary to identify the sanctioning
authority. The broad sweep of the argument was that
the complainant in his complaint has alleged that the
accused abused his office of Chief Minister and not
his office, if any, as M.L.A. and therefore, even if on
the date of taking cognizance of the offence the
accused was M.L.A, nonetheless no sanction to
prosecute him is necessary as envisaged by Section
6 of the 1947 Act. It was urged that as the allegation
against the accused in the complaint is that he
abused or misused his office as Chief Minister and as
by the time the complaint was filed and cognizance
was taken, he had ceased to hold the office of the
Chief Minister no sanction under Section 6 was
necessary to prosecute him for the offences alleged
to have been committed by him when the accused
was admittedly a public servant in his capacity as
Chief Minister." (Emphasis supplied).
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Therefore, it will be clear that the complainant's main argument was the
abuse of the office of Chief Minister which the accused ceased to hold and hence
no sanction was necessary. In that the complainant proceeded on the premise
that the accused as the MLA was a public servant.
17. In paragraph 16 the contention of the accused is noted which suggests
that he was a public servant within the contemplation of clauses (3) and (7) of
Section 21 of IPC as also under section 21 (12) (a). In fact it was the argument
of accused by way of the next claim that if the accused holds plurality of offices
each of which confers the status of a public servant and even if it is alleged that
he has abused or misused one office as a public servant notwithstanding the fact
that there was no allegation of the abuse or misuse of other office held as public
servant, the sanction of each authority competent to remove him from each of the
offices would be a sine qua non under Section 6 before a valid prosecution can
be launched against the accused. Therefore, the question of accused being a
public servant was inextricably mixed with the question of the office which
accused was alleged to have misused. There was no dichotomy between the
two questions. Strangely enough, the accused claimed to be a public servant,
unlike the present case and it was on that premise that the accused had raised a
question that there would have to be the sanction qua each office that he
continued to hold on the date when the cognizance was taken. In the present
case, it is not disputed that the accused was a public servant. Undoubtedly they
were public servants. By the subsequent judgment in P.V. Narsimha Rao Vs.
State [1998 (4) SCC 626] it has been clearly held now that the Members of
1
Legislative Assembly and the Members of Parliament are public servants.
Therefore, the question which was addressed in that case by the accused
claiming himself to be a public servant is an identical question which fell for
consideration before the High Court as also before us. In paragraph 17, the
Court formulated the questions to be decided precisely on the basis of the
contention raised by the accused in that case. Following were those questions :
"(a) What is the relevant date with reference to which a
valid sanction is a pre-requisite for the prosecution of
a public servant for offences enumerated in Section 6
of the 1947 Act?
(b) If the accused holds plurality of offices occupying
each of which makes him a public servant, is sanction
of each one of the competent authorities entitled to
remove him from each one of the offices held by him
necessary and if anyone of the competent authorities
fails or declines to grant sanction, is the Court
precluded or prohibited from taking cognizance of the
offence with which the public servant is charged?
(c) Is it implicit in Section 6 of the 1947 Act that sanction
of that competent authority alone is necessary, which
is entitled to remove the public servant from the office
which is alleged to have been abused for misused for
corrupt motives?
(d) Is M.L.A. a public servant within the meaning of the
expression in Section 21(12)(a) IPC?
(e) Is M.L.A. a public servant within the meaning of the
expression, in Section 21(3) and Section 21(7) IPC?
(f) Is sanction as contemplated by Section 6 of the 1947
Act necessary for prosecution of M.L.A.?
(g) If the answer to (f) is in the affirmative, which is the
Sanctioning Authority competent to remove M.L.A.
from the office of Member of the Legislative
Assembly?"
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18. It will be seen from the nature of the questions that the whole controversy
was covered by those questions particularly, the question raised in (b), (c), (d)
and (e) were nothing but the result of the contentions raised by the parties which
directly fell for consideration.
19. The Court answered the first question that the relevant date of sanction
would be the date on which the cognizance was taken of the offence. Since in
paragraph 23 to 26 the Court found that the accused in that case did not continue
to hold the office that he had allegedly abused on the date of cognizance, there
was no necessity of granting any sanction. The Court held so in paragraph 27 in
the most unequivocal terms. The Court goes on to record "therefore, it is crystal
clear that the complaint filed against the accused charged him with criminal
abuse or misuse of only his office as Chief Minister. By the time, the court was
called upon to take cognizance of the offences, so alleged in the complaint, the
accused had ceased to hold the office of the Chief Minister. On this short ground,
it can be held that no sanction to prosecute him was necessary as former Chief
Minister of Maharashtra State. The appeal can succeed on this short ground."
(Emphasis supplied).
20. However, subsequently, the question whether an MLA was a public
servant was also canvassed at length. The Court then went on to examine the
question in further paragraphs and came to the conclusion that MLA was not a
public servant which law was, of course thereafter, upset in Narsimha Rao's
case (cited supra). It cannot be said that the question decided by the Court
regarding the abuse of a particular office and the effects of the accused not
1
continuing with that office or holding an altogether different office was obiter. In
fact it is on that very basis that the judgment of A.R.Antulay (cited supra)
proceeded. The question of MLA not being a public servant was decided as a
subsidiary question.
21. This finding of ours is buttressed by the decision reported in
Balakrishnan Ravi Menon v. Union of India (cited supra) which decision
came almost immediately after Prakash Singh Badal v. State of Punjab (cited
supra) case. Whether the finding given in the judgment of Antulay's case
(cited supra) was obiter was the question that directly fell for consideration in
that case. This Court quoted paragraph 24 of the judgment in Antulay's case
(cited supra) so also some portion of paragraph 25. It is on the basis of these
two paragraphs that the Court unequivocally rejected the contention that the
finding given in Antulay's case (cited supra) regarding the abuse of office of
Chief Minister was obiter. Therefore, it would not be possible for us to hold that
the finding given in Antualy's case (cited supra) was an obiter. We must point
out at this juncture that in Antulay's case (cited supra) the Court first went on to
decide the basic question that if the accused did not continue with the office that
he had allegedly abused on the day cognizance was taken, then there was no
requirement of sanction.
22. This finding was given as the complainant in that case had canvassed in
the backdrop of the judgment of the trial Court discharging the accused holding
him to be a public servant. The trial Court had held that in the absence of such
sanction, the accused was entitled to be discharged. The complainant filed a writ
2
petition against this order. This court had permitted to file a criminal revision
against the order of learned Special Judge perhaps being of the opinion that the
writ petition did not lie and ultimately this Court transferred the criminal revision
against the trial Court's judgment here. The complainant, therefore, had
specifically and basically raised the point that since the accused had ceased to
hold the office of Chief Minister on the date of cognizance, there was no question
of any sanction and that was the main issue which was decided in Antulay's
case (cited supra) as the basic issue by way of question No.(b)
23. We, therefore, do not think the finding given in Antulay's case (cited
supra) was in any manner obiter and requires reconsideration. Learned Senior
Counsel relied on the decision in Marta Silva & Ors. Vs. Piedade Cardazo &
Ors. [AIR 1969 Goa 94], State of A.P. Vs. M.R. Apparao (cited supra], State
of Haryana Vs. Ranbir alias Rana (cited supra], Division Controller, KSRTC
Vs. Mahadeva Shetty & Anr. (cited supra), H.H. Maharajadhiraja Madhav
Rao Jiwaji Rao Scindia Bahadur Vs. Union of India (cited supra), State of
Orissa Vs. Sudhansu Sekhar Misra (cited supra) and lastly ADM, Jabalpur
etc. Vs. Shivkant Shukla (cited supra] and contended that the principles of
obiter dicta in the aforementioned decisions would apply to Antulay's case
(cited supra) also. We have already shown that the principles regarding the
abuse of a particular office, decided in Antulay's case (cited supra), could not
be termed as Obiter dicta. We have nothing to say about the principles in the
aforementioned decisions. However, in the circumstances, which we have
shown above, all these cases would be of no help to the appellants herein,
2
particularly in the light of our conclusion that the principles arrived at in
Antulay's case (cited supra) could not be termed as obiter dicta. We,
therefore, reject the argument on that count.
24. There is one more reason, though not a major one, for not disturbing the
law settled in Antulay's case (cited supra). That decision has stood the test of
time for last over 25 years and it is trite that going as per the maxim stare decisis
et non quieta movere, it would be better to stand by that decision and not to
disturb what is settled. This rule of interpretation was approved of by Lord Coke
who suggested - "those things which have been so often adjudged ought to rest
in peace". This Court in Shanker Raju Vs. Union of India [2011 (2) SCC 132],
confirmed this view while relying on the decision in Tiverton Estates Ltd. Vs.
Wearwell Ltd. [1974 (1) WLR 176] and more particularly, the observations of
Scarman, L.J., while not agreeing with the view of Lord Denning, M.R. about
desirability of not accepting previous decisions. The observations are to the
following effect:-
"..... I decline to accept his lead only because I think it damaging to
the law to the long term - though it would undoubtedly do justice in
the present case. To some it will appear that justice is being
denied by a timid, conservative adherence to judicial precedent.
They would be wrong. Consistency is necessary to certainty - one
of the great objectives of law."
The Court also referred to the following other cases:-
Waman Rao Vs. Union of India [1981 (2) SCC 362], Manganese
Ore (India) Ltd. Vs. CST [1976 (4) SCC 124], Ganga Sugar
Corpn. Vs. State of U.P. [1980 (1) SCC 223], Union of India Vs.
2
Raguhbir Singh [1989 (2) SCC 754], Krishena Kumar Vs. Union
of India [1990 (4) SCC 207], Union of India Vs. Paras Laminates
(P) Ltd. [1990(4) SCC 453] and lastly, Hari Singh Vs. State of
Haryana [1993 (3) SCC 114].
We respectfully agree with the law laid down in Shanker Raju Vs. Union
of India (cited supra) and acting on that decision, desist from disturbing the
settled law in Antulay's case (cited supra). We have in the earlier part of the
judgment, pointed out as to how the decision in Antulay's case (cited supra)
has been followed right up to the decision in Prakash Singh Badal v. State of
Punjab (cited supra) and even thereafter.
25. This leaves us with the other contention raised by learned Senior Counsel
Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants. The
learned senior counsel contended that the decision in Antulay's case (cited
supra) is hit by the doctrine of per incuriam. The learned senior counsel heavily
relied on the decision in Punjab Land Development Reclamation Corporation
Ltd. Vs. Presiding Officer [1990 (3) SCC 682] and Nirmal Jeet Kaur Vs. State
of M.P. [2004 (7) SCC 558] to explain the doctrine of per incuriam. We have
absolutely no quarrel with the principles laid down in those two cases. However,
we feel that the resultant argument on the part of the learned senior counsel is
not correct. In support of their argument, the learned senior counsel contended
that in Antulay's case (cited supra), Section 6(2) of the Act, as it therein
existed, was ignored. In short, the argument was that Section 6(2) which is
parimateria with Section 19(2) of the Act provides that in case of doubt as to
2
which authority should give the sanction, the time when the offence is alleged to
have been committed is relevant. The argument further goes on to suggest that
if that is so, then the Act expressly contemplates that a public servant may be
holding office in a different capacity from the one that he was holding when the
offence is alleged to have been committed at the time when cognizance is taken
so as to cause doubt about the sanctioning authority. Thus, there would be
necessity of a sanction on the date of cognizance and, therefore, in ignoring this
aspect, the decision in Antulay's case (cited supra) has suffered an illegality.
Same is the argument in the present case.
26. This argument is basically incorrect. In Antulay's case (cited supra), it is
not as if Section 6(2) of the Act as it then existed, was ignored or was not
referred to, but the Constitution Bench had very specifically made a reference to
and had interpreted Section 6 as a whole. Therefore, it cannot be said that the
Constitution Bench had totally ignored the provisions of Section 6 and more
particularly, Section 6(2). Once the Court had held that if the public servant had
abused a particular office and was not holding that office on the date of taking
cognizance, there would be no necessity to obtain sanction. It was obvious that
it was not necessary for the Court to go up to Section 6(2) as in that case, there
would be no question of doubt about the sanctioning authority. In our opinion
also, Section 6(2) of the Act, which is parimateria to Section 19(2), does not
contemplate a situation as is tried to be argued by the learned senior counsel.
We do not agree with the proposition that the Act expressly contemplates that
a public servant may be holding office in a different capacity from the one
2
that he was holding when the offence is alleged to have been committed at
the time when cognizance is taken. That is not, in our opinion, the eventuality
contemplated in Section 6(2) or Section 19(2), as the case may be. In Antulay's
case (cited supra), the Court went on to hold that where a public servant holds a
different capacity altogether from the one which he is alleged to have abused,
there would be no necessity of sanction at all. This view was taken on the
specific interpretation of Section 6 generally and more particularly, Section
6(1)(c), which is parimateria to Section 19(1)(c) of the Act. Once it was held that
there was no necessity of sanction at all, there would be no question of there
being any doubt arising about the sanctioning authority. The doubt expressed in
Section 19(2), in our opinion, is not a pointer to suggest that a public servant may
have abused any particular office, but when he occupies any other office
subsequently, then the sanction is a must. That will be the incorrect reading of
the Section. The Section simply contemplates a situation where there is a
genuine doubt as to whether sanctioning authority should be the Central
Government or the State Government or any authority competent to remove him.
The words in Section 19(2) are to be read in conjunction with Sections 19(1)(a),
19(1)(b) and 19(1)(c). These clauses only fix the sanctioning authority to be the
authority which is capable of "removing a public servant". Therefore, in our
opinion, the argument based on the language of Section 6(2) or as the case may
be, Section 19(2), is not correct. This eventuality has been considered, though
not directly, in paragraph 24 in the judgment in Antulay's case (cited supra), in
the following manner:-
2
"24 ....An illustration was posed to the learned
Counsel that a Minister who is indisputably a public servant
greased his palms by abusing his office as Minister, and then
ceased to hold the office before the court was called upon to take
cognizance of the offence against him and therefore, sanction as
contemplated by Section 6 would not be necessary; but if after
committing the offence and before the date of taking of cognizance
of the offence, he was elected as a Municipal President in which
capacity he was a public servant under the relevant Municipal law,
and was holding that office on the date on which court proceeded to
take cognizance of the offence committed by him as a Minister,
would a sanction be necessary and that too of that authority
competent to remove him from the office of the Municipal President.
The answer was- in affirmative. But the very illustration would show
that such cannot be the law. Such an interpretation of Section 6
would render it as a shield to an unscrupulous public servant.
Someone interested in protecting may shift him from one office of
public servant to another and thereby defeat the process of law.
One can legitimately envisage a situation wherein a person may
hold a dozen different offices, each one clothing him with the status
of a public servant under Section 21 IPC and even if he has abused
only one office for which either there is a valid sanction to
prosecute him or he has ceased to hold that office by the time court
was called upon to take cognizance, yet on this assumption,
sanction of 11 different competent authorities each of which was
entitled to remove him from 11 different public offices would be
necessary before the court can take cognizance of the offence
committed by such public servant/while abusing one office which he
may have ceased to hold. Such an interpretation in contrary to all
canons of construction and leads to an absurd and product which of
necessity must be avoided. Legislation must at all costs be
interpreted in such a way that it would not operate as a rougue's
charter".
(emphasis supplied)
27. It is in the light of this that the Court did not have to specify as to under
what circumstances would a duty arise for locating the authority to give sanction.
The doubt could arise in more manners than one and in more situations than
one, but to base the interpretation of Section 19(1) of the Act on the basis of
Section 19(2) would be putting the cart before the horse. The two Sections
2
would have to be interpreted in a rational manner. Once the interpretation is that
the prosecution of a public servant holding a different capacity than the one
which he is alleged to have abused, there is no question of going to Section 6(2)
/ 19(2) at all in which case there will be no question of any doubt. It will be seen
that this interpretation of Section 6(1) or, as the case may be, Section 19(1), is on
the basis of the expression "office" in three sub-clauses of Section 6(1), or the
case may be, Section 19(1). For all these reasons, therefore, we are not
persuaded to accept the contention that Antulay's case (cited supra) was
decided per incuriam of Section 6(2). In our opinion, the decision in K.
Veeraswami Vs. Union of India (cited supra) or, as the case may be, P.V.
Narsimha Rao's case (cited supra) are not apposite nor do they support the
contention raised by the learned senior counsel as regards Antulay's case
(cited supra) being per incuriam of Section 6(2).
28. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit
arguing for the appellants, in support of their argument that Antulay's case
(cited supra) require reconsideration, urged that that interpretation deprives the
entire class of public servants covered by the clear words of Section 6(1)/19(1) of
a valuable protection. It was further urged that such interpretation would have a
disastrous effect on the careers of the public servants and the object of law to
insulate a public servant from false, frivolous, malicious and motivated
complaints of wrong doing would be defeated. It was also urged that such
interpretation would amount to re-writing of Section 19(1) and as if a proviso
would be added to Section 19(1) to the following effect:-
2
"Provided that nothing in this sub-Section shall apply to a case
where at the time of cognizance, the public servant is holding a
different post with a different removing authority from the one in
which the offence is alleged to have been committed.
Lastly, it was urged that such an interpretation would negate the very
foundation of criminal law, which requires a strict interpretation in favour of the
accused. Most of these questions are already answered, firstly, in Antulay's
case (cited supra) and secondly, in Prakash Singh Badal v. State of Punjab
(cited supra). Therefore, we need not dilate on them. We specifically reject
these arguments on the basis of Antulay's case (cited supra) itself which has
been relied upon in Prakash Singh Badal v. State of Punjab (cited supra).
The argument regarding the addition of the proviso must also fall as the language
of the suggested proviso contemplates a different "post" and not the "office",
which are entirely different concepts. That is apart from the fact that the
interpretation regarding the abuse of a particular office and there being a direct
relationship between a public servant and the office that he has abused, has
already been approved of in Antulay's case (cited supra) and the other cases
following Antulay's case (cited supra) including Prakash Singh Badal v. State
of Punjab (cited supra). We, therefore, reject all these arguments.
29. It was also urged that a literal interpretation is a must, particularly, to sub-
Section (1) of Section 19. That argument also must fall as sub-Section (1) of
Section 19 has to be read with in tune with and in light of sub-Sections (a), (b)
and (c) thereof. We, therefore, reject the theory of litera regis while interpreting
Section 19(1). On the same lines, we reject the argument based on the word "is"
in sub-Sections (a), (b) and (c). It is true that the Section operates in praesenti;
2
however, the Section contemplates a person who continues to be a public
servant on the date of taking cognizance. However, as per the interpretation, it
excludes a person who has abused some other office than the one which he is
holding on the date of taking cognizance, by necessary implication. Once that is
clear, the necessity of the literal interpretation would not be there in the present
case. Therefore, while we agree with the principles laid down in Robert Wigram
Crawford Vs. Richard Spooner [4 MIA 179], Re Bedia Vs. Genreal Accident,
Fir and Life Assurance Corporation Ltd. [1948 (2) All ER 995] and Bourne
(Inspector of Taxes) Vs. Norwich Crematorium Ltd. [1967 (2) All ER 576], we
specifically hold that giving the literal interpretation to the Section would lead to
absurdity and some unwanted results, as had already been pointed out in
Antulay's case (cited supra) (see the emphasis supplied to para 24 of
Antulay's judgment).
30. Another novel argument was advanced basing on the language of
Sections 19(1) and (2). It was pointed out that two different terms were used in
the whole Section, one term being "public servant" and the other being "a
person". It was, therefore, urged that since the two different terms were used by
the Legislature, they could not connote the same meaning and they had to be
read differently. The precise argument was that the term "public servant" in
relation to the commission of an offence connotes the time period of the past
whereas the term "a person" in relation to the sanction connotes the time period
of the present. Therefore, it was urged that since the two terms are not
synonymous and convey different meanings in respect of time/status of the
2
office, the term "public servant" should mean the "past office" while "person"
should mean the "present status/present office". While we do agree that the
different terms used in one provision would have to be given different meaning,
we do not accept the argument that by accepting the interpretation of Section
19(1) in Antulay's case, the two terms referred to above get the same meaning.
We also do not see how this argument helps the present accused. The term
"public servant" is used in Section 19(1) as Sections 7, 10, 1 and 13 which are
essentially the offences to be committed by public servants only. Section 15 is
the attempt by a public servant to commit offence referred to in Section 13(1)(c)
or 13(1)(d). Section 19(1) speaks about the cognizance of an offence committed
by a public servant. It is not a cognizance of the public servant. The Court takes
cognizance of the offence, and not the accused, meaning, the Court decides to
consider the fact of somebody having committed that offence. In case of this Act,
such accused is only a public servant. Then comes the next stage that such
cognizance cannot be taken unless there is a previous sanction given. The
sanction is in respect of the accused who essentially is a public servant. The use
of the term "a person" in sub-Sections (a), (b) and (c) only denotes an "accused".
An "accused" means who is employed either with the State Government or with
the Central Government or in case of any other person, who is a public servant
but not employed with either the State Government or the Central Government.
It is only "a person" who is employed or it is only "a person" who is prosecuted.
His capacity as a "public servant" may be different but he is essentially "a person"
- an accused person, because the Section operates essentially qua an accused
3
person. It is not a "public servant" who is employed; it is essentially "a person"
and after being employed, he becomes a "public servant" because of his position.
It is, therefore, that the term "a person" is used in clauses (a), (b) and (c). The
key words in these three clauses are "not removable from his office save by or
with the sanction of ....". It will be again seen that the offences under Sections 7,
10, 11 and 13 are essentially committed by those persons who are "public
servants". Again, when it comes to the removal, it is not a removal of his role as
a "public servant", it is removal of "a person" himself who is acting as a "public
servant". Once the Section is read in this manner, then there is no question of
assigning the same meaning to two different terms in the Section. We reject this
argument.
31. Another novel argument was raised on the basis of the definition of "public
servant" as given in Section 2(c) of the Act. The argument is based more
particularly on clause 2(c)(vi) which provides that an arbitrator, on account of his
position as such, is public servant. The argument is that some persons, as
contemplated in Sections 2(c)(vii), (viii), (ix) and (x), may adorn the character of a
public servant only for a limited time and if after renouncing that character of a
public servant on account of lapse of time or non-continuation of their office they
are to be tried for the abuse on their part of the offices that they held, then it
would be a very hazardous situation. We do not think so. If the person
concerned at the time when he is to be tried is not a public servant, then there
will be no necessity of a sanction at all. Section 19(1) is very clear on that issue.
We do not see how it will cause any hazardous situation. Similarly, it is tried to
3
be argued that a Vice-Chancellor who is a public servant and is given a
temporary assignment of checking the papers or conducting examination or
being invigilator by virtue of which he is a public servant in an entirely different
capacity as from that of a Professor or a Vice-Chancellor, commits an offence in
the temporary capacity, then he would not be entitled to the protection and that
will be causing violence to such public servant and, therefore, such could not
have been the intention of the Legislature. We feel that the example is wholly
irrelevant in the light of the clearest possible dictum in Antulay's case (cited
supra) and in Prakash Singh Badal v. State of Punjab (cited supra). If the
concerned person continues to be a Vice-Chancellor and if he has abused his
office as Vice-Chancellor, there would be no doubt that his prosecution would
require a sanction. So, it will be a question of examining as to whether such
person has abused his position as a Vice-Chancellor and whether he continues
to be a Vice-Chancellor on the date of taking of the cognizance. If, however, he
has not abused his position as Vice-Chancellor but has committed some other
offence which could be covered by the sub-Sections of Section 19, then there
would be no necessity of any sanction.
32. Same argument was tried to be raised on the question of plurality of the
offices held by the public servant and the doubt arising as to who would be the
sanctioning authority in such case. In the earlier part of the judgment, we have
already explained the concept of doubt which is contemplated in the Act, more
particularly in Section 19(2). The law is very clear in that respect. The concept
of `doubt' or `plurality of office' cannot be used to arrive at a conclusion that on
3
that basis, the interpretation of Section 19(1) would be different from that given in
Antulay's case (cited supra) or Prakash Singh Badal v. State of Punjab
(cited supra). We have already explained the situation that merely because a
concept of doubt is contemplated in Section 19(2), it cannot mean that the public
servant who has abused some other office than the one he is holding could not
be tried without a sanction. The learned senior counsel tried to support their
argument on the basis of the theory of "legal fiction". We do not see as to how
the theory of "legal fiction" can work in this case. It may be that the appellants in
this case held more than one offices during the check period which they are
alleged to have abused; however, there will be no question of any doubt if on the
date when the cognizance is taken, they are not continuing to hold that very
office. The relevant time, as held in S.A. Venkataraman Vs. State (cited
supra), is the date on which the cognizance is taken. If on that date, the
appellant is not a public servant, there will be no question of any sanction. If he
continues to be a public servant but in a different capacity or holding a different
office than the one which is alleged to have been abused, still there will be no
question of sanction and in that case, there will also be no question of any doubt
arising because the doubt can arise only when the sanction is necessary. In
case of the present appellants, there was no question of there being any doubt
because basically there was no question of the appellants' getting any protection
by a sanction.
33. We do not, therefore, agree with learned Senior Counsel Shri Mukul
Rohtagi as well as Shri U.U. Lalit arguing for the appellants, that the decision in
3
Antulay's case (cited supra) and the subsequent decisions require any
reconsideration for the reasons argued before us. Even on merits, there is no
necessity of reconsidering the relevant ratio laid down in Antulay's case (cited
supra).
34. Thus, we are of the clear view that the High Court was absolutely right in
relying on the decision in Prakash Singh Badal v. State of Punjab (cited
supra) to hold that the appellants in both the appeals had abused entirely
different office or offices than the one which they were holding on the date on
which cognizance was taken and, therefore, there was no necessity of sanction
under Section 19 of the Act as held in K. Karunakaran v. State of Kerala (cited
supra) and the later decision in Prakash Singh Badal v. State of Punjab (cited
supra). The appeals are without any merit and are dismissed.
............................J.
[V.S. Sirpurkar]
..........................J.
[T.S. THAKUR]
New Delhi;
July 4, 2011.
