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TMI Blog1984 (2) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... f law, facts at this stage having a peripheral relevance in the course of discussion, it is unnecessary to set out the prosecution case as disclosed in the complaint filed by complainant Ramdas Shrinivas Nayak (complainant for short) in detail save and except few a pertinent and relevant allegations. In the process the brief history or the litigation may also be traced. The complainant moved the Governor cf Maharashtra by his application dated September 1, 1981 requesting him to grant sanction to prosecute the accused as required by Sec. 6 of the Prevention of Corruption Act, 1947 ('1947 Act' for short) for various offences alleged to have been committed by the accused and neatly set out in the application. Complainant then filed the first complaint in the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay on September 11, 1981 being Criminal Case No. 76 Misc. of 1981 against the accused and others known and unknown collaborators alleging that the accused in his capacity as Chief Minister and thereby a public servant within the meaning of Sec. 21 of the Indian Penal Code (IPC) has committed offences under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act, Sec. 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of the High Court on April 12, 1982. Not the accused but the State of Maharashtra preferred an appeal by special leave under Art. 136 of the Constitution against the decision of the Division Bench of the High Court rejecting the special criminal application; This. Court rejected the application for special leave at the threshold on July 28, 1982. (See State of Maharashtra v. Ramdas Shrinivas Nayak and others) Promptly, on the heels of the judgment of this Court, the Governor of Maharashtra on the same day granted the sanction under Sec. 6 of the 1947 Act to prosecute the accused in respect of specific charges set out in the order according sanction. Armed with this sanction, the complainant filed a fresh complaint in the Court of the Special Judge, Bombay registered as Criminal Case No. 24 of 1982 against the accused as Accused No. 1 and others known and unknown. In this complaint it is broadly alleged that the accused who was the Chief Minister of the State of Maharashtra between the period August 1980 to September 1981 conceived scheme of aggrandisement involving obtaining of funds from the members of the public and putting them substantially under his own control for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contending that the Court of the learned special Judge had no jurisdiction in view of the provision contained in Sec. 7 of the Criminal Law Amendment Act, 1952 ('1952 Act' for short) and that no cognizance can be taken of offences punishable under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act on a private complaint. The case was at that time pending in the Court of the special Judge presided over by one Shri P.S. Bhutta. The learned special Judge by his order dated October 20, 1982 rejected both the contentions and set down the case for November 29, 1982 for recording evidence of the prosecution. The learned special Judge made it abundantly clear that under no circumstance the case would be adjourned on the next occasion and if any revision or appeal is intended to be filed against the order, the learned counsel for the accused should give advance notice to the learned counsel for the complainant. The accused filed Criminal Revision Application No. 510 of 1982 against the order of the learned special Judge dated October 20, 1982 rejecting his application. On January 16, 1983, the Government of Maharashtra issued a notification in exercise of the powers conferred by sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t within the meaning of the expression in Sec. 21 (12) (a) IPC and that unless a sanction to prosecute him by the authority competent to remove him from his office as M.L.A. was obtained which in the opinion of the learned Special Judge. was Maharashtra Legislative Assembly the accused is entitled to be discharged. So saying, the learned Judge discharged the accused. The complainant filed a petition for special leave to appeal No. 1850 of 1983 and a Writ Petition (Crl.) No. 145 of 3983 against the decision. Of the learned special Judge. Both these matters came up before this Court on August 3, 1983 when the matters were adjourned to August 10, 1983 to enable the petitioner, original complainant to file a criminal revision application against the order of the learned special Judge in the High Court. Accordingly, the complainant filed Criminal Revision Application No. 354 of 1983 in the High Court against the order of learned special Judge Shri R.B. Sule. This Court ultimately granted special leave to appeal as also rule nisi in the writ petition. By an order made by this Court, the criminal revision application filed by the petitioner stands transferred to this Court. It may be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the accused was discharged. Sec. 21 IPC defines a 'Public Servant'. The relevant clauses may be extracted as under: 21. The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely:- Third-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions. Seventh: Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement Twelfth-Every person- (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or Pay of a local authority, a corporation establishes by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956. Explanation 1: Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not Sec. 17 defines the expression 'Government to denote the Central Government or the Government of a State. Sec 14 defines the expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me when the offence was alleged to have been committed . With a view to eradicating the evil of bribery and corruption, the Government of India set up a Committee to make recommendations for the improvement of the laws relating to bribery and corruption under the Chairmanship of Dr. Bakshi Tek Chand. The recommendations of the Committee led to the enactment of the Criminal Law Amendment Act, 1952 By the 1952 Act, power was conferred on the State Government to appoint special offences as may be necessary for such area or areas as may be specified in the notification to try the following offences namely; offences punishable under Sections 161, 162, 163, 164, 165 and 165A IPC and Sec. 5 of the 1947 Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences hereinabove mentioned; See. 7 conferred exclusive jurisdiction on the special Judges appointed under See. 6. Sub-sec. (2) of Sec. 7 provides for specific territorial jurisdiction of a special Judge. Sub-sec. (3) conferred power on the special Judge also to try any offence other than an offence specified in. Sec. 6 with which the accused may, under the Code of Criminal Procedure, 1898, be char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a valid prosecution can be launched against the accused. On these rival contentions some vitat and some not so vital points arise for consideration, some easy of answer and some none-tooeasy. For their scientific and logical treatment they may be formulated. (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 Sec. 6 of the 1947 Act? (b) If the accused holds plurally 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 Sec. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognate appeal. In this appeal we will proceed on the assumption that a special Judge can take cognizance of offences he is competent to try on a private complaint. Sec. 6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clause (a), (b) (c) of sub-Sec. (1). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Sec. 6 and similar sections, is that there should not be unnecessary harassment of public servant. (Sec C.R. Bansi v. State of Maharashtra(1)). Existence thus of a valid sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizances of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority . And this view has been consistently followed in C.R. Bansi's case and K.S. Dharmadatan v. Central Government Ors.(1) It therefore appears well-settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant required by Sec. 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused. The accused tendered resignation of his office as Chief Minister and ceased to hold the office of Chief Minister with effect from January 20, 1982. The complaint from which the present appeal arises and which was registered as Criminal Case No. 24/82 appears to have been filed on August 9, 1982 and the cognizance was taken by the learned Magistrate on the same day. It unquestionably transpires that long before the date on which the cognizance was taken by the learned special Judge, the accused had ceased to hold the office of the Chief Minister and as such had ceased to be a public servant. In other words, he was not public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven on the date on which the court took cognizance of the offences set out in the complaint without a valid sanction and therefore the court had no jurisdiction to take cognizance of the offences. In support of the submission it was urged that if the policy underlying Sec. 6 and similar provisions like Sec. 197 Cr. P.C. was to spare the harassment to the public servant consequent upon launching of frivolous or speculative prosecutions, the same would be defeated if it is held that the sanction to prosecute is necessary from an authority competent to remove the public servant from the office which he is alleged to have misused or abused. Proceeding along this line it was urged that even if the accused has ceased to be a public servant in one capacity by ceasing to hold the office which he is alleged to have misused or abused yet if he continued to be a public servant in another capacity, the authority competent to remove him from the latter office would have to decide whether the prosecution is frivolous or speculative and in larger public interest to thwart it by declining to grant the sanction. It was also urged that if a public servant has to discharge some public duty and perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than local remuneration for doing or forbearing to do an official act (Sec. 161 IPC) or as a public servant abets offences punishable under Secs. 161 and 163 (Sec. 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (Sec. 165 IPC) or commits criminal misconduct as defined in Sec. 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him public servant. The expression `offices' in the three sub-clauses of Sec. 6(1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused. This interrelation between to office and its abuse if serered would render Sec. 6 devoid of any meaning. An this interrelation clearly provides a clue to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office. 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 Sec. 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 illustrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 Sec. 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sec. 6. Therefore, upon a true construction of Sec. 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. In the complaint filed against the accused it has been repeatedly alleged that the accused as Chief Minister of Maharashtra State accepted gratification other than legal remuneration from various sources and thus committed various offences set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was conceded before the learned special Judge and not retracted before us that the case of the accused does not fall in the first limb i.e. the accused as M.L.A. could not be said to be in the service of the Government. The contention is that the accused while receiving his salary as M.L.A. under the Maharashtra Legislature Members' Salaries and Allowances Act, 1956 was and is in the pay of the Government. The second limb of the submission was that even if the pay which the accused received as M.L.A. under the relevant Act would not make the accused a person in the pay of the Government, nevertheless the pay received by him would be the remuneration which the accused would receive for performance of public duty from the Government. It was contended on behalf of the complainant that the expression `in the pay of the Government' would, in the context in which the expression is used in Sec. 21(12)(a), mean only one thing that the payment must be by a master to a servant and unless there is relationship of master and servant or relationship of command and obedience between the payer and the payee, mere payment even if styled as pay would not mean that the payee is in the pay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic duty by the Government. The neat question that emerges on the rival contentions is one of construction of the expression `in the pay of' and the expression `Government' in cl. (12) (a). At the threshold learned counsel for the accused sounded a note of caution that the Court should steer clear of the impermissible attempt of the appellant to arrive at a true meaning of legislative provision by delving deep into the hoary past and tracing the historical evolution of the provision awaiting construction. It was submitted with emphasis that this suggested external aid to construction falls in the exclusionary rule and cannot be availed of. Therefore, it has become necessary to examine this preliminary objection to the court resorting to this external aid to construction. Sec. 21 (12) (a) acquired its present form in 1964. Mr. Singhvi contended that even where the words in a statute are ambiguous and may be open to more than one meaning or sense, a reference to the debates in Parliament or the report of a Commission or a Committee which preceded the enactment of the statute under consideration is not a permissible aid to construction. This is what is called the exclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in State of Mysore v. R.V. Bidap(4) observed as under: The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being exercise in the ascertainment of meaning, every thing which is logically relevant should be admissible.There is a strong case for whittling. down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied., the social context, the words of the authors and other allied matters. Approaching the matter from this angle, the Constitution Bench looked into the proceedings of the Constituent Assembly and The Framing of India's Constitution; A Study' by B. Shiva Rao. It was however urged that before affirmatively saying that in Bidap's case this Court has finally laid to rest this controversy, the court may refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or this purpose . And in support of this statement of law, a number of cases were relied upon by the learned Law Lord. It may also be mentioned that Per Curiam it was held that where there is an ambiguity in a statute, the court may have regard to the Report of a Committee presented to Parliament containing proposals for legislation which resulted in the enactment of the statute, in order to determine the mischief which the statute was intended to remedy . Though the unanimous view was that the report of a committee presented to Parliament preceding the statute could be seen for finding out the then state of the law and the mischief required to be remedied, it must be stated that the majority were of the opinion that report could not be looked at to ascertain the intention of Parliament. The minority (per Lord Dilporne and Lord Simon) were of the opinion that when a draft bill was enacted in a statute without any alteration, Parliament clearly manifested its intention to accept committee's recommendation which would imply that Parliament's intention was to do what committee wanted to achieve by its recommendations. A reference to Halsbury's Laws of England, Fourth E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernal aids to construction. In this connection, it would be advantageous to refer to a passage from Crawford on Statutory Construction (page 388). It reads as under: The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading upto an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt but they hold definitely that the legislative history is inadmissible when there is no obscurity in the meaning of the statute . In United States v. St.Paul M.M. Rly. Co.(1) it is observed that the reports of a committee, including the bill as introduced, changes 'made in the frame of the bill in the course of its passage and the statement made by the committee chairman incharge of it, stand upon a different footing, and may be resorted to under proper qualifications'. The objection therefore of Mr. Singhvi to our looking into the history of the evolution of the section with all its clauses, the Reports of Mudiman Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies is the one to be found in a Bill introduced in 1925 called Legislative Bodies Corrupt Practices Act, 1925. This Bill was introduced to give effect to the recommendations of the Reforms Enquiry Committee known as Mudiman Committee. In the book 'Evolution of Parliamentary Privileges' by Shri S.K. Nag, the author traced the steps which led to the introduction of the Bill. In the statement of objects and reasons accompanying the Bill, it was stated that the corrupt influencing of votes of members of the legislature by bribery, intimidation and like should be made penal offences under the ordinary criminal law and para 124 indicates that this recommendation was a unanimous recommendation of the Committee as a whole. Then comes the more important statement which may be extracted: The tender of a bribe to, or the receiving of a bribe by, a member of a legislature in India as an inducement for him to act in a particular manner as a member of the legislature is not at present an offence. The Bill sought to fill in the lacuna. It thus follows that till 1925, it was clearly understood that the M.L.A. as the holder of that office which must have come into existence by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed with nine specific terms of reference which inter alia included: to suggest changes which would ensure speedy trial of cases of bribery, corruption and criminal misconduct and make the law otherwise more effective'. This Committee submitted its report on March 31 1964. While examining the fourth term of reference extracted hereinabove, the Committee in Section 7 of its report considered the question of proposed amendment to Indian Penal Code. The Committee focussed its attention on the definition of 'public servant' in Sec. 21. Paragraph 7.6 is most important for the present purpose. It reads as under: 7.6 Section 21 defines public servant' Twelve categories of public servants have been mentioned but the present definition requires to be enlarged. The ninth category describes a large variety of officers charged with the performance of different kinds, of duties relating to pecuniary interests of the State. The last sentence of this category, namely, every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty should be put as a general definition. After the word government , h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent relating to the of the pecuniary interests of pecuniary interests of the the Government, and every Government, or to prevent officer in the service or pay the infraction of any law of the Government or remunerat- for the protection of the ed by fees or commission for pecuniary interest of the performance of any public Government duty. (Underlining ours); Twelfth: Every officer in the Twelfth: Every person: service or pay of a local auth- (a) in the service or pay of ority or of a corporation the Government or remune- engaged in any trade or indust- rated by fees or commission ry which is established by a for the performance of any Central, Provincial or State public duty by the Govern- Act or of a Government Company ment; as defined in section 617 of the Companies Act, 1956. (b) in the service or pay of local authority, a corporation established by or under Central, Provincial or State Act or a Government Copany as defined in section 617 of the Companies Act, 1956. A bare comparison of the two cls. (9) and (12) would reveal the change brought by the Amending Act 40 of 1964. The last part (underlined portion) in the unamended cl. (9): 'every officer in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated by fees or commission for the performance of any public duty' was detached and re-enacted as cl. (12) (a) and the original cl. (12) was renumbered as Cl. (12) (b) with slight modification. This would imply that no attempt was made to bring in M.L.A. within the conspectus of clause in Sec. so as to make him public servant. The position of the Minister was slightly fluid but a clear picture emerged during the debate on the Bill in the Lok Sabha. Mr. Hathi Minister-incharge while piloting the Bill, on November 7, 1964 amongst others stated that the will not deal with those recommendations which had not been accepted by the Government, but would explain them later, if any point is raised in that behalf, (See Lok Sabha Debates (Third that he will not deal with those recommendations which had not been accepted by the Government, but would explain them later, if any point is raised in that behalf. (See Lok Sabha Debates (Third Series), Vol. XXXV, Col. 245) While replying to the debate, Mr. Halhi stated that the code of conduct has already been evolved for Ministers because the recommendation of Santhanam Committee for including Ministers of all ranks and Parliamentary Secretari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be an officer in the pay of the Government, comprehended in the last part of cl. (9) of Sec. 21 as it then stood. In the second case, accused was a teacher in a railway school at Phulera. His contention had found favour with the learned Judicial Commissioner but in reaching the conclusion, he appeared to have ignored the last part of cl.(9) prior to its amendment in 1964. In the appeal by the State, this Court held that the case of the accused would be covered by the last part of cl. (9) because the accused fulfilled the twin conditions of either being in the service or pay of the Government and was entrusted with the performance of a public duty. It may also be mentioned that the last three words 'by the Government' found in cl. (12) (a) after the amendment were not there in the last part of cl. 9'. The question was whether addition of words 'by the Government' made any difference in the interpretation of last part of cl. (9) which is substantially re-enacted as cl. (12)(a). The Gujarat High Court in Manshanker Prabhashanker Dwivedi and Anr. v. The State of Gujarat (1) trace the history of amendment that payment by the Government was implicit in cl. (9) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rage and construction of the two clauses prior to and since their amendment. If that be so, it would follow as necessary corollary that if M.L.A. was not a public servant with in the meaning of the expression prior to Act 40 of 1964, since the Act, the law, legal effect and on average of expression public servant remains unaltered and hence, M.L.A. is not a 'public servant' comprehended in cl. (12)(a). Thus looking to the history and evolution of Sec. 21 as traced, it is clear that till 1964 M.L.A. could not have been conceivably comprehended in expression 'public servant' and the law did not undergo any change since the amendment. On the contrary, the recommendation of the Santhanam Committee which recommended inclusion of Ministers and Parliamentary Secretaries but not of M.L.A. separately recommended a code of conduct for M.L.A for seving them from the spectre of corruption would clearly and unmistakably show that till 1964 M.L.A. was not comprehended in expression 'public servant' in Sec. 21 IPC and the amendment by Amending Act 40 of 1964 did not bring about the slightest change in this behalf concerning the position of M.L.A. Therefor, apart from anyth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are three independent categories comprehended in cl. (12) (a) and if a person falls in any one of them, he would be a public servant. The three categories are as held by the learned special Judge; (i) a person in the service of the Government; (ii) a person in the pay of the Government; and (iii) a person remunerated by fees or commission for the performance of any public duty the Government. One can be in the service of the Government and may be paid for the same. One can be in the pay of the Government without being in the service of the Government in the sense of manifesting master-servant or command-obedience relationship. The use of the expression 'or' does appear to us to be a disjunctive as contended on behalf of the respondent. Depending upon the context, 'or' may be read 'and' but the court would not do it unless it is so obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. (See Green v. Premier Glyrhonwy State Company Ltd.'(1) Babu Manmohan Das Ors. v. Bishun Das, (2) Ramta Prasad Aggarwal etc. Executive Engineer, Balladgarh Anr.(3) and several other which we conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling allowance to be paid to Members. Sec. 5AC provides for a free travel by railway and steamer by a Member subject to the conditions therein prescribed. Members are also eligible for some allowances as specified in various sections of the Act. The Maharashtra Legislature Members Pensions Act, 1976 makes provision for payment of pension with effect from April 1, 1981 at the rate of ₹ 300 per month to every person who has served as a Member of the State Legislature for a term of 5 years subject to other conditions prescribed in the section. There is a similar Act which makes provisions for salaries and allowances of the Ministers of Maharashtra State. Undoubtedly, M.L.A. receives a salary and allowances in his capacity as M.L.A. Does it make him a person 'in the pay of the Government'? Our attention has been drawn to the meaning of the word 'pay' in different dictionaries and to the decision in M. Karunanidhi v. Union of India(1) where after ascertaining the meaning of the word 'pay' given in different dictionaries, the Court observed that the expression 'in the pay of' does not signify master-servant relationship. The word 'pay' sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enotation'. With this caution, we may briefly refer to the meaning of the expression 'pay' and 'in the pay of' given by different dictionaries. As far as the expression 'pay' is concerned, a Constitution Bench of this Court in Karunanidhi's case referred to various dictionaries and concluded that the word ordinarily means 'salary, compensation, wages or any amount of money paid to the person who is described as in the pay of the payer'. Serious exception was taken on behalf of the appellant that no canon of construction would permit picking out shades of meaning of word 'pay' and then read the phrase 'in the pay of' as synonymous with the word 'pay'. On the other hand, it was asserted that the point is concluded by the observation of the Constitution Bench that 'so far as the second limb of the clause, 'in the pay of the Government' is concerned, that appears to be of a much wider amplitude so as to include within its ambit even a public servant who pay of the other person and yet there may not be a master servant relationship between them. The court did not ascertain the meaning ascribed to phrase ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the expression 'pay', the Constitution Bench speaking through Fazal Ali, J. observed as under at page 282: We are of the opinion that so far as the second limb 'in the pay of the Governments' is concerned, that appears to be of We are of the opinion that so far as the second limb 'in the pay of the Government' is concerned, that appears to be of a much wider amplitude so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master . The Court further observed that the expression 'in the pay of' connote that a person is getting salary, compensation, wages or any amount of money. This by itself however, does not lead to the inference that a relationship of master and servant must necessarily exist in all cases where a person is paid salary . We are also of the opinion that the phrase 'in the pay of the Government' does not import of necessity a master-servant relationship. It is perfectly possible to say that a person can be in the pay of the Government if he is paid in consideration of discharging an assignment entrusted to him by the Government without there necessarily bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression 'Government' connote? There is a short and a long answer to the problem. Sec. 17 IPC provides that 'the word Government' denotes the Central Government or the Government of a State'. Sec. 7 IPC provides that 'ever expression which is explained in any part of the Code, is used in every part of the Code in conformity with the explanation'. Let it be noted that unlike the modern statute Sec. 7 does not provide 'unless the context otherwise indicate' a phrase that prefaces the dictionary clauses of a modern statute. Therefore, the expression 'Government' in Sec. 21 (12)(a) must either mean the Central Government or the Government of a State. Substituting the explanation, the relevant portion of Sec. 21 (12) (a) would read thus: 'Every person in the pay of the Central Government or the Government of a State or remunerated by fees or commission for the performance of any public duty by the Central Government or the Government of a State'. At any rate, the Central Government is out of consideration. Therefore, the question boils down to this: whether M.L.A. is in the pay of the Government of a State or is remunerated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... England, Fourth Edition, Vol. 8 para 813, separation of executive, legislative and judicial powers in the Westminster Model have been adverted to. It reads as under: It is clear that the powers of government are divided. The executive, legislative and judicial powers are in the main entrusted to separate instruments of the State; and local government is further administered separately. Thus the original concentration of power in the Sovereign no longer exists; in the eighteenth century this division of the powers of government seemed to be such an essential characteristic of the English Constitution that it was made the basis for the doctrine of separation of powers. This doctrine, which is to the effect that in a nation which has political liberty as the direct object of its constitution on one person or body of persons ought to be allowed to control the legislative, executive and judicial powers, or any two of them, has never in its strict form corresponded with the facts of English government mainly because, although the functions and powers of government are largely separated, the membership of the separate instruments of state overlap. Only in one aspect of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Legislative Assembly. Art. 170 provides for members of the Legislative Assembly being chosen by direct election from territorial constituencies in the State. Arts. 178 to 186 provide for officers of the State Legislatures such as the Speaker and Deputy Speaker of the Legislative Assembly and Chairman and Deputy Chairman of Legislative Council as the case may be, their powers, functions and their either vacating the office or removal from the office. Art. 187 (1) provides that 'the House or each House of the Legislature of a State shall have a separate secretarial staff'. Marginal note of the article is 'Secretariat of State Legislature'. Sub-art.(2) of Art. 187 provides that 'the Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State'. Art. 266 obliges the State to set up its Consolidated Fund. Art. 203 prescribes the procedure with respect to estimates. The estimates as relate to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly but the disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded in the expression 'State Government'. This becomes further clear from the provision contained in Art. 12 of the Constitution which provides that 'for purposes of Part III, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India'. The expression 'Government and Legislature', two separate entities, are sought to be included in the expression 'State' which would mean that otherwise they are distinct and separate entities. This conclusion is further reinforced by the fact that the executive sets up its own secretariat, while Art. 187 provides for a secretarial staff of the Legislature under the control of the Speaker, whose terms and conditions of the service will be determined by the Legislature and not by the executive. When all these aspects are pieced together, the expression 'Government' in Sec. 21 (12)(a) clearly denotes the executive and not the Legislature. M.L.A. is certainly not in the pay of the executive. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that it is settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy. It was further held by the majority that the payment of money to, and the receipt of money by, a member of Parliament to induce him to use his official position, whether inside or outside Parliament, for the purpose of influencing or putting pressure on a Minister or other officer of the Crown to enter into or carry out a transaction involving payment of money out of the public funds, are acts tending to the public mischief, and an agreement or combination to do such acts amounts to a criminal offence. The question has been examined in the light of the settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy. Isaacs and Rich, JJ posited the question: how far a member of the Legislative Assembly of New South. Wales can, without incurring any real personal responsibility-that is-other than political rejection, make his public position the subject of profitable traffic by engaging in departmental intervention on behalf of individuals in return for private pecunia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct as such member or of any fees, compensation or reward in connection with the promotion of, or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to the House or any committee thereof is a breach of privilege.'(') Attempts to bring M. P. in U.K. either under the provisions of the Prevention of Corruption Act or the public Bodies Corrupt Practices Act have not met with success. Even such modicum of decency in public life as disclosing relevant, pecuniary interest or benefit of whatever nature whether direct or indirect that he may have had or may be expecting to have while participating in a debate or proceeding in House by M.P. in U.K. was stoutly resisted in 1974. But Paulson Affair stirred many and Royal Commission on Corruption in Public Life headed by Lord Justice Salmon was set up. The Commission inter alia recommended in 1976 that M.Ps. should be brought within the scope of the corruption laws regarding their actions inside as well outside Parliament. No follow up legislative action appears to have been taken since then. If M.L.A. is not in the pay of the Government in the sense of Executive government or is not remune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Santhanem Committee, it can be confidently said the M.L.A. was never intended to be brought within the conspectus of clauses of Sec. 21 so as to clothe him with the status of a public servant. Independent of this historical evolution and focussing attention on the language of cl. (3) it is difficult to hold that M.L.A. as a member of a body of persons such as the Legislative Assembly performs any adjudicatory functions empowered by law to discharge that function. In fact, Santhanam Committee contemplated covering such officers like liquidators, receivers, commissioners etc. each of whom is empowered by different statutes to discharge such adjudicatory functions as prescribed by the concerned law. It was however, contended that expression 'Judge' has been defined in Sec. 19 IPC to denote 'not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment, if confirmed by some other authority, would be definitive, or who is one of a body of persons which body of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ibid page 124). It is however, difficult to say that a State Legislature functioning under our Constitution can be described as High Court of Legislative Assembly. In blindly tailoring our Constitutional Law to the Parliamentary Practice in U.K., one is apt to overlook the obvious fact that House of Lords always possessed the judicial power as any Court of Westminster Hall. (ibid p. 124). In this connection in Special Ref. No. 1 of 1964(1) it was clearly stated that the result of the provision contained in the latter part of Art. 194(3) was not intended to be confer on the State Legislatures in India the status of a superior Court of Record. It was further observed that the House and indeed all Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional back ground does not support the claim that they can be regarded as Court of Record in any sense Undoubtedly, the Legislative Assembly in view of the provisions contained in Art. 194(3) has the power to inflict punishment for breach of privilege and for contempt of the House And when a motion is moved complaining breach of privilege or for taking action for the contempt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional function discharged by the members and therefore, it cannot be said that such adjudicatory function if it can be so styled, constitutes adjudicatory function undertaken by M.L.A. as empowered by law. Viewed from this angle it is not necessary to examine the contention that adjudication and a resultant judgment presupposes a lis between persons other than adjudicator, and M.L.A. has no lis before him as a body of persons when passing upon the motion for contempt or breach of privilege. Accordingly the submission that the accused would be a public servant within the meaning of the expression in cl. (3) of Sec. 21 IPC must be rejected. The last limb of the submission was that at any rate, the accused would be a public servant within the meaning of cl. (7) of Sec. 21 IPC, which takes within its ambit 'every person who holds any office by virtue of which he is empowered to place or keep any person in confinement'. This limb of the submission was not placed for consideration of the learned trial Judge. And it has merely to be stated to be rejected. We, however, did not want to reject it on this narrow ground. Expanding this contention, it was urged that M.L.A. is empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preliminary to or an end product of an adjudicatory function in a criminal case, which may lead to imposition of a prison sentence, and a person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person in confinement. The decisions in Homi D. Mistry v. Shree Nafisul Hussan Ors.(1). Harendra Nath Barua v. Dev Kanta Barua Ors (2) and Edward Kelley v. William Carson, John Kent Ors.(2) hardly shed any light on this aspect. Therefore, the submission that M.L.A. would be comprehended in cl. (7) of Sec. 21 so as to be a public servant must be rejected. Having meticulously examined the submission from diverse angles as presented to us, it appears that M.L.A. is not a public servant within the meaning of the expression in cl. (12)(a), cl. (3) and cl.(7) of Sec. 21 IPC. Re: (f) (g): The learned Judge after recording a finding that M.L.A. is a public servant within the comprehension of cl. (12)(a) and further recording the finding that as on the date on which the Court was invited to take cognizance, the accused was thus a public servant proceeded to examine whether sanction under Sec. 6 of the 1947 Act is a pre-requisite to taking cogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought it must be frankly confessed that considerable time was spent in the deliberations in search of competent sanctioning authority. The vital question has become one of academic interest. We propose to adhere to the accumulated wisdom which has ripened into a settled practice of this Court not to decide academic questions. The question is left open. Before we conclude let it be clarified that more often in the course of this judgment, we have used the words `office of M.L.A.' It was debated whether the M.L.A. holds seat or office? Our use of the expression `office' should not be construed to mean that we have accepted that the position of M.L.A. can be aptly described. as one holding public office or for that matter. To sum up, the learned special Judge was clearly in error in holding that M.L.A. is a public servant within the meaning of the expression in Sec. 12(a) and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused. For the reasons herein stated both the conclusions are wholly unsustainable and must be quashed and set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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