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TMI Blog2011 (7) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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. Ranbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of 5 years. On 13th March, 1968, the reemployment 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 follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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." (Emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated 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?" 18. It will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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- Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 "ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tried to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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