M. Karunanidhi Vs. Union of India
[1979] INSC 45 (20 February 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.
UNTWALIA, N.L.
PATHAK, R.S.
CITATION: 1979 AIR 898 1979 SCR (3) 254 1979
SCC (3) 431
CITATOR INFO :
F 1983 SC1019 (52,66) E 1984 SC 684
(50,51,52) RF 1990 SC2072 (15,46) RF 1991 SC1676 (15) R 1992 SC1310 (9)
ACT:
Tamilnadu Public Men (Criminal Misconduct)
Act, 1973- Whether inconsistent with the provisions of Code of Criminal
Procedure 1898, Prevention of Corruption Act 1947 & Criminal Law
(Amendment) Act, 1952-Art. 254 of Constitution of India- Inconsistency between
laws made by Parliament and laws made by legislature of states-Effect of.
Constitution of India 1950-Arts. 164 &
167-Nature, constitutional position and status of Minister or Chief Minister.
Indian Penal Code 1869-S. 21(12)-Public
servant & Criminal Procedure Code 1898-S. 199(2)-'Other public
servant'-Scope of-Chief Minister whether 'public servant'.
Words & Phrases-'in the service or pay of
the Government'-S. 21(12)(a) IPC-Meaning of.
HEADNOTE:
In December 1973, the Madras Legislature
passed an Act known as the Tamil Nadu Public Men (Criminal Misconduct) Act,
1973 after obtaining the assent of the President. The State Act was amended by
Act 16 of 1974 and the President's assent was received on April 10, 1974. The
provisions of the State Act were brought into force with effect from May 8,
1974. The State Act was repealed and the President's assent to the repealing
Act was given on September 6, 1977.
The Act provided for the investigation in
respect of a complaint of criminal misconduct against any 'public man by a
Commissioner or the Additional Commissioner of Inquiries appointed for this
purpose. The word 'public man' had been given a specific connotation in s. 2(c)
of the Act and clearly excluded a Government servant.
The appellant was the former Chief Minister
of the State of Tamilnadu. On June 15, 1976 the Chief Secretary to the State
Government requested the Central Bureau of Investigation to make a detailed
investigation into certain allegations that the appellant and others were
alleged to have abused their official position in the matter of purchase of
wheat from Punjab. With the State Governor's sanction a charge sheet was filed
after investigation for the prosecution of the appellant under ss. 161, 468 and
471 IPC and s. 5(2) read with S. 5(1) (d) of the Prevention of Corruption Act
for allegedly having derived pecuniary advantage to the extent of Rs. 4 to 5
lakhs for passing favourable orders in respect of some firms.
The appellant applied for discharge under s.
239 Cr. P.C. on the ground that the prosecution against him suffered from
various legal and constitutional infirmities. On the application being
rejected, the appellant applied to the High Court for quashing the proceedings
and for setting aside the order of the Special Judge refusing to discharge him.
The High Court rejected the applications.
255 In the appeals to this Court, it was
contended on behalf of the appellant:
(1) Even though the State Act was repealed,
the provisions of the Central Acts having themselves been protanto repealed by
the State Act when it was passed could not be pressed into service for the
purpose of prosecuting the appellant unless these provisions were re-enacted by
the appropriate legislature.
(2) It was contended that even assuming that
the State Act had ceased to exist and the Central Acts applied, the appellant
cannot be prosecuted under any of the sections of the Penal Code or the Corruption
Act, because by virtue of the position that the appellant enjoyed as Chief
Minister, there was no relationship of master and servant between him and the
Government and he was acting as a constitutional functionary, and therefore
could not be described as a 'public servant' as contemplated by s. 21(12) of
the Penal Code.
(3) The provisions contained in the State Act
run counter to those of the Central Acts in respect of the following matters;
(a) The procedure for investigation of the offences by a Central Agency as
contemplated by the Corruption Act is dispensed with and is instead invested in
a Commissioner appointed under the State Act. (b) The provisions under the
Prevention of Corruption Act regarding the grant of sanction under s. 197 of
the Code to the accused is given a complete go by and instead a Commissioner is
appointed to hold a regular inquiry for himself and then to submit his report.
An accused who has to be tried under the State Act is thus deprived of the
protection afforded to every Government servant regarding grant of a sanction
by the appointing authority. Therefore the protection if any, given by the
State Act is purely illusory, and (4) By virtue of the fact that the State Act
has obtained the assent of the President, it will be deemed to be a dominant
legislation, and therefore it would over-rule the Central Acts.
Dismissing the appeals,
HELD: 1. The scheme of the Constitution is a
scientific and equitable distribution of legislative powers between Parliament
and the State Legislatures. First, regarding the matters contained in List I,
i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to
legislate and the State Legislatures have no authority to make any law in
respect of the Entries contained in List I. Secondly, so far as the Concurrent
List is concerned, both Parliament and the State Legislatures are entitled to
legislate in regard to any of the Entries appearing therein, but that is
subject to the condition laid down by Art. 254(1). Thirdly, so far as the
matters in List II, i.e. the State List are concerned, the State Legislatures
alone are competent to legislate on them and only under certain conditions
Parliament can do so. [263 D-E]
2. In such matters repugnancy may result from
the following circumstances:- (i) Where the provisions of a Central Act and a
State Act in the Concurrent List are fully inconsistent and are absolutely
irreconcilable, the Central Act will prevail and the State Act will become void
in view of the repugnancy.
256 (ii) Where however a law passed by the
State comes into collision with a law passed by Parliament on an Entry in the
Concurrent List, the State Act shall prevail to the extent of the repugnancy
and the provisions of the Central Act would become void provided the State Act
has been passed in accordance with cl. (2) of Art. 254.
(iii) Where a law passed by the State
legislature while being substantially within the scope of the entries in the
State List entrenches upon any of the Entries in the Central List the constitutionality
of the lay may be upheld by invoking the doctrine of pith and substance if on
an analysis of the provisions of the Act it appears that by and large the law
falls within the four corners of the State List an entrenchment, if any, being
purely incidental or inconsequential.
(iv) Where, however, a law made by the State
Legislature on a subject covered by the Concurrent List is inconsistent with or
repugnant to a previous law made by Parliament, then such a law can be
protected by obtaining the assent of the President under Art 254(2) of the
Constitution. The result of obtaining the assent of the President would be that
so far as the State Act is concerned, it will prevail in the State and
over-rule the provisions of the Central Act in their applicability to the State
only. Such a state of affairs will exist only until Parliament may at any time
make a law adding to, or amending, varying or repealing the law made by the
State Legislature under the proviso to Art. 254. [263 F-264 D]
3. A careful analysis, therefore, of the
various provisions of the State Act leads to the irresistible inference that
the State Act was passed with a view to afford sufficient protection to a
public man by enjoining a summary inquiry or investigation by a high and
independent Tribunal of the status of a High Court Judge or a Senior District
Judge to instil confidence in the people and to prevent public men from being
prosecuted on false, frivolous and vexatious allegations. Although the
ingredients of criminal misconduct as defined in s. 5(1) (d) of the Corruption
Act are substantially the same in the State Act as in the Central Acts but here
also the punishment is much severer in the case of the State Act than the one
contained in the Central Acts. It is, therefore, manifest that the State Act
does not contain any provision which is repugnant to the Central Acts, but is a
sort of complementary Act which runs pari passu the Central Act. [270 G-271 A]
4. Prima facie, there does not appear to be
any inconsistency between the State Act and the Central Acts.
Before any repugnancy can arise, the
following conditions must be satisfied:
(i) That there is a clear and direct
inconsistency between the Central Act and the State Act; (ii) that such an
inconsistency is absolutely irreconcilable; (iii) that the inconsistency
between the provisions of the two Acts is of such a nature as to bring the two
Acts into direct collision with each other and a situation is reached where it
is impossible to obey the one without disobeying the other.
[272D-E]
5. (1) In order to decide the questions of
repugnancy it must be shown that the two enactments contain inconsistent and
irreconcilable provisions, 257 so that they cannot stand together or operate in
the same field; (2) that there can be no repeal by implication unless the
inconsistency appears on the face of the two statutes;
(3) that where the two statutes occupy a
particular field, but there is room or possibility of both the statutes
operating in the same field without coming into collision with each other, no
repugnancy results; (4) that where there is no inconsistency but a statute
occupying the same field seeks to create distinct and separate offences, no
question of repugnancy arises and both the statutes continue to operate in the
same field. [278 F-H] Hume v. Palmer, 38 CLR 441; Union Steamship Co. of New
Zealand v. Commonwealth, 36 CLR 130; Clyde Engineering Co. v. Cowburn, 37 CLR
466; Ex. Parte McLean, 43 CLR 472;
Zavarbhai Amaidas v. State of Bombay, [1955]
1 SCR 799; Ch.
Tika Ramji & Ors. etc. v. The State of
U.P. & Ors. [1956] SCR 393 Shyamakant Lal v. Rambhajan Singh, 1939 FCR 188;
Om Prakash Gupta v. State of U.P., [1957] SCR 423; Deep Chand v. State of UP
& Ors. [1959] 2 Supp. SCR 8, Megh Raj & Ors.
v. Allah Rakhia & Ors. AIR 1942 FC 27;
State of Orissa v. M.
A. Tulloch & Co. [1964] 4 SCR 461; T. S.
Balliah v. T. S.
Rangachari, [1969] 3 SCR 65; referred to.
Colin Heward's Australian Federal
Constitution Law 2nd Edn. Nicholas Australian Constitution 2nd Edn. p. 303
referred to.
There can be no doubt that the State Act
creates distinct and separate offences with different ingredients and different
punishments and it does not in any way collide, with the Central Acts. On the
other hand, the State Act itself permits the Central Act, namely, the Criminal
Law (Amendment) Act to come to its aid after an investigation is completed and
a report is submitted by the Commissioner or the Additional Commissioner. [279
A-B]
6. Doubtless, the State Act is the dominant
legislation but there are no provisions in the State Act which are
irreconcilably or directly inconsistent with the Central Acts so as to
over-rule them. [279 C] The original s. 29 of the State Act underwent an
amendment which was brought about by Tamil Nadu Act 16 of 1974 which
substituted a new s. 29 for the old one. This amendment received the assent of
the President on 10th April, 1974 and was published in the Tamil Nadu
Government Gazette Extra ordinary, dated 16 April, 1974. Although the State Act
was passed as far back as 30 December, 1973 it received the assent of the
President on the 10 April, 1974 that is, on the same date as Act 16 of 1974.
The Act was however brought into force on the 8 May, 1974 when the new s. 29
which had already replaced the old section and had become a part of the
statute. Therefore, for all intents and purposes the State Act cannot be read
in isolation, but has to be interpreted in conjunction with the express
language contained in s. 29 of the State Act. The legislature has in
unequivocal terms expressed the intention that the State Act which was
undoubtedly the dominant legislation would only be "in addition to and not
in derogation with any other law for the time being in force" which
manifestly includes the Central Acts, namely, the Indian Penal Code, the
Corruption Act and the Criminal Law (Amendment) Act. Thus, the Legislature
about a month before the main Act came into force clearly declared its
intention that there would be no question of the State Act colliding with the
Central Acts referred to above. The second part 258 of s. 29 also provides that
nothing contained in the State Act shall exempt any public man from being
proceeded with by way of investigation or otherwise under a proceeding
instituted against him under the Central Acts. It is, therefore, clear that in
view of this clear intention of the legislature there can be no room for any
argument that the State Act was in any way repugnant to the Central Acts. [279
D-280 D]
7. The provisions of s. 29 would be
presumptive proof of the fact that there is no repugnancy between the State Act
and the Central Acts nor did either the legislature or the President intend to
create any repugnancy between these Acts as a result of which the criticism
regarding the repugnancy is completely obliterated in the instant case and we,
therefore, hold that the State legislature never intended to occupy the same
field as covered by the Central Acts. [281 B]
8. So far as the first part of cl. (12) (a)
is concerned, namely 'in the service of the Government undoubtedly signifies a
relationship of master and servant where the employer employs the employee on
the basis of a salary or remuneration. However, 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 may not
be a regular employee receiving salary from his master. A Minister or a Chief
Minister will be clearly covered by the said expression. [282 E-F] A careful
analysis of the meanings assigned to the word 'pay' in the various dictionaries
and the texts would clearly reveal that the expression 'in the pay of' connotes
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. [283 G-H] Shorter Oxford English Dictionary; Websters Third New
International Dictionary: Websters New World Dictionary: Words and Phrases,
Permanent Edition Vol.
31A p. 176. Venkataramaya's Law Lexicon Vol.
11 p.
1122. Corpus Juris Secundum Vol. 70 p. 200;
referred to.
9. By virtue of the provisions contained in
Art. 167, the Chief Minister undoubtedly performs a public duty of the nature
as enjoined by clauses (a) to (c) of Art. 167. It is also clearly provided in
the Constitution that the Chief Minister or the Ministers are entitled to
salaries or allowances obviously in lieu of public duties that they perform.
The salaries given to the Chief Minister or the Ministers are given from the
Government funds, and, therefore, there will be no difficulty in holding that
the Ministers are in the pay of the Government inasmuch as they receive their
salaries, remunerations or wages from the Government. [285 E-F] Once it is
conceded that the Governor appoints the Chief Minister who is paid a salary
according to a statute made by the legislature from the Government funds, the
Chief Minister becomes a person in the pay of the Government so as to fall
squarely within cl. (12) of s. 21 of the Penal Code. [286 B] 259
10. The use of the words 'other public
servants' following a Minister of the Union or of a State clearly show that a
Minister would also be a public servant as other public servants contemplated
by s. 199(2) of the Code and the Code being a statute complementary and allied
to the Penal Code can be looked into for the purpose of determining the real
meaning and import of the words 'public servant' as used in the aforesaid
section [286 F] Dattatraya Narayan Patil v. State of Maharashtra, [1975], Supp.
SCR 145; Emperor v. Sibnath Banerji & Ors., AIR 1945 PC 156; Rao Shiv
Bahadur Singh & Anr. v. The State of Vindhya Pradesh, [1953] SCR 1188;
referred to.
S. Tara Singh v. Director Consolidation of
Holdings, Punjab, Jullundur & Ors. AIR 1958 Pub. 302, Bakshi Ghulam Mohd.
v. G. M. Sadiq & Ors., AIR 1968 J & K 98; approved.
11. Three facts that have been proved beyond
doubt:- (i) That a Minister is appointed or dismissed by the Governor and therefore,
subordinate to him whatever be the nature and status of his constitutional
function.
(ii) That a Chief Minister or a Minister gets
salary for the public work done or the public duty performed by him.
(iii) That the said salary is paid to the Chief
Minister or the Minister from the Government funds. [290A-B]
12. It is thus incontrovertible, that the
holder of a public office such as the Chief Minister is a public servant in
respect of which the Constitution provides that he will get his salary from the
Government Treasury so long he holds his office on account of the public
service that he discharges. The salary given to the Chief Minister is
coterminus with his office and is not paid like other constitutional
functionaries such as the President and the Speaker. These fact, therefore,
point to one and only one conclusion and that is that the Chief Minister is in
the pay of the Government and is, therefore, a public servant within the
meaning of s. 21(12) of the Penal Code. [290 C-D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos.
270-271 of 1977.
From the Judgment and Order dated 10-5-1977
of the Madras High Court in W.P. No. 429 and Crl. R.P. No. 50/77.
K. K. Venugopal, N. A. Subramaniam, C. S.
Vaidyanathan, Mrs. Shanta Venugopal, K. R. Chowdhary and Mrs. Veena Devi Khanna
for the Appellant.
S. N. Kackar, Sol. Genl. (In Crl. A. No. 270)
R. B.
Datar and R. N. Sachthey, for the Respondent.
V. P. Raman, Adv. Genl and A. V. Rangam for
the State of Tamil Nadu.
260 The Judgment of the Court was delivered
by FAZAL ALI, J. These two appeals by certificate are directed against a common
order of the Madras High Court dated 10th May, 1977 dismissing the applications
filed before the High Court by the appellant for quashing the order of the Special
Judge, Madras dated 4th January, 1977 refusing to discharge the appellant under
section 239 of the Code of Criminal Procedure (hereinafter referred to as the
Code).
The facts of the case have been detailed in
the judgment of the High Court and it is not necessary for us to repeat the
same all over again. However, in order to understand the points in issue, it
may be necessary to give a resume of the important stages through which the
case has passed and the constitutional points argued before us.
The appellant, M. Karunanidhi, was a former
Chief Minister of Tamil Nadu and was the petitioner before the High Court in
the applications filed by him before the High Court. On 15-6-1976 a D.O. letter
was written by the Chief Secretary to the Government of Tamil Nadu to the
Deputy Inspector General of Police, CBI requesting him to make a detailed
investigation into certain allegations against the appellant and others who
were alleged to have abused their official position in the matter of purchase
of wheat from Punjab. A first information report was accordingly recorded on
16-6-1976 and four months later sanction under section 197 of the Code was
granted by the Governor of Tamil Nadu for the prosecution of the appellant
under sections 161, 468 and 471 of the Indian Penal Code and section 5(2) read
with section 5 (1)(d) of the Prevention of Corruption Act (hereinafter referred
to as the Corruption Act). Thereafter, the police submitted a charge sheet
against the appellant for the offences mentioned above and alleged that the
appellant had derived for himself pecuniary advantage to the extent of Rs. 4 to
Rs. 5 lakhs from Madenlal Gupta for passing favourable orders in respect of
some firms. The case was registered before the Special Judge and the necessary
copies of the records were furnished to the appellant. The appellant on
appearing before the Special Judge filed an application for discharging him
under section 239 of the Code on the ground that the prosecution against him
suffered from various legal and constitutional infirmities. The Special Judge,
however, after hearing counsel for the parties rejected the application of the
appellant as a result of which the appellant filed two applications in the High
Court for quashing the proceedings and for setting aside the order of the
Special Judge refusing to discharge the appellant. As indicated 261 above, the
High Court rejected the applications of the appellant but granted a certificate
for leave to appeal to this Court and hence these appeals before us.
As far back as 30th December, 1973 the Madras
Legislature had passed an Act known as The Tamil Nadu Public Men (Criminal
Misconduct) Act, 1973 hereinafter referred to as the State Act. The State Act
was passed after obtaining the assent of the President of India. This State Act
was, however, amended by Act 16 of 1974 and the President's assent was received
on 10th April, 1974. According to the provisions of the State Act the statute
was brought into force by virtue of a notification with effect from 8-5-1974.
According to the allegations made against the
appellant, the acts said to have been committed by him fell within the period
November 1974 to March, 1975. On 31-1-1976 by virtue of the provisions of
Article 356 President's rule was imposed in the State of Tamil Nadu and the
Ministry headed by the appellant was dismissed and a Proclamation to his effect
was issued on the same date. The High Court decided the petitions of the
appellant on 10-5-1977 and granted a certificate for leave to appeal to this
Court on 27-7-1977.
Subsequently, however, the State Act was
repealed and the President's assent to the repealing of the State Act was given
on 6-9-1977. Thus, it is manifest that by the time the appeal has reached this
Court and was taken up for hearing the State Act no longer exists.
Consequently, some of the constitutional points raised by the learned counsel
for the appellant before the Court do not survive for consideration before us.
Faced with this situation, Mr. Venu Gopal,
learned counsel for the appellant has raised only two points before us. In the
first place, he submitted that even though the State Act was repealed on
6-9-1977 during the time that it was in force, it was wholly repugnant to the
provisions of the Code, the Corruption Act and the Criminal Law Amendment Act
and by virtue of Article 254(2) of the Constitution of India the provisions of
the aforesaid Central Acts stood repealed and could not revive after the State
Act was repealed. The constitutional position, it is submitted, was that even
though the State Act was repealed the provisions of the Central Acts having
themselves been protanto repealed by the State Act when it was passed could not
be pressed into service for the purpose of prosecuting the appellant unless
those provisions were re-enacted by the appropriate legislature. A number of
grounds were raised by counsel for the appellant in support of the first plank
of his argument that the State Act was repugnant to the provisions of the
Central Acts as a result of which the former was rendered void.
262 Secondly, it was argued that even
assuming that the State Act has ceased to exist and the Central Acts apply to
the facts of the present case, the appellant cannot be prosecuted under any of
the sections of the Penal Code or the Corruption Act, because being the Chief
Minister of the State at the relevant time he was not a public servant as
defined in section 21 clause (12) of the Indian Penal Code.
The argument was that by virtue of the
position that the appellant enjoyed as Chief Minister there was no relationship
of master and servant between him and the Government and he was acting as a
constitutional functionary and, therefore, could not be described as a public
servant as contemplated by section 21(12) of the Penal Code.
We propose to deal with the two arguments
separately.
We would first deal with the question of
repugnancy as raised by learned counsel for the appellant. It is true that the
State Act was passed by the Legislature of Tamil Nadu and the assent of the
President was obtained on 30th December, 1973. By virtue of the provisions of
Article 254 (2) of the Constitution since the assent of the President had been
given the State Act was to prevail over the Central Acts so far as the State of
Tamil Nadu was concerned, but the serious question to be considered is as to
whether or not there was a real repugnancy resulting from an irreconcilable
inconsistency between the State Act and the Central Acts. Article 254 of the
Constitution runs thus:- "254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States:
(1) If any provision of a law made by the
Legislature of a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made by the Legislature of
such State, or, as the case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent of the repugnancy, be
void.
(2) Where a law made by the Legislature of a
State with respect to one of the matters enumerated in the Concurrent List
contains any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in that
State:
263 Provided that nothing in this clause
shall prevent Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or repealing the law
so made by the Legislature of State".
It would be seen that so far as clause (1) of
Article 254 is concerned it clearly lays down that where there is a direct
collision between a provision of a law made by the State and that made by
Parliament with respect to one of the matters enumerated in the Concurrent
List, then, subject to the provisions of clause (2), the State law would be
void to the extent of the repugnancy. This naturally means that where both the
State and Parliament occupy the field contemplated by the Concurrent List then
the Act passed by Parliament being prior in point of time will prevail and
consequently the State Act will have to yield to the Central Act. In fact, the
scheme of the Constitution is a scientific and equitable distribution of
legislative powers between Parliament and the State Legislatures. First,
regarding the matters contained in List I, i.e. the Union List to the Seventh
Schedule, Parliament alone is empowered to legislate and the State Legislatures
have no authority to make any law in respect of the Entries contained in List
I. Secondly, so far as the Concurrent List is concerned, both Parliament and
the State Legislatures are entitled to legislate in regard to any of the
Entries appearing therein, but that is subject to the condition laid down by
Article 254(1) discussed above. Thirdly, so far as the matters in List II,
i.e., the State List are concerned, the State Legislatures alone are competent
to legislate on them and only under certain conditions Parliament can do so. It
is, therefore, obvious that in such matters repugnancy may result from the
following circumstances :-
1. Where the provisions of a Central Act and
a State Act in the Concurrent List are fully inconsistent and are absolutely
irreconcilable, the Central Act will prevail and the State Act will become void
in view of the repugnancy.
2. Where however a law passed by the State
comes into collision with a law passed by Parliament on an Entry in the
Concurrent List, the State Act shall prevail to the extent of the repugnancy
and the provisions of the Central Act would become void provided the State Act
has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State
Legislature while being substantially within the scope of the entries in the
State List entrenches upon any of the Entries in the Central List 264 the
constitutionality of the law may be upheld by invoking the doctrine of pith and
substance if on an analysis of the provisions of the Act it appears that by and
large the law falls within the four corners of the State List an entrenchment,
if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State
Legislature on a subject covered by the Concurrent List is inconsistent with
and repugnant to a previous law made by Parliament, then such a law can be
protected by obtaining the assent of the President under Article 254(2) of the
Constitution. The result of obtaining the assent of the President would be that
so far as the State Act is concerned, it will prevail in the State and overrule
the provisions of the Central Act in their applicability to the State only.
Such a state of affairs will exist only until Parliament may at any time make a
law adding to, or amending, varying or repealing the law made by the State
Legislature under the proviso to Article 254.
So far as the present State Act is concerned
we are called upon to consider the various shades of the constitutional
validity of the same under Article 254(2) of the Constitution.
It is neither alleged or argued that
Parliament has at any time after the State Act was passed proceeded to pass any
law as contemplated by the Proviso to Article 254. As, however, the State law
has already been repealed and the President's assent to the said repeal has
been received as far back as 6-9-1977 we are concerned only with the limited
question as to whether if the State law had repealed or overruled the
provisions of the Central law what will be the position after the State law
itself ceases to exist. It is true that the doctrine of eclipse would not apply
to the constitutionality of the Central law and the only question we have to
determine is whether there was such an irreconcilable inconsistency between the
State Act and the Central Acts that the provisions of the Central Act stood
repealed and unless re-enacted the said provisions cannot be invoked even after
the State Act was itself repealed. In order, however, to enter into the domain
of repugnancy of the two Acts we have to consider the relevant provisions of the
Central Acts and of the State Act. The High Court has on a very careful and
cautious analysis of the various provisions of the two Acts come to a clear
finding that there is no repugnancy between the State Act and the Central Acts,
but the State Act merely creates a new and distinct offence which in its nature
and purport is essentially different from the offences contemplated by the
Indian Penal Code and the Corruption Act. It has been pointed out by the High
Court as also 265 by the Solicitor General that not only the ingredients of the
offences created by the State Act are different from those of the Central Act,
but even the procedure is different. It was further argued by the Solicitor
General that there is absolutely no repugnancy between the two Acts and both
can operate in their respective fields.
In order to appreciate this question, we
would briefly refer to the scheme of the State Act. Section 2 defines certain
dignitaries like Commissioner, Additional Commissioner, Government, Public man,
public servant.
Clause (a) of section 2 defines
'Commissioner' thus:
"'Commissioner' or "Additional
Commissioner" means the Commissioner of Inquiries or an Additional
Commissioner of Inquiries, as the case may be, appointed under section 4".
Clause (c) of section 2 defines 'public man'
thus:
"Public man" means (i) any person
who is or has been the Chief Minister or any other Minister of the State;
(ii) a person who is or has been a Member of
the Legislative Assembly or of the Legislative Council of the State; or (iii)a
person who is or has been a Mayor or Deputy Mayor of the Municipal Corporation
of Madras or of Madurai or Chairman of any Standing or Subject or other
Committee constituted or deemed to be constituted under the Madras City
Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) or the Madurai City
Municipal Corporation Act, 1971 (Tamil Nadu Act 15 of 1971) as the case may be;
(iv) a person who is or has been the Chairman
or Vice-Chairman of a Municipal Council or Chairman of any Standing or Subject
or other Committee constituted or deemed to be constituted under the Tamil Nadu
District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) or any other law
for the time in force;
(v) a person who is or has been the Chairman
or Vice-Chairman of a Panchayat Union Council or Chairman or President of any
Standing or Subject or other Committee of such council constituted or deemed to
be 266 constituted under the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act
XXXV of 1958), or any other law for the time being in force;
(vi) a person other than a Government servant
who is or has been the Chairman of- (a) any corporation (not being a local
authority) established by or under a State or Provincial Act and owned or
controlled by the State Government;
(b) any Government company within the meaning
of section 617 of the Companies Act, 1956 (Central Act 1 of 1956), in which not
less than fifty-one per cent of the paid-up share capital is held by the State
Government, or any company which is a subsidiary of a company in which not less
than fifty one per cent of the paid-up share capital is held by the State
Government".
It may be noticed here that the concept of
public-man as contemplated by the State Act differs in certain respects from
that of a public servant as contemplated by section 21(12) of the Penal Code.
To begin with, under the State Act a
public-man clearly includes the Chief Minister or any other Minister of the
State as also a member of the State Legislative Assembly or Legislative
Council. Secondly, the word 'public man' appearing in Section 2(c) clearly
excludes a Government servant, unless he falls within the categories of (a),
(b) and (c) of clause (vi) of section 2 of the State Act. This is a basic
departure from the provisions of the Penal Code where the word 'public servant'
has been used in the widest possible sense so as to include not only Government
servants who are receiving salary from the Government, but also other
dignitaries who are in the pay of the Government.
Section 3 clauses (1), (2) and (3) define
criminal misconduct which is almost the same as defined by the provisions of
the Corruption Act and the Penal Code (sections 5(2) and 5(1) (d) of the
Corruption Act and section 161 of the Indian Penal Code).
It may, however, be noted here that the State
Act does not make sections 468 and 471 of the Indian Penal Code any offence
under this Act. Section 4 prescribes the procedure for appointment of a high
267 powered tribunal for the purpose of holding investigation into the allegations
made against any public man. Sections 4 and 5 run thus:- "4. Appointment
of Commissioner of Inquiries and Additional Commissioner of Inquiries: (1) For
the purpose of conducting investigation in accordance with the provisions of
this Act, the Government shall, on the recommendation of the Chief Justice of
the High Court appoint, by notification, a person to be known as Commissioner
of Inquiries and one or more persons to be known as Additional Commissioner of
Inquiries.
(2) The Commissioner shall be a person who
is, or who is qualified for appointment as, or who has been, a Judge of a High
Court and an Additional Commissioner shall be a person who is, or who is
qualified for appointment as, or who has been, a District Judge.
(3) Every person appointed as the
Commissioner or Additional Commissioner shall, before entering upon his office,
make and subscribe before the Chief Justice of the High Court or some person
appointed in that behalf by him an oath for affirmation in the form set out for
the purpose in the First Schedule.
(4) The Additional Commissioner shall be
subject to the administrative control of the Commissioner, and in particular,
for the purpose of convenient disposal of investigations under this Act, the
Commissioner may issue such general or special directions as he may consider
necessary to the Additional Commissioner;
Provided that nothing in this sub-section
shall be construed to authorise the Commissioner to question any finding
conclusion or recommendation of an Additional Commissioner.
x x x x x
5. Term of office and other conditions of
service of Commissioner and Additional Commissioner:
x x x x x (4) There shall be paid to the
Commissioner and the Additional Commissioner such salaries as are specified in
the Second Schedule.
268 (5) The allowances and pension payable
to, and other conditions of service of, the Commissioner or Additional
Commissioner shall be the same as admissible- (a) to a Judge of a High Court in
the case of the Commissioner, (b) to a District Judge in the case of an
Additional Commissioner:
Provided that the allowances and pension
payable to, and other conditions of service of, the Commissioner or an
Additional Commissioner shall not be varied to his disadvantage after his
appointment".
Another important provision which is
contained in the State Act but not in the Central Acts is a provision regarding
limitation. Under section 8 which was introduced by section 2 of the Tamil Nadu
Amending Act 16 of 1974 it is provided that the Commissioner or the Additional
Commissioner shall not investigate any complaint involving criminal misconduct
which is made after the expiry of 5 years from the date on which the criminal
misconduct complained against was alleged to have been committed or after the
expiry of one year from the date on which the public man ceased to be such
public man. The provisions of section 8 may be extracted thus:- "6.
Limitation for preferring complaints: (1) The Commissioner or an Additional
Commissioner shall not investigate or cause to be investigated any complaint
involving criminal misconduct if the complaint is made:- (i) after the expiry
of five years from the date on which the criminal misconduct complained against
was alleged to have been committed; or (ii) after the expiry of one year of the
date on which the public ceases to be such public man, Whichever is later.
(2) Notwithstanding anything contained in
sub- section (1), the Commissioner or an Additional Commissioner shall not
investigate or cause to be investigated any complaint involving criminal
misconduct, the complaint is made after the expiry of one year from the date on
which the action complained against becomes known to the complainant".
269 Similarly section 10 of the State Act
confers plenary powers on the Commissioner or the Additional Commissioner to
prescribe a procedure for conducting an investigation in respect of a complaint
and runs thus:- "10. Procedure in respect of investigation of criminal
misconduct: (1) The procedure for conducting any investigation in respect of a
complaint of criminal misconduct against any public man shall be such as the
Commissioner or the Additional Commissioner considers appropriate in the
circumstances of the case.
(2) Subject to the provisions of sub-section
(1), where any complaint of criminal misconduct against a public man is
received by the Commissioner or Additional Commissioner, the Commissioner or
Additional Commissioner shall make or cause to be made a preliminary
investigation to find out whether there is any prima facie case against the
public man in respect of the allegation of criminal misconduct:
x x x (3) Where the Commissioner or
Additional Commissioner gives a finding under sub-section (2) that there is no
prima facie case against the public man in respect of the allegation of criminal
misconduct, he shall dismiss the complaint after briefly recording his reasons
for doing so:
Provided that the Commissioner or Additional
Commissioner shall not dismiss any complaint under this sub-section, unless the
complainant has been given an opportunity of being heard, if such complainant
has not already been heard under clause (a) of the proviso to sub-section (2).
x x x x" Under clause (3) of section 10
the Commissioner or the Additional Commissioner is empowered to dismiss the
complaint if he is satisfied that no prima facie case against the public man
has been made out, but such an order of dismissal can be made only after the
complainant has been given an opportunity of being heard.
Section 11 is also a new provision as
compared to the Central Acts which provides for grant of compensatory costs to
the public man if the allegation made against him are found to be false,
frivolous or vexatious to the knowledge of the complainant.
270 Section 12 gives a right of appeal to a
Division Bench of the High Court against any order passed by the Commissioner
or Additional Commissioner under sub-section (1) of section 11 granting
compensatory costs to the public man and runs thus:- "Appeal against an
order under section 11: (1) Against any order passed by the Commissioner or
Additional Commissioner under sub-section (1) of section 11, the complainant
may, within such period as may be prescribed, appeal to a Special Appellate
Tribunal consisting of two Judges of the High Court nominated from time to time
by the Chief Justice in that behalf".
Section 14 provides the procedure for
examination of witnesses, receiving of affidavits, issuing of commissions etc.
Section 15 provides an enhanced punishment of
seven years for criminal misconduct as compared to the punishment provided by
the Corruption Act.
Section 16 provides for prosecution of a
complainant if his complaint is found to be false, frivolous and vexatious and
such a complainant is liable to be punished for a term which may extend to
three years and fine, but such a prosecution can be launched only with the
previous sanction of the Commissioner. Section 16 runs thus:- "16.
Punishment for false, frivolous or vexatious complaint: (1) Notwithstanding
anything contained in this Act, every person who makes a false, frivolous or
vexatious complaint against a public man under this Act, shall on conviction be
punished with imprisonment for a term which may extend to three years and shall
also be liable to fine".
A careful analysis, therefore, of the various
provisions of the State Act leads to the irresistible inference that the State
Act was passed with a view to afford sufficient protection to a public man by
enjoining a summary inquiry or investigation by a high and independent Tribunal
of the status of a High Court Judge or a Senior District Judge to instill
confidence in the people and to prevent public man from being prosecuted on
false, frivolous and vexatious allegations. Although the ingredients of
criminal misconduct as defined in section 5(1) (d) of the Corruption Act are
substantially the same in the State Act as in the Central Acts but here also
the punishment is much severer in the case of the State Act than the one
contained in the Central Acts. It is, therefore, manifest that the State Act does
not contain any provision which is repugnant to the Central Acts, but is a sort
of comple- 271 mentary Act which runs pari passu the Central Acts mentioned
above. After the investigation by the Commissioner under the State Act is
complete and a report is submitted, section 18 of the State Act provides thus:-
"18. Report of the Commissioner and Additional Commissioner: (1) Where as
a result of any detailed investigation under sub-section (4) of section 10 in
respect of a complaint of criminal misconduct against a public man, the
Commissioner or an Additional Commissioner is of opinion,- (a) that it is
expedient in the interest of justice that the public man against whom criminal
misconduct has been alleged, should be prosecuted for an offence under section
15; or (b) that the allegation has not been substantiated, he shall record a
finding to that effect stating his reasons therefor and report the same to the
Government.
(2) In cases falling under clause (a) of sub-
section (1), the public man shall be prosecuted and tried under section 6 of
the Criminal Law (Amendment) Act, 1952 (Central Act 46 of 1952)".
The State Act enjoins that the public man
concerned will have to be prosecuted under the Criminal Law (Amendment) Act of
1952. Thus, far from there being any inconsistency, the provisions of the
Criminal Law (Amendment) Act are directly applied to a public man by the State
Act after the preliminary investigation by the Commissioner is over. It seems
to us that what the State Act does is merely to create different and distinct
offences and not to over-rule any provisions of the Central Act.
It was, however, strongly contended by Mr.
Venu Gopal that the provisions contained in the State Act run counter to those
of the Central Acts in respect of the following matters:
1. The procedure for investigation of the
offences by a Central agency as contemplated by the Corruption Act is dispensed
with and is instead invested in a Commissioner appointed under the State Act.
2. The provision under the Prevention of Corruption
Act regarding the grant of sanction under section 197 of the Code to the
accused is given a complete go by and instead a Commissioner is appointed to
hold a regular 272 inquiry for himself and then to submit his report. Thus, an
accused who has been tried under the State Act is deprived of protection
afforded to every Government servant regarding grant of a sanction by the
appointing authority. It is thus suggested that the protection, if any, given
by the State Act is purely illusory.
In order, however, to understand the argument
of the learned counsel for the appellant, it may be necessary to consider the
question of repugnancy in a little broader perspective.
It is well settled that the presumption is
always in favour of the constitutionality of a statute and the onus lies on the
person assailing the Act to prove that it is unconstitutional. Prima facie,
there does not appear to us to be any inconsistency between the State Act and
the Central Acts. Before any repugnancy can arise, the following conditions
must be satisfied:-
1. That there is a clear and direct
inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely
irreconcilable.
3. That the inconsistency between the
provisions of the two Acts is of such a nature as to bring the two Acts into
direct collision with each other and a situation is reached where it is
impossible to obey the one without disobeying the other.
In Colin Howard's Australian Federal
Constitutional Law, 2nd Edition the author while describing the nature of
inconsistency between the two enactments observed as follows:- "An obvious
inconsistency arises when the two enactments produce different legal results
when applied to the same facts".
In the case of Hume v. Palmer Knox, C.J.
observed as follows:- "The rules prescribed by the Commonwealth Law and
the State law respectively are for present purposes substantially identical,
but the penalties imposed for the contravention differ........................
In these circumstances, it is I think, clear
that the reasons given by my brothers Issacs and Starke for the deci- 273 sions
of this Court in Union Steamship Co. of New Zealand v. Commonwealth(1) and
Clyde Engineering Co. v.
Cowburn establish that the provisions of the
law of the State for the breach of which the appellant was convicted are
inconsistent with the law of the Commonwealth within the meaning of sec. 109 of
the Constitution and are therefore invalid".
Issacs, J. observed as follows:- "There
can be no question that the Commonwealth Navigation Act, by its own direct
provisions and the Regulations made under its authority, applies upon
construction to the circumstances of the case. It is inconsistent with the
State Act in various ways, including (1) general supersession of the
regulations of conduct, and so displacing the State regulations, whatever those
may be; (2) the jurisdiction to convict, the State law empowering the Court to
convict summarily, the Commonwealth Law making the contravention an indictable
offence, and therefore bringing into operation sec. 80 of the Constitution,
requiring a jury; (3) the penalty, the State providing a maximum of $ 50 the
Commonwealth Act prescribing a maximum of $ 100, or imprisonment, or both; (4)
the tribunal itself".
Starke, J. observed as follows:- "It is
not difficult to see that the Federal Code would be 'disturbed or deranged' if
the State Code applied a different sanction in respect of the same act.
Consequently the State regulations are, in my opinion, inconsistent with the law
of the Commonwealth and rendered invalid by force of sec. 109 of the
Constitution".
In a later case of the Australian High Court
in Ex.
Parte Mclean(3) Issacs and Starke, JJ. while
dwelling on the question of repugnancy made the following observation:-
"In Cowburn's case (supra) is stated the reasoning for that conclusion and
we will now refer to those statements without repeating them. In short, the
very same conduct by the same persons is dealt with in conflicting terms by the
Commonwealth and State Acts. A Court, seeing that, has 274 no authority to
inquire further, or to seek to ascertain the scope or bearing of the State Act.
It must simply apply sec. 109 of the Constitution, which declares the
invalidity protanto of the State Act".
Similarly Dixon, J. observed thus:-
"When the Parliament of the Commonwealth and the Parliament of a State
each legislate upon the same subject and prescribe what the rule of conduct
shall be, they make laws which are inconsistent, notwithstanding that the rule
of conduct is identical which each prescribes, and sec. 109 applies. That this
is so is settled, at least when the sanctions they impose are diverse Hume v.
Palmer (supra)".
In the case of Zaverbhai Amaidas v. The State
of Bombay(1) this Court laid down the various tests to determine the
inconsistency between two enactments and observed as follows- "The
important thing to consider with reference to this provision is whether the
legislation is 'in respect of the same matter'. If the later legislation deals
not with the matters which formed the subject of the earlier legislation but
with other and distinct matters though of a cognate and allied character, then
Article 254 (2) will have no application. The principle embodied in section 107
(2) and Article 254 (2) is that when there is legislation covering the same
ground both by the Centre and by the Province, both of them being competent to
enact the same, the law of the Centre should prevail over that of the
State".
"It is true, as already pointed out,
that on a question under Article 254 (1) whether an Act of Parliament prevails
against a law of the State, no question of repeal arises; but the principle on
which the rule of implied repeal rests, namely, that if subject-matter of the
later legislation is identical with that of the earlier, so that they cannot
both stand together, then the earlier is repealed by the later enactment, will
be equally applicable to a question under Article 254(2) whether the further
legislation by Parliament is in respect of the same matter as that of the State
law".
In the case of Ch. Tika Ramji & Ors. etc.
v. The State of Uttar Pradesh & Ors.(2) while dealing with the question of
repugnancy 275 between a Central and a State enactment, this Court relied on
the observations of Nicholas in his Australian Constitution, 2nd Ed. p.303,
where three tests of inconsistency or repugnancy have been laid down and which
are as follows:- "(1) There may be inconsistency in the actual terms of
the competing statutes R. Brisbane Licensing Court(1).
(2) Though there may be no direct conflict, a
State law may be inoperative because the Commonwealth law, or the award of the
Commonwealth Court, is intended to be a complete exhaustive code Clyde
Engineering Co. Ltd. v. Cowburn (supra).
(3) Even in the absence of intention, a
conflict may arise when both State and Commonwealth seek to exercise their
powers over the same subject matter Victoria v. Commonwealth(2) Wenn v.
Attorney General(3) This Court also relied on the decisions in the case of Hume
v. Palmer as also the case of Ex Parte Mclean (supra) referred to above. This
Court also endorsed the observations of Sulaiman, J. in the case of Shyamakant
Lal v. Rambhajan Singh (4) where Sulaiman, J. observed as follows:
"When the question is whether a
Provincial legislation is repugnant to an existing Indian law, the onus of
showing its repugnancy and the extent to which it is repugnant should be on the
party attacking its validity. There ought to be a presumption in favour of its
validity, and every effort should be made to reconcile them and construe both
so as to avoid their being repugnant to each other, and care should be taken to
see whether the two do not really operate in different fields without
encroachment. Further, repugnancy must exist in fact, and not depend merely on
a possibility".
In the case of Om Prakash Gupta v. State of
U.P.(5) where this Court was considering the question of the inconsistency
between the two Central enactments, namely, the Indian Penal Code and the
Prevention of Corruption Act held that there was no inconsistency and observed
as follows:- "It seems to us, therefore, that the two offences are
distinct and separate. This is the view taken in Amarendra 276 Nath Roy v. The
State(1) and we endorse the opinion of the learned Judges, expressed therein.
Our conclusion, therefore, is that the offence created under section 5 (1) (c)
of the Corruption Act is distinct and separate from the one under section 405
of the Indian Penal Code and, therefore, there can be no question of section 5 (1)
(c) repealing section 405 of the Indian Penal Code.
If that is so, then, Article 14 of the
Constitution can be no bar".
Similarly in the case of Deep Chand v. The
State of Uttar Pradesh & Ors. (2) this Court indicated the various tests to
ascertain the question of repugnancy between the two statutes and observed as
follows:- "Repugnancy between two statutes may thus be ascertained on the
basis of the following three principles:- (1) Whether there is direct conflict
between the two provisions;
(2) Whether Parliament intended to lay down
an exhaustive code in respect of the subject matter replacing the Act of the
State Legislature; and (3) Whether the law made by Parliament and the law made
by the State Legislature occupy the same field".
In the case of Megh Raj and Ors. v. Allah
Rakhia & Ors.(3) where Varadachariar, J. speaking for the Court pointed out
that where as in Australia a provision similar to section 107 of the Government
of India Act, 1935 existed in the shape of section 109 of the Australian
Constitution, there was no corresponding provision in the American
Constitution. Similarly, the Canadian cases have laid down a principle too
narrow for application to Indian cases.
According to the learned Judge, the safe rule
to follow was that where the paramount legislation does not purport to be
exhaustive or unqualified there is no inconsistency and in this connection
observed as follows:- "The principle of that decision is that where the
paramount legislation does not purport to be exhaustive or unqualified, but
itself permits or recognises other laws restricting or qualifying the general
provision made in it, it can- 277 not be said that any qualification or
restriction introduced by another law is repugnant to the provision in the main
or paramount law".
"The position will be even more obvious,
if another test of repugnancy which has been suggested in some cases is
applied, namely, whether there is such an inconsistency between the two
provisions that one must be taken to repeal the other by necessary
implication" In the case of State of Orissa v. M. A. Tulloch & Co.
(1) Ayyangar J. speaking for the Court
observed as follows:- "Repugnancy arises when two enactments both within
the competence of the two Legislatures collide and when the Constitution
expressly or by necessary implication provides that the enactment of one
Legislature has superiority over the other then to the extent of the repugnancy
the one supersedes the other. But two enactments may be repugnant to each other
even though obedience to each of them is possible without disobeying the other.
The test of two legislations containing contradictory provisions is not,
however, the only criterion of repugnancy, for if a competent legislature with
a superior efficacy expressly or impliedly evinces by its legislation an
intention to cover the whole field, the enactments of the other legislature
whether passed before or after would be overborne on the ground of repugnance.
Where such is the position, the inconsistency is demonstrated not by a detailed
comparison of provisions of the two statutes but by the mere existence of the
two pieces of legislation".
In the case of T. S. Balliah v. T. S.
Rangachari(2) it was pointed out by this Court that before coming to the
conclusion that there is a repeal by implication, the Court must be satisfied
that the two enactments are so inconsistent that it becomes impossible for them
to stand together. In other words, this Court held that when there is a direct
collision between the two enactments which is irreconcilable then only
repugnancy results. In this connection, the Court made the following
observations:- "Before coming to the conclusion that there is a repeal by
implication, the Court must be satisfied that the two enactments are so
inconsistent or repugnant that they cannot 278 stand together and the repeal of
the express prior enactment must flow from necessary implication of the
language of the later enactment. It is therefore necessary in this connection
to scrutinise the terms and consider the true meaning and effect of the two
enactments".
"The provisions enacted in s. 52 of the
1922 Act do not alter the nature or quality of the offence enacted in s. 177,
Indian Penal Code but it merely provides a new course of procedure for what was
already an offence. In a case of this description the new statute is regarded
not as superseding, nor repealing by implication the previous law, but as
cumulative".
"A plain reading of the section shows
that there is no bar to the trial or conviction of the offender under both
enactments but there is only a bar to the punishment of the offender twice for
the same offence.
In other words, the section provides that
where an act or omission constitutes an offence under two enactments, the
offender may be prosecuted and punished under either or both the enactments but
shall not be liable to be punished twice for the same offence".
On a careful consideration, therefore, of the
authorities referred to above, the following propositions emerge:-
1. That in order to decide the question of
repugnancy it must be shown that the two enactments contain inconsistent and
irreconcilable provisions, so that they cannot stand together or operate in the
same field.
2. That there can be no repeal by implication
unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a
particular field, there is room or possibility of both the statutes operating
in the same field without coming into collision with each other, no repugnancy
results.
4. That where there is no inconsistency but a
statute occupying the same field seeks to create distinct and separate
offences, no question of repugnancy arises and both the statutes continue to
operate in the same field.
279 In the light of the propositions enunciated
above, there can be no doubt that the State Act creates distinct and separate
offences with different ingredients and different punishments and it does not
in any way collide with the Central Acts. On the other hand, the State Act
itself permits the Central Act, namely, the Criminal Law (Amendment) Act to
come into its aid after an investigation is completed and a report is submitted
by the Commissioner or the Additional Commissioner. It was contended however by
Mr. Venu Gopal that by virtue of the fact that the State Act has obtained the
assent of the President, it will be deemed to be a dominant legislation, and,
therefore, it would overrule the Central Acts. Doubtless, the State Act is the
dominant legislation but we are unable to agree with Mr.
Venu Gopal that there are any provisions in
the State Act which are irreconcilably or directly inconsistent with the
Central Acts so as to overrule them.
Last but not the least there is a very
important circumstance which completely and conclusively clinches the issue and
takes the force out of the argument of Mr. Venu Gopal on the question of
repugnancy. It would be seen that in the original State Act, section 29 ran
thus:- "Act to overrule other laws, etc.-The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith contained in any
other law for the time being in force or any custom, usage or contract or
decree or order of a court or other authority".
This section underwent an amendment which was
brought about by Tamil Nadu Act 16 of 1974 which substituted a new section 29
for the old one. The new section which was substituted may be extracted thus:-
"Saving-The provisions of this Act shall be in addition to, and not in
derogation of, any other law for the time being in force, and nothing contained
herein shall exempt any public man from any proceeding by way of investigation
or otherwise which might, apart from this Act, be instituted against him".
This amendment received the assent of the
President on 10th April, 1974 and was published in the Tamil Nadu Government
Gazette Extraordinary dated 16th April, 1974. We have already shown that
although the State Act was passed as far back as 30th December, 1973 it
received the assent of the President on the 10th April, 1974 that is to say, on
the same date as Act 16 of 1974. The Act was however brought into force on the
8th May, 1974 when the new section 29 280 which had already replaced the old
section and had become a part of the statute. Therefore, for all intents and
purposes the State Act cannot be read in isolation, but has to be interpreted
in conjunction with the express language contained in section 29 of the State
Act. This section has in unequivocable terms expressed the intention that the
State Act which was undoubtedly the dominant legislation would only be "in
addition to and not in derogation with any other law for the time being in
force" which manifestly includes the Central Acts, namely, the Indian
Penal Code, the Corruption Act and the Criminal Law (Amendment) Act.
Thus, the Legislature about a month before
the main Act came into force clearly declared its intention that there would be
no question of the State Act colliding with the Central Acts referred to above.
The second part of section 29 also provides that nothing contained in the State
Act shall exempt any public man from being proceeded with by way of
investigation or otherwise under a proceeding instituted against him under the
Central Acts. It is, therefore, clear that in view of this clear intention of the
legislature there can be no room for any argument that the State Act was in any
way repugnant to the Central Acts. We have already pointed out from the
decisions of the Federal Court and this Court that one of the important tests
to find out as to whether or not there is repugnancy is to ascertain the
intention of the legislature regarding the fact that the dominant legislature
allowed the subordinate legislature to operate in the same field pari passu the
State Act.
Craies in his Interpretation on Statute Law
6th Ed. p. 369 observes as follows:- "Many earlier statutes contain
clauses similar in effect to the general rule, but without the confusing words
as to contrary intention. These statutes, of some of which a list is given
below, seem not to be affected by the above rule, save so far as it enables the
revisers of the statute-book to excise the particular clauses. In accordance
with this rule, penalties imposed by statute for offences already punishable
under a prior statute are regarded as cumulative or alternative and not as
replacing the penalty to which the offender was previously liable." Such
an intention is clearly discernible from the provisions of section 29 of the
State Act. Mr. Venu Gopal tried to rebut this argument on the ground that
section 29 would have no application where the inconsistency between the
dominant statute and the subordinate statute is direct and complete.
We have already found on a discussion of 281
the various provisions of the State Act that there is no direct inconsistency
at all between the State Act and the Central Acts, and this affords a
sufficient answer to the argument of Mr. Venu Gopal. Having, therefore, given
our anxious consideration to the import and ambit of section 29 it seems to us
that the provisions of section 29 would be presumptive proof of the fact that
there is no repugnancy between the State Act and the Central Acts nor did
either the legislature or the President intend to create any repugnancy between
these Acts as a result of which the criticism regarding the repugnancy is
completely obliterated in the instant case and we, therefore, hold that the
State legislature never intended to occupy the same field covered by the
Central Acts.
It was also contended by Mr. Venu Gopal that
if the Central Acts being repugnant to the State Act are pressed into service
even after the repeal of the State Act, the Central Acts would stand repealed
hence the prosecution of the appellant would be hit by Article 20(3) of the
Constitution, i.e. the appellant cannot be prosecuted for an ex post facto
offence. On our findings in this case that there is no inconsistency between
the State Act and the Central Acts the application of Article 20(3) of the
Constitution to the facts of this case does not arise at all. We, therefore,
find ourselves in complete agreement with the view taken by the High Court that
the State Act creates new and distinct offences and is not in any way repugnant
to any provisions of the Central Acts and consequently overruled the first limb
of the argument of counsel for the appellant.
Similarly the contention of Mr. Venu Gopal as
to whether or not the prosecution of the appellant would be violative of
Article 14 of the Constitution is not available to the appellant, and
consequently the learned counsel gave up this point and in our opinion very
rightly because since the State Act has now been repealed the question of the
prosecution of the appellant hereafter under the State Act does not arise at
all, and, therefore, the question of two remedies being open to the prosecution
which they may elect at their own option does not arise in this case. The
appellant can be prosecuted only under the Corruption Act and the Penal Code
and under no other Act at the moment.
Moreover, it was obviously wrong to say that the
earlier Central Law became violative of Article 14 as soon as the State law was
enacted.
This brings us to the second limb of the
argument of the learned counsel for the appellant which relates to the import
and connotation of the term 'public servant' appearing in section 21(12) of the
Indian 282 Penal Code. Clause 12 of section 21 which is the relevant provision
so far as the present case is concerned runs thus :- "21. The words
'public servant' denote a person falling under any of the descriptions hereinafter
following namely:- X X X 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:
X X X It was vehemently contended by Mr. Venu
Gopal that having regard to the constitutional and public duties of a Chief
Minister or a Minister he cannot be deemed to be a public servant in any sense
of the term. He further contended that the entire clause (12) (a) should be
read as a whole and cannot be severed into two limbs in as much as the words
'in the service or pay of the Government' are used as synonyms. It was further
contended that the words 'in the service or pay of the Government' clearly
connote the relationship of master and servant-a relationship which is
completely beyond the concept of the position of a Minister or a Chief
Minister. We, however, agree that so far as the first part of clause (12) (a)
is concerned, namely "in the service of the Government' undoubtedly
signifies a relationship of master and servant where the employer employs the
employee on the basis of a salary or remuneration. But 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. In other words, we think that even a Minister or a Chief Minister will
be clearly covered by the expression 'person in the pay of the Government'. Mr.
Venu Gopal, however, relied on the meaning of the words "in the pay of' as
appearing in the various dictionaries.
In Shorter Oxford English Dictionary the
expression 'in the pay of' is defined thus- "To give money, etc., in
return for something or in discharge of an obligation. Of a thing or action. To
yield an adequate return. To give money or other equivalent value for".
Similarly 'Payer' is defined thus:
"One who pays a sum of money".
283 In Webster's Third New International
Dictionary the expression 'in the pay of' is indicated to mean:-
"Compensate, remunerate, satisfy, reimburse, indemnify, recompense, repay.
Pay is a general term, lacking particular connotation but sometimes bluntly
stressing the purchase of service, pay a machinist high wages".
"Wages, salary remuneration".
In Webster's New World Dictionary the
expression 'in the pay of' is thus defined:- "Stresses the idea of payment
for a service rendered, but it often also carries an implication of reward (a
bumper crop remunerated the farmer for his labors)".
In Words and Phrases, Permanent Edition Vol.
31A p. 176 the meaning of the word 'pay' is given thus:- "Pay" is
remuneration, wages or salary. To remunerate;
to recompense, to give any pay".
In Venkataramaya's Law Lexicon Vol. II p.1122
the expression 'to pay money' has the following connotation:- "To pay
money is to pay it in respect of a right which some person has to receive
it".
In Corpus Juris Secundum Vol. 70 at page 200
the word 'pay' if used as a noun is defined as remuneration, wages,
compensation, salary and the following observations are also made:- "To
noun 'pay' has been held equivalent to, or synonymous with, 'compensation',
salary and wages and has been compared with, or distinguished from, 'allowance'
and 'consideration'".
A careful analysis of the meanings assigned
to the word 'pay' in the various dictionaries and the texts referred to above
would clearly reveal that the expression 'in the pay of' connotes 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. This
aspect of the matter would become crystal clear if we examine the nature and
the constitutional position and status of a Minister or a Chief Minister.
284 Article 164 of the Constitution runs
thus:- "Other provisions as to Ministers: (1) The Chief Minister shall be
appointed by the Governor and the other Ministers shall be appointed by the
Governor on the advice of the Chief Minister, and the Ministers shall hold
office during the pleasure of the Governor:
Provided that in the States of Bihar, Madhya
Pradesh and Orissa, there shall be a Minister in Charge of tribal welfare who
may in addition be in charge of the welfare of the Scheduled Castes and
backward classes or any other work".
This Article clearly shows that a Chief
Minister is appointed by the Governor and having been appointed by the Governor
it is manifest that he is subordinate to the Governor. Even in section 52 (1)
of the Government of India Act, 1935 which preceded our Constitution the
provision was worded thus:- "52 (1) The Governor of a Governor's province
may, by notification, appoint ministers, not being members of his executive
council or other officials to administer transferred subjects, and any
ministers so appointed shall hold office during his pleasure:
There may be paid to any minister so
appointed in any province the same salary as is payable to a member of the
executive council in that province, unless a smaller salary is provided by vote
of the legislative council of the province".
In this section also it was the Governor who
alone had the power to choose the ministers. In fact, in Article 164 the word
'appointment' is much higher than the concept of a person being chosen. Article
164(5) provides for the salary and allowances of Ministers and runs thus:-
"164 (5) The salaries and allowances of Ministers shall be such as the
Legislature of the State may from time to time by law determine and, until the
Legislature of the State so determines, shall be as specified in the Second
Schedule".
Under this provision the Ministers on being
appointed by the Governor are entitled to such salaries and allowances as the
Legislature of the State may determine from time to time and until this is
done, the emoluments will be such as are specified in the Second 285 Schedule.
As however all the Legislatures of the States as also Parliament have already
passed Acts providing for the salaries and emoluments of the Chief Minister and
the Ministers the specification of their emoluments in the Second Schedule to
the Constitution have been deleted.
Article 167 lays down the duties of the Chief
Minister and runs thus:- "167. Duties of Chief Minister as respects the
furnishing of information to Governor etc. It shall be the duty of the Chief
Minister of each State (a) to communicate to the Governor of the State all
decisions of the Council of Ministers relating to the administration of the
affairs of the State and proposals for legislation;
(b) to furnish such information relating to
the administration of affairs of the State and proposals for legislation as the
Governor may call for;
(c) if the Governor so requires, to submit
for the consideration of the Council of Ministers any matter on which a
decision has been taken by a Minister but which has not been considered by the
Council".
It is, therefore, clear that by virtue of the
provisions contained in Article 167, the Chief Minister undoubtedly performs a
public duty of the nature as enjoined by clauses (a) to (c) of Article 167. It
is also clearly provided in the Constitution that the Chief Minister or the
Ministers are entitled to salaries or allowances obviously in lieu of public
duties that they perform. The salaries given to the Chief Minister or the
Ministers are given from the Government funds, and therefore, there will be no
difficulty in holding that the Ministers are in the pay of the Government
inasmuch as they receive their salaries, remunerations or wages from the
Government. Mr. Venu Gopal, however, submitted that no analogy can be drawn
between the constitutional provisions and the provisions contained in the
Government of India Act because the constitutional position of a Chief Minister
under the Constitution was not the same as under the Government of India Act
where the Governor enjoyed vast and plenary powers and was not bound by the
advice of the Council of Ministers as the Governor is under our Constitution.
It is not necessary to probe into this aspect of the matter, because the
Constitution clearly lays down that the Governor appoints the Chief Minister
and being the appointing authority he is also the dismissing authority. We are
not at all concerned in the instant case as to the circumstances under which
the Governor can appoint or dismiss the Chief Minister. Once it is conceded
that the Governor appoints the Chief Minister who is paid a salary according to
a statute made by the legislature from the Government funds, the Chief Minister
becomes a person in the pay of the Government so as to fall squarely within
clause (12) of section 21 of the Penal Code.
There is another circumstance to show that a
Chief Minister or a Minister is undoubtedly a public servant which was relied
upon by the High Court in repelling the argument of Mr. Venu Gopal. Section 199
of the Code runs thus:- "199 (2) Notwithstanding anything contained in
this Code, when any offence falling under Chapter XXI of the Indian Penal Code
is alleged to have been committed against a person who, at the time of such
commission is the President of India, the Vice President of India, the Governor
of a State, the Administrator of a Union Territory or a Minister of the Union
or of a State or of a Union territory, or any other public servant employed in
connection with the affairs of the Union or of a State in respect of his
conduct in the discharge of his public functions a Court of Session may take
cognizance of such offence, without the case being committed to it, upon a
complaint in writing made by the Public Prosecutor".
The use of words 'other public servants'
following a Minister of the Union or of a State clearly show that a Minister
would also be a public servant as other public servants contemplated by section
199 (2) of the Code are the Code being a statute complimentary and allied to
the Penal Code can be looked into for the purpose of determining the real
meaning and import of the words 'public servant' as used in the aforesaid section.
The Solicitor General placed reliance on the
decision of this Court in the case of Dattatraya Narayan Patil v. State of
Maharashtra(1) where this Court had held in a slightly different context that a
Minister was a public servant. Mr. Venu Gopal has, however, distinguished this
decision on the ground that this Court proceeded on the assumption that it was
not disputed before the Court that the Minister was a Public Servant and the
case having been decided on the concession 287 of the parties cannot be relied
upon by the Solicitor General. In that case to which two of us (Untwalia and
Fazal Ali, JJ.) were parties to the judgment, the following observations were
made:- "The duty assigned to a public servant by his master, be it be
under a statute or by an executive order, will assume the character of public
duty, provided the duty assigned is not illegal or against public policy. Will
it make any difference in the case of a Minister? In our judgment, not. The
Minister is a public servant-not disputed".
These observations no doubt fortify our
opinion that the Chief Minister is a public servant which is based on the
reasons that we have already given and which are different from those given in
the case cited before us.
In the case of Emperor v. Sibnath Banerji
& Ors.(1) the Privy Council clearly held that it was not in a position to
accept the suggestion of the counsel that the Minister was not subordinate to
the Governor. This was the precise argument which had been put forward by Mr.
Venu Gopal when he contended that the Chief Minister is not subordinate to the
Governor. The Privy Council observed as follows in this connection:- "So
far as it is relevant in the present case, their Lord ships are unable to
accept a suggestion by counsel for the respondents that the Home Minister is
not an officer subordinate to the Governor within the meaning of s.49 (1), and
so far as the decision in Emperor v. Hemendra Prosad Ghoshe (19) I.L.R. (1939)
2 Cal. 411 decides that a Minister is not such an officer their Lordships are
unable to agree with it. While a Minister may have duties to the Legislature,
the provisions of s.51 as to the appointment, payment and dismissal of
Ministers, and s.59 (3) and (4) of the Act of 1935, and the Business Rules made
by virtue of s.59, place beyond doubt that the Home Minister is an officer
subordinate to the Governor".
We find ourselves in complete agreement with
the view taken by the Privy Council. In fact the case of the Privy Council
referred to above was noticed and relied upon by this Court in the case of Rao
288 Shiv Bahadur Singh & Anr. v. The State of Vindhya Pradesh(1) where this
Court observed as follows:- "Clause 9 of section 21 Indian Penal Code
shows that every officer in the service or pay of the Crown for the performance
of any public duty is a 'public servant'. The decision of the Privy Council in
King Emperor v. Sibnath Banerji(2) is decisive to show that a Minister under
the Government of India is 'an officer' subordinate to the Governor. On the
same reasoning there can be no doubt that the Minister of Vindhya Pradesh would
be an 'Officer of the State of Vindhya Pradesh. Therefore, prior to the passing
of ordinance No. XLVIII of 1949 and on the view that the Indian Penal Code with
necessary adaptation mutatis mutandis was in force at least in the Rewa portion
of Vindhya Pradesh (if not in the entirety of Vindhya Pradesh) the first
appellant was a public servant as defined in section 21, Indian Penal Code, as
adapted.
The amendment of the said section brought
about therefore no substantial change in the position of the first
appellant".
In the case of Namdeo Kashinath Aher v. H. G.
Vartak & Anr(3) Deshpande, J. Observed as follows:- "Whatever be the
practical and actual position, the fact remains that it is the Governor who can
accept the resignation of the Ministry or Minister and it is the Governor again
who can dismiss or remove the Minister from office. Under section 3(60) of the General
Clauses Act, 1897, the word 'State Government' has been defined. Clause (c) of
section 3(60) is applicable to the present case and therefore the State
Government is to mean the Governor for the purpose of the present case. The
result therefore is that accused No.1 is a public servant who can be said to be
removable only by the State Government, meaning thereby the Governor, and I do
not find any difficulty in coming to the conclusion that the second requirement
of Section 197, Cr. P.C. also is fully satisfied as far as accused No.1 is
concerned".
289 In the case of S. Tara Singh v. Director
Consolidation of Holdings, Punjab, Jullundur & Ors.(1) the Punjab High
Court took the same view and observed as follows:- "It follows from the
above conclusion that under Article 154 (1) of the Constitution the Governor
may act directly or through his subordinate officers. In the present case he
has acted through the Development Minister. The question arises whether he
could so act.
Obviously the executive authority carries on
the business of the Government and part of this business is the power given to
the State Government under section 42 of the Consolidation Act. Under Article
166 (3) of the Constitution the Governor can allocate this business to any
Minister he likes....... Moreover there can be no doubt that a Minister is
subordinate to the Governor. The Governor is the executive head of the State
and this position he does not share with the Chief Minister or any other
Minister. He allocates his executive duties to various Ministers under Article
166 (3) of the Constitution.
He appoints a Minister albeit on the advice
of the Chief Minister and the Minister holds office during his pleasure.
Therefore it is open to a Governor under the Constitution to dismiss an
individual Minister at his pleasure. In these circumstances there can be no
doubt that a Minister is to be considered as an officer subordinate to the
Governor".
We find ourselves in complete agreement with
the view taken and the reasons given by the Punjab High Court in the aforesaid
case.
To the same effect is a decision of the J
& K High Court in the case of Bakshi Ghulam Mohd. v. G. M. Sadiq &
Ors(2) where Anant Singh, J. observe as follows:- "A Minister of a State
is paid from its public exchequer, and he is paid for doing public duty and, in
my opinion, a Minister is a 'public officer' within the meaning of Sec. 80 as
defined in Sec. 2 (17) (h) of the Civil Procedure Code".
The opinion expressed by the learned Judge is
clearly in consonance with the view that we have taken in this case.
290 Three facts, therefore, have been proved
beyond doubt:-
1. That a Minister is appointed or dismissed
by the Governor and is, therefore, subordinate to him whatever be the nature
and status of his constitutional functions.
2. That a Chief Minister or a Minister gets
salary for the public work done or the public duty performed by him.
3. That the said salary is paid to the Chief
Minister or the Minister from the Government funds.
It is thus incontrovertible, that the holder
of a public office such as the Chief Minister is a public servant in respect of
whom the Constitution provides that he will get his salary from the Government
Treasury so long he holds his office on account of the public service that he
discharges. The salary given to the Chief Minister is coterminous with his
office and is not paid like other constitutional functionaries such as the
President and the Speaker. These facts, therefor, point to one and only one
conclusion and that is that the Chief Minister is in the pay of the Government
and is, therefore, a public servant within the meaning of section 21 (12) of
the Penal Code.
For the reasons given above, we are satisfied
that a Chief Minister or a Minister is undoubtedly a public servant as defined
in section 21(12) (a) of the Penal Code and the view taken by the High Court on
this point was absolutely correct in law. The result is that all the
contentions raised by Mr. Venu Gopal, counsel for the appellant fail and the
appeals are dismissed. The case before the Special Judge will now proceed to
its ultimate end according to law.
N.V.K. Appeals dismissed.
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